SOLARWINDS TECHNOLOGY ALLIANCE PROGRAM AGREEMENT
Last updated December 2020
This N-able Technology Alliance Program Agreement ("Agreement"), as of the date you accept it (the "Effective Date"), is between you ("Alliance Partner") and N-able UK Ltd. and N-able Canada ULC (collectively "N-able").
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY USING THE SERVICES (DEFINED BELOW), YOU HEREBY ACCEPT THESE TERMS. ONCE YOU HAVE BEEN ACCEPTED INTO THE PROGRAM BY SOLARWINDS, THIS AGREEMENT WILL FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND SOLARWINDS AND SETS FORTH THE TERMS THAT GOVERN PARTICIPATION IN THE SOLARWINDS TECHNOLOGY ALLIANCE PROGRAM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO 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 THIS AGREEMENT, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR SERVICES.
N-able may modify this Agreement from time to time and will post the most recent version on its website. Alliance Partner's continued use of the Products following changes to the Agreement constitutes acceptance of the new terms.
The N-able Technology Alliance Program ("Program") consists of this Agreement as well as relevant program addenda. The purpose and intent of this Agreement is to define the relationship and commitments between Alliance Partner and N-able as to the Program. This Program is designed to facilitate a technical alliance between the two parties and develop, as necessary, various sales tools, support services, product training, communications, technical documentation, products and services, as approved by N-able.
1.1 Affiliates means an entity controlled by, under common control with, or controlling a party, where control means having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity.
1.2 API(s) means an application programming interface and any accompanying or related documentation, source code, executable applications, and other materials.
1.3 Alliance Partner Marks mean Alliance Partner's product names, trademarks, service marks, branding and logos made available for use solely in connection with this Agreement.
1.4 Alliance Partner Software means any APIs, scripts, software, services, or other applications, materials, products, and related intellectual property Alliance Partner creates that are compatible with, integrate with, or communicate with the Products.
1.5 Intellectual Property Rights mean patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights.
1.6 Personal Data means any information that can be used to identify an individual as that term is defined under Regulation (EU) 2016/679 ("GDPR").
1.7 Products mean the Services and the Software. N-able may modify or cease provision of (all or part of) the Products, temporarily or permanently, at any time and that future versions may be incompatible with the Alliance Partner Software.
1.8 Services mean N-able products and software services, including any API that accesses functionality developed by or is used by the Alliance Partner to develop an integration with N-able.
1.9 Software means the object code versions of the downloadable software provided by N-able, including an agent for accessing the Services, together with the updates, new releases or versions, modifications, or enhancements, owned and provided by N-able to Alliance Partner pursuant to this Agreement.
1.10 N-able Marks mean N-able and N-able' other product names, trademarks, service marks, branding, and logos made available for use solely by Alliance Partner in connection with this Agreement.
2. ALLIANCE PARTNER OBLIGATIONS.
Alliance Partner agrees to integrate the Products with any Alliance Partner Software in accordance with the N-able documentation and specifications, as updated from time to time, and any applicable terms provided by N-able and thereafter make the integrated Alliance Partner Software available for sale and delivery. The Alliance Partner shall make commercially reasonable efforts to promote use of the Products. Alliance Partner is solely responsible for the Alliance Partner Software and shall be responsible for support for the Alliance Partner Software and other products or services provided by the Alliance Partner. This Program does not entitle Alliance Partner to receive support for the Products.
Alliance Partner: (i) shall comply with all restrictions in this Agreement, the applicable Software Services Agreement or End User License Agreement, the Privacy Notice, and any other terms relevant to Alliance Partner's use of the Products; (ii) must not use the Products for any purpose outside of the license set forth herein, including for access, use (including internal, non-revenue generating, or production use), sale, distribution, or sublicense of the Products to provide services to another party; (iii) must not obscure, remove, or alter any proprietary right notices (including copyright and trademark notices) affixed to the Products; (iv) must not use the Products to create a competitive or substantially similar product, service, and/or feature; (v) must not use the Products to violate or infringe the Intellectual Property Rights of N-able or any third party; (vi) must not circumvent any technical restrictions of the Products; and (vii) must not interrupt, disable, destroy, or limit the functionality of, or interfere with, disrupt, damage, or access in an unauthorized manner the servers, networks, third party hardware or software, or other properties or services of N-able or a third party, including introduction of any malicious code, Trojan horses, malware, spam, viruses, or other destructive technology.
