SolarWinds MSP is becoming N-able

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This End User License Agreement (as defined below) is hereby entered into and agreed upon by you, either an individual or an entity (“You” or “Company”) and N‑able Technologies Ltd. and N‑able Solutions ULC (collectively, “N‑able”) for the Software (as defined below). This Agreement is made and entered into as of the date that You accept it (the “Effective Date”).

BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY DOWNLOADING, INSTALLING AND/OR UTILIZING THE SOFTWARE (DEFINED BELOW), YOU AGREE TO THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND N‑ABLE AND SETS FORTH THE TERMS THAT GOVERN THE LICENSE PROVIDED TO YOU HEREUNDER. 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 DOWNLOAD, INSTALL, OR USE THE SOFTWARE.

1. DEFINITIONS. 

1.1 Affiliates means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Your Affiliates may use the license granted hereunder, and You are responsible for their compliance with this Agreement and their actions and/or omissions.

1.2 Agreement means the End User License Agreement, any applicable Product Addendum, the Data Processing Addendum, and the Order Form.

1.3 Client(s) means, if You are an MSP, Your customer(s).

1.4 Data Processing Addendum(a) means the terms of the data processing addendum, which is incorporated herein by reference.

1.5 Devices means (whether physical or virtual) a server, system, workstation, computer, mobile device, or end point upon which or through which the Software is used and/or on which the Software is installed.

1.6 Documentation means the official user documentation prepared and provided by N‑able to You on the use of the Software (as updated from time to time). For the avoidance of doubt, any installation guide or end user documentation not prepared or provided by N‑able; any online community site; unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.

1.7 MSP means a managed service provider.

1.8 N‑able Content means, if applicable, N‑able marketing documents and other content that are made available by N‑able online for MSPs to use in connection with selling to their customers their services that utilize the Software.

1.9 N‑able Marks means the trademarks and service marks that are specifically approved by N‑able for MSPs to use in connection with selling to their customers their services that utilize the Software.

1.10 Order Form means the N‑able order page, product information dashboard, or other N‑able ordering document that specifies Your purchase of the Software, pricing, and other related information.

1.11 Personal Data means any information that can be used to identify an individual as that term is defined under Regulation (EU) 2016/679 (“General Data Protection Regulation” or “GDPR”).

1.12 Product Addendum(a) means additional terms and conditions set forth in Section 13 that relate to the applicable Software, or Documentation.

1.13 Software means the object code versions of the product, together with the updates, new releases or versions, modifications or enhancements, owned and provided by N‑able to You pursuant to this Agreement.

1.14 Support means the standard maintenance or support provided by N‑able or its designated agents for the Software as set forth in this Agreement.

1.15 User means an individual authorized by You to use the Software, and Documentation, for whom You have purchased a license or to whom You have supplied a user identification and password. User(s) may only include Your employees, consultants, and contractors, and if applicable, Your Clients.

1.16 Your Data or Data means data, files, or information, including data, files, or information that include Personal Data, accessed, used, communicated, processed, stored, or submitted by You or Your Users related to Your or Your User’s use of the Software.

2. GRANT OF LICENSE. 

2.1 Subscription License. Upon payment of the fees and subject to Your continuous compliance with the terms and conditions of this Agreement, N‑able hereby grants You, for Software obtained on a subscription license basis (as shown on the Order Form), a limited, non-exclusive, non‑transferable license for the applicable Term to use internally the Software and Documentation, subject to the terms contained herein:

a) For each Software license that You obtain from N‑able, You may: (i) use the Software on any single Device, unless the Documentation clearly indicates otherwise; and (ii) copy the Software for back-up and archival purposes, provided each copy must contain all of the original Software’s proprietary notices and a notice that it will not be used for transfer, distribution or sale.

b) The Software is in use on a Device when it is loaded into temporary memory or installed in permanent memory (hard drive or other storage media or device). You agree to use Your reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that You use to protect Your own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. You agree that You will register the Software only with N‑able and that You will only install a Software license key obtained directly from N‑able. You may provide, make available to, or permit Your Users to use or access the Software or Documentation, in whole or in part. You agree that N‑able may deliver the Software to You with the assistance of its Affiliates, licensors, and service providers. During the Term (as defined herein), N‑able may update or modify the Software or provide alternative Software to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third party program.

