N-able

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N‑able Reseller Agreement

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 N-ABLE, THIS AGREEMENT WILL FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND N-ABLE AND SETS FORTH THE TERMS THAT GOVERN PARTICIPATION IN THE N-ABLE RESELLER 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 N-ABLE PRODUCT SHALL BE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. N-ABLE MAY REVISE AND UPDATE THE TERMS AND CONDITIONS OF THIS AGREEMENT FROM TIME TO TIME, INCLUDING TERMS AND CONDITIONS AND OTHER DOCUMENTS THAT ARE INCORPORATED IN THE AGREEMENT BY REFERENCE. N-ABLE WILL MAKE SUCH REVISED AND UPDATED VERSIONS OF THE AGREEMENT AVAILABLE ON N-ABLE’S WEBSITE, OR OTHERWISE PROVIDE YOU NOTICE OF THEM, AND YOUR CONTINUED USE OF THE SOFTWARE SHALL REPRESENT YOUR ACCEPTANCE OF AND AGREEMENT TO THE THEN-CURRENT TERMS AND CONDITIONS OF THE AGREEMENT. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. YOU AGREE THAT YOU WILL FREQUENTLY CHECK THE N-ABLE WEBSITE FOR ANY REVISIONS AND UPDATES TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK TO ACCEPT, DO NOT DOWNLOAD OR USE N-ABLE CONTENT, AND DO NOT MARKET OR SELL ANY N-ABLE PRODUCTS.

THIS RESELLER AGREEMENT (the “Agreement”), is hereby entered into and agreed upon by you, either an individual or an entity, and your Affiliates (“You” or “Reseller”) and N‑able Solutions ULC, and/or N‑able Technologies 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, Reseller will be entitled to participate in the N‑able Reseller Program (the “Program”) and may resell N‑able Services (defined below) in accordance with this Agreement. N‑able remains free to distribute or resell the N‑able Services within the Territory (defined below). This Agreement and any document incorporated in this Agreement by reference sets forth the obligations of each Party.

1. DEFINITIONS

“Affiliate” means an entity controlled by, under common control with, or controlling such entity, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the entity.

“Agreement” means this Agreement, the exhibits, and any other documents incorporated in this Agreement.

“Applicable Laws” mean all federal, foreign, provincial, state and local laws, statutes, regulations, rules, executive orders, supervisory requirements, directives, interpretive letters and other official releases of any Governmental Authority, in each case as amended, consolidated, supplemented or replaced from time to time.

“Data Processing Addendum” means the terms of the data processing addendum attached to this Agreement as Exhibit B.

“Distributor” means an entity authorized by N‑able to distribute the Services in the Territory.

“Documentation” means user documentation provided by N‑able to Reseller and/or End User on the use of the N‑able Services. 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.

“End User(s)” means the purchasers or licensees who have purchased a license to utilize the N‑able Services subject to the terms of the Software Services Agreement.

“Governmental Authority” means any federal, provincial, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau or entity or any arbitrator with authority to bind a Party at law.

“N‑able Content” means, if applicable, N able marketing documents and other content that are made available by N able online or otherwise from time to time for Resellers to use in connection with selling the Services to End-Users.

“N‑able Documentation” means the then-current official user documentation prepared and provided by N‑able to Reseller on the use of the Services or software (as N‑able may update from time to time). For the avoidance of doubt, any online community site; unofficial documentation, videos, white papers, or related media; or feedback do not constitute N‑able Documentation.

“N‑able Marks” means the trademarks, service marks, and other proprietary trade designations owned by N‑able or its Affiliates, both registered and unregistered, now or hereafter in force and effect worldwide, which N‑able specifically approves for Resellers to use in connection with selling the Services to End-Users.

“N‑able Services or Services” mean the N‑able products and service lines distributed under the N‑able marks, as set forth in the N‑able then-current price list, made available by N‑able to Reseller. The Services include any enhancements, additions, corrections, or modifications to such Services and any related N‑able Documentation. Such Services, or components thereof, including pricing, may be updated, removed, or revised from time to time by N‑able.

“N‑able Support or Support” means the support services provided by N‑able for the Services in accordance with the Software Services Agreement.

