BY ACCEPTING THIS AGREEMENT (DEFINED BELOW), EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE, AND ONCE YOU HAVE BEEN ACCEPTED INTO THE PROGRAM BY SOLARWINDS MSP, THIS AGREEMENT WILL FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND SOLARWINDS MSP AND SETS FORTH THE TERMS THAT GOVERN PARTICIPATION IN THE SOLARWINDS MSP SOLUTION PROVIDER PROGRAM,AS OF THE DATE THAT YOU HAVE ACCEPTED THE SAME (EFFECTIVE DATE). YOU ACKNOWLEDGE THAT YOU ARE AUTHORIZED TO BIND YOUR COMPANY, THAT THE COMPANY AGREES TO BE BOUND TO THE TERMS OF THIS AGREEMENT, AND THAT ANY SALE MADE BY YOU OF A SOLARWINDS MSP PRODUCT SHALL BE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK TOACCEPT, DO NOT DOWNLOAD PROMOTIONAL MATERIALS, AND DO NOT MARKET OR SELL ANY SOLARWINDS MSP PRODUCTS.
THIS SOLUTION PROVIDER AGREEMENT (the "Agreement"), is hereby entered into and agreed upon by you, either an individual or an entity, and its Affiliates ("You" or "SolutionProvider") and N-able Canada ULC, and/or N-able UK Ltd("N-able") (collectively referred to as the "Parties" and each a "Party"). Subject to the terms and conditions set forth in this Agreement and acceptance by N-able, Solution Provider will be entitled to participate in the N-able Solution Provider Program (the "Program") and may resell N-able Products (defined below) in accordance with this Agreement.N-able remains free to distribute or resell the N-able Products within the Territory (defined below). This Agreement and any document incorporated herein by reference sets forth the obligations of each Party.
1.1 Affiliates means an entity which controls, is controlled by, or under common control with the relevant party where "controlled" and "control" shall mean ownership of more than fifty percent (50%) of the voting capital stock or other similar majority interest having voting rights with respect to the election of the board of directors or similar governing authority.
1.2 Agreement means this Agreement, the Exhibits, and any other documents incorporated herein.
1.3 Data Processing Addendum means the terms of the N-able data processing addendum, which are incorporated herein by reference, if applicable.
1.4 Distributor means an authorized distributor of the N-able Products as determined by N-able from time to time and is authorized to sell N-able Products and will serve as an intermediary between N-able and its Resellers, Solution Providers or End Users.
1.5 Documentation means user documentation provided by N-able to Solution Provider and/or End User on the use of the N-able Products. For the avoidance of doubt, any installation guide or end user documentation not prepared or provided by N-able or any online community site or feedback does not constitute Documentation.
1.6 End User(s) means the purchasers or licensees who have purchased a license to utilize the N-able Products subject to the terms of the EULA or SSA (as defined herein).
1.7 Order Form means the N-able order page, sales order, subscription form, product information dashboard, or other N-able ordering document that specifies Solution Provider's purchase of the N-able Products, the End User information, applicable pricing, and other related information.
1.8 Personal Data means any information that can be used to identify an individual as that term is defined under Regulation (EU) 2016/679 (General Data Protection Regulation or GDPR).
1.9 Program or Solution Provider Program means the N-able program as outlined in Exhibit A.
1.10 Promotional Materials means any marketing collateral for the N-able Products provided for distribution to prospective End Users by N-able to Solution Provider.
1.11 N-able Marks means the trademarks owned by N-able, some of which may be viewed for reference at: http://www.solarwinds.com/legal/trademarks or any other N-able site.
1.12 N-able Products means the software, services or Support distributed under the N-able Marks, as set forth and described in the N-able current price list, available from N-able or a Distributor. N-able Products may be added to or deleted from the price list by N-able upon prior written notice to Solution Provider. The N-able products include any enhancements, additions, corrections or modifications to such products provided to Solution Provider by N-able and any related Documentation.
1.13 Support means the support provided by N-able for N-able Products.
1.14 Territory means the geographic territory designated and communicated to Solution Provider by N-able.
1.15 Your Data or Data means data, files, or information, including data, files, or information that include Personal Data, accessed, used, communicated, stored, or submitted by You or Your End Users related to Your or Your End User's use of the N-able Products.
2.1 Term. The term of this Agreement shall begin on the Effective Date and shall have the initial term of twelve (12) months and shall automatically renew for additional one (1) year terms thereafter unless terminated earlier in accordance with this Agreement.