2.2 Perpetual License Legacies. Upon payment of the fees and subject to Your continuous compliance with the terms and conditions of this Agreement, N‑able hereby grants You, for Software obtained on a perpetual license basis (as shown on the Order Form), a perpetual, non-exclusive, non-transferable license to use internally the Software and Documentation subject to the terms contained herein:

a) For each Software license that You obtain from N‑able, You may: (i) use the Software on any single Device, unless the Documentation clearly indicates otherwise; and (ii) copy the Software for back-up and archival purposes, provided each copy must contain all of the original Software’s proprietary notices and a notice that it will not be used for transfer, distribution or sale.

b) The Software is in use on a Device when it is loaded into temporary memory or installed in permanent memory (hard drive or other storage media or device). You agree to use Your reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that You use to protect Your own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. You agree that You will register the Software only with N‑able and that You will only install a Software license key obtained directly from N‑able. You may provide, make available to, or permit Your Users to use or access the Software or Documentation, in whole or in part. You agree that N‑able may deliver the Software to You with the assistance of its Affiliates, licensors, and service providers. During the Term (as defined herein), N‑able may update or modify the Software or provide alternative Software to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third party program.

2.3 Evaluation or Beta License. If the Software is provided to You for evaluation, beta or release candidate purposes, N‑able grants to You a limited, non-exclusive, non-transferable, royalty-free license to use the Software internally solely for evaluation purposes prior to purchase (an “Evaluation License”). The Evaluation License is not for production use. The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from N‑able, in its sole discretion. Notwithstanding any other provision contained herein, Software provided pursuant to an Evaluation License is provided to You “AS IS” and without indemnification, support, or warranty of any kind, statutory, express or implied. Except to the extent such terms conflict with the specific Evaluation License terms set forth in this Section, all other terms of this Agreement shall apply to Software licensed under an Evaluation License.

2.4 Demonstration License. If the Software is provided to You for demonstration purposes, N‑able grants to You a limited, non-exclusive, non-transferable, royalty-free license to use internally the Software solely for demonstration purposes with Clients (a “Demonstration License”). The Demonstration License is not for production use. The Demonstration License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from N‑able, in its sole discretion. Notwithstanding any other provision contained herein, Software provided pursuant to A DEMONSTRATION License is provided to You “AS IS” and without indemnification, support, or warranty of any kind, statutory, express or implied. Except to the extent such terms conflict with the specific Demonstration License terms set forth in this Section, all other terms of this Agreement shall apply to Software licensed under a Demonstration License.

3. LICENSE RESTRICTIONS; OBLIGATIONS.

3.1 License Restrictions.

3.1.1 General. You may not do any of the following: (i) provide, make available to, or permit other individuals other than Your Users to use the Software or Documentation, except under the terms expressly set forth above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation (except for back-up or archival purposes, which may not be used for transfer, distribution, or sale); (iv) license, sell, resell, rent, lease, transfer, sublicense, distribute, or otherwise transfer rights to the Software or Documentation; (v) create, market, distribute add-ons or enhancements or incorporate into another product the Software without prior written consent of N‑able; (vi) remove any proprietary notices or labels on the Software or Documentation, unless authorized by N‑able; (vii) license the Software or Documentation if You are a direct competitor (or an agent of a direct competitor) of N‑able, including for the purposes of monitoring the Software’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (viii) use the Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of any applicable laws or third party rights, including privacy rights; or (ix) use the Software to violate any rights of others; (x) use the Software to store or transmit malicious code, Trojan horses, malware, spam, viruses, or other destructive technology (“Viruses”); (xi) interfere with, impair, or disrupt the integrity or performance of the Software or any other third party’s use of any software, hardware, equipment or network; (xii) use the Software in a manner that results in excessive use, bandwidth, or storage; or (xiii) alter, circumvent, or provide the means to alter or circumvent the Software, including circumvention of the technical limitations, or usage limits of the Software or attempt to avoid any recurring fees. Unless as provided herein, any such forbidden use shall immediately terminate Your license to the Software. The Software is intended only for use with public domain or properly licensed third-party materials. All responsibility for obtaining such a license is Yours, and N‑able shall not be responsible for Your failure to do so.

3.2 Your Obligations. You acknowledge, agree, and warrant that: (i) You are and will be responsible for Your and Your Users’ activity and compliance with this Agreement, and if You become aware of any violation, You will immediately terminate the offending party’s access to the Software and Documentation and notify N‑able; (ii) You and Your Users will comply with all applicable local, state, federal, and international laws; (iii) You will ensure the Software is installed on a supported platform as set forth in the Documentation, and the Software is used only with public domain or properly licensed third party materials; (iv) You will install the latest version of the Software on Devices accessing or using the Software; (v) You are legally able to process Your Data and are legally able to provide Your Data to N‑able and its Affiliates, including obtaining appropriate consents or rights for such processing, as outlined further herein, and have the right to access and use Your infrastructure, including any system or network, to obtain or provide the Software and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; and (vi) You will keep your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as You subscribe to the Software. If You are an MSP, You further acknowledge, agree, and warrant that: (i) You have sufficient technical infrastructure, knowledge, and expertise to perform Your duties for Your Clients; (ii) You will provide all sales, problem resolution, and support services to Your Clients; (iii) You will be responsible for billing, invoicing, and collection for Your Clients; and (iv) You will operate at Your own expense and risk under Your own name as an MSP.

4. PROPRIETARY RIGHTS.

4.1 License to N‑able Content. This paragraph applies to You only if Company is an MSP. Subject to the terms of this Agreement and Your continuous compliance with the same, N‑able hereby grants to You a personal, non‑exclusive, non‑transferable, non‑sublicensable license to use, reproduce and distribute the N‑able Content in Company’s marketing and advertising materials that are provided to Clients. No right to modify or prepare derivative works of the N‑able Content (including any translation into another language) is granted to Company.

4.2 License to N‑able Marks. This paragraph applies to You only if Company is an MSP. Subject to this Agreement and Your continuous compliance with its terms, N‑able hereby grants to You a personal, non‑exclusive, non‑transferable, non‑sublicensable license to use the N‑able Marks during this Agreement solely to market and advertise to Clients that Company’s services utilize the Software. This license does not include the right to sublicense the use of the N‑able Marks. Your use of the N‑able Marks will strictly comply with N‑able’s Trademark and Copyright Guidelines and Branding Guidelines communicated to You from time to time. You will obtain N‑able’s prior written approval of all uses of the N‑able Marks. N‑able may withdraw any approval of any use of the N‑able Marks at any time and at its sole discretion, although no such withdrawal will require the recall of any previously distributed physical printed materials. You shall cooperate with N‑able, at N‑able’s request and reasonable expense, in facilitating N‑able’s monitoring and control of the nature and quality of the materials bearing the N‑able Marks, and will supply N‑able with specimens of Company’s use of the N‑able Marks upon request. If N‑able notifies You that Company’s use of the N‑able Marks is not in compliance with this Agreement, then You shall promptly take such reasonable corrective action as reasonably directed by N‑able. N‑able is the sole and exclusive owner of the N‑able Marks and is also the owner of all goodwill associated with the N‑able Marks. Except as prohibited by law, You shall do nothing inconsistent with such ownership, either during the term of this Agreement or afterwards. Without limitation, You shall not attempt to register the N‑able Marks or any similar marks in any jurisdiction or challenge N‑able’s ownership of the N‑able Marks. Your use of the N‑able Marks shall be on behalf, and inure to the benefit, of N‑able. Your utilization of the Marks will not create any right, title or interest in such N‑able Marks for Your benefit. Company shall use the N‑able Marks so that each N‑able Mark creates a separate and distinct impression from any other trademark that may be used or affixed to materials bearing the N‑able Marks. You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of N‑able, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the company name or mark of N‑able or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice.

4.3 Ownership of N‑able Intellectual Property. The Software, N‑able Content, N‑able Marks and Documentation are licensed, not sold. Use of “purchase” in conjunction with licenses of the Software and Documentation does not imply a transfer of ownership. Except for the limited rights expressly granted by N‑able to You, You acknowledge and agree that all right, title and interest in and to all copyrights, trademarks, patents, trade secrets, intellectual property (including without limitation algorithms, business processes, improvements, enhancements, modifications, derivative works, information collected and analyzed in connection with the Software) and other proprietary rights arising out of or relating to the Software, N‑able Content, N‑able Marks, and those arising from the provision of Support, and the Documentation, belong exclusively to N‑able or its suppliers or licensors. All right, title, and interest in and to content which may be accessed through the Software is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same. You hereby grant N‑able a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the Software. All rights not expressly granted to You under this Agreement are reserved by N‑able. There are no implied rights.

