This Subscription Agreement (the “Agreement”) is between SolarWinds N-able Technologies, Inc. (“N-able”) and any purchaser or user (“Partner”) of SolarWinds N-able products and services that accepts the terms of this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING SolarWinds N-able PRODUCTS AND SERVICES. BY USING OR PURCHASING SolarWinds N-able PRODUCTS OR SERVICES, PARTNER ACKNOWLEDGES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF PARTNER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE OR PURCHASE THE SolarWinds N-able PRODUCTS AND SERVICES.
The Effective Date of this Agreement is the earlier of the date that Partner accepts this Agreement or the date that Partner uses SolarWinds N-able products or services.
When used in these general terms and conditions (“General Terms and Conditions”), the following capitalized terms (or in the case of the defined terms “software” and “Software”, with or without initial capitalization as noted) have the following meanings:
“Intellectual Property” or “Intellectual Property Rights” means all world-wide intellectual and industrial property created, developed or reduced to practice by a party including, without limitation, software, compilations of data and computer databases, algorithms, business and technical rules, specifications, methodologies, templates, techniques, designs and industrial designs, know-how, confidential information, works of authorship, mask works and integrated circuit topographies, inventions and improvements, copyrights, copyright registration applications, copyright registrations, trademarks, trademark registration applications, trademark registrations, patents, inventions, discoveries, patent applications, industrial works, trade secrets, rights of publicity, rights of privacy, moral rights, goodwill, and all other intellectual property rights.
“Installed Systems” means the number of Systems on which Partner installs or executes the Software. The initial number of Installed Systems is the number of copies of the Software that Partner purchases.
“Managed Services” means the managed application and computer services, which may be provided by Partner to one or more of Partner’s Customers, using the Software and Services and any Third Party Products supplied under the Agreement, all in accordance with the terms and conditions applicable to Partner pursuant to the Agreement.
“Managed Services Agreement” means an agreement between Partner and Partner’s Customer pursuant to which Partner provides Managed Services to such Partner’s Customer.
“N-Central” is the collection of services and technology related to software that remotely manages software and hardware and the delivery of software services to assist Managed Service providers in managing End Users environments.
“Order Form” means the purchase order between SolarWinds N-able and Partner of which these General Terms and Conditions form an integral part.
“Partner” means the partner, in the case of a Managed Service Provider, or client, in the case of an enterprise named in the Purchase Order, of which these General Terms and Conditions form an integral part.
“Partner’s Customer” or “Customer” means an individual or entity (a) that obtains a license to use the licensed Software and Services from Partner in accordance with the Agreement and (b) that may receive Managed Services.
“Partner Program(s)” means the partner program in which Partner is registered and is offered by SolarWinds N-able to Partners in order to allow the use of the SolarWinds N-able Products and Services, as may be amended from time to time.
“Platform” means the combination of the CPU and other hardware a computer system uses, its exact operating system including the version number, the compiler required, the type of libraries (e.g. libc, glibc), and the type of crypto library available (e.g. libcrypt, pam). Changes to these components, which may break binary compatibility or prohibit functioning (including recompiling) of software, unless modified by SolarWinds N-able, constitute a different platform and may disqualify it from receiving Support Services. Should a platform be discontinued during the term of this Agreement, SolarWinds N-able will have the option to continue supporting Partner on that platform.
“Services” means all services provided by SolarWinds N-able to Partner pursuant to the Agreement, including without limitation the Support Services, any installation services, training services, and any consulting and technical services to be provided by SolarWinds N-able to Partner.
“Software” means the object code version of the SolarWinds N-able software listed in the Purchase Order and licensed to the Partner pursuant to the Agreement.
“Software Documentation” means the materials describing the function, features, operation and use of the Software licensed to the Partner pursuant to the Agreement, which are made generally available to SolarWinds N-able’s Partners.
“Support Services” means the technical support services provided with the purchased subscription as further defined in this Agreement.
