Legal Terms

Auvik Legal

Welcome!

On this page you can access our standard legal terms and policies for visitors to our website and subscribers to our web-based software services.

• if you are here as a website visitor, select Website Terms of Site
• if you are a subscriber or user of our software services, select Subscription Services Agreement (managed service providers, select the MSP version) and, where applicable, our Service Specific Terms
• if you are not a subscriber, but have been invited to access our software services by a subscriber, select Terms of Service (User)
• for prior versions of our terms, select Terms of Service (previous) or contact Customer support

What’s new?

Effective February 3, 2023, we introduced changes to our Subscription Services Agreements, and added Service Specific Terms, to reflect our expanded product offerings and customer feedback.

WEBSITE TERMS OF SITE

PLEASE READ THIS TERMS OF SITE CAREFULLY BEFORE USING THE WEBSITE.

By accessing this website, you are agreeing to be bound by these website Terms of Site provided by Auvik Networks Inc. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this website are protected by applicable copyright and trademark law.

For the avoidance of doubt, these Terms of Site govern your use of the Auvik Networks Inc. website and do not govern the use of the web-based software service (the Service) operated by Auvik Networks Inc. If you are accessing or using the Service (including as a free trial) then you are subject to the appropriate subscription services agreement or other written terms or contract that has been agreed between you and Auvik Networks Inc.

1. LICENSE AND USER CONTRIBUTIONS

1. License. Permission is granted to temporarily download one copy of the materials for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
   • modify or copy the materials;
   • use the materials for any commercial purpose or for any public display (commercial or non-commercial;
   • attempt to decompile or reverse engineer any software contained on Auvik Networks Inc.’s website;
   • remove any copyright or other proprietary notations from the materials; or
   • transfer the materials to another person or “mirror” the materials on any other server.
2. User Contributions: Auvik’s website may contain message boards, blogs, job boards and other interactive features (Interactive Services) that allow you to post, submit, publish, display or transmit feedback, content or materials (User Contributions) on or through the website to Auvik Networks Inc. or other users of Auvik Networks Inc.’s website. All User Contributions must comply with the following content standards:
   • User Content: By posting, displaying, publishing or making available for download or use any User Contributions, other than personal information that is subject to the Privacy Policy, you hereby grant Company a perpetual, worldwide, nonexclusive, irrevocable, royalty-free, sublicensable license to perform, display, reproduce, prepare derivative works from, distribute, sell, sublicense, transfer and otherwise use without restriction all or any part of such User Contributions.
   • User Contributions may not:
     • Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable,
     • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age,
     • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person,
     • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may conflict with these Terms of Site or our Privacy Policy,
     • Be likely to deceive any person,
     • Promote any illegal activity, or advocate, promote, or assist any unlawful act,
     • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person,
     • Impersonate any person or misrepresent your identity or affiliation with any person or organization,
     • Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising, or
     • Give the impression that they emanate from or are endorsed by us or any other person or entity if this is not the case.

This license and these rights shall automatically terminate if you violate any of these restrictions and may be terminated by Auvik Networks Inc. at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.

2. DISCLAIMER

THE MATERIALS ON AUVIK NETWORKS INC.’S WEBSITE ARE PROVIDED ‘AS IS’. AUVIK NETWORKS INC. MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS AND NEGATES ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. FURTHER, AUVIK NETWORKS INC. DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON ITS INTERNET SITE OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY SITES LINKED TO THIS SITE.

3. LIABILITY LIMIT

1. EXCLUSION OF INDIRECT DAMAGES. AUVIK NETWORKS INC. OR ITS SUPPLIERS ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS TERMS OF SITE (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. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, OR LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU.

4. REVISIONS

The materials appearing on Auvik Networks Inc.’s website could include technical, typographical, or photographic errors. Auvik Networks Inc. does not warrant that any of the materials on its website are accurate, complete, or current. Auvik Networks Inc. may make changes to the materials contained on its website at any time without notice. Auvik Networks Inc. does not, however, make any commitment to update the materials.