“Order Form” means the N‑able order page, sales order, subscription form, product information dashboard, or other N‑able ordering document that specifies Reseller’s purchase of the N‑able Services, the End User information, applicable pricing, and other related information.

“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).

“Program or Reseller Program” means the N‑able program as outlined in Exhibit A.

“Software Services Agreement” means the then-current N‑able software services agreement or end user license agreement between N‑able and the End-User, the terms of which shall govern the use of the Services and which N‑able may revise from time to time. The Software Services Agreement must be accepted by End-User prior to accessing or using the Services.

“Territory” means the geographic territory designated and communicated to Reseller by N‑able.

“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 Services.

2. TERM AND TERMINATION

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 at any time by notice in writing: (a) by either Party, without cause and for the terminating party’s convenience, upon thirty (30) days prior written notice; (b) by either Party, upon fifteen (15) days prior written notice, for any material default or breach of the terms and conditions of this Agreement by the other Party, unless the defaulting party has cured such failure or default within such fifteen (15) day period; (c) immediately by N‑able: (i) for a breach of Section 5 (Intellectual Property) or Section 9 (Data; Data protection) of this Agreement or if Reseller infringes or misappropriates N‑able’s (or its Affiliates’) intellectual property; (ii) if Reseller 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; (iii) if Reseller undergoes a change of control (as determined by reference to the ultimate parent entity), which involves a sale to a competitor (including an affiliate of a competitor) of N‑able or, which in N‑able’s sole opinion, may be detrimental to its business; or (iv) pursuant to or in compliance with Applicable Law or the receipt of a subpoena, court order, or other request by a law enforcement agency.

2.3 Effect of Termination. Any termination of this Agreement shall not relieve either Party from any obligations hereunder due and owing prior to termination of this Agreement, including payment of any outstanding fees owed to N‑able. Except as set forth in the preceding sentence, neither Party shall have any liability to the other Party as a result of a Party’s termination of this Agreement for a Party’s convenience as set forth in Section 2.2(a). Upon the expiration or any termination of this Agreement, Reseller will immediately (a) cease all promotion, advertising, and sale of the Services; (b) cease all use of any N‑able Marks; (c) cease to invoice End-Users for Services provided beyond the date of termination; and (d) return or destroy, at N‑able’s option, all confidential information, including all N‑able Documentation and N‑able Content in possession of Reseller. You further acknowledge and agree that You will retrieve Your Data or copies of Your Data from N‑able within five (5) business days of the termination of this Agreement. Unless in accordance with our internal policies or contractual, legal, or other obligation, You acknowledge and agree that N‑able has the right to delete Your Data, including any and all copies thereof. Your Data, once deleted, will not be able to be recovered. Upon the effective date of termination, N‑able shall have the right to assume some or all rights and responsibilities of Reseller with respect to Reseller’s End-Users, and shall have the right to assign some or all of such rights and responsibilities to a third party. Reseller will assist with transferring End-User accounts or adjusting End-User settings as necessary or requested by N‑able. Sections 1 (Definitions), 2.3 (Effect of Termination), 5 (Intellectual Property), 6.2 (Fees), 6.4 (Taxes), 7 (Indemnity), 8 (Confidentiality; Publicity), 9 (Data; Data Protection), 10 (Disclaimer of Damages), 12 (Governing Law/Consent to Jurisdiction), and 13 (General), shall survive any termination or expiration of this Agreement, along with any other provisions which by their express terms do survive or by their nature should survive.

3. OBLIGATIONS OF THE PARTIES

3.1 Provision of N‑able Services. N‑able shall provide Reseller and/or End Users with the N‑able Services and any services specified in Exhibit A. Reseller must use such services during the term of this Agreement or such services shall be forfeited. N‑able will permit Reseller to resell the N‑able Services in the Territory. N‑able will provide N‑able Support to End Users who purchase the N‑able Services from Reseller. N‑able, in its sole discretion, shall be entitled to: (a) refuse to provide or cease the provision of the Services to any End-User for any reason and at any time; (b) discontinue, exclude, revise, or upgrade one or more of the Services; and (c) allow its Affiliates and agents to perform its obligations under this Agreement. N-Able will be liable for any such Affiliates’ or agents’ performance or non-performance of such obligations to the same extent N‑able is liable for the performance or non-performance of its own obligations under this Agreement.