2.2 Termination. This Agreement may be terminated prior to the expiration of the applicable term (a) by either Party upon thirty (30) days written notice of termination to the other Party; (b) by either Party upon fifteen (15) days prior written notice for any material default or breach of the terms and conditions of the Agreement by the other Party, unless the defaulting Party has cured such failure or default within such fifteen (15) day period, provided, however, that no such cure period shall be permitted for a breach of the confidentiality provision or for a violation or misappropriation of N-able's intellectual property rights; or (c) by N-able if the Solution Provider becomes insolvent, makes an assignment for the benefit of creditors, files a voluntary petition of bankruptcy, has a receiver for its business or assets appointed for it or becomes subject to any proceeding under any bankruptcy or insolvency law.
2.3 Effect of Termination. If this Agreement is terminated for any reason, the obligations of the Parties under Sections 1, 4.3, 6, 7.2, and 8-17 of this Agreement shall survive such termination. Upon the expiration or any termination of this Agreement for any reason, Solution Provider will immediately (a) cease all promotion and sale of the N-able Products, (b) cease all use of any N-able Marks and any other materials provided to Solution Provider by N-able, including without limitation, the Promotional Materials (c) return or destroy, at N-able' option, all printed materials containing the N-able Marks, including all Documentation and Promotional Materials, (d) pay any and all amounts owed to N-able, and (e) cooperate with N-able in transitioning applicable information and/or relationships of all End Users who purchased N-able Products through Solution Provider to N-able or its designee(s).
3. OBLIGATIONS OF THE PARTIES
3.1 Provision of N-able Products. N-able shall provide Solution Provider and/or End Users with the N-able Products and any services specified in Exhibit A. Solution Provider must use such services during the term of this Agreement or such services shall be forfeited. N-able will permit Solution Provider to resell the N-able Products in the Territory. N-able will provide Support to End Users who purchase the N-able Products from Solution Provider for such N-able Products.
3.2 SolutionProvider Obligations. Subject to this Agreement, Solution Provider shall maintain a competent and aggressive sales force in each Territory for which it distributes N-able Products and shall promote the sale and distribution of N-able Products within the Territory. Solution Provider will use diligent efforts to market and sell the N-able Products, such efforts including but not limited to fulfilling those sales and marketing responsibilities set forth on Exhibit A. In performing its duties hereunder and in any of its dealings with respect to N-able Products, Solution Provider will comply with all applicable international, national, state, regional and local laws and regulations, including without limitation, data protection, data privacy, export control and anti-corruption laws. N-able shall not be responsible for Solution Provider's compliance with applicable laws.
4. LICENSE GRANT
4.1 License for N-able Products. Subject to the terms and conditions of this Agreement, N-able grants to Solution Provider, and Solution Provider accepts, a non-exclusive, non-transferable right during the term of this Agreement to: (a) distribute to End Users, the N-able Products subject to the laws, rules, regulations, terms and conditions, including the End User License Agreement ("EULA") and/or Software Services Agreement ("SSA"), applicable to the N-able Products and the obligations of the Solution Provider; and (b) use, execute and display the N-able Products solely for demonstration purposes, subject to terms of the N-able Demonstration Agreement, as applicable, which is incorporated and attached hereto at Exhibit C. Solution Provider may purchase N-able Products from either N-able or as designated by N-able.
4.2 Promotional Materials. Subject to the terms and conditions of this Agreement, N-able grants Solution Provider, and Solution Provider hereby accepts, a non-exclusive, non-transferable right during the term of this Agreement to reproduce, copy and/or distribute the Promotional Materials as reasonably necessary for Solution Provider to fulfill its promotional obligations under this Agreement; provided, however, that such right does not include the right to copy any third party copyrighted materials identified as such and included in the Promotional Materials. All Promotional Materials shall remain the property of N-able or its licensors, except as they are distributed by Solution Provider to End Users. Solution Provider shall not modify, create derivative works of, or grant a sublicense to the Promotional Materials. Solution Provider acknowledges that the Promotional Materials are protected by intellectual property and other laws and agrees to treat the Promotional Materials in accordance with those laws.
4.3 Retained Rights. Solution Provider's rights in the N-able Products are limited to those license rights expressly granted under this Agreement, and N-able retains all rights not expressly granted hereunder. Except with the prior written consent of N-able, Solution Provider shall not (a) modify the N-able Products in any manner; or (b) use the N-able Products in any manner or for any purpose not specifically permitted by this Agreement (such restriction shall apply, without limitation, to Solution Provider's internal, non-revenue producing or production use). N-able shall own and retain all right, title, and interest in the N-able Products and all intellectual property rights inherent therein, including without limitation all changes and improvements requested or suggested by Solution Provider, notwithstanding any use of terms such as "purchase", "sale" or the like within this Agreement. Solution Provider agrees that its use of the N-able Products will be to facilitate its use of license rights and satisfaction of its obligations under this Agreement. Should Solution Provider use the N-able Products for any other purpose (including Solution Provider's internal or production use), Solution Provider agrees to report such use to N-able, pay the applicable fee (on a pro-rata basis) for any past use and to enter into an agreement to purchase a license for the N-able Products. Any unauthorized use of the N-able Products will be deemed to be a material breach of this Agreement.
