This Software as a Service Agreement, as of the date that You accept this Agreement (defined below) (“Effective Date”), is hereby entered into and agreed upon by you, either an individual or an entity (“You” or “Company”) and SolarWinds Worldwide, LLC (“SolarWinds”).
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 SOLARWINDS 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.
SolarWinds may modify this Agreement from time to time and will post the most up-to-date version on its website. Your continued use of the Services and Software following modification to the updated Agreement constitutes Your consent to be bound by the same.
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. SolarWinds Affiliates may provide some of the Services or ancillary services (such as invoicing) under this Agreement.
1.2 Agreement means the Software Services Agreement, the Data Processing Addendum, and the Order.
1.3 Client(s) means, if You are an MSP, Your customer(s), if applicable.
1.4 Data Processing Addendum(a) means the terms of the data processing addendum, which are 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 SolarWinds 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 service provider, or a company that is using the Services to support a third party.
1.8 Order means the ordering document or process that specifies Your purchase of the Services, pricing, and other related information.
1.9 Personal Data has the definition set forth in the Data Processing Addendum.
1.10 Services or SaaS means software as a service, including any application programming interface that accesses functionality, that is provided to You by SolarWinds.
1.11 Software means the object code versions of any downloadable software provided by SolarWinds 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 SolarWinds to You pursuant to this Agreement.
1.12 Support means the standard maintenance or support provided by SolarWinds or its designated agents as set forth in this Agreement if applicable to You.
1.13 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.
1.14 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.
2.1 Services License. Upon payment of fees and subject to continuous compliance with this Agreement, SolarWinds 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) in accordance with type of license and permitted usage as set forth in the Order and applicable Documentation. You may provide, make available to, or permit Your Affiliates and all authorized Users to use or access the Services, the Software, or Documentation, in whole or in part. You are responsible for their compliance with this Agreement. You agree that SolarWinds may deliver the Services or Software to You with the assistance of its Affiliates, licensors, and service providers.
2.2 Evaluation, Beta License, Tools or No Fee Licenses. If the Services, Software, and Documentation are provided to You for evaluation, beta, or release candidate purposes, or for use without payment of a license fee (a “No-Fee License”), SolarWinds grants to You a nonexclusive, limited, royalty-free, non-transferable evaluation license to use the Services, Software, and Documentation solely for evaluation (unless a No-Fee License is provided for support purposes, as outlined below) or if you are an MSP, for demonstrative purposes with Clients, prior to purchase or implementation, where time period and evaluation are applicable. Any use in product of a No-Fee-License in a production environment is at Your risk. The No-Fee Licenses that are granted for a term shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from SolarWinds in its sole discretion. Notwithstanding any other provision contained herein, Services and/or Software provided pursuant to a No-Fee 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 the specific No-Fee License terms set forth in this Section, all other terms of this Agreement shall apply to Services and Software licensed under a No-Fee License. No-Fee Licenses may include certain SolarWinds tools provided or made available to You without a license fee (each, a “Tool”) including Tools made available for support purposes. In particular, any use of any support Tool by You following the conclusion of a SolarWinds support session is undertaken solely at your own risk. To the maximum extent permitted by law, SolarWinds hereby disclaims and excludes any and all liability or further obligation related to Your use of any support Tool by You after Your support session ends.
2.3 Upgrading/Downgrading Account Type. If applicable to Your license, You may, at any time, upgrade Your SolarWinds account type. An upgrade will take effect immediately. After an upgrade, You will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. You may downgrade within the parameters communicated to You by SolarWinds for any Renewal Term, upon thirty (30) days prior written notice to SolarWinds to be effective upon the start of the next Renewal Term; however, if the Service allows self-service downgrades, the downgraded functionality may take effect immediately, but no refund will be provided. In the event of a downgraded account type, You will be billed the fees due for the downgraded account type at or before the commencement of the Renewal Term. Downgrading Your license may cause loss of content, features, or capacity as available to You under Your previous license, and SolarWinds is not liable for such loss.
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 SolarWinds; (vi) remove any proprietary notices or labels on the Services, Software, or Documentation, unless authorized by SolarWinds; (vii) license the Services, Software, or Documentation (a) if You (or any of Your Users) are a direct competitor of SolarWinds; (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 (each, a “Virus”); (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; (xii) alter, circumvent, or provide the means to alter or circumvent the Services or Software, including technical limitations, recurring fees, or usage limits, or (xiii) perform or disclose any performance or vulnerability testing of the Services or Software or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Services or Software without SolarWinds’ prior written approval.
