This document (the “Agreement” or “Terms”) is a legally enforceable contract between Entara Corporation (the “Company”) and you as the person or entity that accesses and/or uses NinjaRMM’s services and products ( “you”, “Client” or “End User”) (each a “party”) and collectively the “parties”) regarding the permitted use of the NinjaRMM Software (as hereafter defined).
WHEREAS, Company and NinjaRMM LLC (“NinjaRMM”) are parties to a Services Agreement (the “Master Services Agreement” or “MSA”), pursuant to which Company is permitted, subject to executing or having executed a written agreement inclusive of the terms herein, to offer to its clients, access to NinjaRMM’s remote monitoring services and software programs accompanying or provided to Company under the MSA (the “Software”), together with the associated media, corresponding Documentation, technical configurations, and technical data (collectively with the Service, the “NinjaRMM Technology”);
WHEREAS, prior to Company providing access to the Software to any customer, such customer is required to enter into an end user license agreement with Company that contains certain minimum agreed upon intellectual property protections and other required provisions; and
WHEREAS, Company desires to provide access to the Software to End User, subject to the terms and conditions of this End User Agreement (“Agreement”).
NOW, THEREFORE the parties agree as follows:
PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING AND USING THE SOFTWARE, CLIENT INDICATES ITS ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, CLIENT MUST PROMPTLY (A) DELETE THE SOFTWARE FROM ANY AND ALL OF CLIENT’S COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF THE SOFTWARE IN CLIENT’S POSSESSION AND ALL ACCOMPANYING MATERIALS, INCLUDING PACKAGING AND DOCUMENTATION, AND (B) CEASE ALL OF CLIENT’S USE OF THE SOFTWARE.
THIS AGREEMENT APPLIES TO THAT VERSION OF THE SOFTWARE THAT CLIENT HAS LICENSED. THE SOFTWARE IS LICENSED, NOT SOLD. CLIENT MAY USE ONLY THE VERSION OF THE SOFTWARE THAT CLIENT HAS LICENSED AND HAS PAID FOR, AND CLIENT MUST USE IT STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. CLIENT IS RESPONSIBLE FOR ENSURING THAT ALL EMPLOYEES, CONTRACTORS, AND OTHER USERS (“AUTHORIZED USERS”) WITHIN ITS ORGANIZATION ABIDE BY THE TERMS OF THIS AGREEMENT.
CLIENT ACKNOWLEDGES THAT NINJARMM RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, AT ANY TIME, EFFECTIVE UPON MAKING THE MODIFIED PROVISIONS AVAILABLE THROUGH SOFTWARE UPDATES OR OTHERWISE THROUGH CLIENT’S USE OF THE SOFTWARE.
2.1 “Remote Monitoring And Management Services” shall mean the remote monitoring and management services that Company is providing to Client using the Software (including the Client Software and the SAAS Service).
2.2 “Client Software” shall mean the client interface component of the Software and all Software installed on Client computers or used to access Client computers.
2.3 “Client Access Agreement” shall mean the document by which Client purchases the Software license from Company.
2.5 ”SAAS service” shall mean the NinjaRMM platform service that stores, manages, reports and alerts on all Client/Company’s computers.
2.6 “Software” shall mean all the software provided by NinjaRMM through Company collectively (including without limitation the Client Software and SAAS Software), and each separate component of the foregoing individually, any updates, upgrades or enhancements to the Software or any Software component provided to you by NinjaRMM through Company, including, without limitation, any support software provided to you by NinjaRMM through Company via the Internet, email or by any other means.
- LICENSE GRANT.
(B) LICENSE RESTRICTIONS. Notwithstanding anything to the contrary herein, the license grants of Section 3 are subject to the following restrictions:
(i) Representations. Client shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, software, and long distance or local telephone service. Client shall be responsible for ensuring that such equipment or ancillary services are compatible with the Software.
(ii) Derivative Works. Client may not modify or make derivative works of the Software, the documentation thereof, or any other component that may be included in the Software or provided with the Software, nor rent, lease or otherwise distribute the Software or the documentation thereof, except as expressly permitted in Section 2 of this Agreement.
(iii) Transfer of Rights. Except as expressly set forth in Section 2, Client shall not assign, sublicense, rent or otherwise transfer Client’s access and use rights under this Agreement to the Software without the prior written approval of Company and NinjaRMM.
(iv) Reverse Engineering and Software Development. Client may not reverse engineer, decompile, or disassemble the Software, directly or indirectly, in whole or in part. The Software shall only be used for its intended purpose and shall not be used for software development or any other purposes.
(v) Copies. Client may not copy the Software except as expressly permitted in Section 2 of this Agreement.
(vi) Ownership. All worldwide ownership of and all rights, title and interest in and to the Software, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, are and shall remain exclusively in NinjaRMM. The only rights Client acquires under this Agreement are the licenses set forth in this Agreement.
(vii) Other Restrictions. Client may not use the Software to:
(a) defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
(b) conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, unsolicited e-mail or multi-level marketing campaigns;
(c) publish, post, distribute, disseminate or link to any: (i) defamatory, infringing, or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials;
(d) harvest usernames or email addresses for any purpose;
(e) restrict or inhibit any other user from using and enjoying its rights with respect to NinjaRMM or its website (its “Website”), interfering with or disrupting the Website, the NinjaRMM SAAS Service or networks connected to NinjaRMM; or (f) violate any applicable government laws or regulations.
- USE OF THE SOFTWARE AND NINJARMM WEBSITE AND SERVICES.NinjaRMM has no special relationship with or fiduciary duty to Client. Client acknowledges that NinjaRMM has no control over, and no duty to take any action regarding: what Client accesses via NinjaRMM or its Website; what effects the content Client accesses may have on Client; how Client may interpret or use the content; or what actions Client may take as a result of having been exposed to the content. Client is solely responsible for Client’s activities in using the Website, Software or other services including the activities of your employees, contractors, clients and all parties that Client allows having access to the Website and Software. Company or NinjaRMM may access Client’s account, including its data, to respond to service or technical problems or as stated in this Agreement. Customer, not NinjaRMM, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all data stored in Customer’s account. Furthermore, neither Company nor NinjaRMM shall be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data.
- FEEDBACK MECHANISM; SHUTDOWN MECHANISM.The Software is equipped with a feedback mechanism that allows NinjaRMM to review Company’s and its Clients’ use of the Software and communicates activity using the Software back to NinjaRMM. NinjaRMM reserves the right to use such data to evaluate the Software use and for any purposes which NinjaRMM deems useful or appropriate. The Software is also equipped with a shut-down mechanism by which NinjaRMM may shut down Company’s and Client’s use of the Software. NinjaRMM reserves the right to use this shut down mechanism if Client breaches this agreement, Client uses the Software in ways not permitted by this Agreement, and/or if Client fails to pay the applicable periodic Software fees.
- ACCESS RESTRICTION.NinjaRMM reserves the right to deny to any user, in its sole discretion, access to the Software or any portion thereof without notice. Client is responsible for safeguarding the confidentiality of password(s) and username(s) created by Client for use with the Software, and for any use or misuse of the NinjaRMM account resulting from any third party using a password or username created by Client. Client shall be solely responsible for securing access to its data. In no event shall NinjaRMM or Company be liable for any unauthorized access to any data stored using the Software.
