SolarWinds Technology Affiliate Program Agreement
This SolarWinds Technology Alliance Program Agreement (“Agreement”), as of the date you accept it (the “Effective Date”), is between you (“Developer”) and SolarWinds MSP UK Ltd. and SolarWinds MSP Canada ULC (collectively “SolarWinds”).
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 COMPANY OR OTHER 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.
SolarWinds may modify this Agreement from time to time and will post the most recent version on its website. Developer’s continued use of the Products following changes to the Agreement constitutes acceptance of the new terms.
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 Developer Marks mean Developer’s product names, trademarks, service marks, branding and logos made available for use solely in connection with this Agreement.
1.4 Developer Software means any APIs, scripts, software, services, or other applications, materials, products, and related intellectual property Developer 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.
1.8 Services mean SolarWinds products and software services, including any application programming interface that accesses functionality, provided to Developer.
1.9 Software means the object code versions of the downloadable software provided by SolarWinds, including an agent for accessing the Services, together with the updates, new releases or versions, modifications, or enhancements, owned and provided by SolarWinds to Developer pursuant to this Agreement.
1.10 SolarWinds Marks mean SolarWinds and SolarWinds’ other product names, trademarks, service marks, branding, and logos made available for use solely by Developer in connection with this Agreement.
2. License Grant.
Subject to Developer’s compliance with this Agreement, SolarWinds hereby grants Developer a limited, revocable, worldwide, non-transferable, non-sublicensable, and non-exclusive license during the Term to: (i) internally use the Products for testing, evaluation, validation, integration, and compatibility purposes solely to create the Developer Software; and (ii) use and display, in accordance with SolarWinds’ Branding Guidelines and any other trademark and copyright guidelines provided to Developer, the SolarWinds Marks for Developer’s marketing, sales, and promotional activities of the Developer Software and SolarWinds Products. Developer may not use the SolarWinds Marks in any way that suggests the Developer Software is certified, endorsed, or promoted by SolarWinds.Developer may purchase maintenance for any Products at then current list prices. Both parties agree that SolarWinds 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 Developer Software.
3. Developer Obligations.
3.1 Restrictions and Responsibilities.Developer: (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 Developer’s use of the Products; (ii) must not use the Products for any other purpose outside of the license set forth in Section 2, including for access, use (including without limitation, Developer’s internal, non-revenue generating, or production use), sale, distribution, sublicense, or use of the Products to provide managed services to another party; (iii) must not obscure, remove, or alter any proprietary right notices (including copyright and trademark notices) that may be affixed to or contained within 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 any third party; (vi) must not circumvent any technical restrictions of the Products; (vii) shall not disable, remove, override, or modify the display of any SolarWinds End User License Agreement or the Software Services Agreement of the Products; (viii) 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 SolarWinds or a third party, including introduction of any malicious code, Trojan horses, malware, spam, viruses, or other destructive technology; (ix) shall comply with applicable laws and regulations, including privacy and security laws and regulations; and (x) shall keep Developer credentials confidential and prevent and discourage other parties from using Developer credentials.
3.2 Export Control.The Products delivered to Developer under this Agreement are subject to export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained if outside the U.S. Developer shall abide by all applicable export control laws, rules, and regulations applicable to the Products. Developer agrees not to export, re-export, or transfer the Products, in whole or in part, to any country, person, or entity subject to export restrictions. Developer specifically agrees not to export, re-export, or transfer the Products (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who Developer knows or have reason to know will utilize the Products or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
3.3 Support. This Agreement does not entitle Developer to any support for the Products unless Developer enters into a separate support agreement with SolarWinds. Developer is solely responsible for the Developer Software.
4. General Warranties. Developer represents and warrants that: (i) Developer has all right, power, and authority to enter into this Agreement and provide the licenses granted to SolarWinds; (ii) Developer Software, Developer Marks, and use of the Products and SolarWinds Marks do not and will not violate, misappropriate, or infringe upon the Intellectual Property Rights or any other rights of any third party; and (iii) Developer 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 Developer’s obligations under this Agreement.
5. Data; Security.
5.1 Data. Developer shall comply with all applicable privacy laws and regulations, including those applying to Personal Data. Developer represents and warrants any Personal Data provided to SolarWinds has been legally obtained, Developer is legally able to process the same, and any instructions Developer gives to SolarWinds will be in accordance with applicable law. Developer agrees Personal Data provided to SolarWinds may be processed by SolarWinds in any country in which SolarWinds maintains facilities or personnel, and Developer consents to any such transfer of the Personal Data outside of Developer’s country, if applicable.
