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*
* Products
* Ivanti Neurons Suite
Ivanti Neurons Suite
Our automation suite frees you up to do important, strategic work. Discover
Neurons ›
* Modules
* Ivanti Neurons for Discovery
IT asset discovery & inventory
* Ivanti Neurons for Healing
Self-healing IT automation bots
* Ivanti Neurons Workspace
Specialist-level quick actions
* Ivanti Neurons for Edge Intelligence
Real-time asset insights
* Ivanti Neurons for Digital Experience
Digital employee experience management
* Unified Endpoint Management
Unified Endpoint Management
Discover, manage, secure and heal all your devices - no matter where they
are. View all ›
* Client Management
* Ivanti Neurons for UEM
Cloud-based UEM solution
* Ivanti Neurons for Healthcare
Manage and secure medical devices
* Endpoint Manager
On-prem UEM software
* Mobile Device Management
* Ivanti Neurons for MDM
Cloud-based modern device management
* Secure Connectivity
Secure mobile gateway and VPN
* AppStation
Mobile application management
* Productivity Apps
Secure mobile apps
* Workspace Management
* Ivanti Neurons Workspace
Specialist-level quick actions
* User Workspace Manager
Unified digital workspace management
* Network & Endpoint Security
Network & Endpoint Security
Ensure peace of mind, everywhere your business works. View all ›
* Endpoint Security
* Ivanti Neurons for Patch Management
Risk-based cloud patch management
* Ivanti Neurons Patch for Intune
Third-party patch publishing for Intune
* Ivanti Neurons for Mobile Threat Defense
Security for Android, iOS and iPadOS devices
* Endpoint Security for EPM
Endpoint security for Endpoint Manager
* Security Controls
Patch and application controls
* Network Security
* Ivanti Neurons for Zero Trust Access
Zero trust network access
* Connect Secure (VPN)
Zero trust secure access VPN
* Virtual Application Delivery Controller
Secure and agile application delivery
* Ivanti NAC
Network access control
* User Security
* Zero Sign-On
Passwordless authentication
* Risk-Based Vulnerability Management
* Ivanti Neurons for RBVM
Risk-based vulnerability management
* Ivanti Neurons for ASOC
Application security orchestration & correlation
* Service & Asset Management
Service & Asset Management
Deliver amazing employee experiences and business outcomes. View all ›
* IT Service Management
* Ivanti Neurons for ITSM
Modern IT service management
* Ivanti Neurons Digital Assistant
AI-powered virtual agent
* Ivanti Neurons iPaaS
Workflow data integrations for ITSM
* Voice
Voice enablement for IT service desks
* Enterprise Service Management
* Ivanti Neurons for Facilities
Facilities service management
* Ivanti Neurons for HR
HR service management
* Ivanti Neurons for PPM
Real-time project portfolio management
* Ivanti Neurons for GRC
Centralized GRC solution
* Ivanti Neurons for Security Operations Management
Centralized management of security operations
* IT Asset Management
* Ivanti Neurons for ITAM
Strategic IT asset management software
* Ivanti Neurons for Spend Intelligence
Software asset management solution
* Server Management
* Ivanti Neurons for Service Mapping
Service and application dependency mapping
* Supply Chain
Supply Chain
Deliver warehouse automation to empower supply chain operations. View all ›
* Industrial Mobile Enterprise Applications
* Velocity
Platform for optimizing apps
* Browser Solutions
Industrial mobile browser
* Terminal Emulation
Session-persistent telnet
* Voice Enablement
* Speakeasy
Voice-enablement solution
* Industrial Management
* Ivanti Neurons for MDM
Industrial device management (SaaS)
* Avalanche
On-premise MDM
* Printer Management
Industrial printer management
* Smart Device Remote Control
Industrial smart device remote control
* Industrial Automation
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Industrial IoT
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Enterprise Service Management
Find the right ESM solution for your needs. View packages ›
* Use Cases
* Implement and manage IT service delivery
* Discover and manage all my assets
* Extend service management across the organization
* Reduce escalations and accelerate resolutions
* Modernize IT service delivery
* Optimize operations with ITOM insights
* Deliver service management from the cloud
* Discover what's on your network
* Manage your IT asset lifecycles
* Optimize software and hardware assets
* Solution Packages
* ITSM Professional
Provide core IT Service and Asset Management capabilities
* ITSM Premium
Modernize ITSM with machine learning and automation
* ITSM Enterprise
Extend service management to non-IT workflows
* ITSM Enterprise Premium
Deliver the complete solution for the connected, intelligent enterprise
* Unified Endpoint Management
Unified Endpoint Management
Find the right UEM solution for your needs. View packages ›
* Use Cases
* Optimize IT efficiency and employee productivity
* Secure your mobile devices from attacks and harmful apps
* Empower my Frontline Workers
* Manage, secure, and deliver IT for a remote workforce
* Remote control any PC or MAC anywhere
* Provide applications to users
* Solution Packages
* Secure UEM Professional
Provide complete endpoint management to improve digital employee
experience and IT efficiency.