5. DISTRIBUTION. Solution Provider shall purchase the N-able Products from N-able or as designated by N-able and resell such products to End Users and pass through the applicable N-able EULA and SSA as provided to Partner by N-able from time to time. The End User shall obtain the right and license to the N-able Products solely from N-able, subject to the applicable EULA and/or SSA.
6.1 License to N-able Marks. N-able grants to Solution Provider a non-exclusive, nontransferable, right and license for the term of this Agreement to use and display the N-able Marks solely in connection with the marketing and distribution of the N-able Products in the Territory, subject to and in accordance with this Agreement and the trademark policies and guidelines established from time to time by N-able in its sole discretion. At no point in time shall Solution Provider use the N-able Marks on any other goods or services aside from the N-able Products, and Solution Provider, if it contemplates any use of the N-able Marks outside of the use contemplated herein, shall obtain prior written approval from N-able. Solution Provider shall not (nor permit a third party to) modify or obscure any N-able Mark or use any N-able Mark in any manner other than as expressly authorized in this Agreement or as otherwise approved in writing by N-able. Solution Provider acknowledges that the N-able Marks are the exclusive property of N-able, and that Solution Provider will not (nor permit any third party) assert any claim of ownership to any N-able Mark, to any domain name containing any N-able Mark, or to the goodwill or reputation symbolized by any N-able Mark, by virtue of Solution Provider's use of the N-able Marks or otherwise. Solution Provider shall not purchase (nor authorize a third party to authorize) Google AdWords, text in advertising, or other search words or terms that include any N-able Marks or any mark likely to be confused therewith. All use of the N-able Marks by Solution Provider under this Agreement will inure solely to the benefit of N-able. Solution Provider will not take any action in derogation of any of the rights of N-able in any N-able Mark.
6.2 Quality Control. All materials including, containing or incorporating the N-able Marks, shall be of good quality and shall satisfy or exceed any applicable governmental and industry standards, regulations, and guidelines regarding such materials. From time to time, Solution Provider will provide any materials in the form to be provided to End Users with the N-able Marks for N-able's quality assurance review. If N-able reasonably disapproves of the quality of the materials, Solution Provider will not distribute, or permit to be distributed, any such materials.
7. REPORTING AND AUDIT.
7.1 Reporting. Solution Provider shall provide to N-able on a monthly basis a report showing the total number of N-able Products distributed by Solution Provider during the preceding month for purposes of N-able's confirmation of the Solution Provider's reports.
7.2 Information; Audits. Solution Provider will keep and maintain commercially reasonable written records and accounts regarding Solution Provider's use and distribution of N-able Products and compliance with this Agreement. N-able, or a certified public accountant designated by N-able, shall have the right, upon ten (10) days written notice to Solution Provider, to conduct an inspection and audit of all relevant facilities and records of Solution Provider. Such audit shall be conducted during regular business hours at Solution Provider's offices and in such manner as not to interfere with Solution Provider's normal business activities. In no event shall audits be conducted hereunder more frequently than once every six (6) months. The audit shall be conducted at N-able's expense; provided, however, that if the audit reveals that Solution Provider has failed to comply with any material term of this Agreement, Solution Provider shall pay all reasonable costs and expenses incurred by N-able in conducting the audit.
8. FEES, INVOICES AND TAXES
8.1 Order Process. Solution Provider agrees to purchase the N-able Products from N-able via an Order Form. Solution Provider agrees to provide all End User information required to complete the purchase, including End User name, address, contact name, e-mail address, and phone number. All Order Forms will be subject to acceptance by N-able through e-mail or other electronic acceptance as N-able periodically specifies. Solution Provider may not cancel or amend an Order Form once it has been received by N-able, and any and all payments made by Solution Provider pursuant to this Agreement are non-refundable.
8.2 Fees. Solution Provider agrees to pay N-able any fees for the N-able Products set forth in the pricelist provided by N-able from time to time, which is incorporated hereinunder the payment terms specified in Section 8.3. All fees are stated in United States Dollars and must be paid by Solution Provider to N-able in United States Dollars, unless otherwise agreed in writing. Any renewal of this Agreement will be at N-able's list prices in effect at the time of renewal.