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 SolarWinds; (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 provide Your Data to SolarWinds 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.
4.1 Ownership of SolarWinds Intellectual Property. The Services, Software, and Documentation are licensed, not sold. Use of “purchase” in conjunction with licenses of the Services, Software and Documentation shall not imply a transfer of ownership. Except for the limited rights expressly granted by SolarWinds to You, You acknowledge and agree that all right, title and interest in and to all copyright, trademark, patent, trade secret, 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, the provision of the Services or Software, and the Documentation, belong exclusively to SolarWinds or its suppliers or licensors. All rights, 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. SolarWinds is hereby granted 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 under this Agreement are reserved by SolarWinds.
4.2 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. SolarWinds’ 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.
4.3 Additional Terms Applicable to MSPs. This Section 4.3 applies to You only if You are an MSP.
4.3.1 License to SolarWinds Content. Subject to the terms of this Agreement and Your continuous compliance with the same, SolarWinds hereby grants to You a personal, non-exclusive, non-transferable, non-sublicensable license to use, reproduce and distribute the SolarWinds Content (as defined herein) in Company’s marketing and advertising materials that are provided to Clients. No right to modify or prepare derivative works of the SolarWinds Content (including any translation into another language) is granted to Company. “SolarWinds Content” means, if applicable, SolarWinds marketing documents and other content that are made available by SolarWinds online for MSPs to use in connection with selling to their customers their services that utilize the Software.
4.3.2 License to SolarWinds Marks. Subject to Your compliance with this Agreement, SolarWinds hereby grants to You a personal, non-exclusive, non-transferable, non-sublicensable license to use the SolarWinds 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 SolarWinds Marks. Your use of the SolarWinds Marks will strictly comply with SolarWinds’s Trademark and Copyright Guidelines and Branding Guidelines communicated to You from time to time. You will obtain SolarWinds’s prior written approval of all uses of the SolarWinds Marks. SolarWinds may withdraw any approval of any use of the SolarWinds 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 SolarWinds, at SolarWinds’s request and reasonable expense, in facilitating SolarWinds’s monitoring and control of the nature and quality of the materials bearing the SolarWinds Marks, and will supply SolarWinds with specimens of Company’s use of the SolarWinds Marks upon request. If SolarWinds notifies You that Company’s use of the SolarWinds Marks is not in compliance with this Agreement, then You shall promptly take such reasonable corrective action as reasonably directed by SolarWinds. SolarWinds is the sole and exclusive owner of the SolarWinds Marks and is also the owner of all goodwill associated with the SolarWinds 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 SolarWinds Marks or any similar marks in any jurisdiction or challenge SolarWinds’s ownership of the SolarWinds Marks. Your use of the SolarWinds Marks shall be on behalf, and inure to the benefit, of SolarWinds. Your utilization of the Marks will not create any right, title or interest in such SolarWinds Marks for Your benefit. Company shall use the SolarWinds Marks so that each SolarWinds Mark creates a separate and distinct impression from any other trademark that may be used or affixed to materials bearing the SolarWinds Marks. You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of SolarWinds, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the name or mark of SolarWinds 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. “SolarWinds Marks” means the trademarks and service marks that are specifically approved by SolarWinds for MSPs to use in connection with selling to Clients their services that utilize the Software.
4.3.3 Support. 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 are the point of contact for Your Clients, and will provide all 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. For the avoidance of doubt, You are solely responsible for informing Clients that You are their point of contact for use of the Software, including with respect to all problem resolution and support services.
5.1 Term.
5.1.1 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 (the “Initial Term”). Unless otherwise set forth in the Order, You authorize SolarWinds 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 SolarWinds at the time of renewal.
5.1.2 Except as set forth in the Order, You may prevent the auto-renewal of Your license by providing SolarWinds with ninety (90) days prior written notice to terminate this Agreement prior to the end of the current License Term.
5.2 Your Termination Rights. You may terminate this Agreement or an Order for cause if SolarWinds remains in material breach that remains uncured at least thirty (30) days after you have provided written notice of such breach.