4.4 Ownership of Your Data. You and Your Users retain all right, title, and interest in and to all copyright, trademark, patent, trade secret, intellectual property and other proprietary rights in and to Your Data. N‑able’s right to access and use the same are limited to those expressly granted in this Agreement. No other rights with respect to Your Data are implied.

5. TERM, TERMINATION, AND ACCOUNT TYPE.

5.1 Term. Unless as otherwise agreed upon by N‑able or terminated earlier in accordance with this Agreement, the term of this Agreement for the relevant Software and Documentation will begin on the first day of the full month after the Effective Date and will continue for the period set forth in the Order Form or, if none is set forth in the Order Form, for a period of twelve months (“Initial Term”). Following the Initial Term, this Agreement will automatically renew and continue for successive twelve (12) month periods, unless terminated sooner in accordance with its express provisions, Company hereby authorizes N‑able to automatically renew its subscription license for the Software and Documentation for each such additional twelve month period (each a “Renewal Term,” and collectively with the Initial Term, the “Term”). If you have a perpetual license, this Agreement will continue until it is terminated in accordance with its express provisions.

5.2 Your Rights. You may terminate this Agreement at any time by providing N-able with thirty (30) days’ prior written notice of Your intention to terminate this Agreement. The thirty (30) day termination period will commence on the first day of the full month after receipt of the termination notice. During the Initial Term for a subscription license, fees charged during the thirty (30) day notification period will be based on the list price of the monthly contract value. During any Term, an early termination fee, based on the list price of the monthly contract value, will also be applied to the final invoice and due upon receipt.

5.3 Termination by N‑able. Unless as otherwise set forth herein, N‑able may terminate the Agreement upon thirty (30) days’ prior written notice or immediately if Company: (i) becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assign for the benefit of creditors, (ii) infringes or misappropriates N‑able’s intellectual property, or (iii) breaches this Agreement, including any breach of the license restrictions, or failure to make any payment due hereunder.

5.4 Account Upgrade. Company may, at any time, upgrade its N‑able subscription license. The change will take effect immediately. After an upgrade, the Company will be billed at the beginning of the next payment cycle for the additional fees due under the upgraded subscription license. The amount due and owing for the upgraded subscription license will be reduced by the amount the Company has already paid for the applicable Term.

5.5 Effect of Termination. Without prejudice to any other rights, upon termination, You must cease all use of the Software, N‑able Marks, N‑able Content and Documentation and destroy or return (upon request by N‑able) all copies of the Software, N‑able Content and Documentation and destroy all materials bearing the N‑able Marks. 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, 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.  Sections 1, 4.3, 5.5, and 6-14 shall survive any termination or expiration of this Agreement.

6. FEES AND PAYMENT; TAXES. 

6.1 Fees and Payment. All orders placed will be considered final upon acceptance by N‑able. Fees will be due and payable as set forth on the Order Form. Unless otherwise set forth herein, fees shall be at N‑able’s then‑standard rates at the time of invoice or, if applicable, as set forth in the Order Form. If You fail to pay, N‑able shall be entitled, at its sole discretion, to: (i) suspend the license to the Software until You fulfill Your pending obligations; (ii) charge You an interest rate designated by N‑able at the time of invoice; and/or (iii) terminate this Agreement. If applicable, if You exceed the license capacity designated in Your Order Form, in addition to N‑able’s other remedies, You will be charged additional fees, which will be reflected in Your invoice. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Fees are non‑refundable.

6.2 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.

7. DATA; PROTECTION OF YOUR DATA. 

7.1 Your Data. N‑able and its Affiliates may remove Your Data or any other data, information, or content of data or files used, stored, processed or otherwise by You or Your Users that N‑able, in its sole discretion, believes to be or is: (a) a Virus; (b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene; (c) used for the purpose of spamming, chain letters, or dissemination of objectionable material; (d) used to cause offense, defame or harass; or (e) infringing the intellectual property rights or any other rights of any third party. You agree that You and Your Users are responsible for maintaining and protecting backups of Your Data directly or indirectly processed using the Software and that N‑able is not responsible for exportation of, the failure to store, the loss, or the corruption of Your Data.

You agree that N‑able and its Affiliates will process configuration, performance, usage, and consumption data about You and Your Users use of the Software to assist with the necessary operation and function of the Software and to improve N‑able products and services and Your and Your Users’ experience with N‑able and its Affiliates pursuant to the N‑able Privacy Notice.