8.3 Invoice. Solution Provider shall make payment within thirty (30) days of the date of the invoice by wire transfer to the bank account specified by N-able. N-able reserves the right to terminate this Agreement if actual payment has not been received within the aforementioned thirty (30) day period. Any invoice not paid within the aforementioned thirty (30) day period shall be subject to a late fee of two (2) percent per month, or the maximum allowable by law, whichever is less, calculated as of the due date of the invoice. All N-able invoices will be paid in full, and Solution Provider may not withhold payment of any non-disputed amount due to N-able pursuant to any set-off, counter-claim, netting, abatement, or other similar claim or deduction. If Solution Provider believes an invoice is incorrect, Solution Provider must notify N-able of any disputed charges within thirty (30) days of the invoice date containing the amount in question, otherwise such dispute shall be waived and N-able will not be subject to making adjustments or credits.
8.3 Taxes. All fees specified herein are exclusive of any foreign, federal, state, or local sales, foreign excise, use, or similar taxes. Except for taxes relating to N-able's income, Solution Provider agrees to pay all other taxes that, as per applicable laws, are incumbent on the buyer or beneficiary of the products and services provided by N-able to Solution Provider hereunder.
10.1 Solution Provider will indemnify, defend and hold N-able, its Affiliates and its, directors, and employees harmless from and against any and all losses arising from or in connection with (a) the performance of its obligations under this Agreement or a breach of this Agreement, (b) a breach of any and all applicable laws, regulations, rules and federal orders regarding the performance of duties and responsibilities under this Agreement, (c) any allegation that Solution Provider infringed upon or misappropriated any patent, copyright, trademark or other intellectual property right of a third party, (d) infringement or misappropriation of the N-able's intellectual property, or (e) the negligence or intentional misconduct of Solution Provider.
10.2 N-able will indemnify and hold Solution Provider harmless from any third party claim brought against Solution Provider alleging that Solution Provider's authorized use of the N-able Products, as provided by N-able to Solution Provider under this Agreement infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) the use of the N-able Products by Solution Provider is in conformity with the Agreement and Documentation; (ii) the infringement or misappropriation is not caused by modification or alteration of the N-able Products or Documentation; (iii) the infringement or misappropriation was not caused by a combination or use of the N-able Products with products or elements not supplied by N-able; and/or (iv) the infringement or misappropriation is caused by the Solution Provider's negligence or intentional misconduct. This Section states N-able's entire liability (and shall be Solution Provider's sole and exclusive remedy) with respect to indemnification to Solution Provider.
10.3 Promptly after its receipt of notice of the commencement or threatened commencement of any action or proceeding involving a claim in respect of which a party will seek indemnification pursuant to this Agreement (the "Indemnified Party"), the Indemnified Party shall notify the party from which it will seek indemnification pursuant to this Agreement (the "Indemnifying Party") of such claim in writing. No delay or failure to so notify the Indemnifying Party shall relieve it of its obligations under this Agreement, except to the extent that the Indemnifying Party has been harmed by such delay or failure. Within fifteen (15) days after its receipt of written notice from the Indemnified Party, but not later than five (5) days before the date on which any response to a complaint or summons is due, the Indemnifying Party shall notify the Indemnified Party in writing whether the Indemnifying Party wishes to assume the defense of the Indemnified Party. If the Indemnifying Party elects to assume the defense, the Indemnifying Party shall assume sole control over the defense and settlement of the claim; provided, however, that: (i) N-able shall select counsel; (ii) the Indemnifying Party shall keep the Indemnified Party fully apprised at all times as to the status of the defense; (iii) the Indemnified Party shall use commercially reasonable efforts to cooperate with the Indemnifying Party at the Indemnifying Party's reasonable request in defense of the claim, all at the Indemnifying Party's cost and expense; (iv) the Indemnified Party shall have the right to participate in any legal proceeding and to be represented by legal counsel of its choosing, all at the Indemnified Party's cost and expense; (v) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party, which consent shall not be unreasonably withheld, before entering into any settlement of such claim imposing any obligations or restrictions on the Indemnified Party or ceasing to defend against such claim. If the Indemnifying Party does not promptly and diligently assume and maintain control over the defense of a claim subject to indemnification under this Agreement, the Indemnified Party shall have the right to defend, settle or otherwise resolve the claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party.
11. PUBLICITY AND CONFIDENTIALITY.
11.1 As used in this Agreement, Confidential Information means any non-public information or materials disclosed by either Party to the other Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects that the disclosing Party clearly identifies as confidential or proprietary. For clarity, N-able Confidential Information includes the N-able Products, software, and any information or materials relating to the N-able Products, software (including pricing), or otherwise. Confidential Information may also include confidential or proprietary information disclosed to a disclosing Party by a third party. Solution Provider will not disclose, market, or advertise to third parties the terms of this Agreement (including the fees paid hereunder) without the prior written consent of N-able. N-able shall be permitted to reference its relationship with Solution Provider.