“Supported Hardware or Platform” means hardware or a platform that functions with the Software and components contemplated for use with the Software. Information regarding the SolarWinds N-able’s supportability status of hardware systems and components, as revised from time to time, which can be found on the Requirements tab at http://www.n-able.com/products/n-central/ and http://www.n-able.com/products/report_manager/. Additional SolarWinds N-able support policies that apply to the Support Services may be viewed at http://www.n-able.com/support/service-level-overview.aspx.
“System” means any hardware on which the Software is installed, which may be, without limitation, a server, a work station, a virtual machine, a blade, a partition or an engine, as applicable.
“Third-Party Product” means any software, hardware or documentation that is not owned by SolarWinds N-ablewhether supplied by SolarWinds N-able or a third-party.
“Third Party Software” means a Third Party Product that is software.
- GENERAL TERMS AND CONDITIONS
- TERM AND TERMINATION
1.1 Term. The term of this Agreement shall be for the duration of all Services provided under this Agreement. The initial term for Services shall commence on the Effective Date of this Agreement and shall continue for a period of one (1) year, unless a different term is specified in the Order Form. Thereafter, the term for Services shall renew for successive terms of one (1) year each unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the commencement of the next term. Partner shall remain obligated for all fees through the date of termination.
1.2 Termination for Breach. SolarWinds N-able may terminate this Agreement (a) in the event Partner fails to pay an invoice when due, (b) in the event Partner commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of written notice of material breach, or (c) as otherwise provided in this Agreement. Partner may terminate this Agreement in the event SolarWinds N-able commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of written notice of material breach.
- PRICING, INVOICING AND TAXES. SolarWinds N-able will invoice Partner for the fees as designated in the Order Form at the time of execution of this Agreement, and payment shall be due within fifteen (15) days of the invoice date. Any subsequent fees shall be due within fifteen (15) days of the applicable invoice date. SolarWinds N-able reserves the right to suspend or cancel Services for non-payment. All fees are stated and must be paid in the currency designated in the Order Form. If Partner is paying by credit card, then Partner authorizes SolarWinds N-able to bill Partner’s credit card for the Software and Services for the initial term and for the amount(s) due at the time of renewal. All prices and rates quoted by SolarWinds N-able are exclusive of any foreign, federal, state, or local sales, foreign excise, use, or similar taxes. Partner agrees to pay all such taxes, when applicable, regardless of whether such taxes are originally charged on Partner’s credit card or appear on SolarWinds N-able’s original invoice, or are later levied on SolarWinds N-able or Partner by a taxing authority, excluding any taxes levied solely on the net taxable income of SolarWinds N-able. Any renewal of this Agreement will be at SolarWinds N-able’s list prices in effect at the time of the renewal.
- PAYMENT. Any and all payments of amounts due under this Agreement are non-refundable. In the event Partner fails to make payment to SolarWinds N-able in the manner provided by this Agreement, SolarWinds N-able remedies include (a) suspending Services until SolarWinds N-able receives full payment from Partner for all fees, including late fees and interest, due, or (b) terminating this Agreement without notice.
- REPORTING AND AUDIT. Upon SolarWinds N-able reasonable request, Partner shall submit a report in the format reasonably specified by SolarWinds N-able, showing the number of Partner’s Customers that are using the Software and Services as well as the number of units of the Software provided by Partner to Partner’s Customers and their respective end users, together with such other details as may be reasonably required by SolarWinds N-able. Any such report shall be delivered to SolarWinds N-able within thirty (30) days following the date of such request. In addition, during the term of this Agreement and for one (1) year thereafter, Partner expressly grants to SolarWinds N-able the right to audit Partner’s facilities and records from time to time in order to verify Partner’s compliance with the terms and conditions of this Agreement. Any such audit shall only take place during Partner’s normal business hours and upon no less than ten (10) days prior written notice from SolarWinds N-able. SolarWinds N-able shall conduct no more than one such audit in any twelve-month period except for the express purpose of assuring compliance by Partner where non-compliance has been established in a prior audit. SolarWinds N-able shall give Partner written notice of any non-compliance, and if a payment deficiency exists, then Partner shall have fifteen (15) days from the date of such notice to make payment to SolarWinds N-able for any payment deficiency. The amount of the payment deficiency will be determined by multiplying the number of underreported by the annual fee for such item. If Partner is found to have underreported the number its use of the software and/or services by more than five percent (5%), Partner shall, in addition to the annual fee for such item, pay liquidated damages equal to twenty percent (20%) of the underreported fees for loss of income and administration costs suffered by SolarWinds N-able as a result.
