Subscription Services Agreement (MSP)

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES.

BY USING THE SERVICES, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.

This agreement is between Auvik and MSP.

Key Definitions. For purposes of this agreement, the following key terms have the meanings set out below. Other terms are defined where they are used.

Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.

Auvik means the applicable Auvik contracting entity identified in accordance with Section 10.k.

Customer means an end customer of MSP for whose benefit MSP provides managed services using the Services.

Documentation means the then-current documentation that Auvik makes available for the applicable Services, including technical, user, administrator, and support documentation.

Local Software means the software, collector, agent, extension, or similar local software provided by Auvik as part of the Services.

Managed Environment means MSP’s or a Customer’s internal network environment, any external network managed by MSP for itself or a Customer, and any managed device or application.

MSP means the managed services provider accepting this agreement.

MSP Data means all data provided by or on behalf of MSP or its Customers to the Services, including data collected by the Services from the Managed Environment or an account associated with MSP or its Customers.

Order means an order by which MSP has subscribed for Services, including a signed order form or another purchasing confirmation made available by Auvik.

Security Measures means Auvik’s administrative, organizational, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of MSP Data against unauthorized access, use, disclosure, alteration, destruction, or loss. 

Services means the monitoring and management web-based software service, including, without limitation, its features, functions, user interface, and underlying software, as specified on an Order.

Service Specific Terms means Auvik’s service-specific terms located at https://www.auvik.com/privacy-and-legal/service-specific-terms/ as updated from time to time and incorporated into this agreement by reference.

Support means support for the Services provided in accordance with Auvik’s Customer Support Policy, located at https://www.auvik.com/privacy-and-legal/customer-support-policy/, as such policy may be periodically updated by Auvik, or such upgraded support offering purchased by MSP pursuant to an Order.

1. SOFTWARE SERVICES

This agreement and the applicable Order provide MSP and its Affiliates access to and use of the Services. Certain Services or features are subject to the Service Specific Terms. Auvik may make new or additional Services, features, or functionality available from time to time, and MSP’s access to or use of them may be subject to additional or updated terms. MSP may use the Services to provide managed services to its Customers.