11.2 The receiving party will: (i) hold the disclosing party's Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of such Confidential Information to those employees or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of Confidential Information substantially similar to those of this Agreement; and (iii) use Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein. The restrictions will not apply to Confidential Information to the extent it (i) is (or through no fault of the recipient, has become) generally available to the public; (ii) was lawfully received by the receiving party from a third party without such restrictions; (iii) was known to the receiving party without such restrictions prior to receipt from the disclosing party; or (iv) was independently developed by the receiving party without breach of this Agreement or access to or use of the Confidential Information.
11.3 The recipient may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted, of such order and will take reasonable steps to contest or limit the steps of any required disclosure. The parties agree that any material breach of this Section will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to which the applicable party may be entitled.
12 DATA PROTECTION.
12.1. Your Data. N-able and its Affiliates may remove Your Data or any other data, information, or content of data or files used, stored, processed, or otherwise by You or Your End Users that N-able, in its sole discretion, believes to be or is: (a) a virus; (b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene; (c) used for the purpose of spamming, chain letters, or dissemination of objectionable material; (d) used to cause offense, defame, or harass; or (e) infringing the intellectual property rights or any other rights of any third party. You agree that You and Your End Users are responsible for maintaining and protecting backups of Your Data directly or indirectly processed using the N-able Products and that N-able is not responsible for the exportation of, the failure to store, the loss, or the corruption of Your Data.
12.2 Both Parties shall adhere, at all times, to all applicable data protection and privacy laws. You agree that N-able and its Affiliates will process configuration, performance, usage, and consumption data about You and Your End User's use of the Services to assist with the necessary operation and function of the N-able Products and to improve N-able products and services and Your and Your End User's experience with N-able and its Affiliates pursuant to the current N-able Privacy Notice. Each Party acknowledges and agrees that in regard to processing of Personal Data hereunder, each party shall be deemed the data controller and shall determine the purpose and manner in which such Personal Data is or will be processed. Each Party will process Personal Data in accordance with its internal policies and procedures and the Data Processing Addendum attached hereto as Exhibit B. Each Party warrants that it has taken, and will continue to take, appropriate technical and organizational measures designed to ensure an appropriate level of security for Confidential Information and Personal Data. You are responsible for ensuring that the security of the N-able Products is appropriate for Your intended use and the storage, hosting, or processing of Personal Data.
12.3 Without limiting anything in this Section, Solution Provider represents and warrants that it: (a) is legally able to process, disclose, transfer, or provide the Personal Data to N-able or its agents, including having obtained all necessary rights, obligations, or consents from its End Users or any other third party required under applicable law; and (b) will provide evidence of such notice or consents from its End User's and other third parties. Solution Provider warrants and undertakes that any instructions given by Solution Provider to N-able will be in accordance with applicable law and that N-able has the ability to collect, use, process, access, disclose, or otherwise such Personal Data as set forth herein, the Data Processing Addendum, the SSA, or as otherwise designated by Solution Provider or its End Users.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOLARWINDS MSP AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS BE LIABLE TO SOLUTION PROVIDER OR ANY THIRD PARTY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY DAMAGES UNDER THIS AGREEMENT IN EXCESS OF THE AGGREGATE AMOUNTS PAID BY SOLUTION PROVIDER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
14. DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOLARWINDS MSP AND ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS BE LAIBLE TO SOLUTION PROVIDER OR ANY THIRD PARTY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER ECONOMIC DAMAGE, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN
15. WARRANTY. Except as provided in this Agreement, THE SOLARWINDS MSP PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SOLARWINDS MSP (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. SOLARWINDS MSP DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
16. GOVERNING LAW/CONSENT TO JURISDICTION. The validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Solution Provider hereby consents to federal jurisdiction in either state or federal court in the State of Texas. The United Nation's Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Each party irrevocably waives any objection that it may now or hereafter have the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum.
17. GENERAL PROVISIONS
17.1 Notices. All notices hereunder shall be given in writing by hand delivery, courier service, US Mail, or email addressed to the party to whom notice is given, each at their respective addresses set forth in the signature blocks to this Agreement, or at such addresses as may from time to time be designated by either party to the other. Notices must be in writing and are effective upon receipt by either Party at the respective addresses indicated on the first page of this Agreement or at the facsimile numbers set forth below, provided that methods of transmission include but are not limited to certified mail with return receipt requested, or some other method that provides for positive confirmation of delivery within five (5) days.
17.2 Assignment. This Agreement is not assignable by either party in whole or in part without the written consent of the other party except that N-able may assign or transfer this Agreement to any entity or other person controlled by, in control of, or under common control with N-able, or in the event of a merger or a sale of all or a substantial portion of N-able's assets or stock. N-able may subcontract services under this Agreement without the prior approval of Solution Provider; provided, however, that such subcontractor must agree to keep any proprietary information received from N-able confidential.