* Secure UEM Professional Plus
Support a breadth of use cases, especially for mobile and frontline
workers.
* Secure UEM Premium
Deliver comprehensive UEM with integrated endpoint security.
* Devices & OS
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Security
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* Extend MECM with third-party patching
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* Secure access to the web, cloud services and private applications
* Supply Chain
Supply Chain
* Use Cases
* Add voice to my applications
* Augment operations and empower workers with robotics
* Automate documentation processes for compliance and reporting
* Enhanced mobile user experience for SAP S/4HANA
* Ensure mobile device management
* Migrate my devices to Android, iOS or Windows 10
* Industries
Industries
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* Department of Defense
Enable the mission through zero trust
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Healthy IT leads to better patient care
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Manage and secure campus devices
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IT management for physical & digital classrooms
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Keep up with customer pressure for faster delivery
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Control budget and sped value of agency initiatives
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IVANTI END USER LICENSE AND SERVICES AGREEMENT
IMPORTANT: PLEASE READ THESE TERMS BEFORE ORDERING, INSTALLING, CONFIGURING
AND/OR USING THE IVANTI SOFTWARE OR SAAS OFFERINGS. THIS DOCUMENT DESCRIBES THE
RELATIONSHIP BETWEEN THE APPLICABLE IVANTI ENTITY AS DETERMINED IN ACCORDANCE
WITH THIS DOCUMENT (“IVANTI”) AND YOU (EACH OF IVANTI AND YOU, A “PARTY” AND,
COLLECTIVELY, THE “PARTIES”). THIS DOCUMENT ALSO MAKES REFERENCE TO ONE OR MORE
ADDITIONAL DOCUMENTS WHICH ARE INCORPORATED INTO THIS DOCUMENT BY REFERENCE
(“SUPPLEMENTAL TERMS”) (COLLECTIVELY WITH THIS DOCUMENT, THE “AGREEMENT”). THIS
AGREEMENT WILL BECOME EFFECTIVE ON THE DATE YOU ACCEPT THE TERMS OF THIS
AGREEMENT (THE “EFFECTIVE DATE”). BY INSTALLING, CONFIGURING, AND/OR USING THE
SOFTWARE OR SAAS OFFERING IN ANY WAY, YOU REPRESENT AND WARRANT THAT YOU HAVE
THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED AS THE CUSTOMER (“YOU”
OR “YOUR”) TO THIS AGREEMENT, AND ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY
THE TERMS OF AND BECOME A PARTY TO THIS AGREEMENT WITH IVANTI. IVANTI DOES NOT
AGREE TO ANY OTHER TERMS, INCLUDING WITHOUT LIMITATION ANY TERMS ON YOUR
PURCHASE ORDERS OR INVOICES. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN
AGREEMENT WITH IVANTI REGARDING THE SOFTWARE OR SAAS OFFERING (“SEPARATE
AGREEMENT”), THE TERMS OF SUCH SEPARATE AGREEMENT SHALL CONTINUE IN FULL FORCE
AND EFFECT, AND THIS AGREEMENT SHALL NOT APPLY. NOTWITHSTANDING, THIS AGREEMENT
WILL REPLACE AND NEGATE ANY SUCH SEPARATE AGREEMENT IN ITS ENTIRETY IF SUCH
SEPARATE AGREEMENT IS BETWEEN YOU AND ANY OF THE FOLLOWING ENTITIES:
• FRONTRANGE SOLUTIONS USA INC.;
• FRONTRANGE SOLUTIONS UK LIMITED;
• FRONTRANGE SOLUTIONS ASIA PACIFIC PTY LIMITED;
• HEAT SOFTWARE USA INC.;
• HEAT SOFTWARE UK LIMITED;
• HEAT SOFTWARE ASIA PACIFIC PTY LIMITED; OR
• LUMENSION SECURITY, INC.