2. USE OF SERVICES

  1. MSP Data. As between Auvik and MSP, MSP Data remains the property of MSP or its Customers, as applicable. MSP represents and warrants to Auvik that it has obtained all required licenses, notices, permissions, and consents, including from its Customers, regarding MSP Data for use within the Services under this agreement. MSP grants Auvik the right to use MSP Data to provide, secure, support, operate, maintain, improve, and develop the Services and otherwise perform under this agreement.
  2. Affiliates and Contractors. MSP, including its Affiliates, may enter into Orders with Auvik and its Affiliates.  An Affiliate entering into an Order agrees to be bound by this agreement as if it were an original party hereto. MSP may allow its Affiliates and contractors to use the Services, provided MSP is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for MSP’s or its Customers’ benefit. 
  3. MSP Responsibilities. MSP: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for MSP Data and all activity in its account in the Services, including managing the roles, access and permissions granted to its authorized users, service accounts, and automated systems, and modifying or terminating such access when appropriate; (iii) is responsible for securely configuring and using the Services and maintaining the security of accounts, systems, networks, endpoints, and environments under its control or management; (iv) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Auvik promptly of any such unauthorized access; (v) must not submit to or process through the Services any sensitive personal information or any personal data that is not reasonably necessary for MSP’s use of the Services; and (vi) may use the Services only in accordance with the applicable Documentation and applicable law.
  4. Support. Auvik will provide MSP with Support for the Services. Support is separate from the Services and may include support made available by Auvik as part of the Services subscription or additional support services purchased by MSP as specified in an Order or in the Customer Support Policy. Auvik may amend the Customer Support Policy from time to time by posting updates on its website. MSP must provide reasonable information and assistance to facilitate Auvik’s performance of Support, including by enabling appropriate access for Auvik. Failure to provide such assistance or access may delay or prevent Support delivery. Auvik disclaims any liability arising from such delays.
  5. Third Party Services. The Services support integrations and other connections to certain third-party services (Third Party Services), and these integrations and other connections depend on the continuing availability of and access to such Third Party Services, including application programming interfaces, for full functionality of the Services. MSP is responsible for obtaining all rights and the payment of all fees associated with all Third-Party Services for purposes of this agreement.
  6. Access to Managed Environment. In order to use the Services, MSP must download and install the Local Software, as applicable, to the Managed Environment. As part of the use of the Local Software, MSP authorizes (i) remote communication between the Services and the Managed Environment; (ii) the Services to scan and evaluate the Managed Environment; (iii) the Services to monitor, manage and facilitate or implement MSP-approved changes to the Managed Environment; and (iv) the transfer of collected data to the Services.  MSP represents and warrants to Auvik that it has all rights necessary, including from its Customers, to grant such authorizations. MSP is solely responsible for configuring the Managed Environment for adequate security and protection to the extent under its control or management. MSP is solely responsible for (i) applying independent business judgment with respect to use of the Services and any decisions it makes from the use of the Services; and (ii) any commands, scripts, configurations, schedules, target devices, or other instructions it provides, selects, approves, or initiates through the Services, including reviewing their suitability for the Managed Environment before implementation.
  7. Local Software.  Auvik grants MSP a non-exclusive, non-transferable license during the term of an Order, to use and copy the Local Software within the Managed Environment in accordance with the Documentation, solely in connection with the use of the Services under the terms of this agreement.
    • Updates. The Services may automatically check the version of the Local Software, and MSP may be required to apply updates to the Local Software to enable the Services to properly perform, which updates may be automatically downloaded to the Managed Environment. MSP consents to such automatic updates, which may occur without notice.
  8. API. Auvik provides access to its application-programming interface (API) as part of the Services for no additional fee. Subject to the other terms of this agreement, Auvik grants MSP a non-exclusive, nontransferable, terminable license to interact only with the Services as allowed by the API, and as follows:
    • Usage. MSP may not use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API, as reasonably determined by Auvik in its sole discretion. If any of these occur, Auvik may suspend or terminate MSP’s access to the API on a temporary or permanent basis.
    • API Endpoints. Auvik may change or remove existing API endpoints or fields in API results upon at least 30 days’ notice to MSP. Auvik may add new API endpoints or fields in API results without prior notice to MSP.
  9. Free Trials and Free Features. If MSP elects to use the Services or any feature made available by Auvik on a free trial or other free basis, MSP may access and use such Services or features for the period made available by  Auvik, unless extended by Auvik in writing or electronically. Such Services or features are provided ‘AS IS’, without warranty while made available on a free basis. Auvik may disable such free access at any time, unless MSP subscribes to the applicable paid Services or features.
  10. Beta. If MSP accesses any ‘beta’ or not generally available features or Services, such features and Services are provided AS IS for testing purposes only and may be incomplete, contain errors, or not operate as expected. MSP should test such features or Services on a limited basis before broader deployment and should not deploy them across its entire production environment without appropriate testing and validation. Where such limited testing is not reasonably practicable, the features and Services should not be used with production data or environments. Auvik does not represent that any of these features or Services will be generally available and they may change or be discontinued at any time.
  11. Authorized Users. Each individual authorized to access and use the Services must agree to Auvik’s Terms of Service (User), located at https://www.auvik.com/privacy-and-legal/terms-of-service-user/, as a condition of such access and use. Before providing a Customer with access to the Services, MSP will ensure that its agreement with the Customer is consistent with, and at least as protective of Auvik as, the terms of this agreement.

3. SERVICES WARRANTY

  1. Warranty. Auvik warrants to MSP that: (i) the Services will perform in material compliance with the Documentation; and (ii) it will not materially decrease the overall functionality of the Services, the level of Support, or  the Security Measures  during any paid term. MSP’s exclusive remedy and Auvik’s sole obligation for Auvik’s breach of these warranties will be as described in the “Mutual Termination for Material Breach” and “Effect of Termination” sections set forth in this agreement.
  2. DISCLAIMER. AUVIK DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE AUVIK TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, AUVIK DOES NOT GUARANTEE THAT THE SERVICES WILL NOT BE COMPROMISED. MSP UNDERSTANDS AND AGREES THAT THE SERVICES MAY NOT BE ERROR-FREE AND USE OF THE SERVICES MAY BE INTERRUPTED, AND AUVIK IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICES ISSUES. AUVIK’S SERVICES WARRANTY DOES NOT APPLY TO PRODUCTS OR SERVICES THAT ARE NOT AUVIK-BRANDED, EVEN IF PACKAGED, EMBEDDED, INTEGRATED, OR MADE AVAILABLE WITH THE SERVICES, ALTHOUGH ANY WARRANTY OFFERED BY THE APPLICABLE THIRD PARTY MAY BE AVAILABLE TO MSP. AUVIK IS NOT LIABLE FOR PROBLEMS INHERENT IN USE OF THE INTERNET OR FOR ISSUES RELATED TO MSP’S OR ITS CUSTOMERS’ COMPUTERS, NETWORK OR CLOUD PROVIDER ACCOUNTS, OR FOR DECISIONS MSP MAKES REGARDING CONFIGURATION OR USE OF THE SERVICES OR THE MANAGED ENVIRONMENT. THE SERVICES ARE ONE TOOL IN MSP’S MONITORING, MANAGEMENT, AND OPERATIONAL STRATEGY AND DO NOT REPRESENT A SHIFT IN RESPONSIBILITY FOR MSP’S OR ITS CUSTOMERS’ OVERALL SYSTEMS, NETWORKS, DEVICES, APPLICATIONS, CLOUD ACCOUNTS, OR MANAGED ENVIRONMENT.

