This 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”). This Agreement is made and entered into as of the date that You accept this Agreement (“Effective Date”).
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILIZING THE SERVICES (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 ACCESS, DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR SERVICES.
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 Software Services 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 Services are 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 Services or Software (as updated 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 Documentation.
1.7 MSP means a managed services 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 Services and 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 Services and 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 Services, 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 15 that relate to the applicable Services, Software, or Documentation.
1.13 Services means the products and software services, including any application programming interface that accesses functionality, that are provided to You by N-able.
1.14 Software means the object code versions of any downloadable software provided by N-able solely for the purpose of accessing the Services, including but not limited to an agent, together with the updates, new releases or versions, modifications or enhancements, owned and provided by N-able to You pursuant to this Agreement.
1.15 Support means the standard maintenance or support provided by N-able or its designated agents for the Services as set forth in this Agreement.
1.16 User means an individual authorized by You to use the Services, Software, and Documentation, for whom You have purchased a subscription 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.
1.17 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 Services or Software.
2. PROVISION OF SERVICES.
2.1 Services License. Upon payment of fees and subject to this Agreement and Your continuous compliance with its terms, N-able hereby grants You a limited, nonexclusive, non-transferable license to access, use, and install (if applicable) the Services, Software, and Documentation during the Term (defined below). You may provide, make available to, or permit Your Users to use or access the Services, the Software, or Documentation, in whole or in part. You agree that N-able may deliver the Services or 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 Services or Software or provide alternative Services or 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. N-able may provide updates, modifications, or deprecation of the Services or Software and may provide alternative Services or Software to replace existing Services or Software, although the provision of an alternative Service or Software shall not materially reduce the level of performance, functionality, security, or availability of the Services or Software during the Term.
2.2 Evaluation License. If the Services, Software, and Documentation are provided to You for evaluation, beta, or release candidate purposes, N-able grants to You a limited, nonexclusive, non-transferable evaluation license to use the Services, Software, and Documentation solely for evaluation prior to purchase or implementation (an “Evaluation License”), subject to this Agreement and Your continuous compliance with its terms. You shall not use the Evaluation License 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, the Services, Software, and Documentation provided pursuant to an Evaluation License are provided to You “AS IS” without indemnification, Support, or warranty of any kind, statutory, express or implied. Except to the extent such terms conflict with this Section, all other terms of this Agreement shall apply to the Services, Software, and Documentation licensed under an Evaluation License.
2.3 Demonstration License. If the Services, Software, and Documentation are provided to You for non-production purposes, N-able grants to You a limited, nonexclusive, non-transferable license to use the Services, Software, and Documentation solely for demonstration purposes with Clients (a “Demonstration License”), subject to this Agreement and Your continuous compliance with its terms. You shall not use the Demonstration License 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, the Services, Software, and Documentation provided pursuant to a Demonstration License are provided to You “AS IS” without indemnification, Support, or warranty of any kind, whether statutory, express or implied. Except to the extent such terms conflict with this Section, all other terms of this Agreement shall apply to the Services, Software, and Documentation licensed under a Demonstration License.
2.4 Account Type. If applicable to Your license, You may, at any time, upgrade Your N-able license. The change will take effect immediately. After an upgrade, You will be billed immediately for the additional fees due under the upgraded license. The amount due and owing for the upgraded license will be reduced by the amount You have already paid for the applicable Term. After the Initial Term, You may downgrade, within the parameters communicated to You by N-able, upon thirty (30) days prior written notice to N-able. Any modification in the amount due to N-able will take effect after the thirty (30) day notice period, unless otherwise agreed upon by N-able. Downgrading Your license may cause loss of content, features, or capacity as available to You under Your previous license, and N-able does not accept any liability for such loss.