3.2 Reseller Obligations.

3.2.1 Subject to this Agreement, Reseller shall maintain a competent and aggressive sales force in each Territory for which it distributes N‑able Services and shall promote the sale and distribution of N‑able Services within the Territory. Reseller will use diligent efforts to market and sell the N‑able Services, such efforts including but not limited to fulfilling those sales and marketing responsibilities set forth on Exhibit A. Reseller shall pay all of its own costs and expenses arising under this Agreement including, without limitation, all travel, sales training, telephone, and internet costs that may arise. Reseller acknowledges and agrees that additional terms may apply to the use of the Services and N‑able Documentation by Reseller and its End-Users, all of which may be amended from time to time by and at the sole discretion of N‑able, and that Reseller will comply and ensure that its End-Users comply with the same.

3.2.2 In addition to Reseller’s other obligations set forth in this Agreement, Reseller, at a minimum, hereby agrees: (a) to appoint and maintain sufficient personnel having the knowledge and training necessary to properly inform End-Users of the features and capabilities, and provide in-house know-how of the operation, installation, and troubleshooting of the Services; (b) to promptly inform N‑able of (i) any matter likely to be relevant to N‑able or to the Services, and (ii) any claimed or actual infringement of any N‑able Marks or the Services; (c) that it is legally able to process Data and legally able to provide Data to N‑able and its Affiliates, including by obtaining appropriate consents or rights for such processing, as outlined further in this Agreement, (d) that it has the right to access and use its infrastructure, including any system or network, to obtain or provide the Services and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; (e) to keep its registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as its End-Users subscribe to the Services; (f) to be responsible for obtaining all import licenses, permits and approvals as necessary for the purchase, promotion and sale of the Services in the Territory and for the performance of its duties hereunder; (g) to comply with all Applicable Laws in performing its duties hereunder; (h) to maintain administrative, technical, and physical safeguards and security policies in accordance with industry standards to protect the security, confidentiality, and integrity of End-User information and Confidential Information in its possession; and (i) to immediately notify N‑able as soon as Reseller becomes aware of any actual, suspected, or threatened security incident or breach in connection with the activities under this Agreement.

3.2.3 Reseller shall not: (a) make any representations, warranties, or guarantees on behalf of N‑able; (b) disparage N‑able or the Services or engage in any conduct which in N‑able’s sole opinion is prejudicial to N‑able’s business, reputation, or the Services; and (c) without the prior written consent of N‑able, solicit or permit the solicitation of any End-Users or prospective customers in the Territory for the purchase from Reseller of the Services if Reseller knows or reasonably should know that such End-User is an existing End-User of the Services purchasing direct from N‑able or from another authorized N‑able reseller or Distributor.

4.1 APPOINTMENT OF RESELLER

4.1 License for N‑able Services. As of the Effective Date of this Agreement, N‑able grants to Reseller, and Reseller accepts, a personal, limited, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to purchase, promote, market, resell, display, and distribute the Services to Reseller’s End-Users in the Territory, subject to Applicable Law and the terms and conditions, including the Software Services Agreement, applicable to the Services. Reseller will enter into contracts independently with its End-Users to govern the terms regarding the resale of the Services by Reseller to End-User. N‑able may, during the term of this Agreement, provide Reseller not-for-resale licenses for the Services, such amount to be determined by N‑able in its sole discretion, and such licenses shall be subject to the Software Services Agreement and applicable Order Form.

4.2 License to N‑able Content. Subject to this Agreement, and Your continuous compliance with its terms, N‑able grants You a personal, limited, revocable, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to use, reproduce and distribute the N‑able Content as reasonably necessary for Reseller 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 N‑able Content.

4.3 License to N‑able Marks. N‑able grants to Reseller 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 Services 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 Reseller use the N‑able Marks on any other goods or services aside from the N‑able Services, and Reseller, if it contemplates any use of the N‑able Marks outside of the use contemplated in this Agreement, shall obtain prior written approval from N‑able. Reseller 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. Reseller acknowledges that the N‑able Marks are the exclusive property of N‑able, and that Reseller 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 Reseller’s use of the N‑able Marks or otherwise. All use of the N‑able Marks by Reseller under this Agreement will inure solely to the benefit of N‑able. Reseller will not take any action in derogation of any of the rights of N‑able in any N‑able Mark.