4. FEES, BILLING AND PAYMENT

  1. Fees, Orders and Payment. MSP must pay all fees as specified on the applicable Order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and MSP is responsible for payment of such taxes as required by applicable law. If Auvik has the legal obligation to pay or collect taxes for which MSP is responsible under this section, Auvik will invoice MSP and MSP will pay that amount unless MSP provides Auvik with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more Orders for the Services, which Orders are governed by the terms of this agreement. Except as expressly stated otherwise in this agreement or the applicable Order, each Order is non-cancellable during its term, all fees are non-refundable, and MSP may not reduce any committed quantities, committed spend, or other minimum purchase commitments during the then-current term without Auvik’s written agreement. Reductions in MSP’s actual usage, deactivation of assets, users or features, or partial or non-use of the Services do not reduce fees owed during the then-current term.
  2. Usage Measurement and Overage. If an Order provides for usage-based billing, overage billing, or other billing based on MSP’s use of the Services, Auvik will determine billable usage for the applicable billing period in accordance with the applicable Order, the Service Specific Terms, and Auvik’s applicable service methodology for the Services. Auvik’s records regarding billable usage and charges will govern absent manifest error. If MSP’s use exceeds the quantities, capacity, usage limits, or other commitment set out in the Order, Auvik may invoice MSP for such excess use at the rate and with the billing frequency stated in the applicable Order or, if no such rate is stated, at Auvik’s then-current standard rate for the applicable Services. Unless otherwise stated in the Order, recurring fees are billed in advance and overage fees are billed in arrears. Where overage billing is not made available by Auvik for the applicable Services, MSP’s use is limited to the quantities or other scope set out in the Order, and MSP must promptly purchase additional subscriptions or otherwise expand the applicable Order to cover any excess use.
  3. Automatic Payment Methods. If MSP is paying fees using a credit card, direct debit, or another payment method supported by Auvik, MSP authorizes Auvik to charge MSP’s account or debit MSP’s designated bank account for all fees owed to Auvik using that payment method. MSP must keep all billing account information current to ensure correct and timely payment of amounts due.
  4. Nonpayment. MSP must timely pay all undisputed amounts. If an invoiced amount that is undisputed or remains unpaid following resolution of a timely dispute is 14 days or more past due, Auvik may suspend MSP’s access to the Services and Support until the amount is paid in full, provided Auvik has given MSP at least 7 days’ prior written or electronic notice that its account is past due. Any dispute regarding an invoice must be raised by MSP in good faith and with reasonable detail within 14 days after the invoice date, and failure to do so waives the dispute. The parties will work in good faith to resolve any timely disputed amount. MSP must promptly pay any amount determined to be owing following resolution of the dispute.
  5. Payment Notifications. MSP is solely responsible for keeping its email and contact information with Auvik up to date for purposes of payment transactions, payment communication, and other communications related to this agreement. MSP should contact Auvik support with these updates.
  6. Channel Resale. Notwithstanding the foregoing, if MSP is purchasing the Services through a channel reseller, the authorized terms of the subscription with such channel reseller will control with respect to all pricing and fees; provided, however, that Auvik may suspend or terminate MSP’s access to the Services if such channel reseller has not paid Auvik the applicable fees relating to MSP’s use.