3. LICENSE RESTRICTIONS; OBLIGATIONS.
3.1 License Restrictions. You may not (i) provide, make available to, or permit individuals other than Your Users to use or access the Services, the Software, or Documentation, in whole or in part; (ii) copy, reproduce, republish, upload, post, or transmit the Services, Software, or Documentation (except for backup or archival purposes, which will not be used for transfer, distribution, sale, or installation on Your Devices); (iii) license, sell, resell, rent, lease, transfer, distribute, or otherwise transfer rights to the Services, Software, or Documentation unless as authorized in this Agreement; (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Services, Software, or Documentation; (v) create, market, distribute add-ons or enhancements or incorporate into another product the Services or Software without prior written consent of N-able; (vi) remove any proprietary notices or labels on the Services, Software, or Documentation, unless authorized by N-able; (vii) license the Services, Software, or Documentation (a) if You (or any of Your Users) are a direct competitor of N-able; (b) for the purposes of monitoring the availability, performance, or functionality of the Services or Software or (c) for any other benchmarking or competitive purposes; (viii) use the Services or Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; (ix) use the Services or Software to violate any rights of others; (x) use the Services or 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 Services or any other third party’s use of the Services; (xii) use the Services in a manner that results in excessive use, bandwidth, or storage; or (xii) alter, circumvent, or provide the means to alter or circumvent the Services or Software, including technical limitations, recurring fees, or usage limits.
3.2 Your Obligations. You acknowledge, agree, and warrant that: (i) You 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 Services, 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 establish a constant internet connection and electrical supply for the use of the Services, ensure the Software is installed on a supported platform as set forth in the Documentation, and the Services and Software are 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 Services; (v) You are legally able to process Your Data and are able to 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 Services and 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 Services, Software and Documentation.
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 Services and 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, 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.
4.3 Ownership of N-able Intellectual Property. The Services, Software, N-able Content, N-able Marks and Documentation are licensed, not sold. Use of “purchase” in conjunction with licenses of the Services, 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 Services) and other proprietary rights arising out of or relating to the Services, the Software, N-able Content, N-able Marks, and the provision of the Services or Software, 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 Services or 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 Services or 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.
5.1 Term. Unless terminated earlier in accordance with this Section, this Agreement will begin on the Effective Date and will continue until the end of the period specified in the applicable Order Form (the “Initial Term”). You authorize N-able to automatically renew the applicable Services upon the expiration of the Initial Term (each a Renewal Term, and collectively with the Initial Term, the Term). The Renewal Term will be the same length as the Initial Term unless otherwise specified by N-able at the time of renewal.
5.2 Your Rights. You may terminate this Agreement thirty (30) days prior to the end of the applicable Term by providing N-able with prior written notice.
5.3 N-able Suspension or Termination Rights. N-able may suspend or terminate this Agreement upon thirty (30) days’ prior written notice or immediately if: (i) You become subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; (ii) You infringe or misappropriate N-able’s intellectual property rights; (iii) You breach this Agreement or Order Form, including failure to pay fees when due; or (iv) pursuant to the receipt of a subpoena, court order, or other request by a law enforcement agency.
5.4 Effect of Termination. Termination shall not relieve You of the obligation to pay any fees or other amounts accrued or payable to N-able through the end of the current Term. You shall not receive a credit or refund for any fees or payments made prior to termination. Without prejudice to any other rights, upon termination, You must cease all use of the Services, Software, N-able Marks, N-able Content and Documentation and destroy or return (upon request by N-able) all copies of the Services, 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, 4.4, 5.4, 6-11, 14.1-14.3, 14.9 and 15 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 provision of the Services 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 Services and 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 Services and Software to assist with the necessary operation and function of the Services and 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 Your Data. Each party shall comply with its respective obligations under applicable data protection laws. Each party shall maintain appropriate administrative, physical, technical and organizational measures that ensure 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 Services 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 Services or 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 Services in any manner that would require N-able or the Services to be compliant with HIPAA. Otherwise, You further acknowledge and agree that neither N-able or its Affiliates are acting on Your behalf as a Business Associate (as defined under HIPAA). N-able may immediately and upon notice suspend all or portion of Your access to the Services and Software (without any liability to You in connection with such suspension), if N-able has a good faith belief that You have breached this paragraph. You acknowledge and agree that N-able shall have no liability to You for any such data or information.
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 Confidential Information includes the Services, Software, and any information or materials relating to the Services, 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.
THE SERVICES, SOFTWARE, DOCUMENTATION, N-able Content, N-able Marks AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD PARTY HOSTED SERVICES, ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. N-ABLE DISCLAIMS 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 SERVICES, 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 SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.
EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE SERVICES AND 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.
10.1 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 Services, as provided by N-able, infringe or misappropriate any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Services by You is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Services; and/or (iii) the infringement was not caused by a combination or use of the Services with products 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 Services, 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 Services, 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 SERVICES, 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 SERVICES, 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.