5. LINKS

Auvik Networks Inc. has not reviewed all of the sites linked to its Internet site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Auvik Networks Inc. of the site. Use of any such linked website is at the user’s own risk.

6. SITE TERMS AND MODIFICATIONS

Auvik Networks Inc. may revise these terms of use for its website at any time without notice. By using this website, you are agreeing to be bound by the then-current version of these Terms of Site.

7. GOVERNING LAW AND FORUM

1. Canadian Law. This Terms of Site is governed by the laws of the Province of Ontario, Canada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Terms of Site. Any suit or legal proceeding may be brought in the courts of the Province of Ontario, Canada, and users submits to this personal jurisdiction and venue. Nothing in this Terms of Site prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
   1. English. It is the express will of the parties that this Terms of Site and all related documents have been drawn up in English. Where users’ primary address is in Québec, Canada, then it is the express will of the parties that this Terms of Site and all related documents be drawn up in English. C’est la volonté expresse des parties que le présent contrat et tous les documents connexes soient rédigés en anglais . Unless, and only to the extent, prohibited by law in Your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Terms of Site shall be conducted in the English language, including any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.

8. ENTIRE AGREEMENT

Entire Agreement and Changes. This Terms of Site constitutes the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Terms of Site is effective unless both parties sign it, or it is revised online by Auvik Networks Inc.

Effective July 15, 2022

SUBSCRIPTION SERVICES AGREEMENT

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 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 Networks Inc., a Canadian BC corporation (Auvik), and the Customer agreeing to these terms (Customer).

1. SOFTWARE SERVICE

This agreement and the applicable order provide Customer 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, 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/terms.

2. USE OF SERVICE

1. Customer Owned Data. All Customer provided data that is processed by the Service remains the property of Customer, as between Auvik and Customer (Customer Data). Customer represents and warrants to Auvik that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use within the Service under this agreement. Customer grants Auvik the right to use the Customer Data solely for purposes of performing under this agreement and for operating and improving its technology.
2. Affiliates and Contractors. Customer, 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. Customer may allow its Affiliates and contractors to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for Customer’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%.
3. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for Customer 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.
4. Auvik Support. Auvik must provide Customer support for the Service under the terms of Auvik’s Customer Support Policy (Support), which is located at https://www.auvik.com/terms.
5. Free Trial Version. If Customer has registered for a trial use of the Service, Customer 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 Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.
6. 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. Customer is responsible for obtaining all rights and the payment of all fees associated with all Third-Party Service for purposes of this agreement.
7. Access to Managed Environment. In order to use the Service, Customer must download and install the Local Software (defined below), as applicable, to Customer’s internal network environment, any external network managed by Customer, and any managed device or application (Managed Environment). As part of the use of the Local Software, Customer 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 Customer-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. Customer is solely responsible for configuring its Managed Environment for adequate security and protection. Customer is responsible for applying independent business judgment with respect to use of the Service and any decisions from the use of the Service.
8. Local Software. The software (collector, agent, extension or similar local software) provided by Auvik as part of the Service (Local Software) is licensed to Customer as follows: Auvik grants Customer 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 Customer 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. Customer consents to such automatic updates, which may occur without notice.
9. 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 Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API, and as follows:
   • Usage. Customer 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 Customer’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 Customer, 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 Customer.
   • Disclaimer. The API is provided on an AS IS basis.  Auvik has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
10. Beta. If Customer 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.

3. SERVICE WARRANTY

1. Warranty. Auvik warrants to Customer 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. Customer’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 SERVICE, AUVIK DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER 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 CUSTOMER’S COMPUTERS, NETWORK OR CLOUD PROVIDER ACCOUNTS, OR FOR DECISIONS CUSTOMER MAKES REGARDING ITS CONFIGURATION OF THE SERVICE. THE SERVICE IS ONE TOOL IN CUSTOMER’S CLOUD MANAGEMENT STRATEGY AND DOES NOT REPRESENT A SHIFT IN RESPONSIBILITY FOR CUSTOMER’S OVERALL CLOUD MANAGEMENT.

4. PAYMENT

1. Fees and Payment. Customer 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 Customer 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 Customer is responsible under this section, Auvik will invoice Customer and Customer will pay that amount unless Customer 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 Customer is paying fees using a credit card or another digital payment method supported by Auvik, Customer authorizes Auvik to charge Customer’s account for all fees owed to Auvik using that payment method. Customer must keep all billing account information current to ensure correct and timely payment of amounts due.
2. 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 Customer at least 7 days’ prior written or electronic notice that its account is past due.
3. Payment Notifications. Customer 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. Customer should contact Auvik support with these updates.
4. Channel Resale. Notwithstanding the foregoing, if Customer 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 Customer’s access to the Service if such channel reseller has not paid Auvik the applicable fees relating to Customer’s use.

5. MUTUAL CONFIDENTIALITY AND DATA 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 Service, pricing information, and the Local Software. Customer’s Confidential Information includes, without limitation, the Customer 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 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.
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.
4. 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 Customer selects the region where the Customer 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 Customer Data is stored ( except with the permission of Customer, 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 Customer 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).
     • Customer 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). Customer will be notified of any changes to the sub processors via electronic notices.
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 Service and the Local Software, including all associated intellectual property rights, and they remain only with Auvik. Customer 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.
2. Restrictions. Customer may not : (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (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 Customer if Auvik believes in good faith that Customer’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 Customer to address the issue and restore Service as quickly as possible.
3. 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 Customer specific information) publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. Auvik retains all intellectual property rights in such information.

7. TERM AND TERMINATION

1. Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
2. Term of Orders.  The term of each order must be specified in the order.
3. 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.
4. Return of Customer Data.
   • Within 30 days after termination, upon request, Auvik will make the Service available for Customer to export Customer 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 Customer Data and may destroy it.
5. Effect of Termination. If this agreement is terminated for Auvik’s breach, Auvik will refund Customer 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 Customer’s breach, Customer 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 Customer Data” section above.

8. LIABILITY LIMIT

1. 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.
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 CUSTOMER 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 CUSTOMER UNDER AN ORDER.

9. INFRINGEMENT INDEMNITY FOR THIRD PARTY CLAIMS

1. Auvik Indemnity. Auvik will defend or settle any third-party claim against Customer 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 Customer: 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 Customer from any infringement claim defense costs Auvik incurs in defending Customer, and Auvik negotiated settlement amounts, and court awarded damages.
3. 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.
4. Exclusions. Auvik has no obligation for any claim arising from: Auvik’s compliance with Customer’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 Customer information; or technology or aspects not provided by Auvik. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND AUVIK’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

10. GOVERNING LAW AND FORUM

1. Canadian Customers: For Customers located in Canada, this agreement is governed by the laws of the Province of Ontario, Canada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding may be brought in the courts of the Province of Ontario, Canada, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
   • English. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. Where Customer’s primary address is in Québec, Canada, then it is the express will of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que le présent contrat et tous les documents connexes soient rédigés en anglais . Unless, and only to the extent, prohibited by law in Customer’s jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.
2. For All Other Customers: For Customers located outside of Canada, in the event of any dispute between the parties or relating in any way to the subject matter of this agreement, the parties hereto must try to settle the dispute. If they do not reach such a solution within a period of 60 days for any reason, then, upon notice by either party to the other, all disputes must be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial or International Arbitration Rules (Rules). The controversy must be submitted to one arbitrator in accordance with the Rules. This agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles).  The arbitration proceedings must take place in the state of Delaware or remotely as allowed by the arbitrator, and will be conducted in English. The decision of the arbitrator is final, conclusive, and binding on the parties.

