Software Services Agreement
This Software Services Agreement (the “Agreement”) is entered into and effective as of the day you “AGREE” (the “Effective Date”) by and between N-able Technologies Inc. (“N-able”) and you or the company or entity you represent (“Client” or “You”).
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING AN “AGREE” OR SIMILAR BUTTON OR INSTALLING OR USING THE SOFTWARE SERVICES (DEFINED BELOW). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND N-ABLE AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING AN “AGREE” OR SIMILAR BUTTON OR BY USING THE SOFTWARE SERVICES, YOU ACCEPT AND AGREE TO ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY N-ABLE AND WILL NOT BE A PART OF THIS AGREEMENT.
N-ABLE HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE SOFTWARE SERVICES AGREEMENT FROM TIME TO TIME AND TO CHANGE THE SCOPE OR FEATURES OF THE SOFTWARE SERVICES FROM TIME TO TIME. N-ABLE MAY MAKE SUCH CHANGES WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SOFTWARE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED TO THEM.
1. Provision of Software Services
Subject to the terms and conditions of this Agreement, N-able shall provide certain software services (the “Software Services”) and user documentation, if any, provided by N-able on the use of Software Services (“Documentation”) to Client and certain individuals or entities that are authorized to use the Software Services (“Authorized Users”). For clarification, Documentation means the official user documentation provided by N-able to Client on the use of the Software Services. 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.
N-able hereby grants Client a limited, non-exclusive, non-transferable and non-sublicensable license to access and use the Software Services and Documentation during the Term (defined below) provided Client complies with the terms and conditions of this Agreement.
If the Software Services and Documentation are provided to Client for evaluation purposes, N-able grants to Client a limited, non-exclusive, non-transferable, non-sublicensable and royalty-free evaluation license to use the Software Services solely for evaluation prior to purchase (“Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from N-able, at its sole discretion. Notwithstanding any other provision contained herein, Software Services provided pursuant to an Evaluation License are proved to Client “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific evaluation terms set forth in the Section, all other terms of this Software Services Agreement shall apply to the Software Services under an Evaluation License.
2. Client’s Obligations; License Restrictions
Client will (i) be responsible for its and its Authorized Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data (defined below) and means relating to acquisition of the Client Data; (iii) not provide, make available to, or permit other individuals to use or access the Software Services, except under the terms listed herein, and that Client will be responsible for any unauthorized activity of the Software Services; (iv) not sell, resell, rent, or lease the Software Services; (v) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software Services; (vi) not remove any proprietary notices or labels on the Software Services; (vii) not license the Software Services if Client (or any of its Authorized Users) is a direct competitor of N-able or its affiliated entities for the purposes of monitoring the Software Service’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (viii) not use the Software Services to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party privacy rights; (ix) not use the Software Services to store or transmit malicious code; or (x) interfere with or disrupt the integrity or performance of the Software Services.
3. Fees & Payment
All orders placed will be considered final. Fees will be due and payable as set forth on the web site or otherwise conveyed to you during the order process. Fees for any Renewal Term shall be at N-able’s then standard rates, currently in effect, or if applicable, as otherwise set forth on the web site or otherwise conveyed to you by N-able. If Client fails to pay in accordance with the payment terms, N-able shall be entitled, at its sole discretion, (i) to suspend provision of the Software Services temporarily until Client fulfills its pending obligations or (ii) to terminate this Agreement for breach. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Except as otherwise expressly provided herein, fees are non-refundable.
4. Upgrading / Downgrading Account Type.
Client may, at any time during the Term, upgrade or downgrade its N-able Software Services. The change will take effect immediately. After an upgrade, Client will be billed immediately for the additional fees due under the upgraded account or the remaining time of the applicable Term. The amount due and owing for the upgraded account will be reduced by what the amount the Client has already paid for the applicable Term. In regard to a downgraded account, Client will be billed the fees due for the downgraded account at the commencement of the Renewal Term.
The fees are exclusive of taxes, and Client shall pay or reimburse N-able for all taxes arising out of transactions contemplated by this Agreement. If Client is required to withhold any tax for payments due under this Agreement, Client shall gross its payments to N-able so that N-able receives sums due in full and free of any deductions. Client 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. Client hereby confirms that N-able can rely on the name and address that Client provides to N-able when Client agrees to the Software Services fees or in connection with Client’s 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 Client has established its business
6. Term & Termination
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 quote or order form for the Software Services (the “Initial Service Term”) and shall be automatically renewed for additional terms of the same duration as the Initial Service Term (each, a “Renewal Term”, collectively with the Initial Service Term, the “Term”).
Termination. Client may terminate this Agreement prior to expiration of the then-current Term. N-able may terminate this Agreement upon thirty (30) days prior written notice, or immediately if the Client becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, the Client infringes or misappropriates N-able’s intellectual property, or breaches the License Restrictions or Confidentiality provision set forth herein.
Effect of Termination. Termination shall not relieve Client of the obligation to pay any fees or other amounts accrued or payable to N-able through the end of the then-current Term. Client shall not receive a credit or refund for any fees or payments made prior to termination. Sections 3 through 12 and 14 shall survive any termination or expiration of this Agreement.