5.3 SolarWinds Suspension or Termination Rights. SolarWinds may suspend or terminate this Agreement upon thirty (30) days’ prior written notice or immediately if You become subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; You infringe or misappropriate SolarWinds’ intellectual property; You breach this Agreement or Order , including failure to pay fees when due; or 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 SolarWinds 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, and Documentation and destroy or return (upon request by SolarWinds) all copies of the Services, Software, and Documentation. You further acknowledge and agree that it is Your obligation to retrieve Your Data or copies of Your Data from SolarWinds 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 SolarWinds 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, 3, 4, 5.4, 6, 8, 9, 10, 11, 12, and 14 shall survive any termination or expiration of this Agreement except as explicitly set forth therein.
6.1 Fees and Payment. Where the Services are procured through an authorized partner, all fees and payments are handled directly between You and the partner; only SolarWinds’ rights related to failure to pay as indicated by the reseller to SolarWinds shall apply unless You can show evidence of payment made to such partner. All orders placed will be considered final upon acceptance by SolarWinds. Fees will be due and payable as set forth on the Order. Unless otherwise set forth herein, fees shall be at SolarWinds’ then-standard rates at the time of invoice or, if applicable, as set forth in the Order. For certain Services, you may elect to expand or add additional Services in-product; such orders shall be equivalent to an Order. In addition, in some cases you may be able to exceed your licensed parameters and agree to pay for such overages in arrears. If You fail to pay, SolarWinds shall be entitled, at its sole discretion, to: (a) suspend provision of the Services until You fulfill Your pending obligations; (b) charge You an interest rate designated by SolarWinds at the time of invoice; and/or (c) terminate this Agreement. If applicable, if You exceed the license capacity designated in Your Order, in addition to SolarWinds’ other remedies, You will be charged additional fees, which will be reflected in Your invoice. Fees are non-refundable.
For purposes of clarification, where the Services permit connectivity to Your third party service providers, including, without limitation, exchange of information with Your third-party cloud services provider(s), any charges resulting from such connectivity are between You and Your third-party provider.
6.2 Taxes. All fees are exclusive of taxes, and You shall pay or reimburse SolarWinds 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 Your payments to SolarWinds so that SolarWinds receives sums due in full, free of any deductions. As reasonably requested, You will provide documentation to SolarWinds showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on SolarWinds income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that SolarWinds can rely on the name and address that You provide to SolarWinds 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.
7.1 Your Data. SolarWinds 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 SolarWinds, 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 otherwise in a way not intended for appropriate use of the Service; 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 determining the backup configuration and capabilities which may vary per products, and SolarWinds Worldwide is not responsible for backing up data beyond the capabilities of the particular Service.
You agree that SolarWinds 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 SolarWinds products and services and Your and Your Users’ experience with SolarWinds and its Affiliates pursuant to the SolarWinds Privacy Notice.
You represent and warrant that You and Your Users, regarding processing of Personal Data hereunder, shall be deemed the data controller (and SolarWinds, the data processor) related to SolarWinds’s assistance with the necessary operation and function of the Services and Software and 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 and cyber security laws, including any applicable notification requirements for incidents prescribed under such 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. SolarWinds and its Affiliates will process Personal Data to provide assistance with the necessary operation and function of the Services and Software in accordance with Data Processing Addendum. 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.
As used in this Agreement, Confidential Information means any nonpublic information or materials disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects that the disclosing party clearly identifies as confidential or proprietary. For clarity, Confidential Information includes Personal Data, and SolarWinds 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 (a) is (or through no fault of the recipient, has become) generally available to the public; (b) was lawfully received by the receiving party from a third party without such restrictions; (c) was known to the receiving party without such restrictions prior to receipt from the disclosing party; or (d) 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 obligations set forth in this Section shall survive for three (3) years after the Term or termination of this Agreement except with respect to trade secrets disclosed hereunder which shall remain subject to this obligation indefinitely.
THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD PARTY HOSTED SERVICES, ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. SOLARWINDS 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. SOLARWINDS 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 SolarWinds Indemnification. SolarWinds will indemnify, defend, and hold You harmless from any third party claim brought against You that the Services, as provided by SolarWinds, 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 SolarWinds. SolarWinds indemnification obligations are contingent upon You: (i) promptly notifying SolarWinds in writing of the claim; (ii) granting SolarWinds sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing SolarWinds with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states SolarWinds entire liability (and shall be Your sole and exclusive remedy) with respect to indemnification to You.
