PROFESSIONAL SERVICES ADDENDUM TO
This Addendum (“Addendum”) complements the SolarWinds ITSM Software Services Agreement (“Agreement”) and is entered into and agreed upon by and between you, either an individual or an entity, and your Affiliates (“You” or “Company”) and SolarWinds Israel ITSM Ltd. (“SolarWinds ITSM”) as of the start date of the Professional Services outlined in an Order Form (“Effective Date”). All capitalized terms will have the meaning given to such terms in the Agreement unless a different meaning is provided in this Addendum. In addition to the terms in the Agreement, the following terms apply.
1. ENGAGEMENT. SolarWinds ITSM agrees to provide the additional professional services (the “Professional Services”) and any related deliverables described in an Order Form entered into between the Parties from time to time (the “Deliverables”), and Company agrees to retain SolarWinds ITSM to provide the Professional Services and Deliverables, pursuant to the terms and conditions contained in the Agreement, this Addendum, and any applicable Order Form.
2. INTELLECTUAL PROPERTY OWNERSHIP.
a. Company IP. Company shall retain all right, title and interest in and to all information, data, software, tools and other materials developed by Company (“Company IP”). If necessary, during the Term of this Agreement, Company grants to SolarWinds ITSM a limited, revocable, non-exclusive, non-assignable, worldwide license to use Company IP solely for SolarWinds ITSM to perform the Professional Services and provide the Deliverables.
b. SolarWinds ITSM IP. SolarWinds ITSM shall retain all right, title, and interest in and to all information, data, software, tools, and other materials developed by or for SolarWinds ITSM, including the Deliverables (“SolarWinds ITSM IP”). SolarWinds ITSM grants to Company a non-exclusive and revocable license to use and create derivative works of the Deliverables solely for internal use pursuant to the Agreement, provided that Company may not resell, display, or otherwise distribute the Deliverables or any other SolarWinds ITSM IP.
3. TERM AND TERMINATION. This Addendum will remain in effect until completion of all Professional Services purchased on an Order Form or until terminated as otherwise provided in the Agreement. Upon completion or termination, Company will promptly pay SolarWinds ITSM for Professional Services rendered through the date of termination.
4. WARRANTY. SolarWinds ITSM warrants that for a period of 30 days from delivery of the Professional Services under an Order Form that it has performed the Professional Services in conformance with generally accepted practices within the software services industry and in accordance with the Agreement and this Addendum. Company must notify SolarWinds ITSM of any breach of this warranty no later than 30 days after delivery of the Professional Services under the Order Form. COMPANY’S EXCLUSIVE REMEDY AND SOLARWINDS ITSM’S ENTIRE LIABILITY UNDER THIS WARRANTY WILL BE FOR SOLARWINDS ITSM TO RE-PERFORM ANY NON-CONFORMING PORTION OF THE PROFESSIONAL SERVICES WITHIN A REASONABLE PERIOD OF TIME.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. COMPANY RESPONSIBILITIES.
a. Point of Contact: Company must provide a designated point of contact to work with the SolarWinds ITSM Project Manager as required. If not provided, meeting the specified project deadlines and prices may be impacted.
b. Cooperation and Completion. Company must cooperate with SolarWinds ITSM in the completion of the Professional Services as described in an Order Form. The Professional Services shall no longer be available 120 days following the date of the Order Form. SolarWinds ITSM will notify You if Your lack of cooperation is hindering the completion of the Professional Services.
c. Available Hours. For remote engagements, SolarWinds ITSM shall provide available resources based on the local business hours of the SolarWinds ITSM office delivering the service, and You must make Your
resources available during these times to facilitate the provision of the Professional Services. Times requested outside of the below days / hours will incur additional costs to be provided by SolarWinds ITSM from time to time. Days and times requested for on-site engagements will be negotiated on an engagement-by-engagement basis at time of agreement.
• US – Cary, NC Office: 9:00AM – 6:00PM Eastern Time | Mon – Fri.
• EU – Rotterdam, NL Office: 9:00AM – 6:00PM Central European Time | Mon – Fri.
• AP – Sydney, Australia Office: 9:00AM – 6:00PM Australian Eastern Time | Mon – Fri.
d. Implementation Call Cancellations. Company must provide at least 24 hours’ notice of cancellation for a scheduled call with SolarWinds ITSM, and any calls or appointments cancelled by Company with under 24 hours’ notice shall be charged as follows:
• First cancelled call = 50% of fees for scheduled call/appointment time.
• Second cancelled call or more = 100% of fees for scheduled call/appointment time.
e. Professional Services Use Period:
• All Professional Services detailed in the Order Form must be started within 30 days of the Order Form signature date. Any Professional Services not started within this period will be cancelled without SolarWinds ITSM liability.
• Once the maximum time period of the Professional Services outlined herein has been reached, an order change requiring additional extension fees may apply.
6. GENERAL EXCLUSIONS. SolarWinds ITSM is not obligated to (a) provide any support or services other than the Professional Services offered under the Agreement and this Addendum, or (b) provide the support or Professional Services if Company fails to pay all applicable fees when due or fails to perform Company’s obligations detailed in this Addendum or the Agreement. Company acknowledges that the Professional Services do not include analyzing or troubleshooting performance issues resulting from or related to third party products, such as SQL or OS performance issues, or controlling Company’s environment on an ongoing basis. All information, materials, content and/or advice in the Deliverables or Professional Services provided by SolarWinds ITSM, is for informational purposes only and is not intended to replace or substitute for any professional advice. SolarWinds ITSM expressly disclaims, and you expressly release SolarWinds ITSM from, any and all liability concerning any diagnosis, treatment, or action arising or learned from the information offered or provided within or through the Professional Services.
7. DISCLAIMER. THE PROFESSIONAL SERVICES, SOFTWARE, DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD PARTY HOSTED SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SOLARWINDS ITSM DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF YOUR DATA, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE PROFESSIONAL SERVICES, SOFTWARE, DOCUMENTATION, ANY OTHER PRODUCT OR PROFESSIONAL SERVICES, OR RESULTS OF THE SAME PROVIDED TO YOU UNDER THIS AGREEMENT. SOLARWINDS ITSM DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE PROFESSIONAL SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS IN THE PROFESSIONAL SERVICES OR SOFTWARE WILL BE CORRECTED. EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE PROFESSIONAL SERVICES AND SOFTWARE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS AGAINST THE OTHER PARTY WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES.