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 the Auvik entity based on the chart referenced in Section 8(i) below (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. 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, general internet disruptions, and disruptions in the supply of utilities.
  6. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
  7. 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/
  9. Auvik Contracting Entity, Notices, 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 User 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, 2023]