10.2 Your Indemnification. You agree to indemnify, defend, and hold harmless SolarWinds 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.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL SOLARWINDS 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 A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE AGGREGATE LIABILITY OF SOLARWINDS 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 THE TOTAL AMOUNT OF FEES PAYABLE OR PAID TO SOLARWINDS UNDER THE ORDER GIVING RISE TO THE CLAIM IN THE PRIOR TWELVE MONTHS.
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.
If applicable to You, SolarWinds shall, during the Term, provide You with Support in accordance with the applicable support terms and conditions available at https://www.solarwinds.com/legal/support-and-maintenance-terms-and-conditions. You agree to: (i) promptly contact SolarWinds with all problems with the Services or Software; and (ii) cooperate with and provide SolarWinds with all relevant information and implement any corrective procedures that SolarWinds requires to provide Support. SolarWinds will have no obligation to provide Support for problems caused by or arising out of the following: (a) modifications or changes to the Software or Services not performed by SolarWinds; (b) use of the Software or Services not in accordance with the Agreement or Documentation; or (c) 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 legal_team@solarwinds.com (with evidence of effective transmission).
14.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the Services, Software, and Documentation provided 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 or conditions conflict with this Agreement, this Agreement shall prevail and control with respect to the Services, Software, and Documentation provided hereunder. Unless expressly stated otherwise, with respect to any inconsistency between this Agreement and an Order, the terms of this Agreement shall supersede and control. 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 U,S. export control laws and regulations and may also be subject to further import and export laws of jurisdiction(s) in which it is accessed, used, or obtained. You shall abide by all U.S. and other 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 U.S and any other applicable export restrictions and that You will not export, re-export, transfer, use as agent for or on behalf person or entity, 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. You specifically agree not to export, re-export, the Services, Software or Documentation (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 You know or have reason to know will utilize the Services, Software or Documentation 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. SolarWinds reserves the right to suspend support for, and access to, the Services, Software or Documentation as required to comply with export control laws, rules, internal policies, and regulations.
14.4 Assignment. Except in the event of a merger, acquisition or sale of all or substantially all of a party’s assets, or to an Affiliate, and subject to any applicable export compliance restrictions, neither party shall assign this Agreement without the other party’s prior written consent. Each party shall provide timely written notice of any such assignment. You acknowledge that Your failure to provide notice of any assignment may impact the provision of the Services, Software, Documentation and any Support and Maintenance or other materials relevant notices and information to You, for which SolarWinds shall not be responsible.
14.5 Modifications. This Agreement shall not be amended or modified by You unless agreed in writing and signed by authorized representatives of each party.
14.6 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.
14.7 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.
14.8 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 similar failures; earthquakes, storms, or other elements of nature; embargoes; riots; acts or orders of government; acts of terrorism; and war.
14.9 Construction. Paragraph headings are for convenience and shall have no effect on interpretation.
14.10 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. You hereby consent to 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, You agree that the English version of this Agreement shall prevail and control.
14.11 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.
14.12 U.S. Government Use. (Applies only when licensed by or for the benefit of a U.S. government customer.) SolarWinds 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. Manufacturer is SolarWinds Worldwide, LLC, 7171 Southwest Parkway, Building 400, Austin, Texas 78735.
14.13 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.
14.14 Backup 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 OR THE DATA YOU ARE SEEKING TO RECOVER HAD NOT YET BEEN BACKED UP BASED ON THE TIMING OF WHAT WAS DELETED; (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 SOLARWINDS 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 SOLARWINDS INFRASTRUCTURE; (7) YOU FAIL TO COMPLY WITH THE AGREEMENT OR DOCUMENTATION; OR (8) YOU TERMINATE OR DO NOT RENEW YOUR SUBSCRIPTION TO THE SERVICES.
SolarWinds may, from time to time, offer services that are subject to terms that apply to those Services only (“SaaS Specific Terms”), which are in effect at the time of an Order. Any SaaS Specific Terms are available at https://www.solarwinds.com/legal/legal-documents and supersede any conflicting terms set forth herein only with respect to the Services to which they apply, provided, however, for the avoidance of doubt no SaaS-Specific Terms shall modify the parties’ warranty, indemnification, or limitation of liability obligations. SolarWinds reserves the right to add or modify any such SaaS Specific Terms, provided, however, You can subscribe to SolarWinds’ RSS feed at https://www.solarwinds.com/legal/legal-documents to receive notice of changes.