3. LICENSE GRANT.
3.1 N-able License Subject to compliance with this Program, N-able grants Alliance Partner a limited, revocable, worldwide, nontransferable, non-sublicensable, and nonexclusive license during the Term to internally use the Products for testing, evaluation, validation, integration, and compatibility purposes solely to create the Alliance Partner Software. Both parties agree that N-able may modify or cease provision of (all or part of) the Products, temporarily or permanently, at any time and that future versions may be incompatible with the Alliance Partner Software.
3.2 Alliance Partner License. Subject to compliance with this Program, Alliance Partner grants N-able a limited, revocable, worldwide, nontransferable, and nonexclusive license during the Term to use the Alliance Partner Software, as necessary, to promote this Program, the Products, and the integration with Alliance Partner Software.
3.3 Mark License. During the term of this Agreement, the intellectual property owner grants to the other party a nonexclusive, non-transferable, royalty-free right and license to use and publicly display the other party's marks, specifically the Alliance Partner Marks and the N-able Marks, in connection with any activities relating to the marketing, sales, and promotional activities of the Program and the products and services associated therewith in accordance with branding guidelines provided by the intellectual property owner, including the N-able' Branding Guidelines, its Trademark, Copyright, and Domain Name Guidelines, and any other applicable guidelines. Upon request, each party will have the right to request any such use of the marks not in compliance with the relevant branding guidelines be removed. Each party may terminate this Agreement without penalty if that party reasonably finds that the use of the other party of its marks tarnishes, blurs, or dilutes its marks or misappropriates the associated goodwill, and such problem is not resolve to the party's reasonable satisfaction within a commercially reasonable period of time. Alliance Partner may not use the N-able Marks in any way that suggests the Alliance Partner Software is certified, endorsed, or promoted by N-able. The parties may decide to jointly develop a marketing and promotions plan to notify customers of their relationship.
3.4 Intellectual Property Rights Ownership. Each party retains all rights in its intellectual property except where expressly licensed or granted in this Program. N-able retains all Intellectual Property Rights in the Products, together with all revisions, modifications, alterations, or improvements made by N-able in all forms. Alliance Partner will not (nor permit any third party to) assert any claim of ownership to any Products or related intellectual property. N-able shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, or incorporate any suggestions, enhancement requests, recommendations or other feedback Alliance Partner gives N-able. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY THE RELEVANT PARTY.
4. GENERAL WARRANTIES.
Both parties represent and warrant that: (i) it has all right, power, and authority to enter into this Agreement and provide the licenses granted hereunder; (ii) use of the relevant intellectual property, including the Alliance Partner Software and the Alliance Partner Marks, do not and will not violate, misappropriate, or infringe upon the Intellectual Property Rights or any other rights of any third party; (iii) it will comply with all applicable local, state, national, and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits, and other permissions necessary perform the relevant obligations under this Agreement; and (iv) Alliance Partner shall its credentials confidential and prevent other parties from using Alliance Partner credentials.
5. DATA; SECURITY.
5.1 Data. Alliance Partner shall comply with applicable privacy laws and regulations, including those applying to Personal Data. Alliance Partner represents and warrants any Personal Data provided to N-able has been legally obtained, Alliance Partner is legally able to process the same, and any instructions Alliance Partner gives to N-able will be in accordance with applicable law. Alliance Partner agrees Personal Data provided to N-able may be processed by N-able in any country in which N-able maintains facilities or personnel, and Alliance Partner consents to any such transfer of the Personal Data outside of Alliance Partner's country, if applicable.
5.2 Security. Alliance Partner shall protect confidential information and all data and information provided to Alliance Partner by N-able or collected by the Alliance Partner Software, including Personal Data, from unauthorized access, disclosure, loss, or use and will promptly report to N-able (or Alliance Partner's users) any unauthorized access or use of confidential information or other data and information to the extent required by applicable law. Alliance Partner shall also establish, implement, and maintain security policies and a program of technical, administration, and organizational measures to prevent access to confidential information and meet applicable information security best practices, standards, and guidelines, including the N-able Vendor Data Protection Requirements, set forth at https://www.solarwinds.com/security/vendor-data-protection-requirements. If Alliance Partner discovers any security issues with the Products, Alliance Partner shall first responsibly disclose and work with N-able to remedy such security issue pursuant to Section 7.
6. TERM; TERMINATION.
6.1 Term. The term of this agreement begins on the Effective Date and continues for twelve months. This Agreement automatically renews for twelve-month terms unless terminated earlier in accordance with this Agreement.