5. MUTUAL CONFIDENTIALITY, DATA SECURITY AND LOCATION

  1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Auvik’s Confidential Information includes, without limitation, the Services, pricing information, and the Local Software. MSP’s Confidential Information includes, without limitation, the MSP Data.
  2. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees, contractors, and agents who need that access for purposes consistent with this agreement and who are bound by confidentiality obligations with Recipient that are not materially less protective than the confidentiality terms in this agreement.
  3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order if such notice is permitted by applicable law or the relevant court order.
  4. Data Security, Data Location, and Sub-Processors.
    • Data Security. Auvik implements and maintains reasonable Security Measures appropriate to the nature of MSP Data. Auvik maintains systems and procedures designed to monitor for, detect, and respond to confirmed security incidents affecting Auvik-controlled systems used to provide the Services or process MSP Data in Auvik’s possession or control; periodically evaluates,  tests, or monitors, as appropriate, the effectiveness of the Security Measures; designates one or more employees to coordinate the implementation and maintenance of the Security Measures; and periodically assesses reasonably foreseeable internal and external threats, vulnerabilities, and risks to the confidentiality, integrity, and availability of MSP Data.
    • Selection of Data Storage Region. As a general rule, MSP must select the region where MSP Data will be stored, and Auvik will not change the country in which the MSP Data is stored except: (i) with the permission of MSP, (ii) where necessary as part of Auvik’s business continuity or disaster recovery plan, or (iii) as allowed by law or legal process. More information is available in Auvik’s regions documentation, and for Auvik SaaS Management services, different data storage terms apply and may be accessed from that documentation: Auvik Regions article.
    • Sub-Processors. MSP grants Auvik the right to appoint third-party sub-processors where appropriate and in compliance with applicable data protection laws. Auvik has standard security controls to verify that its sub-processors’ security controls are substantially no less protective of MSP Data than Auvik’s applicable security controls. Auvik’s Data Processing Addendum applies to the processing of personal data on behalf of MSP or its Customers to the extent provided in that addendum and is incorporated into this agreement by reference. More information is available in Auvik’s sub-processor list:  https://www.auvik.com/sub-processors. MSP will be notified of any changes to the sub-processors by electronic notice.
  5. Privacy Policy. Any use of personal information collected by Auvik in its role as controller is governed by Auvik’s Privacy Policy.

6. PROPERTY

  1. Reservation of Rights. Auvik and its licensors are the sole owners of the Services and the Local Software, including all associated intellectual property rights, and they remain only with Auvik. MSP may not remove or modify any proprietary marking or restrictive legends in the Services or Local Software. Auvik reserves all rights that are not expressly granted in this agreement. 
  2. Restrictions. MSP may not: (i) sell, resell, rent, or lease the Services on a stand-alone basis separate from MSP’s managed services; (ii) use the Services to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Services; (iv) gain or attempt to gain unauthorized access to the Services or its related systems or networks; (v) reverse engineer the Services or the Local Software except as allowed by applicable law despite this limitation; (vi) access the Services or use the Local Software to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes; or (vii) use the Services or Local Software for High Risk Activities. “High Risk Activities” means activities where use or failure of the Services or Local Software could reasonably be expected to lead directly to death, personal injury, or severe physical or environmental damage, including life support systems, emergency dispatch or response systems, nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, or other environments requiring fail-safe performance. Auvik may suspend MSP’s access to the Services if Auvik believes in good faith that MSP’s use of the Services poses an imminent threat to the security, availability or legality of the Services; in such event, Auvik will work with MSP to address the issue and restore the Services as quickly as possible.
  3. Usage and Statistical Information. Auvik may compile statistical information and metadata related to the configuration, use, operation, and performance of the Services, including information derived from MSP Data, and may use, disclose, and make such information available to third parties or publicly available in aggregated, anonymized, or de-identified form for Auvik’s business purposes, including improving and developing its products and services, provided that such information does not identify MSP, any Customer or any individual, and there is no reasonable means to re-identify MSP, any Customer, or any individual. Auvik retains all intellectual property rights in such usage and statistical information.

7. TERM AND TERMINATION

  1. Term. This agreement continues for so long as any Order remains in effect, unless earlier terminated as provided below.
  2. Term of Orders.  The term of each Order is specified in the applicable Order.
  3. Order Renewal.  Each Order will renew as stated in the applicable Order. If the applicable Order does not state renewal terms, it will automatically renew for successive one-year terms unless either party gives written notice of non-renewal at least one month before the end of the then-current term. Where an Order or this agreement requires one month’s notice of non-renewal and the term ends on the last day of a calendar month, notice must be received by the last day of the preceding calendar month. Unless otherwise stated in the applicable Order, renewals will be at Auvik’s then-current pricing for the renewed Services. If a Service or offering is no longer available at renewal, Auvik may substitute a substantially similar replacement offering at then-current pricing. Discounts, promotional pricing, and other non-standard commercial terms apply only during the initial term unless otherwise stated in writing by Auvik. Any agreed reduction in MSP’s commitment will take effect no earlier than the next renewal term unless Auvik agrees otherwise in writing.
  4. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period if the breach has not been cured.
  5. Return of MSP Data.
    • Within 30 days after expiration of the last Order or termination of this agreement, upon request, MSP may export MSP Data that is available for export as allowed by the functionality of the Services.
    • After such 30-day period, Auvik has no obligation to maintain MSP Data and may delete or destroy it in accordance with Auvik’s standard data retention and deletion practices, unless retention is required by law or legal process.
  6. Effect of Expiration or Termination. If this agreement is terminated for Auvik’s breach, Auvik will refund MSP fees prepaid for the remainder of the term of all Orders after the termination effective date, less any unpaid amounts for overage or any other amounts owed under this agreement or an Order.  If this agreement is terminated for MSP’s breach, MSP will pay any unpaid fees for the term of all Orders.  Following expiration of the last Order or termination of this agreement, each party will, upon request, delete, destroy, or return all of the other party’s property that it holds, subject to the “Return of MSP Data” section above.