5. INTELLECTUAL PROPERTY

5.1. Retained Rights. The Services are licensed and not sold, notwithstanding any use of terms such as “purchase”, “sale”, or the like within this Agreement. Reseller’s rights in the Services, Documentation, the N‑able Content, and the N‑able Marks are limited to those license rights expressly granted under this Agreement. All rights not expressly granted to You under this Agreement are reserved by N‑able. There are no implied rights to the Services, Documentation, N‑able Content, N‑able Marks, or any other intellectual property of N‑able. N‑able shall own and retain all right, title, and interest in the Services, the N‑able Documentation, the N‑able Content, and the N‑able Marks and all intellectual property rights in them, including without limitation all changes and improvements requested or suggested by Reseller or End-User. Reseller shall not use the Services, Documentation, N‑able Content, or the N‑able Marks for any purpose other than in connection with the satisfaction of its obligations under this Agreement and consistent with the license rights expressly granted under this Agreement. Without limiting the scope of the preceding sentence, Reseller shall not modify the Services in any manner, or use the Services for Reseller’s internal production, non-revenue producing, or other purposes.

5.2. Additional N‑able Intellectual Property Obligations. Reseller will not assert any claim of ownership to any Services, N‑able Marks, N‑able Documentation, or N‑able Content, or to the goodwill or reputation symbolized by any N‑able Mark, or by virtue of Reseller’s use of the Services, the N‑able Documentation, the N‑able Marks, N‑able Content, or otherwise either during the Term or afterwards. All goodwill generated by Reseller’s use of the Services, Documentation, N‑able Marks or N‑able Content under this Agreement will inure solely to the benefit of N‑able. Reseller will not register any trademark or domain name that is based upon or is connected with the N‑able Marks, or combine any trademark, domain name or N‑able Marks with any other domain name or trademark. You shall not purchase (nor authorize a third party to purchase) 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 materials including, containing, or incorporating the N‑able Marks shall be of good quality and shall satisfy or exceed any applicable standards, regulations, and guidelines regarding such materials. From time to time, Reseller shall produce materials provided to End-Users with the N‑able Marks for N‑able’s quality assurance review. If N‑able in its sole judgment disapproves of the quality of the materials, Reseller will not distribute, or permit to be distributed, any such material.

6. ORDERS, FEES AND INVOICES.

6.1. Sales Channel. Reseller may be required by N‑able to purchase the Services from a Distributor. If Reseller is not required by N‑able to purchase Services from a Distributor, Reseller shall have the option to purchase the Services from a Distributor. Where Reseller is required or chooses to purchase Services through a Distributor, terms regarding the order process, fees, invoices, taxes, reporting, and audits will be those set forth in Reseller’s agreement with the Distributor, and the remainder of this Section 6 (Orders, Fees and Invoices) shall not apply.

6.2. Order Process. If Reseller is not required or does not choose to purchase Services from a Distributor, Reseller agrees to purchase the Services from N‑able via an Order Form. Reseller 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 specifies from time to time. Reseller may not cancel or amend an Order Form once it has been received by N‑able.

6.3 Fees. Reseller agrees to pay N‑able the fees for the Services as set forth in the applicable Order Form or the price list provided by N‑able to Reseller, which is incorporated by reference in this Agreement. All fees are stated in USD and must be paid by Reseller to N‑able in USD, unless otherwise agreed to in writing.

6.4 Invoice. Except as set forth otherwise on an Order Form, N‑able shall invoice Reseller on a monthly basis, and Reseller shall pay the fees for the Services within thirty (30) days from the date of the applicable invoice by wire transfer to the bank account specified by N‑able. Any and all payments made by Reseller pursuant to this Agreement are non-refundable. 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. N‑able reserves the right to terminate this Agreement if actual payment has not been received within the time required in this Agreement, and Reseller has not cured the failure within five (5) days from receipt of written notice from N‑able. All N‑able invoices will be paid in full, and Reseller 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 Reseller believes an invoice is incorrect, Reseller must notify N‑able of any disputed charges within thirty (30) days of receipt of the invoice date and the amount in question and the reason therefor, otherwise such dispute shall be waived and N‑able will not be required to make any adjustments or credits to the disputed invoice.