- WARRANTY. If any portion of the Software is found to infringe any third party intellectual property rights, and Partner has registered the software with SolarWinds N-able, SolarWinds N-able will, at its expense and option: (i) obtain the right for Partner to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component. To the maximum extent permitted by applicable law, except as specifically stated in this Agreement, THE SOFTWARE AND SERVICES, ARE PROVIDED AND LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SolarWinds N-able DOES NOT GUARANTEE THAT THE USE OF THE SOFTWARE, SERVICES, OR THE PROXY SERVER, SATELLITE, OR THE SolarWinds N-able CODE (EACH AS DEFINED HEREIN) WILL NOT BE INTERRUPTED OR ERROR FREE.
- LIMITATION OF LIABILITY. Neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control. To the maximum extent permitted by applicable law, IN NO EVENT WILL SolarWinds N-ableBE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR SolarWinds N-able PERFORMANCE INCLUDING WITHOUT LIMITATION (A) THE SOFTWARE, THE SERVICES, ANY HARDWARE, OR THE SOFTWARE CODE; (B) ANY INTERRUPTION OF USE OF SERVICES, OR THE SOFTWARE; OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF DATA, EVEN IF SolarWinds N-able HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SolarWinds N-able’S LIABILITY HEREUNDER EXCEED THE AMOUNT THAT PARTNER PAID TO SolarWinds N-able UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE MONTHS.
- ENTIRE AGREEMENT. This Agreement shall constitute the exclusive terms and conditions with respect to the purchase of Software and Services under this Agreement by Partner from SolarWinds N-able, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Partner in such transactions. This Agreement contains the final, complete and exclusive statement of the agreement between the parties with respect to the transactions contemplated herein and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter herein are merged herein including any subscription descriptions and subscription purchase terms. This Agreement may not be amended, supplemented or modified (or any right or power granted hereunder waived) except by written instrument signed by authorized officers of the parties hereto (or in the case of a waiver, signed by the party to be bound), which instrument makes specific reference to this Agreement.
8.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Texas, U.S.A., without regard to choice of law provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. The parties each agree that they are subject to the personal jurisdiction of the state and federal courts within the State of Texas, and each waives the right to challenge the personal jurisdiction of those courts over it. 8.2 Each party warrants that the person signing or accepting this Agreement is authorized to bind said party. 8.3 If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.8.4 Failure or delay on the part of any party to exercise any right, remedy, power or privilege hereunder will not operate as a waiver. 8.5 Any provision of this Agreement which may be reasonably expected to survive the termination of this Agreement, including, but not limited to, the sections entitled Warranty and Limitation of Liability, shall survive such termination. 8.6 SolarWinds N-able may supply Partner with technical data that is subject to export control restrictions. SolarWinds N-able will not be responsible for compliance by Partner with applicable export restrictions or obligations for such technical data. Each party agrees to comply with any applicable export control laws or regulations. 8.7 Any notice to be given pursuant to this Agreement, including any notice of change of address for notice, shall be deemed given when sent to SolarWinds Worldwide, LLC, Attn: General Counsel, 3711 South MoPac Expressway, Building Two, Austin, Texas 78746 and to Partner at the address or facsimile number indicated at the time of purchase: (a) three (3) business days after being deposited with the U.S. Postal Service, postage prepaid, first class, certified, return receipt requested; (b) upon receipt when delivered in person; (c) two (2) business days after being deposited with a reputable international overnight delivery service; or (d) one (1) business day after being transmitted by facsimile with confirmation of delivery to the number for such party set forth in this Agreement. 8.8 In the event of a dispute between the parties regarding payment under this Agreement, the non-prevailing party shall pay the reasonable attorney’s fees of the prevailing party.