- WARRANTY DISCLAIMER.THE SOFTWARE, THE NINJARMM WEBSITE AND ALL OF THE CONTENTS THEREOF ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND NINJARMM HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS, WITH RESPECT THE SOFTWARE, THE WEBSITE AND ALL CONTENTS THEREOF, THE ACCOMPANYING DOCUMENTATION, AND ANY ACCOMPANYING SUPPORTING MATERIALS OR OTHER MATERIALS RECEIVED FROM NINJARMM AND/OR ANY AFFILIATE, AGENT, RESELLER, DEALER, DISTRIBUTOR, EMPLOYEE, CONTRACTOR OR REPRESENTATIVE OF NINJARMM. CLIENT EXPRESSLY ACKNOWLEDGES THAT THE WEBSITE AND/OR THE SOFTWARE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NO AFFILIATE, CONTRACTOR, EMPLOYEE, AGENT, RESELLER, DEALER OR DISTRIBUTOR OR REPRESENTATIVE OF NINJARMM IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
- LIABILITY DISCLAIMER; NO LIABILITY FOR CONSEQUENTIAL DAMAGES.CLIENT IS SOLELY RESPONSIBLE FOR CLIENT’S USE OF THE SOFTWARE, INPUTS INTO THE SOFTWARE, VERIFYING THE RESULTS OF THE USE OF THE SOFTWARE AND HOW THE OUTPUT FROM THE SOFTWARE IS USED BY CLIENT. IN NO EVENT SHALL NINJARMM BE RESPONSIBLE OR LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LIABILITY ARISING OUT OF INSTALLATION OR USE OF THE SOFTWARE, WHETHER BY CLIENT, USERS WITHIN CLIENT’S ORGANIZATION, OR OTHER AUTHORIZED USERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NINJARMM BE LIABLE OR OBLIGATED TO CLIENT IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST DATA OR PROGRAMS, PRIVACY OF DATA OR PROGRAMS, UNAUTHORIZED ACCESS TO DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF NINJARMM IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, EXCEPT AS PROVIDED IN PARAGRAPH 8, NINJARMM SHALL NOT BE LIABLE TO CLIENT IN AN AMOUNT IN THE AGGREGATE GREATER THAN $5,000 OR THE AMOUNT OF FEES PAID IN THE PAST 3 MONTHS BY CLIENT FOR THE SOFTWARE LICENSED UNDER THIS AGREEMENT. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT.
- US GOVERNMENT RESTRICTED RIGHTS.If Client is the United States Government or are acquiring the right to access and use NinjaRMM on behalf of the United States Government, then the United States Government agrees that: (a) if the right to access and use NinjaRMM is acquired by or supplied to the Department of Defense (“DOD”), NinjaRMM shall be classified as “Commercial Computer Software” and the government is acquiring only “restricted rights” in NinjaRMM and its documentation, as defined in Clause 252.227-7013(c)(1) of the DFARS; (b) for any part of the United States Government other than DOD, the government’s rights in the Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, for NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR.
- TRADEMARKS.Msp.Ninja, NinjaRMM, Ninja RMM and their respective designs, trademarks and logos are trademarks or registered trademarks of NinjaRMM LLC. All other trademarks and/or service marks are the property of their respective owners.
- COPYRIGHT MATTERS.NinjaRMM reserves the right to disable the accounts of users who it believes to be infringing the intellectual property rights of others and to remove any such infringing materials. It is NinjaRMM’s policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue services to repeat offenders.
- GENERAL. This Agreement embraces the full, complete understanding of the parties as to the permitted use of the Software, and may not be altered or modified, except by written amendment or collateral agreement which expressly refers to this Agreement and which is duly executed by Company and Client’s authorized representative. In the event of conflicting provisions between this Agreement and a duly executed collateral agreement, the duly executed collateral agreement shall control. Nothing contained in this Agreement shall alter or supersede the terms between Company and Client contained in the Client Access Agreement. This Agreement shall be construed and governed in accordance with the laws of the State of California, excluding the application of its conflicts of law rules. Any action against NinjaRMM concerning the terms contained in this Agreement or the Software shall be brought exclusively in the state or federal courts located in the County of Los Angeles, State of California, United States of America. Client hereby agrees to submit to the jurisdiction of such courts. Client acknowledges that a breach of this Agreement will cause irreparable and continuing damage to NinjaRMM for which money damages are insufficient, and NinjaRMM shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including money damages if appropriate). In the event of litigation between Client and NinjaRMM concerning the Software or any other item which is subject to this Agreement, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Client agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export law, restrictions or regulations. No waiver by Company of any breach or default by you of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
BY ACCESSING AND USING THE WEBSITE AND BY INSTALLING, ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE UNCONDITIONALLY THAT CLIENT SHALL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER REPRESENT, WARRANT AND INDEMNIFY NINJARMM THAT YOU HAVE FULL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF CLIENT AND BIND THE CLIENT.