6.5 Taxes. All fees are exclusive of taxes, and You shall pay or reimburse N‑able for all taxes arising out of transactions contemplated by this Agreement. If You are required to withhold any tax for payments due, You shall gross up Your payments to N‑able so that N‑able receives sums due in full, free of any deductions. As reasonably requested, You will provide documentation to N‑able showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on N‑able’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that N‑able can rely on the name and address that You provide to N‑able when You agree to the fees or in connection with Your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where You have established Your business.

6.6. Reporting and Audits. Reseller shall provide to N‑able on a monthly basis a report (“Reseller Report”) showing the total number of N‑able Services distributed by Reseller during the preceding month and such other information set forth in Exhibit A. Additionally, Reseller will keep and maintain commercially reasonable written records and accounts regarding Reseller’s use and distribution of Services, and N‑able may audit Reseller and End-User usage of the Services. N‑able, or a certified public accountant designated by N‑able, shall have the right, upon ten (10) days written notice to Reseller (or relevant End-User), to conduct an inspection and audit of all relevant facilities and records of Reseller (or relevant End-User). Such audit shall be conducted during regular business hours and shall not unduly interfere with normal business activities. In no event shall audits be conducted hereunder more frequently than once every six (6) months. If N‑able determines that the number of End-Users receiving the Services is in excess of the purchased Services, Reseller shall take reasonable efforts to collect the proper fees from the responsible End-Users and remit those fees to N‑able. Notwithstanding the foregoing, N‑able may, at any time, invoice the responsible End-Users directly for such fees. Additionally, if the audit reveals that the Reseller failed to comply with any material term of this Agreement, Reseller shall be responsible for all of N‑able’s costs and expenses incurred in conducting the audit, in addition to any other rights or remedies N‑able may have under this Agreement.

7. INDEMNITY.

7.1. Reseller Indemnity. You agree to indemnify, defend, and hold harmless N‑able and its Affiliates, and its and their directors, officers, employees, and agents from and against any claims, liabilities, damages, costs, and expenses ( including attorneys’ fees and expenses) arising out of or due to: (i) Your Data; (ii) Your breach of this Agreement; (iii) Your use of the Services, Documentation, N‑able Content, or N‑able Marks in violation of third party rights, including any intellectual property or privacy rights, or any Applicable Laws; (iv) Your misuse of the Services, Documentation, N‑able Content, or N‑able Marks; or (e) misrepresentation or gross misconduct of Reseller, its agents or employees.

7.2 N‑able Indemnity. Subject to Section 11, Disclaimer of Damages, N‑able will indemnify, defend, and hold You harmless from any third party claim brought against You that the Services, Documentation, N-Able Content, or N‑able Marks infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party (an “Infringement Claim”), provided: (i) use of the Services, Documentation, N-Able Content, and N‑able Marks by You is in conformity with the Agreement and Documentation; (ii) the alleged infringement is not caused by modification or alteration of the Services, Documentation, N-Able Content, or N‑able Marks; (iii) the alleged infringement was not caused by a combination or use of the Services, Documentation, N-Able Content, or N‑able Marks with products or content not supplied by N‑able; and/or (iv) You have not continued to use the Services, Documentation, N-Able Content, or N‑able Marks after You are notified of the alleged infringement and provided with Services, Documentation, N-Able Content, or N‑able Marks that avoids the alleged infringement. This Section states N‑able or its Affiliates’ entire liability (and shall be Reseller’s sole and exclusive remedy) with respect to Infringement Claims.

7.3. Notification. 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 informed 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.

8. CONFIDENTIALITY AND PUBLICITY.

8.1 Confidential Information. 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, Confidential Information includes Personal Data, and N‑able Confidential Information includes the Services, Documentation, this Agreement, and any information or materials relating to the Services (including pricing), or otherwise. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. 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 in this Agreement. The restrictions will not apply to Confidential Information, excluding Personal Data, 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. The recipient may disclose Confidential Information to the extent the disclosure is required by Applicable Law 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.