8. LIABILITY LIMIT

  1. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
  2. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR AUVIK’S INDEMNITY OBLIGATIONS OR THE INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, AUVIK’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY MSP WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.

9. INFRINGEMENT INDEMNITY FOR THIRD PARTY CLAIMS

  1. Auvik Indemnity. Auvik will defend or settle any third-party claim against MSP to the extent that such claim alleges that the Auvik technology used to provide the Services violates a copyright, patent, trademark, or other intellectual property right, if MSP: promptly notifies Auvik of the claim in writing; cooperates with Auvik in the defense; and allows Auvik to solely control the defense or settlement of the claim.
  2. Costs. Auvik will indemnify MSP from any infringement claim defense costs Auvik incurs in defending MSP, and Auvik negotiated settlement amounts, and court awarded damages.
  3. Process. If such a claim appears likely, then Auvik may modify the Services, procure the necessary rights, or replace the Services with the functional equivalent. If Auvik determines that none of these are reasonably available, then Auvik may terminate the Services and refund any prepaid and unused fees, less any overage fees owed.
  4. Exclusions. Auvik has no obligation for any claim arising from: Auvik’s compliance with MSP’s designs, specification, instructions, or technical information; a combination of the Services with other technology or aspects where the infringement would not occur but for the combination; use of MSP information; or technology or aspects not provided by Auvik. THIS SECTION CONTAINS MSP’S EXCLUSIVE REMEDIES AND AUVIK’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

10. OTHER TERMS

  1. Entire Agreement and Changes. This agreement and the Order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. MSP is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. Auvik may update this agreement from time to time by posting an updated version on its website or by providing notice to MSP through the Services, by email, or to a primary account contact. Unless otherwise stated in the notice, updates that materially reduce MSP’s rights or materially increase MSP’s obligations under an active paid Order will be effective upon the next renewal of that Order, entry into a new Order, or MSP’s earlier acceptance of the updated agreement. Other updates will be effective on the date stated in the notice or, if no date is stated, 30 days after posting or notice. MSP’s continued use of the Services after the effective date of an updated agreement constitutes acceptance of the updated agreement. No other modification or waiver of any term of this agreement is effective unless set forth in writing and signed by both parties.   For clarity, knowledge base, support, and similar informational materials are provided for general information only and do not amend or supplement this agreement unless expressly incorporated by reference in this agreement, the Service Specific Terms, or the applicable Order.
  2. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all Orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all a party’s businesses  or assets, not involving a competitor of the other party, or at any time to an Affiliate.
  3. Export Compliance. The Services, the Local Software, Documentation, and Confidential Information may be subject to export laws and regulations of Canada, the United States and other jurisdictions.  Each party represents that it is not named on any Canadian or U.S. government denied-party list.  Neither party will permit its personnel or representatives to access any Services in a U.S.-embargoed country or in violation of any applicable export law or regulation.
  4. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party or the other party’s Affiliates.
  5. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to natural weather events and disasters, labor disruptions, general internet disruptions, and disruptions in the supply of utilities.
  6. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
  7. No Additional Terms. Auvik rejects additional or conflicting terms of MSP’s form-purchasing document.
  8. Order of Precedence. If there is an inconsistency between this agreement and an Order, the Order prevails only to the extent the Order expressly states that it is intended to modify this agreement.
  9. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
  10. Feedback. If MSP provides feedback or suggestions about the Services, then Auvik (and those it allows to use its technology) may use such information without obligation to MSP. MSP can also submit ideas to Auvik’s Idea Portal as described at: https://www.auvik.com/franklyit/blog/auvik-idea-portal
  11. Auvik Contracting Entity, Governing Law, and Venue. The Auvik entity entering into this agreement, the law that will apply in any dispute arising out of or in connection with this agreement, and the exclusive forum where any such dispute will be resolved, depend on where MSP is domiciled, as outlined in Auvik’s Region Specific Terms. The Region Specific Terms are located at https://www.auvik.com/privacy-and-legal and incorporated for all purposes into this agreement by reference.

[Effective November 2, 2026]