5.2 Security. Developer shall protect confidential information and all data and information provided to Developer by SolarWinds or collected by the Developer Software, including Personal Data, from unauthorized access, disclosure, loss, or use and will promptly report to SolarWinds (or Developer’s users) any unauthorized access or use of confidential information to the extent required by applicable law. Developer 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.
6. Ownership. SolarWinds retains all Intellectual Property Rights in the Products, together with all revisions, modifications, alterations, or improvements made by SolarWinds in all forms. Developer will not (nor permit any third party to) assert any claim of ownership to any Products or related intellectual property. SolarWinds 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 Developer gives SolarWinds. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY SOLARWINDS.
7. Term, Termination.
7.1 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.
7.2.1 Notice. Developer may terminate this Agreement by providing SolarWinds 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, SolarWinds will add an early termination fee to the final invoice.
7.2.2 For Cause. SolarWinds may suspend or terminate this Agreement upon prior written notice or immediately if Developer becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; Developer infringes or misappropriates SolarWinds’ Intellectual Property Rights; Developer breaches this Agreement; or pursuant to the receipt of a subpoena, court order, or other request by a law enforcement agency.
7.2.3 Destruction of Data. Upon termination Developer agrees to cease access to and destroy all copies of the Products within its possession or control. Except where prohibited by internal policies or contractual, legal, or other obligations, Developer agrees that SolarWinds has the right to delete any and all copies of its data. Developer’s data, once deleted, cannot be recovered.
7.2.4 Survival. This Section as well as Sections 1, 5, 6, 7.2.3, 8, 9.2, 10-11 shall survive any termination or expiration of this Agreement.
8. Confidential Information. Notwithstanding any other confidentiality provision applicable to Developer, during the performance of this Agreement, Developer may have access to SolarWinds confidential information. SolarWinds confidential information includes any materials, communications, and information marked confidential or that would normally be considered confidential under the circumstances. Developer shall protect such confidential information and shall not disclose it to any third party without SolarWinds’ prior written consent. Developer must not disclose to any third party the results of any performance benchmarks Developer runs on or with the Products nor any comparison between the Products and any third-party product. SolarWinds confidential information does not include information that Developer independently developed, that was rightfully given to Developer by a third party without confidentiality obligation, or that becomes public through no fault of Developer’s own.
9. Disclaimer; Liability.
9.1 Disclaimer.Under no circumstances will SolarWinds be liable for any of Developer’s products, including Developer Software and ITS contents, development, operation, support, or MAINTENANCE thereof, or any errors, omissions, loss, or damage arising therefrom. THE PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOLARWINDS, ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOLARWINDS, ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, 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 DEVELOPER’S USE OF THE PRODUCTS, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO DEVELOPER. SOLARWINDS’ LIABILITY ARISING OUT OF THIS AGREEMENT AND THE PRODUCTS PROVIDED HEREUNDER WILL NOT, IN ANY EVENT, EXCEED $1,000.00. THESE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER SOLARWINDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification. Developer agrees to defend, indemnify, and hold harmless SolarWinds and its directors, officers, employees, Affiliates, and agents, from: all claims, losses, damages, liabilities, and other expenses (including reasonable attorneys’ fees), arising out of or related to Developer’s products, including the Developer Software, or any content or data routed to or used with the Products by Developer, its agents, or customers; a breach of an obligation, representation, warranty, or other provision of this Agreement; and Developer’s negligence, willful misconduct, or fraud.
11.1 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).
11.2 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. Developer 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, Developer agrees that the English version of this Agreement shall prevail and control.
11.3 Assignment. Developer may not assign this Agreement. Any attempted assignment by Developer will be void.
11.4 Modifications. Unless otherwise provided by these terms, this Agreement shall not be amended or modified by Developer except in writing signed by authorized representatives of each party.
11.5 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.
11.6 Waiver. Any waiver of these terms must be in writing and signed by the waiving party to be effective.
11.7 Force Majeure. SolarWinds will not 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.
11.8 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 Developer’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 SolarWinds terms conflict with this Agreement, this Agreement shall prevail and control with respect to the Products. Any additional or conflicting terms provided by Developer, whether in a purchase order, an alternative license, or otherwise, shall be void and shall have no effect.
11.9 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.
11.10 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.