8.2 Publicity. Reseller shall not, except as expressly permitted under this Agreement, (a) use in advertising, publicity or marketing communications of any kind the name or other trademarks of N‑able or any of its Affiliates, or any employee of any of them, or (b) represent, directly or indirectly, that any product or service provided by Reseller has been approved or endorsed by N‑able or any of its Affiliates.

8.3 Injunctive Relief. The parties agree that, in addition to any other relief to which the non-breaching party may be entitled, any material breach of this Section 8 will cause irreparable injury and the non-breaching party may seek injunctive relief in a court of competent jurisdiction without the need of posting bond.

9. DATA; DATA PROTECTION.

9.1. Your Data. You hereby grant to N‑able a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to process Your Data to assist with the necessary operation and function of the Services, to improve N‑able products and services and Your and users’ experience with them, and for any purpose set forth in this Agreement or pursuant to the N‑able Privacy Notice, which N‑able provides or makes available to you, including on N‑able’s website, which N‑able may update or revise from time to time, and which is incorporated in this Agreement by this reference. 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 or contains: (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 Services and that N‑able is not responsible for the exportation of, the failure to store, the loss, or the corruption of Your Data.

9.2. Data Protection. Both Parties shall adhere, at all times, to all Applicable Laws concerning data protection and privacy. 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 Services 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. 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 Services is appropriate for Your intended use and the storage, hosting, or processing of Personal Data.

9.3. Additional Obligations. In addition to, and without limiting its other obligations in this Section 9, Reseller 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-Users and other third parties. Reseller warrants and undertakes that any instructions given by Reseller 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 in this Agreement, the Data Processing Addendum, the Software Services Agreement, or as otherwise designated by Reseller or its End-Users.

10. DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL N‑ABLE OR ITS AFFILIATES, OR ITS OR THEIR DIRECTORS, EMPLOYEES, OR AGENTS HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PROPERTY DAMAGE OR ANY OTHER ECONOMIC DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, DOCUMENTATION, N-ABLE CONTENT, N-ABLE MARKS OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE AGGREGATE LIABILITY OF N‑ABLE AND ITS AFFILIATES, AND ITS AND THEIR DIRECTORS, EMPLOYEES, AND AGENTS, AND THE SOLE REMEDY AVAILABLE TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, DOCUMENTATION, N-ABLE CONTENT, N-ABLE MARKS OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO N‑ABLE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO TERMINATION.

11. WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, DOCUMENTATION, N‑ABLE CONTENT, N‑ABLE MARKS, AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER OR MADE AVAILABLE UNDER THIS AGREEMENT, INCLUDING THIRD PARTY HOSTED SERVICES OR SOFTWARE (COLLECTIVELY, FOR THE PURPOSES OF THIS PARAGRAPH, “PRODUCTS”), ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, N‑ABLE DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON‑INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF DATA, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE PRODUCTS OR THE RESULTS OF THE SAME. N‑ABLE DOES NOT WARRANT THAT THE PRODUCTS, INCLUDING ANY SPECIFICATIONS OR FUNCTIONS CONTAINED IN THEM, WILL MEET YOUR REQUIREMENTS, THAT THE PRODUCTS WILL BE ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. N-ABLE SPECIFICALLY DISCLAIMS RESPONSIBILITY FOR THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE SERVICES, AND YOU SPECIFICALLY DISCLAIM AND WAIVE ANY RIGHTS AND CLAIMS AGAINST N-ABLE WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SERVICES.

12. 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 Commonwealth of Massachusetts and of the United States, without regard to any conflict of law provisions, except that the United Nations Convention on the International Sale of Goods and the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction of the state and federal courts in Boston, Massachusetts. The parties hereby waive all rights to trial by jury with respect to any dispute arising out of or relating to this Agreement or the Services, Documentation, N‑able Marks, or N‑able Content. If you have any claim arising out of relating to this Agreement or the Services, Documentation, N‑able Marks, or N‑able Content, you must bring the claim in an appropriate court as set forth in this Section within two (2) years after your right to bring the claim accrued. The prevailing party in any litigation regarding this Agreement or the Services, Documentation, N‑able Marks, or N‑able Content shall be entitled to recover reasonable attorneys’ fees, expenses, and costs of litigation. If this Agreement is translated into a language other than English and there are conflicts between the translations of this Agreement, You agree that the English version of this Agreement shall prevail and control.