- SUPPORT SERVICES
- PARTNER OBLIGATIONS
1.1 Entitlement. In order to access and utilize Support Services, Partner will be required to provide SolarWinds N-able with its Partner number, SolarWinds N-able machine name or SolarWinds N-able system ID at the time of initiating the Support Service
1.2 Partner’s Computer System. Partner will be responsible for performing operations on Partner’s computer system and SolarWinds N-ableshall have no responsibility to perform operations on Partner’s computer system. Partner acknowledges that SolarWinds N-able’s ability to perform certain Support Services may be conditioned upon access to certain Partner information and access to Partner’s computer system as reasonably requested byN-able. Such information may include, but is not limited to, the type of hardware Partner is using, a description of the problem for which Partner seeks Support Services, and additional software Partner is using that falls outside the Support Services scope of coverage. Partner understands and agrees that the completeness and accuracy of the information Partner provides to SolarWinds N-able may affect SolarWinds N-able’s ability to provide Support Services. The Support Services purchased by Partner are intended for use only for the benefit of the Partner and only for the Installed Systems with subscriptions. Partner may not use one subscription for Services for more than one Installed System. Any unauthorized use of the Services will be deemed to be a material breach of this Agreement.
1.3 Designated Partner Contact. SolarWinds N-able will provide Support Services to Partner only by communication with the Partner’s designated technical contact or contacts (the “Contact”). Partner shall use commercially reasonable efforts to maintain consistent Contacts during the term of this Agreement. Partner may not use a single Contact to act as a mere forwarding service for other personnel. The Contact may not use Support Services on the basis of this Agreement to benefit any person or entity other than the Partner. Each Contact must have read and/or write access to all necessary files. Each Contact must have English language communication skills and the relevant technical knowledge necessary to assist SolarWinds N-able in performing the Support Services contemplated under this Agreement. This knowledge includes familiarity with the Software and the Supported Hardware or Platform.
1.4 Support Portal. Partner may initiate Support Service requests through the web-based support portal located at SolarWinds N-able main web site, https://nrc.n-able.com/_layouts/nrcLogin.aspx?ReturnUrl=%2fsupport%2fpages%2fcasemanagement.aspx. The Contact(s) are entitled to open a secure login to the support portal and use the ticket manager application to submit a Support Service request for any covered Support Service. Each submitted Support Service request is given a unique identification number. Support Services logged through the support portal are managed using the English language.
- Response Guidelines. A response to a request for Support Services shall consist of receipt of and acknowledgment by SolarWinds N-able of Partner’s request for Support Services. SolarWinds N-able will use commercially reasonable efforts to provide a response within the response guideline period set forth in the table below during standard business hours and days as set forth in the table below, exclusive of SolarWinds N-able holidays. Partner acknowledges that a response may not include resolution for all requests for Support Services. SolarWinds N-able will use commercially reasonable efforts to provide answers and resolve Partner’s requests for Support Services. However, Partner acknowledges and understands that no software is perfect or error free and that, despite SolarWinds N-able commercially reasonable efforts, SolarWinds N-able may be unable to provide answers to or resolve some or all requests for Support Services. SolarWinds N-able makes no promises, guarantees, or assurances of any kind that it will be able to resolve all Partner Support Services requests.
|Severity Type||Response Time|
* 24 hours a day 7 days a week 365 days a year.
** 8:30 – 21:00 ET Monday to Friday except during statutory holidays.
- Support Service Conditions. SolarWinds N-able may, at its discretion, decline to provide Support Services for Software that has been modified or changed by Partner in any way, except as directed by SolarWinds N-able. SolarWinds N-able will provide Support Services for Supported Hardware and Platforms only. SolarWinds N-able will only provide Support Services for those Installed Systems for which Partner has subscribed under this Agreement.