All references to “Ivanti” shall mean the entity identified below in the same
geographic region as You:
• Ivanti, Inc., a Delaware corporation, in the Americas, except
Brazil.
• Ivanti Comércio de Software Brasil Ltda, a Brazilian company, in
Brazil.
• Ivanti Software K.K., a Japanese company, in Japan.
• Ivanti Software Technology (Beijing) Co., Ltd., a Chinese
company, in China.
• Ivanti International Limited, an Irish company, for Wavelink and
Naurtech branded products and services in Europe, the Middle East, Africa, and
the Asia Pacific region.
• Ivanti UK Limited, a limited company registered in England and
Wales, in all other locations.
1. DEFINITIONS. Certain capitalized terms shall have the meanings
set forth below in this Agreement.
a. “Affiliate” means any legal entity that controls, is controlled
by or is under common control with You or Ivanti (as applicable); where
‘control’ refers to ownership of more than fifty percent (50%) of voting
securities.
b. “Analyst” means an individual employed by You or who otherwise
provides services (whether as an independent contractor or otherwise) to You,
who has login access to manage and use the Software.
c. “Asset” means (i) any Device or other asset which has an
Operating System, whether physical or virtual, that is tracked by or input into
Ivanti’s asset management Software; or (ii) every physical and virtual object
(including but not limited to network devices, applications, databases, objects
in the cloud, IoT, or mobile devices which are typically identified by a unique
IP or MAC address, web application software and databases) that is registered,
managed, and discovered by Ivanti’s risk management Software as measured by
overall instances which You and/or Your Affiliates use.
d. “Beta” means a version of the Software that is still in its
testing phase and has not yet been released commercially.
e. “Confidential Information” means (i) any non-public information
disclosed by one Party to the other Party, either directly or indirectly,
whether communicated in writing, orally or by inspection of tangible objects
(including, without limitation, pricing, trade secrets, product plans, products,
services, customers, Software, designs, inventions, processes, drawings,
engineering, hardware configuration information, marketing or financial
information), which is designated as "Confidential," "Proprietary" or some
similar designation; and (ii) this Agreement, any and all non-public information
relating to any Software and any associated training, Documentation, and other
related materials, regardless of whether or not such materials are marked as
“Confidential,” “Proprietary” or some similar designation.
f. “Device” means each electronic device using the Software
including without limitation (a) a physical device such as a computer, handheld
device, workstation, console, server, or any other electronic device; (b) a
virtual machine, such as an operating environment that may be running
concurrently with another operating environment on a single physical device; or
(c) an electronic or virtual mailbox (e.g., a mailbox for email).
g. “Connection” means anytime a Device is managed by the Software or
Devices to which services are provisioned or furnished by the Software.
h. “Documentation” means, collectively, the official product
operation instructions, release notes and user manuals provided by Ivanti for
the Software, in electronic or written form, that Ivanti has made publicly
available.