13. GENERAL PROVISIONS

13.1. Notices. All 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, 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 including by pdf e-mail to N‑able at [email protected].

13.2. Assignment. You may not assign any of Your rights under this Agreement or delegate Your performance under this Agreement, whether voluntarily or involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without N‑able’s prior written consent. N‑able may assign its rights and delegate its performance under this Agreement to: (i) any entity that acquires all or substantially all of N‑able’s assets or substantially all of the assets of that portion of N‑able’s business that manages this Agreement; (ii) any affiliate that controls, is controlled by, or is under common control with N‑able; or (iii) any successor in a merger, acquisition, or reorganization, including any judicial reorganization. Any purported assignment of rights or delegation of performance by You in violation of this Section is void. This Agreement is binding upon, and will inure to the benefit of, the Parties and their permitted assigns and successors-in-interest.

13.3. Export Responsibilities. N‑able may supply Reseller with Services, N‑able Documentation, or other technical data or information that is subject to export control laws and regulations and may be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained. Reseller agrees to comply with all Applicable Laws concerning export control. Reseller agrees that Reseller is not located in, under the control of, or a resident of any country, person, or entity prohibited to access, use, receive, or distribute the Services, the N‑able Documentation, and any other technical data or information due to export restrictions and that Reseller will not export, re-export, transfer, or permit, directly or indirectly, the access, use, receipt, or distribution of the Services, N‑able Documentation, or any technical data or information, in whole or in part, to or in any such countries or to any such persons or entities.

13.4 Compliance with Laws Regarding Anti-Bribery/Anti-Corruption. Reseller shall at all times be bound by and strictly comply with the U.S. Foreign Corrupt Practices Act and UK Bribery Act and all other Applicable Laws and industry codes concerning bribery, money laundering, or corrupt practices or behavior, or which in any manner prohibit the giving of anything of value to any official, agent or employee of any government, political party or public international organization, candidate for public office, or to any officer, director, employee or representative any other organization. In addition to and not by way of limiting Reseller’s obligation to comply with all Applicable Laws regarding anti-bribery and anti-corruption, which may impose more stringent requirements than set forth in this Agreement, Reseller represents, warrants and covenants to N‑able, as of the date hereof and at all times during the term of this Agreement, that:

13.4.1 In Reseller’s activities under and relating to this Agreement, neither Reseller, nor any of its officers, directors, employees, representatives, servants, Affiliates, sub-contractors, or other agents shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of any financial or other advantage or anything else of value to:

  1. any official or employee of any government, or any department, agency, or instrumentality thereof, any political party or official thereof, any candidate for political office, any official or employee of any public international organization, any person acting in an official capacity for or on behalf of any such government, department, agency, instrumentality, party, or public international organization for the purpose of (a) improperly influencing or rewarding any act or decision of such official, employee, person, party, candidate, or health care professional, or (b) inducing such official, employee, person, party, or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, person, party, or candidate, or (c) securing any improper advantage for Access, or (d) improperly inducing such official, employee, person, party, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality; or
  2. any officer, employee, agent, or representative of another company or organization, without that company’s or organization’s knowledge and written consent, with the intent to influence the recipient’s action with respect to his or her company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce the recipient to violate a duty of loyalty to his or her employer.

13.4.2 No payment, promise to pay, authorization, offer or gift of the sort described in this Section 14.4 has been made or will be made, directly or indirectly, by Reseller or any of its officers, directors, employees, representatives, servants, Affiliates, sub-contractors, or other agents in connection with the promotion of the business interests of N‑able.

13.4.3 Reseller has not received any notice, subpoena, demand or other communication (whether oral or written) from any Governmental Authority at any time in the last five (5) years regarding Reseller’s actual, alleged, possible or potential violation of, or failure to comply with, any Applicable Laws or industry codes governing bribery, money laundering, or other corrupt practices or behavior; and to the best of its knowledge, Reseller is not now, and has not been at any time in the last five (5) years, the subject of any governmental investigation, audit, suit or proceeding (whether civil, criminal or administrative) regarding its actual, alleged, possible or potential violation of, or failure to comply with, any such laws, regulations or industry codes.