You represent and warrant that You and Your Users, in regard to processing of Personal Data hereunder, You shall be deemed the data controller (and N‑able, the data processor) and shall determine the purpose and manner in which such Personal Data is, or will be processed.

7.2 Protection of Data.    You agree that N‑able will process configuration, performance, usage, and consumption data, which may include hardware identification, operating system, application software, peripheral hardware, internet protocol address, about You and Your Users’ use of the Software in accordance with its Privacy Notice. Each party shall comply with its respective obligations under applicable data protection legislation and will maintain appropriate administrative, physical, technical and organizational measures that are designed to provide an appropriate level of security for Confidential Information and Personal Data. N‑able and its Affiliates will process Personal Data in accordance with the Data Processing Addendum, which is hereby incorporated by this reference. You are responsible for ensuring that the security of the Software is appropriate for Your intended use and the storage, hosting or processing of Personal Data.

7.3 No Protected Health Information. You expressly acknowledge and agree that You shall neither submit to nor use the Software to store, maintain, process or transmit any data or information that constitutes protected health information as defined under the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”) or otherwise use the Software in any manner that would require N‑able or the Software to be compliant with HIPAA.

8. CONFIDENTIAL INFORMATION.

As used in this Agreement, “Confidential Information” means any nonpublic information or materials disclosed by either party under this Agreement 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’s Confidential Information includes the Software, and any information or materials relating to the Software (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 herein. 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 law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted, of such order and will take reasonable steps to contest or limit the steps of any required disclosure. The parties agree that any material breach of Section 3 or this Section 8 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.

9. LIMITED WARRANTY AND WARRANTY DISCLAIMER.

9.1 Limited Warranty. N‑able warrants to You that, for a period of thirty (30) days following the initial purchase of the license and delivery of the Software to You, that the Software will perform substantially in conformance with the Documentation. N‑able does not warrant that the Software will meet all Your requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) Software that is modified or altered by You or any third party that is not authorized by N‑able; (ii) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; or (iii) failures that are caused by other software or hardware products. To the maximum extent permitted under applicable law, as N‑able’s and its suppliers’ entire liability, and as Your exclusive remedy for any breach of the foregoing warranty, N‑able will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if N‑able is unable to repair or replace the Software, refund to You the applicable license fees paid upon return, if applicable, of the nonconforming item to N‑able. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software under this limited warranty will be warranted for thirty (30) days from the replacement date.

9.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9.1, THE SOFTWARE, DOCUMENTATION, N‑able Content, N‑able Marks, SUPPORT AND OTHER SERVICES PROVIDED HEREUNDER AND ANY OTHER PRODUCTS PROVIDED OR MADE AVAILABLE UNDER THIS AGREEMENT, INCLUDING THIRD PARTY SOFTWARE, ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY STATED IN SECTION 9.1, 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 YOUR DATA, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE SOFTWARE, DOCUMENTATION, ANY OTHER PRODUCT OR SERVICES, OR RESULTS OF THE SAME PROVIDED TO YOU UNDER THIS AGREEMENT. N‑ABLE DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.

EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE SOFTWARE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS AGAINST THE OTHER PARTY WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SERVICES.

10. INDEMNIFICATION.

10.1 N‑able Indemnification. Subject to Section 11 below, N‑able will indemnify, defend, and hold You harmless from any third party claim brought against You that the Software, as provided by N‑able and used within the scope of this Agreement, infringed or misappropriated any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software by You is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software; and/or (iii) the infringement was not caused by a combination or use of the Software with any software, hardware, equipment, products or items not supplied by N‑able. N‑able’s indemnification obligations are contingent upon You: (i) promptly notifying N‑able in writing of the claim; (ii) granting N‑able sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing N‑able with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states N‑able’s entire liability (and shall be Your sole and exclusive remedy) with respect to indemnification of You.          

10.2 Your Indemnification. You agree to indemnify, defend, and hold harmless N‑able and its Affiliates, and its directors, employees, and agents from and against any claims arising out of or due to: (i) Your Data; (ii) Your (or Your User’s) breach of this Agreement; (iii) Your (or Your User’s) use of the Software or Documentation in violation of third party rights, including any intellectual property or privacy rights, or any applicable laws; or (iv) Your (or Your User’s) misuse of the Software or Documentation.

11. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL N‑ABLE AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR AGENTS HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, 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 DAMAGES OR LOSSES, EVEN IF IT HAS 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, DIRECTORS, EMPLOYEES, AND AGENTS, AND THE SOLE REMEDY AVAILABLE TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE 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.

12. THIRD PARTY PROGRAMS. To the extent the Software is bundled with third party software programs or software, the third-party software is governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any such third party software.

13. SUPPORT. If applicable to You, N‑able shall, during the Term, provide You with Support in accordance with the applicable support terms and conditions.

14. GENERAL.

14.1 Notices. All notices must be in writing and shall be mailed by registered or certified mail to Legal Department or sent via email to [email protected] (with evidence of effective transmission).

14.2 Entire Agreement. This Agreement, along with the Support and Maintenance Terms and Conditions and Your Order Form constitutes the entire agreement between the parties relating to the subject matter of this Agreement 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 or conditions conflict with this Agreement, this Agreement shall prevail and control with respect to the Software, and Documentation provided hereunder. In addition, any and all additional or conflicting terms provided by You, whether in a purchase order, an alternative license, or otherwise, shall be void and shall have no effect.

14.3 Export Control Laws. The Software, and Documentation delivered to You under this Agreement are subject to export control laws and regulations of the United States and Canada and may also be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained, if outside those jurisdictions. You shall abide by all applicable export control laws, rules, and regulations applicable to the Software, and Documentation. You agree that You are not located in or are not under the control of or a resident of any country, person, or entity prohibited to receive the Software or Documentation due to export restrictions and that You will not export, re-export, transfer, or permit the use of the Software or Documentation, in whole or in part, to or in any of such countries or to any of such persons or entities.

14.4 Modifications. This Agreement shall not be amended or modified except in a writing that identifies itself as an amendment to this Agreement and is signed by authorized representatives of each party.

14.5 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.

14.6 Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver of that right.

14.7 Force Majeure. N‑able 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 or any other cause (whether similar or dissimilar to the foregoing).

14.8 Construction. Paragraph headings are for convenience and shall have no effect on interpretation.

14.9 Governing Law. This Agreement shall be governed by the laws of the State 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. You hereby consent to jurisdiction of the state and federal courts of Massachusetts. 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.

14.10 Third Party Rights. Other than as expressly provided herein, 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.

14.11 U.S. Government Use. N‑able’s Software and Documentation were developed exclusively at private expense and are a “commercial item” as defined in Federal Acquisition Regulation (“FAR”) 2.101, and any supplement is provided with no greater than RESTRICTED RIGHTS. Such Software, Documentation, and related items consist of “commercial computer software,” “commercial computer software documentation,” and commercial technical data as defined in the applicable acquisition regulations, including FAR 2.101 and FAR Part 12. Use, duplication, release, modification, transfer, or disclosure (“Use”) of the Software and Documentation are restricted by this Agreement and in accordance with Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 227.7202 and FAR Section 12.212, and the Software, and Documentation are licensed (i) only as commercial items; and (ii) with only the rights granted to commercial end users pursuant to this Agreement. Such Use is further restricted by FAR 52.227-14, 252.227-7015, or similar acquisition regulations, as applicable and amended. Except as described herein, all other Use is prohibited. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause addressing government rights under this Agreement or any other contract under which the Software or Documentation is acquired or licensed. Manufacturers are N‑able Technologies Ltd., 20 Greenmarket, Dundee DD1 4QB, United Kingdom and N‑able Solutions ULC, 450 March Road, 2nd Floor, Ottawa, Ontario K2K 3K2 Canada.

14.12 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.

15. PRODUCT ADDENDA.

15.1 Mail Services Product.

15.1.1 Software Installation. It is Your responsibility during the Term of this Agreement to comply with Documentation, including the configuration, operation, installation and use requirements of the Software on Your Devices, and shall provide any necessary assistance to N‑able related thereto. You may incur additional fees in the event that You request for N‑able to reinstall the Software on Your Devices due to an error unrelated to the Software or to transfer installation of the Software to other Devices.

15.1.2 Effect of Termination. You acknowledge and agree You are solely responsible for adjusting the relevant DNS (MX record) and/or mail server settings such that Your Data, including emails, no longer pass through the N‑able systems and for exporting Your Data, including emails, from the archive, quarantine, or logging prior to termination of the license to the Software. Your failure to do so may cause Your Data to be lost.

Last updated: March 1, 2021