6.2.1 Notice. Both parties may terminate this Agreement by providing the other party with thirty days' prior written notice of its intention to terminate the Agreement. The thirty-day termination period will commence on the first day of the full calendar month after receipt of the termination notice. If applicable, N-able will add an early termination fee to the final invoice.
6.2.2 For Cause. N-able may suspend or terminate this Agreement upon prior written notice or immediately if Alliance Partner becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; Alliance Partner infringes or misappropriates N-able' Intellectual Property Rights; Alliance Partner breaches this Agreement; or pursuant to the receipt of a subpoena, court order, or other request by a law enforcement agency.
6.2.3 Destruction of Data. Upon termination, both parties agree to cease access to and destroy confidential information within its possession or control, including copies of the Products.
6.2.4 Survival. This Section as well as Sections 1, 3.4, 4, 5, 7-10 shall survive any termination or expiration of this Agreement.
7. CONFIDENTIAL INFORMATION.
Notwithstanding any other confidentiality provision applicable to Alliance Partner, during the performance of this Agreement, the parties may have access to confidential information of the other party. Confidential information includes any materials, communications, and information marked confidential or that would normally be considered confidential under the circumstances. Both parties shall protect such confidential information and shall not disclose it to any third party without the disclosing party's prior written consent. The receiving party must not disclose to any third party the results of any performance benchmarks run on or with the Products nor any comparison between the Products and any third-party product. Confidential information does not include information that the receiving party independently developed without the use of the underlying confidential information, that was rightfully given to the receiving party by a third party without confidentiality obligation, or that becomes public through no fault of the receiving party.
8. DISCLAIMER; LIABILITY.
8.1 Disclaimer. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY OF THE OTHER PARTY'S PRODUCTS OR ANY ERRORS, OMISSIONS, LOSS, OR DAMAGE ARISING THEREFROM. THE SOLARWINDS PRODUCTS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOLARWINDS DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOLARWINDS OR ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, AND LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PRODUCTS OR ALLIANCE PARTNER'S USE OF THE PRODUCTS, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. SOLARWINDS' LIABILITY ARISING OUT OF THIS AGREEMENT AND THE PRODUCTS PROVIDED HEREUNDER WILL NOT, IN ANY EVENT, EXCEED $1,000.00.
Alliance Partner agree to indemnify, defend, and hold N-able and its directors, officers, employees, Affiliates, and agents harmless from all claims, losses, damages, liabilities, and other expenses (including reasonable attorneys' fees), arising out of or related to Alliance Partner's products, including the Alliance Partner Software, or any content or data routed to or used with the Products by Alliance Partner, its agents, or customers; a breach of this Agreement; and Alliance Partner's willful misconduct or fraud.
10.1 Notices. All notices must be in writing and shall be mailed by registered or certified mail to Legal Department, 7171 Southwest Parkway, Building 400, Austin, Texas 78735, or sent via email to [email protected] (with evidence of effective transmission).
10.2 Governing Law. This Agreement shall be governed by the laws of the State of Texas 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. Alliance Partner hereby consents to the exclusive jurisdiction of the state and federal courts of Texas. If this Agreement is translated into a language other than English and there are conflicts between the translations of this Agreement, Alliance Partner agrees that the English version of this Agreement shall prevail and control.
10.3 Assignment. Alliance Partner may not assign this Agreement. Any attempted assignment by Alliance Partner will be void.
10.4 Modifications. Unless otherwise provided by these terms, this Agreement shall not be amended or modified by Alliance Partner except in writing signed by authorized representatives of each party.
10.5 Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement.
10.6 Waiver. Any waiver of these terms must be in writing and signed by the waiving party to be effective.
10.7 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; and war.
10.8 Entire Agreement. This Agreement, together with the applicable Software Services Agreement or End User License Agreement, the Privacy Notice, and any other terms and conditions relevant to Alliance Partner's use of the Products, constitutes the entire agreement between the parties with respect to the subject matter hereunder and supersedes all prior or contemporaneous communications, agreements, and understandings, written or oral, with respect to the subject matter hereof. If other N-able terms conflict with this Agreement, this Agreement shall prevail and control with respect to the Products. Any additional or conflicting terms provided by Alliance Partner, whether in a purchase order, an alternative license, or otherwise, shall be void and shall have no effect.
10.9 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.10 Third Party Rights. Unless otherwise provided by these terms, this Agreement does not create any rights for any person who is not a party to it, and no person not a party to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.