17.3 Export Responsibilities N-able may supply Solution Provider with technical data that may be subject to export control restrictions. Solution Provider agrees to comply with all applicable laws and regulations, including without limitation, export control laws. N-able shall not be responsible for compliance by Solution Provider with applicable export obligations or requirements for such technical data.
17.4 Headings. The title and paragraph headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
17.5 Severability. If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions shall continue in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated. The Parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
17.6 Waiver. No failure by either party to this Agreement to exercise and no delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder by either party preclude any other or future exercise of any right hereunder by that party.
17.7 Dispute Resolution. Solution Provider satisfaction is an important objective to N-able in performing its obligations under this Agreement. If Solution Provider is not satisfied with the benefits provided by N-able, Solution Provider agrees to give N-able a written description of the problem(s) and to make a good faith effort to amicably resolve the problem with N-able before commencing any proceeding. N-able also agrees to make a good faith effort to amicably resolve any problem with Solution Provider before commencing any proceeding.
17.8 Force Majeure. Neither Party shall be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions or other causes beyond its control. In the event of the occurrence of any of the foregoing, the date of performance shall be deferred for a period of time equal to the time lost by reason of the delay. The affected Party shall notify the other in writing of such events or circumstances promptly upon their occurrence.
17.9 Survival. The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
17.10 Entire Agreement; Amendment. This Agreement, including the Exhibits, constitutes the complete and entire Agreement between the Parties respecting the subject matter and supersedes all previous agreements between the Parties, whether oral or written, regarding the subject matter hereof, including without limitation the terms of any purchase order issued in connection with this Agreement. This Agreement shall not be amended, modified, or superseded except by agreement in writing signed by authorized representatives of each Party.
17.11 Counterparts and Facsimile Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument and Agreement between the Parties. The Parties may exchange signature pages bydelivering a signed, scanned copy by email, and such copy shall be effective to bind the Parties.
17.12 Prevailing Party. In the event of a dispute under this Agreement, the prevailing in the litigation shall be entitled to recover its reasonable attorney's fees from the non-prevailing party.
Solution Provider Program
- Solution Provider will become a Solution Provider of N-able and will receive the rights and privileges of a Solution Provider as listed below.
- From time to time the Parties will agree to conduct a business plan review.
Sales and Marketing In order to support the obligations of the Parties under this Agreement, the parties shall:
- Mutually agree to a sales plan.
- Jointly review the sales plan on a quarterly basis, as deemed necessary by the Parties.
- Jointly designate a primary point of contact to assist in its sale of the N-able Products.
- N-able shall provide Solution Provider with Promotional Materials.
Solution Provider shall at all times maintain a sufficient number of competent sales and marketing representatives trained and knowledgeable about the N-able Products, capable of answering questions regarding the N-able Products, demonstrating the N-able Products, informing others about the N-able Products' features, assisting End Users in determining which N-able Products will best meet their needs.
- Solution Provider shall use reasonable efforts to participate in training programs that may be offered by N-able from time to time.
- Solution Provider shall follow the Deal Registration Guidelines, incorporated herein by reference, if they want to leverage the N-able deal registration process.
Discount for Products
N-able will invoice Solution Provider at approved percentage of the net selling price or N-able Products. N-able reserves the right to change this percentage from time to time upon N-able's sole discretion and prior written notice to Solution Provider.
Solution Provider Report should contain the following information regarding the N-able Products ordered including:
- Product Description
- Quantities requested
- Delivery Dates
- Shipping instructions (when necessary)
- End User Information including
- Company Name
- Company Contact Name
- E-mail address
- Phone number
- Facsimile number
- N-able End User Identification number
The current price list to be provided by N-able and shall automatically be incorporated into part of this Exhibit.
Please contact N-able for wiring details if required.
Data Processing Addendum
This Data Protection Addendum ("Addendum") forms part of the underlying Solution Provider Agreement ("Agreement") between Solution Provider and N-able.