7. Client Data
N-able agrees that the data and information uploaded by Client (or Authorized Users of Client) that is stored or processed via the Software Services (the “Client Data”) shall be treated as confidential by N-able, if it is uploaded in accordance with Section 8, and shall remain Client’s sole property. Client agrees that it is responsible for maintaining and protecting backups of all Client Data directly or indirectly processed using the Software Services and that N-able is not responsible for exportation of, the failure to store, the loss, or the corruption of Client Data. Client agrees that N-able and its affiliated entities will collect and track technical and related information about Client and Client’s use of the Software Services, including Client’s internet protocol address, the hardware and software that Client utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including without limitation to facilitate in the provision of updates, support, invoicing, marketing by N-able, its affiliated entities, or its agents, and research and development. In the event that N-able is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, N-able shall take all commercially reasonable steps to provide the Client with prompt notice of any relevant order or basis for disclosure so as to allow Client to take whatever steps it can to object to such compulsory disclosure if Client so chooses.
As used in this Agreement, "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) Software Services. 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; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who are bound (i.e., as a condition to their employment or agency) by obligations respecting the protection of confidential information, which are substantially similar to those of this Agreement and which would extend to the disclosing party's Confidential Information; (iii) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party. The restrictions will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party, its employees or agents without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving party without breach of this Agreement; (vi) was generally made available to third parties by the disclosing party without such restriction; or (vii) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure. The parties agree that any material breach of Section 2 or this Section 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. Property Rights
The Software Services are licensed, not sold. Use herein of the word “purchase” in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Except for the limited rights expressly granted by N-able to Client in Section 1, Client acknowledges and agrees that, as between Client and N-able, all right, title and interest, including all copyright, trademark, patent, trade secret, intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Software Services belong exclusively to N-able, other than the Client Data. N-able 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 Client or its Authorized Users relating to the Software Services. All rights not expressly granted under this Agreement are reserved by N-able.
N-able warrants to Client that for a period of thirty (30) days following the initial purchase of the Software Services to Client that the Software Services will perform substantially in conformance with the Documentation. N-able does not warrant that the Software Services will meet all of Client’s requirements or that use of the Software Services will be uninterrupted, secure, or error-free. To the maximum extent permitted under applicable law, as N-able’s and its suppliers’ entire liability, and as Client’s sole and exclusive remedy for a breach of the foregoing warranty, N-able will, at its sole option and expense, promptly repair the Software Services. Each party warrants that: (i) it has the necessary corporate power and authority to enter into and perform this Agreement; (ii) this Agreement does not and will not conflict with any other agreement or understanding to which such party is a party or by which it is bound; and (iii) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
THE SOFTWARE SERVICES, THE DOCUMENTATION AND ALL OTHER PRODUCTS AND SERVICES, INCLUDING THIRD PARTY HOSTING SERVICES, PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10, N-able HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. N-able SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. N-able ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH CLIENT MAY UTILIZE THE SOFTWARE SERVICES, AND CLIENT SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS CLIENT MAY HAVE AGAINST N-able WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW
12. Limit of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL N-able OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY 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, PERSONAL INJURY, 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 ENTIRE AGGREGATE LIABILITY OF N-able AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE CLIENT IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAYABLE OR PAID TO N-able BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ITS TERMINATION.
13. Intellectual Property Indemnification
N-able will indemnify and hold Client harmless from any third party claim brought against Client that the Software Services, as provided by N-able to Client under this Agreement and used or distributed within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software Services by Client is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software Services or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software Services with products not supplied by N-able. N-able indemnification obligations are contingent upon Client: (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 Client’s sole and exclusive remedy) with respect to indemnification to Client.
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. Nothing in this Agreement creates an exclusive relationship or in any way prevents N-able from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers. Client understands and acknowledges that N-able is free to use some or all of the data, information, techniques, methodologies, forms, layouts or results of any of the products or services provided by N-able hereunder in providing products or services to other customers and nothing in this Agreement shall be construed to limit N-able’s right to do so.
Third Party Services. If the Client uses any third party service with the Software Services (including services that may use any application programming interface (API) provided by N-able), the Client acknowledges that the third party service may access or use the customer’s information. N-able will not be responsible for any act or omission of the third party, including such third party’s use of the customer’s information. The Client agrees to contact the third party service provider for any issues arising from the Client’s use of the third party service.
Compliance with Applicable Laws. The Software Services are protected by intellectual property laws and other laws of the United States and international laws and treaties, including intellectual property and export laws. Client agrees that it shall use the Software Services and shall perform all obligations under this Agreement in a manner that complies with all applicable laws applicable to Client and its use of the Software Services and published documentation, including, but not limited to, any and all contractual, statutory, or common law rights and obligations and applicable restrictions concerning intellectual property rights. The Software Services provided to Client hereunder may be subject to U.S. control laws and regulations and may also be subject to other applicable import and export laws. Client agrees that it shall abide by all applicable export control laws, rules and regulations applicable to its use of the Software Services.
Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver of any breach or provision of this Agreement will not be deemed a waiver of any different or subsequent breach.
Governing Law; Venue. This Agreement is governed by and will be construed using Texas law, without giving effect to conflict of law provisions or to constructive presumptions favoring either party, except that the Uniform Computer Information Transactions Act shall not apply to this Agreement. All actions arising out of or relating to this Agreement will be heard and determined exclusively by the state and federal courts located in Travis County, Texas and the parties hereby consent to and waive any objections with respect to such jurisdiction and venue.
Severability. The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected, and the parties consent to such court’s substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion.