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SolarWinds SaaS Supplemental Terms And Conditions

20220923

SOLARWINDS
SAAS SUPPLEMENTAL TERMS AND CONDITIONS

These SaaS Supplemental Terms and Conditions (the “SaaS Supplement”) supplement Your End User License Agreement (“EULA”), which governs the use of Your on-premises Software (as defined in the EULA) and applies only to Your use of SolarWinds’ Software Services (as defined below) that may be accessed from, and use data residing in, Your on-premises Software. In the event of any conflict between this SaaS Supplement and your EULA, the terms of this SaaS Supplement shall govern with respect to Your use of the Software Services only.

Terms applicable to the Software under the EULA shall also apply to the Software Services unless otherwise modified or set forth in this SaaS Supplement.

  1. DEFINITIONS
    For purposes of this SaaS Supplement, the following definitions apply:
    •  Agreement means, in addition to the EULA, this SaaS Supplement and SolarWinds’ Data Processing Addendum.
    •  Client(s) means, if You are an MSP, Your customer(s), if applicable.
    •  Data Processing Addendum means the terms of SolarWinds’ data processing addendum and includes the EU Standard Contractual Clauses or other geographically appropriate method of transfer of personal data, which are all incorporated herein by reference.
    •  MSP means a managed service provider, or a company that is authorized to use the Software Services to support a third party.
    •  Software means, in addition to the definition in the EULA, the object code versions of any downloadable software provided by SolarWinds under this SaaS Supplement solely for the purpose of accessing the Software Services, including but not limited to an agent, together with the updates, new releases or versions, modifications or enhancements thereto, owned and provided by SolarWinds to You.
    •  Software Services means, collectively with the Software provided under this SaaS Supplement for use with the Software Services, the products and software services (including any application programming interface that accesses functionality) that are provided to You by SolarWinds as a cloud offering.
    •  Support means the standard maintenance or support provided by SolarWinds or its designated agents as set forth in this Agreement, if applicable to You.
    •  Documentation means, in addition to the definition in the EULA, the official user documentation prepared and provided by SolarWinds You on the use of the Software Services (as updated from time to time).
    •  User means, in addition to the definition in the EULA, an individual authorized by You to use the Software Services and Documentation, for whom You have purchased a subscription or to whom You have supplied a user identification and password.
    •  Your Data or Data means, in addition to the definition in the EULA, data, files, or information, including data, files, or information that include Personal Data, accessed, used, communicated, stored, or submitted by You or Your Users related to Your or Your User’s use of the Software Services.
  2. PROVISION OF SOFTWARE SERVICES; RESTRICTIONS
    2.1  Access. Upon payment of fees and subject to Your ongoing compliance with the terms of this SaaS Supplement, SolarWinds hereby grants You a limited, nonexclusive, non-transferable license to access and use the Software Services (and install the Software, if applicable) and Documentation during the Term. You may provide, make available to, or permit Your Users to use or access the Software Services or Documentation. You agree that SolarWinds may deliver the Software Services to You with the assistance of its Affiliates, licensors, and service providers. SolarWinds will not materially reduce the level of performance, functionality, security, or availability of the Software Services during the Term. If SolarWinds decides to end of life the Software Services, it shall be in accordance with SolarWinds End of Life Policy.
    2.2  Upgrading/Downgrading Account Type. If applicable to Your subscription, You may, at any time, upgrade or downgrade Your SolarWinds account type.. 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. The amount due and owing for the upgraded account type will be reduced by the amount You have already paid for the applicable Term. You may downgrade your account type, upon thirty (30) days prior written notice to SolarWinds, provided, however, any modification in the amount due to SolarWinds due to any such downgrade will take effect only upon renewal and be reflected in your renewal invoice. . Downgrading Your license may cause loss of content, features, or capacity as available to You under Your previous account type, and SolarWinds has no liability for such loss.
    Further, if applicable, if You exceed the license capacity designated in Your Order Form, in addition to SolarWinds’ other remedies, You will be charged additional fees, which will be reflected in a subsequent invoice provided to you.2.3  Additional Restrictions. In addition to the restrictions set forth in the EULA, You may not (i) provide, make available to, or permit individuals other than Your Users to use or access the Software Services or Documentation, in whole or in part; (ii) copy, reproduce, republish, upload, post, or transmit the Software Services or Documentation (except for backup or archival purposes, which will not be used for transfer, distribution, sale, or installation on Your Devices); (iii) create, market, distribute add-ons or enhancements or incorporate into another product the Software Services without prior written consent of SolarWinds; (iv) remove any proprietary notices or labels on the Software Services or Documentation, unless authorized by SolarWinds in writing; (v) access or use the Software Services or Documentation if You (or any of Your Users) are a direct competitor of SolarWinds Worldwide; (vi) 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 rights, including any privacy rights; (vii) use the Software Services to violate any rights of others; (viii) use the Software Services to store or transmit malicious code, Trojan horses, malware, spam, viruses, or other destructive technology (“Viruses”); (ix) interfere with, impair, or disrupt the integrity or performance of the Software Services or any other third party’s use of the Software Services; (x) use the Software Services in a manner that results in excessive use, bandwidth, or storage; or (xi) alter, circumvent, or provide the means to alter or circumvent the Software Services, including technical limitations, recurring fees, or usage limits; or (xii) perform or disclose any performance or vulnerability testing of the Software Services or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Software Services without SolarWinds’ prior written approval.2.4  Section 2.4 of the EULA (“High Availability and/or Disaster Recovery Purpose License”), does not apply to the Software Services.
  3. ADDITIONAL OBLIGATIONS
    3.1  Your Obligations. In addition to Your Obligations set forth in the EULA, You acknowledge and agree that: (i) You will establish a constant internet connection and electrical supply for the use of the Software Services, ensure the Software is installed on a supported platform as set forth in the Documentation, and the Software Services are used only with public domain or properly licensed third party materials; (ii) You will install the latest version of the Software on Devices accessing or using the Software Services; and (iii) You will keep your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as You subscribe to the Software Services.
    3.2  Terms Applicable to MSP. 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.
    3.3  Indemnification of SolarWinds. 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 SaaS Supplement; (iii) Your (or Your User’s) use of the Software Services or Documentation in violation of third party rights, including any intellectual property or privacy rights, or any applicable laws; or (iv) Your (or Your User’s) misuse of the Software Services or Documentation.
  4. OWNERSHIP
    4.1  Ownership of SolarWinds Intellectual Property. The Software Services and Documentation are licensed, not sold. Use or “purchase” in conjunction with licenses of the Software Services 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 Software Services) and other proprietary rights, arising out of or relating to the Software Services and the Documentation (including the provision thereof), belong exclusively to SolarWinds or its suppliers or licensors.
    4.2  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.
    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 Software Services; or (e) infringing the intellectual property rights or any other rights of any third party.
  5. DATA PROTECTION. You acknowledge, represent and warrant that You and Your Users, regarding processing of Personal Data hereunder, shall be the data controller (and SolarWinds, the data processor) related to SolarWinds’s assistance with the necessary operation and function of the Software Services and You and Your Users will determine the purpose and manner in which such Personal Data is, or will be, processed. SolarWinds and its Affiliates will process Personal Data to provide assistance with the necessary operation and function of the Software Services in accordance with SolarWinds’ Data Processing Addendum or such other geographically appropriate mechanism for the transfer of Personal Data as is applicable. You are responsible for ensuring that the security of the Software Services is appropriate for Your intended use and the storage, hosting, or processing of Personal Data.
  6. DISCLAIMER
    6.1  General. Notwithstanding anything to the contrary set forth in the EULA, THE SOFTWARE SERVICES AND 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 SOFWARE SERVICES, 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 SOFTWARE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS IN THE SOFTWARE SERVICES WILL BE CORRECTED. EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE SOFTWARE SERVICES, AND EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS AGAINST THE OTHER PARTY WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES.
    6.2  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 SOFTWARE 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 SOFTWARE 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 SOFTWARE SERVICES; (5) YOU MODIFY YOUR OPERATING SYSTEM IN A MANNER THAT BREAKS COMPATIBILITY OR INHIBITS THE FUNCTIONALITY OF THE SOFTWARE SERVICES; (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 SOFTWARE SERVICES.