11. OTHER TERMS

1. Entire Agreement and Changes. This agreement and the order and, if applicable, Auvik’s Service Specific Terms, 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. Customer 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.
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, assets, not involving a competitor of the other party, or at any time to an Affiliate.
3. 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.
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, 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 a Customer’s form-purchasing document.
8. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
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 Customer provides feedback or suggestions about the Service, then Auvik (and those it allows to use its technology) may use such information without obligation to Customer. Customer can also submit ideas to Auvik’s Idea Portal as described at: https://www.auvik.com/franklyit/blog/auvik-idea-portal/

[Effective February 3, 2023]

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 Auvik Networks Inc., a Canadian BC corporation (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/terms.

2. USE OF SERVICE

1. 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.
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 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%.
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 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.
4. 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/terms.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
   • Disclaimer. The API is provided on an AS IS basis.  Auvik has no liability to MSP as a result of any change, temporary unavailability, suspension, or termination of access to the API.
10. 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.
11. Customer Account. Each Customer will be required to agree to the Terms of Service (User) located at https://www.auvik.com/terms, 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

1. 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.
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 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.

4. PAYMENT

1. 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.
2. 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.
3. 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.
4. 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

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 Service, 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 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.
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.
4. 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.
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 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.
2. 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.
3. 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

1. Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
2. Term of Orders. The term of each order must be specified in the order.
3. 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.
4. 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.
5. 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

1. 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.
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, EXCEPT THAT THIS CAP ON LIABILITY DOES NOT APPLY TO FEES OWED BY MSP UNDER AN ORDER.

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 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.
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 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.
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 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. GOVERNING LAW AND FORUM

1. Canadian MSPs: For MSPs located in Canada, this agreement is governed by the laws of the Province of Ontario, Canada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding may be brought in the courts of the Province of Ontario, Canada, and MSP submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
   • English. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. Where MSP’s primary address is in Québec, Canada, then it is the express will of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que le présent contrat et tous les documents connexes soient rédigés en anglais . Unless, and only to the extent, prohibited by law in MSP’s jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.
2. For All Other MSPs: For MSPs located outside of Canada, in the event of any dispute between the parties or relating in any way to the subject matter of this agreement, the parties hereto must try to settle the dispute. If they do not reach such a solution within a period of 60 days for any reason, then, upon notice by either party to the other, all disputes must be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial or International Arbitration Rules (Rules). The controversy must be submitted to one arbitrator in accordance with the Rules. This agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles). The arbitration proceedings must take place in the state of Delaware or remotely as allowed by the arbitrator, and will be conducted in English. The decision of the arbitrator is final, conclusive, and binding on the parties.

11. OTHER TERMS

1. Entire Agreement and Changes. This agreement and the order and, if applicable, Auvik’s Service Specific Terms, 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.
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, assets, not involving a competitor of the other party, or at any time to an Affiliate.
3. 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.
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, 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 a MSP’s form-purchasing document.
8. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
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 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/

[Effective February 3, 2023]

Service Specific Terms

These service specific terms (Service Specific Terms) below supplement and form part of the subscription services agreement referenced in the order and apply based on the subscription purchased. As used in these Service Specific Terms, Customer means the applicable customer or MSP identified in the subscription services agreement.

Auvik SaaS Management Service (ASM Service)

Definitions.

• Local Software. The software (collector, agent, extension or similar local software) provided by Auvik as part of the Service (Local Software) is licensed to Customer as follows: Auvik grants Customer 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.
• Access to Managed Environment. In order to use the Service, Customer must download and install the Local Software, as applicable, to Customer’s internal network environment, any external network managed by Customer, and any managed device or application (Managed Environment). As part of the use of the Local Software, Customer 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 Customer-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. Customer is solely responsible for configuring its Managed Environment for adequate security and protection. Customer is responsible for applying independent business judgment with respect to use of the Service and any decisions from the use of the Service.

Notice and Consent for ASM Service.

• The purpose of the ASM Service is to provide the IT department visibility into the types of applications that their customers and users are using in their Managed Environment. Customer is solely responsible for providing any necessary notices to its customers and users and obtaining any legally required consents from its customers and users regarding the use of the Service.

SUPPLEMENTAL DISCLAIMER.

• AUVIK IS NOT LIABLE FOR PROBLEMS INHERENT IN USE OF THE INTERNET OR FOR ISSUES RELATED TO A CUSTOMER’S OR ITS CUSTOMER’S COMPUTERS, NETWORK OR CLOUD PROVIDER ACCOUNTS, OR FOR DECISIONS A CUSTOMER MAKES REGARDING ITS CONFIGURATION OF THE SERVICE.

Selection of Data Storage Region.

• While Auvik has its headquarters in Canada, each Customer selects the region where the Customer 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 Customer Data is stored (except with the permission of Customer, where necessary as part of Auvik’s business continuity or disaster recovery plan, and as allowed by law or legal process).

[Effective February 3, 2023]

TERMS OF SERVICE (USER)

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 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 Networks Inc., a Canadian BC corporation (Auvik), and the user agreeing to these terms (User).

1. SOFTWARE SERVICE

This agreement provides User 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 (Service) from the Auvik customer that invited User to create its user account.

2. USE OF SERVICE

1. User Data. User represents and warrants to Auvik that User has provided all required notices and has obtained all required licenses, permissions, and consents regarding User data for use within the Service under this agreement. User grants Auvik the right to use the User data solely for purposes of performing under this agreement and for operating and improving its technology.
2. User Responsibilities. User: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for User 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.
3. 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. User is responsible for obtaining all rights and the payment of all fees associated with all Third-Party Service for purposes of this agreement.
4. Access to Managed Environment. In order to use the Service, the Local Software (defined below) must be downloaded and installed on the network environment(s), devices or applications, as applicable, that are being managed with the Service (Managed Environment) by or on behalf of the Auvik customer that invited User to create its account. As part of the use of the Local Software, User 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 customer-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. User is solely responsible for configuring its Managed Environment for adequate security and protection. User is responsible for applying independent business judgment with respect to use of the Service and any decisions from the use of the Service.
5. Local Software. The software (collector, agent, extension or similar local software) provided by Auvik as part of the Service (Local Software) is licensed to User as follows: Auvik grants User a non-exclusive, revocable, non-transferable license, to use and copy such software in accordance with its technical documentation, solely in connection with the Service, subject to the terms of the order between Auvik and the Auvik customer that provided User with access.
   • Updates. The Service may automatically check the version of the Local Software and User 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. User consents to such automatic updates, which may occur without notice.

3. DISCLAIMER

AUVIK DISCLAIMS ALL 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. USER 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 USER’S COMPUTERS, NETWORK OR CLOUD PROVIDER ACCOUNTS, OR FOR DECISIONS USER MAKES REGARDING ITS CONFIGURATION OF THE SERVICE. THE SERVICE IS ONE TOOL IN A CLOUD MANAGEMENT STRATEGY AND DOES NOT REPRESENT A SHIFT IN RESPONSIBILITY FOR USER’S OVERALL CLOUD MANAGEMENT.

4. MUTUAL CONFIDENTIALITY AND DATA 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 Service, pricing information, and the Local Software. User’s Confidential Information includes, without limitation, the User 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 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.
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.
4. 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.
   • Selection of Data Storage Region. The selection of the region where the User data will be stored is made by the Auvik customer that provided User with access. More information on Auvik’s data storage regions is located at: Auvik Regions article.
   • Sub-Processors. Auvik has standard security controls to verify that its sub-processors’ security controls are substantially no less protective of User 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).
     • User 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). User will be notified of any changes to the sub processors via electronic notices.
5. Privacy Policy. Any use of personal information collected by Auvik in its role as controller, is governed by Auvik’s Privacy Policy.

5. PROPERTY

1. 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. User 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.
2. Restrictions. User may not : (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (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 User if Auvik believes in good faith that User’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 User to address the issue and restore Service as quickly as possible.
3. 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 User specific information) publicly available, provided that such information does not identify User data, and there is no means to re-identify User data. Auvik retains all intellectual property rights in such information.

6. TERM AND TERMINATION

1. Term. This agreement continues until the earlier of: the expiration or termination of the customer order with Auvik, the Auvik customer that provided User with access terminates such access, or Auvik terminates this agreement as allowed by applicable law or its contract with the Auvik customer that provided User with the access.
2. 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 15-day notice/cure period if the breach has not been cured.

7. LIABILITY LIMIT

1. 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.
2. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR 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 $500.

8. GOVERNING LAW AND FORUM

1. This agreement is governed by the laws of the Province of Ontario, Canada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding may be brought in the courts of the Province of Ontario, Canada, and User submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
   • English. It is the express will of the parties that this agreement and all related documents have been drawn up in English. Where User’s primary address is in Québec, Canada, then it is the express will of the parties that this agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que le présent contrat et tous les documents connexes soient rédigés en anglais . Unless, and only to the extent, prohibited by law in User’s jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this agreement shall be conducted in the English language, including any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.

9. OTHER TERMS

1. Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. User 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.
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, assets, not involving a competitor of the other party, or at any time to an Affiliate.
3. 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.
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, 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. 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.
8. Feedback. If User provides feedback or suggestions about the Service, then Auvik (and those it allows to use its technology) may use such information without obligation to User. User can also submit ideas to Auvik’s Idea Portal as described at: https://www.auvik.com/franklyit/blog/auvik-idea-portal/

[Effective February 3, 2023]

Auvik Networks Inc. Terms of Service

This Agreement was last revised on March 7, 2022.

Before we get started, you should know how this document is laid out. Below on the left is the full legal agreement, which is important for you to read, and is what will apply if we ever get into an argument with each other (as if we would!). On the right is the gist of the agreement, which is written in plain English. For clarity, the text set out in the “In other words” portions of this Agreement shall not be interpreted to diminish the obligations otherwise set forth in this Agreement.

The following are terms of a legal agreement (“Agreement”) between Auvik Networks Inc. (“Auvik”, “Our”, “Us” or “We”) and you (“You” or “Your”) and applies to Your use of the Services (as defined below).The terms of the quote executed by You and Auvik (the “Quote”), including the fees payable for the Services set out therein, form part of this Agreement.

IMPORTANT! If You are being directed to this Agreement because you are purchasing a product or service from someone other than Auvik that happens to include services from Auvik, please read this first.

Customer Support Policy

(version 1.0) 

Introduction

This policy will help you understand core elements of our customer support function – how to contact our technical support team and how we analyze and prioritize support requests.

How to access Technical Support

Technical Support Overview

Initial Response By Severity Level

Technical support requests are generally processed on a first-come, first-served basis. That said, some tickets may be processed out of turn based on Auvik’s reasonable assessment of their level of severity. The severity is set by the support team as part of the triage process, based on the guidelines listed in the below table.

We recommend that for all urgent issues, customers reach out to support via in-app chat or phone to ensure immediate attention.

* The actual response time and resolution period for any specific issue may vary, depending on a range of factors, some of which are outside of Auvik’s control (for example, customer input and responsiveness).

Access to Customer Data

Customers control access to their data. Customers may enable or disable Auvik support access (read only user role by default) from within the product dashboard. In certain instances, technical support may request customer in-product screenshots, or logs, or may recommend granting the Auvik support team enhanced access to a customer’s instance (e.g. screen share).

Exclusions

Our customer support does not include support of any non-Auvik products, services or technologies.

[Effective July 15, 2022]