The terms used in this Addendum will have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein will have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement will remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below will be added as an Addendum to the Agreement.1. Definitions 1.1 In this Addendum, the following terms will have the meanings set out below will: 1.1.1 Controller, Data Subject, Personal Data, Personal Data Breach, Process/Processing, Processor, and Special Categories of Personal Data will have the same meaning as defined in the EU Data Protection Laws; 1.1.2 Affiliatemeans an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either N-able or Vendor (as the context allows), where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise; 1.1.3 Applicable Data Protection Law(s) means the privacy and data protection laws, regulations, and decisions applicable to a party to this DPA, including without limitation the EU Data Protection Laws; 1.1.4 Data Subject Request means a request from a Data Subject to exercise any right under Applicable Protection Laws; 1.1.5 EEA means the European Economic Area, and unless otherwise indicated, EEA or Member States of the EEA will continue to include the United Kingdom after it exits the European Union; 1.1.6 EU Data Protection Laws will mean the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and Directive 2002/58/EC (ePrivacy), in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union; 1.1.7 EU Restricted Transfermeans a transfer of EU Personal Data from Discloser to Recipient, to a jurisdiction outside of the EEA which is not deemed to have "adequate safeguards" as set forth under GDPR, Art. 45(1) (or any succeeding legislation of the United Kingdom upon its exit from the European Union); 1.1.8 N-able Products means the software, services, or support services provided by N-able to its end users; 1.1.9 Standard Contractual Clausesmeans (i) the standard contractual clauses for the transfer of personal data to controllers established in third countries which do not ensure an adequate level of protection as set out in Commission Decision C(2004)5721, as updated, amended, replaced or superseded from time to time by the European Commission, or (ii) any other contractual clauses or other mechanism approved by a Supervisory Authority or by Applicable Data Protection Laws for use in respect of an EU Restricted Transfer or other restricted transfer, as updated, amended, replaced or superseded from time to time by such Supervisory Authority or Applicable Data Protection Laws; and, 1.1.10 Supervisory Authoritymeans (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Applicable Data Protection Laws. 2. Controllers 2.1 The parties acknowledge that each will act as a separate Controller in relation to the Personal Data that they Process. 2.2 The parties will each comply with their respective obligations under Applicable Data Protection Laws in respect of their processing of Personal Data. 3. Disclosing Personal Data
Where acting as a discloser of Personal Data ("Discloser") to the receiving party ("Recipient"), each party will:3.1 only disclose Personal Data for one or more purposes which are consistent with the terms of the Agreement ("Permitted Purposes"); 3.2 ensure that it has (i) a notice available and will continue to be accessible to the relevant Data Subject(s) informing them that their Personal Data will be disclosed to the Recipient or to a category of third party describing the Recipient, and (ii) obtained any necessary consents or authorisations required to permit the Recipient to freely Process the Personal Data for the Permitted Purposes; 3.3 be responsible for the security of any Personal Data in transmission from the Discloser to the Recipient (or otherwise in the possession of the Discloser); and 3.4 not disclose any Special Categories of Personal Data to the Recipient. 4. Processing Personal Data Where acting as a Recipient, each party will: 4.1 not Process Personal Data in a way that is incompatible with the Permitted Purposes (other than to comply with a requirement of Applicable Data Protection Law to which Recipient is subject); 4.2 not Process Personal Data for longer than is necessary to carry out the Permitted Purposes (other than to comply with a requirement of Applicable Data Protection Law to which Recipient is subject); and 4.3 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, have in place appropriate technical and organisational security measures to protect the Personal Data against unauthorized or unlawful Processing, or accidental loss or destruction or damage. 5. Personal Data Breaches 5.1 The Recipient will notify Discloser without undue delay following any Personal Data Breach involving the Personal Data. 5.2 Following a Personal Data Breach involving the Personal Data, each party will co-operate with the other, to the extent reasonably requested, in relation to any notifications to Supervisory Authorities or to Data Subjects that are required by Applicable Data Protection Law. 6. Further Co-operation and Assistance Each party will co-operate with the other, to the extent reasonably requested, in relation to any Data Subject Requests, any other communication from a Data Subject concerning the Processing of their Personal Data, and any communication from a Supervisory Authority concerning the Processing of Personal Data or compliance with Applicable Data Protection Laws. 7. Description of Personal Data The parties acknowledge that the Personal Data may include the following (i) categories of personal data: name, title, contact details, industry, and company details; (ii) are related to the following types of data subjects: business contacts of former, current and prospective business customers, and (iii) are disclosed and transferred for the purposes stated in the Agreement, including: enhancing business contact information, facilitating joint-marketing and sales efforts, providing qualified leads to Recipient. 