You may receive access to third-party programs through the Services or Software, or third-party programs may be bundled with the Services or Software. These third-party software programs are governed by their own license terms, which may include open source or free software licenses, and those terms will prevail over this Agreement as to Your use of the third-party programs. Nothing in this Agreement limits Your or Your Users’ rights under, or grants You or Your User rights that supersede, the terms of any such third-party program.
13.1 N-able Support. If applicable to You, N-able shall, during the Term, provide You with Support. You agree to: (i) promptly contact N-able with all problems with the Services or Software; and (ii) cooperate with and provide N-able with all relevant information and implement any corrective procedures that N-able requires to provide Support.
13.2 Provision of Support. During the Term, You may receive:
13.2.1 Online Support. Your contact(s) may submit support and related requests via an online portal that is available on the Support website 24 hours a day, 7 days a week, 363 days a year (Support is not available on December 25 or January 1). Each request is given a unique identification number for Your convenience and reference. All online support submissions are managed using the English language.
13.2.2 Telephone Support. Telephone support is generally available 24 hours a day, 7 days a week, 363 days a year.
13.2.3 Live Chat Support. Live chat support is available from the HELP area of the Services and is generally available 24 hours a day, 7 days a week, 363 days a year.
13.3 Limitations. N-able will have no obligation to provide Support for problems caused by or arising out of the following: (i) modifications or changes to the Software or Services; (ii) use of the Software or Services not in accordance with the Agreement or Documentation; or (iii) third-party products that are not authorized in the Documentation or, for authorized third-party products in the Documentation, problems arising solely from such third-party products.
14.1 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).
14.2 Entire Agreement. This Agreement 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 Services, 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 Services, Software, and Documentation delivered to You 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 accessed, used, or obtained, if outside those jurisdictions. You shall abide by all applicable export control laws, rules, and regulations applicable to the Services, 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 Services, Software, or Documentation due to export restrictions and that You will not export, re-export, transfer, or permit the use of the Services, 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 writing 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 Services, 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 Services, 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 Services, 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 Services, 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 Services, 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 Services and/or 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 or Services on Your Devices due to an error unrelated to the Software or Services or to transfer installation of the Software or Services 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 Services. Your failure to do so may cause Your Data to be lost.
15.2.1. Protected Health Information. If You purchase the Backup product, which is able to be utilized for the processing, storage, maintenance, and transmission of protected health information HIPAA, or otherwise use the Services in any manner that would require N-able or the Services to be compliant with HIPAA information, You must execute a Business Associate Agreement with N-able. Otherwise, You further acknowledge and agree that neither N-able nor its Affiliates are acting on Your behalf as a Business Associate (as defined under HIPAA). N-able may immediately and upon notice suspend all or portion of Your access to the Services and Software (without any liability to You in connection with such suspension), if N-able has a good faith belief that You have breached this paragraph.
15.2.2. Additional Disclaimer. IN ADDITION TO THE OTHER TERMS AND CONDITIONS HEREIN, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR DATA MAY NOT BE AVAILABLE OR RESTORABLE IF (1) YOU UTILIZE THE SERVICES IN EXCESS OF THE AMOUNT YOU ORDERED; (2) A COPY OF YOUR DATA WAS NOT COMPLETED; (3) YOU ATTEMPT TO BACK UP DEVICES, FILES, FOLDERS, OR DRIVES NOT SUPPORTED BY THE SERVICES AS SET FORTH IN THE DOCUMENTATION; (4) YOU DESELECT OR DELETE A DEVICE, FILE, FOLDER, OR DRIVE FROM YOUR N-ABLE ACCOUNT, FROM YOUR DEVICE, OR FROM BEING BACKED UP BY THE SERVICES; (5) YOU MODIFY YOUR OPERATING SYSTEM IN A MANNER THAT BREAKS COMPATIBILITY OR INHIBITS THE FUNCTIONALITY OF THE SERVICES OR SOFTWARE; (6) YOUR COMPUTER IS UNABLE TO ACCESS THE INTERNET OR N-ABLE INFRASTRUCTURE; (7) YOU FAIL TO COMPLY WITH THE AGREEMENT OR DOCUMENTATION; OR (8) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO THE SERVICES.
Last updated March 1, 2021