13.4.4 Reseller shall require any and all Affiliates, subcontractors, representatives, servants, agents or other persons or entities that provide services to or for Reseller in connection with Reseller’s obligations under this Agreement to agree in writing to and abide by the representations, warranties and covenants in this Section 14.4 (Compliance with Laws Regarding Anti-Bribery/Anti-Corruption).

13.4.5 Notwithstanding anything to the contrary in this Agreement, N‑able may, in addition to its other rights and remedies, immediately terminate this Agreement for Reseller’s default in the event (i) N‑able receives any information which it determines in its sole discretion to be evidence of an actual, alleged, possible or potential breach by Reseller of any representation, warranty, or covenant in this Section 14.4 (Compliance with Laws Regarding Anti-Bribery/Anti-Corruption). In the event of such termination, N‑able shall have no liability to Reseller for any charges, fees, reimbursements or other compensation or claims under this Agreement, and Reseller shall indemnify, defend and hold harmless N‑able from and against any loss, cost, claim, liability, penalty or damage resulting from the breach of this Section 14.4 (Compliance with Laws Regarding Anti-Bribery/Anti-Corruption).

13.5. 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.

13.6. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the Parties agree that such invalidity shall not affect the validity of the remaining provisions of the Agreement and further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision. The failure of either Party to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.

13.7. Waiver. The failure of either Party to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.

13.8. Force Majeure. Neither party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including: acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; war; or any other cause beyond its reasonable control, whether similar or dissimilar to the foregoing (collectively, “Events of Force Majeure”). 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. The parties agree that Events of Force Majeure shall not excuse any obligation to pay money under the Agreement.

13.9. Complete Agreement. This Agreement, along with any exhibits or schedules attached to and incorporated in this Agreement, constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous communications, agreements, and understandings, written or oral, with respect to the subject matter hereof including without limitation the terms of any purchase order issued in connection with this Agreement. Except as otherwise set forth herein, this Agreement shall not be amended or modified except in a writing signed by authorized representatives of each Party.

13.10. Rights of Third Parties. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

13.11. Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

13.12. Remedies Cumulative. Except as specifically set forth in this Agreement, the rights and remedies set forth in this Agreement are cumulative and are not intended to be exhaustive. A party’s cure of any failure to perform under this Agreement does not excuse liability for any delays or other damages the non-defaulting party may have incurred resulting from the failure.

Last updated February 4, 2022

Exhibit A
Reseller Program

General

  • Reseller will become a Reseller of N‑able and will receive the rights and privileges of a Reseller as listed below.
  • From time to time the Parties will agree to conduct a business plan review.

Sales and Marketing

Reseller shall at all times maintain a sufficient number of competent sales representatives capable of answering questions regarding the N‑able Services, informing others about the N‑able Services’ features, and assisting End Users in determining which N‑able Services will best meet their needs. In addition, the parties may agree to participate in additional sales and marketing activities, including the following:

  • 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 Services.

Discount for Products

N‑able will invoice Reseller at the approved percentage of the net selling price for N‑able Services. N‑able reserves the right to change this percentage from time to time in N‑able’s sole discretion and upon prior written notice to Reseller.

Reporting

Reseller Reports shall contain the following information regarding the N‑able Services sold to End Users:

  • Product Description
  • SKU#
  • Quantities requested
  • Delivery Dates
  • Shipping instructions (when necessary)
  • End User Information including
    • Company Name
    • Address
    • Company Contact Name
    • E-mail address
    • Phone number
    • Facsimile number
    • N‑able End User Identification number

Fees

The current price list to be provided by N‑able shall automatically be incorporated into part of this Exhibit.

Wiring Instructions

Please contact N‑able for wiring details if required.

Exhibit B
Data Processing Addendum

This Data Protection Addendum (“Addendum“) forms part of the Reseller Agreement (“Agreement“) between Reseller 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 Affiliate means 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 Transfer means 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 Services means the software, services, or support services provided by N‑able to its end users;

1.1.9 Standard Contractual Clauses means (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 Authority means (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, privacy@N‑able.com; and (b) data importer: Reseller 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.

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