8. Restricted Transfers 8.1 EU Restricted Transfers. N-able has certified its adherence to the EU-US Privacy Shield Program administered by the US Department of Commerce and will Process the Personal Data in compliance the EU-US Privacy Shield Principles. With respect to any Restricted Transfers to Vendor, the parties hereby enter into the Standard Contractual Clauses, which are incorporated by reference into this Addendum as follows: 8.1.1 N-able, for itself and its relevant Affiliates, is the "data exporter" and Vendor and its relevant Affiliates are the "data importers", and both parties have the authority to enter into the Standard Contractual Clauses for themselves and their respective relevant Affiliates. 8.1.2 For the purposes of Clause II(h) of the Standard Contractual Clauses, the Parties shall be deemed to have selected option (iii). Annex 2 to the Standard Contractual Clauses shall be deemed to be prepopulated with the relevant information in Section 7 of this Addendum, and the following contact information: (a) data exporter: N-able, Legal, [email protected]; and (b) data importer: Solution Provider Contact Details. 8.2 Other Restricted Transfers. The parties shall utilize commercially reasonable efforts to comply with the obligations set forth in the Applicable Laws necessary in order to complete restricted transfers in any other jurisdiction. 9. Governing Law and Jurisdiction Without prejudice to Clause IV of the EU Standard Contractual Clauses: 9.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and 9.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
N-able Demonstration Agreement (Solution Provider)
This Demonstration Agreement ("Agreement") is between N-able UK Ltd and/ or N-able Canada ULC ("N-able") and the user ("Solution Provider") of N-able Products (defined below). Upon acceptance of this Agreement and compliance with the terms and conditions herein, N-able will provide Solution Provider one copy of the N-able Product. The demonstration will begin on the date that Solution Provider accepts this Agreement and will automatically expire upon the termination of the partnership between the Parties and in no event longer than a period of one (1) year or as otherwise agreed upon by the parties in the applicable order page, product information dashboard, or other N-able ordering document ("Order Form") that specifies the N-able Product, pricing, and other applicable information (the "Demonstration Period").
1. License Grant.
N-able Products. Subject to the terms and conditions of this Agreement, N-able grants to Solution Provider, and Solution Provider accepts a limited, revocable, non-exclusive, non-transferable right during the Demonstration Period to use the N-able products identified on the applicable Order Form ("N-able Product(s)") solely for demonstration, promotional, and other business development efforts subject to the terms and conditions herein, including the terms and conditions of the End User License Agreement or Software Services Agreement as applicable which is incorporated herein by reference and agreed to by Solution Provider upon download or sign up ("EULA") for the N-able Products. Solution Provider shall not (a) use N-able Products to provide managed services to another party; (b) sell, lease, sublicense, assign or transfer N-able Product licenses to any other party; or (c) use the N-able Products in a production, live or revenue generating environment.
Should Solution Provider use the N-able Products for any other purpose (including Solution Provider 's internal or production use), Solution Provider agrees to report such use to N-able, pay the applicable fee (on a pro-rata basis) for any past use, and to enter into an agreement to purchase a license or subscription for the N-able Products.
2. Warranty, Liability. SOLARWINDS DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO THE SOLARWINDS PRODUCTS PROVIDED UNDER THIS AGREEMENT. THE SOLARWINDS PRODUCTS, SOLARWINDS MARKS, AND PROMOTIONAL MATERIALS ARE PROVIDED TO Solution Provider "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SOLARWINDS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. IN ALL EVENTS AND CIRCUMSTANCES SOLARWINDS' TOTAL AGGREGATE LIABILITY INCURRED IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE PARTNER'S DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PARTNER PAID SOLARWINDS UNDER THIS AGREEMENT. Solution Provider ACKNOWLEDGES AND AGREES THAT IN NO EVENT WHATSOEVER WILL SOLARWINDS HAVE LIABILITY OF ANY KIND FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES.
3. Indemnification. Solution Provider will indemnify and defend N-able against any claims, actions, or demands relating to Solution Provider's breach of this Agreement.
4. Governing Law/Consent to Jurisdiction. The validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Solution Provider hereby consents to federal jurisdiction in either state or federal court in Texas.
5. Compliance with Laws. N-able may supply Solution Provider with technical data that may be subject to export control restrictions or other applicable laws. N-able shall not be responsible for compliance by Solution Provider with applicable export obligations or requirements for such technical data. Solution Provider agrees to comply with all applicable export control restrictions, and Solution Provider agrees to further comply with all applicable laws in the performance of its obligations under this Agreement.
6. Complete Agreement. The terms and conditions of this Agreement are supplemental to the Solution Provider Agreement, between the parties and should be read in conjunction with the same. In the event of a conflict or inconsistency, the order of precedence shall be as follows: (a) this Agreement, (b) the EULA, and (c) the applicable Solution Provider Agreement. N-able may immediately terminate Solution Provider's right to purchase licenses or Solution Provider's use of N-able Products for violation of this Agreement, the EULA, or the applicable Solution Provider Agreement. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.
7. Survival. Any provision of this Agreement, which may reasonably be expected to survive its termination, including but not limited to, Warranty; Liability; Indemnification; Governing Law/Consent to Jurisdiction; Compliance with Laws; and Complete Agreement, shall survive the termination of this Agreement.