SUBSCRIPTION SERVICES AGREEMENT (MSP)
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, 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, YOUR CUSTOMER 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 the Auvik entity based on the chart referenced in Section 10(k) (Auvik), and the MSP agreeing to these terms (MSP).
1. SOFTWARE SERVICE
This agreement and the applicable order provide MSP and its Affiliates (defined below) access to and usage of a monitoring and management web-based software service, including, without limitation, its features, functions, and user interface, and underlying software, to be used as part of a management service MSP provides to its customers (Customers), as specified on an order (Service). The provision and use of certain features or Services are subject to Auvik’s Service Specific Terms, which are located at https://www.auvik.com/privacy-and-legal/service-specific-terms/ and incorporated for all purposes into this agreement by reference.
2. USE OF SERVICE
- MSP Owned Data. All MSP provided data that is processed by the Service remains the property of MSP, as between Auvik and MSP (MSP Data). MSP represents and warrants to Auvik that MSP has provided all required notices and has obtained all required licenses, permissions, and consents regarding MSP Data for use within the Service under this agreement. MSP grants Auvik the right to use the MSP Data solely for purposes of performing under this agreement and for operating and improving its technology.
- 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 Service, 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 Affiliate’s benefit. 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%.
- 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 Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Auvik promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s applicable technical documentation and applicable law.
- Auvik Support. Auvik must provide MSP support for the Service under the terms of Auvik’s Customer Support Policy (Support), which is located at https://www.auvik.com/privacy-and-legal/customer-support-policy/.
- Free Trial Version. If MSP has registered for a trial use of the Service, MSP may access the Service for the specified trial period (unless extended by Auvik in writing or electronically). The Service is provided ‘AS IS’, with no warranty during this time period. All MSP Data will be deleted after the trial period, unless MSP converts its account to a paid Service.
- Third Party Service. The Service supports integrations and other connections to certain third-party services (Third Party Service), and it depends on continuing availability of and access to Third Party Service, including application programming interfaces, for full functionality of the Service. MSP is responsible for obtaining all rights and the payment of all fees associated with all Third-Party Service for purposes of this agreement.
- Access to Managed Environment. In order to use the Service, MSP must download and install the Local Software (defined below), as applicable, to its and its Customer’s network environment, any external network managed by MSP, and any managed device or application (Managed Environment). As part of the use of the Local Software, MSP authorizes (i) remote communication between the Service and the Managed Environment; (ii) the Service to scan and evaluate the Managed Environment; (iii) the Service to monitor, manage and facilitate MSP-approved changes to the Managed Environment; and (iv) the transfer of collected data to the Service, and represents and warrants to Auvik that it has all rights necessary to grant such authorization. MSP is solely responsible for configuring its Managed Environment for adequate security and protection. MSP is responsible for applying independent business judgment with respect to use of the Service and any decisions from the use of the Service.
- Local Software. The software (collector, agent, extension or similar local software) provided by Auvik as part of the Service (Local Software) is licensed to MSP as follows: Auvik grants MSP a non-exclusive, non-transferable license during the term of an order, to use and copy such software within the Managed Environment in accordance with its technical documentation, solely in connection with the Service.
- Updates. The Service may automatically check the version of the Local Software and MSP may be required to use updates to the Local Software to enable the Service to properly perform, which may be automatically downloaded to the Managed Environment. MSP consents to such automatic updates, which may occur without notice.
- API. Auvik provides access to its application-programming interface (API) as part of the Service 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 Service as allowed by the API, and as follows:
- Usage. MSP may not use the API in a manner–as reasonably determined by Auvik–that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. 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, but Auvik will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Auvik may add new API endpoints or fields in API results without prior notice to MSP.
- Beta. If MSP access any ‘beta’ or not generally available features or Services, such features and Services are provided AS IS for testing purposes only and the features and Services are not complete. These features and Services should not be used with production data. Auvik does not represent that any of these features or Services will be generally available and they may change, if they are made generally available.
- Customer Account. Each Customer will be required to agree to the Terms of Service (User) located at https://www.auvik.com/privacy-and-legal/terms-of-service-user/, as a condition of accessing and using the Service. Before providing a Customer with access to the Service, MSP will ensure that its agreement with Customer is consistent with, and at least as protective of Auvik, as the terms of this agreement.
3. SERVICE WARRANTY
- Warranty. Auvik warrants to MSP that: (i) the Service will perform in material compliance with its technical documentation; and (ii) neither the Service, nor Support (both defined above) nor the Security Measures (defined below) will materially decrease 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.
- 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 SERVICE, AUVIK DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. MSP UNDERSTANDS AND AGREES THAT THE SERVICE MAY NOT BE ERROR-FREE AND THE USE MAY BE INTERRUPTED, AND AUVIK IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICE ISSUES. AUVIK IS NOT LIABLE FOR PROBLEMS INHERENT IN USE OF THE INTERNET OR FOR ISSUES RELATED TO MSP’S OR A CUSTOMER’S COMPUTERS, NETWORK OR CLOUD PROVIDER ACCOUNTS, OR FOR DECISIONS MSP MAKES REGARDING ITS CONFIGURATION OF THE SERVICE. THE SERVICE IS ONE TOOL IN MSP’S CLOUD MANAGEMENT STRATEGY AND DOES NOT REPRESENT A SHIFT IN RESPONSIBILITY FOR MSP’S OVERALL CLOUD MANAGEMENT.
- Fees and Payment. MSP must pay all fees as specified on the 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 at the rate and in the manner for the time being prescribed by 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 Service, which orders are governed by the terms of this agreement.
- Credit Cards. If MSP is paying fees using a credit card or another digital payment method supported by Auvik, MSP authorizes Auvik to charge MSP’s 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.
- Nonpayment. If an invoiced amount is 14 days or more past due, Auvik may suspend Service 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.
- Payment Notifications. MSP is solely responsible for keeping its email and contact information with Auvik up to date, for purposes of credit card transactions, any payment communication or other communications related to this agreement. MSP should contact Auvik support with these updates.
- Channel Resale. Notwithstanding the foregoing, if MSP is purchasing the Service 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 Service if such channel reseller has not paid Auvik the applicable fees relating to MSP’s use.
5. MUTUAL CONFIDENTIALITY AND DATA LOCATION
- 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 Service, pricing information, and the Local Software. MSP’s Confidential Information includes, without limitation, the MSP Data.
- 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 and contractors 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.
- 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.
- Data Security and Location and Sub Processors.
- Data Security. More information on Auvik’s data security practices is located at: https://www.auvik.com/system-security/ (Security Measures).
- Selection of Data Storage Region. While Auvik has its headquarters in Canada, each MSP selects the region where the MSP Data will be stored. More information is located at (and for Auvik SaaS Management services, different data storage terms apply and are described at this link): Auvik Regions article.
- Auvik will not change the country in which the MSP Data is stored ( except with the permission of MSP, where necessary as part of Auvik’s business continuity or disaster recovery plan, and as allowed by law or legal process).
- Sub-Processors. Auvik has standard security controls to verify that its sub-processors’ security controls are substantially no less protective of MSP Data than the applicable Auvik’s security controls (including in respect of European customers for the Service, establishing the existence of or implementing, where required, contractual or other mechanisms to ensure adequate safeguards for the processing and any transfer of personal data as defined by privacy laws and regulations of the European Union, the EEA and their member states, Switzerland and the United Kingdom applicable to any personal data, as amended or replaced (Applicable Data Protection Law).
- MSP grants Auvik the right to appoint third party sub-processors where appropriate and in compliance with Applicable Data Protection Law (see this link for more information here). MSP will be notified of any changes to the sub processors via electronic notices.
- Reservation of Rights. Auvik and its licensors are the sole owners of the Service 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 Service or Local Software. Auvik reserves all rights that are not expressly granted in this agreement.
- Restrictions. MSP may not : (i) sell, resell, rent, or lease the Service on a stand-alone basis (i.e. without an additional fee and management service for the management services of the MSP); (ii) use the Service 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 Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Local Software except as allowed by applicable law despite this limitation; or (vi) access the Service or use the Local Software to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Auvik may suspend Service to MSP if Auvik believes in good faith that MSP’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, Auvik will work with MSP to address the issue and restore Service as quickly as possible.
- Statistical Information. Auvik may compile statistical information and meta data related to the use and performance of the Service and may make such information (including without limitation, log data which does not contain MSP specific information) publicly available, provided that such information does not identify MSP Data, and there is no means to re-identify MSP Data. Auvik retains all intellectual property rights in such information.
7. TERM AND TERMINATION
- Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
- Term of Orders. The term of each order must be specified in the order.
- 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.
- Return of MSP Data.
- Within 30 days after termination, upon request, Auvik will make the Service available for MSP to export MSP Data that is available for export as allowed by the functionality of the Service.
- After such 30-day period, Auvik has no obligation to maintain the MSP Data and may destroy it.
- Effect of 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. If this agreement is terminated for MSP’s breach, MSP will pay any unpaid fees for the term of all orders. Upon request, following any termination of this agreement, each party will 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
- EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, AUVIK IS NOT 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.
- 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, EXCEPT THAT THIS CAP ON LIABILITY DOES NOT APPLY TO FEES OWED BY MSP UNDER AN ORDER.
9. INFRINGEMENT INDEMNITY FOR THIRD PARTY CLAIMS
- 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 Service 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.
- 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.
- Process. If such a claim appears likely, then Auvik may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Auvik determines that none of these are reasonably available, then Auvik may terminate the Service and refund any prepaid and unused fees, less any overage fees owed.
- 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 Service 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
- 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. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified or replaced through an online process provided by Auvik.
- 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, assets, not involving a competitor of the other party, or at any time to an Affiliate.
- Export Compliance. The Service, the Local Software and technical 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 Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
- 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.
- 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.
- 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.
- No Additional Terms. Auvik rejects additional or conflicting terms of a MSP’s form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- 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.
- Feedback. If MSP provides feedback or suggestions about the Service, 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/
- 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 Customer is domiciled, as outlined in Auvik’s Region Specific Terms. The Region Specific Terms are located at https://www.auvik.com/privacy-and-legal/region-specific-terms/ and incorporated for all purposes into this agreement by reference.
[Effective August 1]