i. “Enrolling” or “Enrolled” means the act of manually (for
example, by explicit user or administrative action) or automatically making a
Device known to the Software, such that the Software subsequently has knowledge
of the Device and establishes an initial management connection with the Device;
j. “Invoice” means the relevant Ivanti or Reseller quotation, order
and/or invoice.
k. “Operating System” means an identifiable piece of software that
runs on a physical or virtual device which controls the functions of the device
and is discoverable and/or manageable over a network.
l. “Ivanti Platform” means any hardware, network appliance,
equipment or devices marketed and sold by Ivanti.
m. “Professional Services” means any of Ivanti’s deployment,
consulting, training, and education services to be performed by Ivanti or its
subcontractors to the extent identified in a statement of work signed by both
Parties referencing this Agreement.
n. “Registered Device” means a Device that has been Enrolled. A
Device shall be considered a Registered Device from the time of its Enrolling,
until the time the Device is explicitly marked as “removed” (also referred to as
"retired", "wiped" or "deleted").
o. “Reseller” means an Ivanti authorized reseller or distributor.
p. “SaaS Offering” means Ivanti’s provision of the Software under a
Subscription License and as a hosted service under this Agreement.
q. “Software” means the object code form of the Ivanti proprietary
software product(s) made available by Ivanti under this Agreement, whether on
premise or as a SaaS Offering, and includes any accompanying components, files,
modules, audio-visual content, activation keys, Documentation, Updates, and
Upgrades to which You are entitled hereunder.
r. “Support and Maintenance Services” means those technical support
and maintenance services for the Software made available by Ivanti under this
Agreement.
s. “Updates” means any updates, minor enhancements, corrections, bug
fixes, patches or functions added to or removed from the Software but shall not
include any new software or functionality that Ivanti markets and sells
separately.
t. “Upgrades” means major releases of a product that replace a
prior version of that product.
u. “User” means an individual employed by or who otherwise provides
services (whether as an independent contractor or otherwise) to You who is
supported with or uses the Software.
v. “Version” means one or more releases of the Software with a
common release naming convention.
2. GRANT OF LICENSE.
a. Software License. Subject to the terms and conditions of this
Agreement and in accordance with the applicable Documentation and the License
Type, License Model, Version and quantities of licenses purchased and paid for
by You, Ivanti hereby grants You (as applicable) (i) a limited right to access
and use the SaaS Offering, (ii) a non-exclusive, non-transferable,
non-sublicensable license (except as set forth within this Agreement) to use the
Software, and/or (iii) a limited right to maintain one (1) backup, unmodified
copy of the Software for archival purposes.
Users shall use and/or access the Software solely on behalf of and for the
benefit of You or Your applicable Affiliates and in accordance with the license
purchased and the terms of this Agreement. You shall be responsible for all acts
and omissions committed by any Users and any actions by such Users that would be
a breach of this Agreement, if taken by You, shall be deemed a breach of this
Agreement. You agree that Your purchase of the Software is neither contingent
upon the delivery of any future functionality or features nor dependent upon any
oral or written public comments made by Ivanti with respect to future
functionality or features.
Ivanti provides the Software under two (2) general license types (the “License
Types”):
• “Perpetual License”. A license to use the Software that is not
time-limited when used in accordance with the terms of this Agreement.
• “Subscription License”. A time-limited license to use the
Software that expires at the end of a specified period. Software licensed under
a Subscription License may contain disabling code to automatically disable
itself upon the expiration of the subscription term.
Within the License Types, Ivanti offers the following twelve (12) license models
(the “License Models”):
• “User-Based”. Under the User-Based model, the Software may be
used by a specific User on any number of that User’s Devices, unless otherwise
limited in the Invoice. You may not transfer a license from one User to another
User more than once every thirty (30) days. A license is required for each User.
• “Named User”. Under the Named User model, a Named User is a
single User authorized by You to access or use the Software, regardless of
whether or not the individual is using the Software. You may not transfer a
license from one Named User to another Named User more than once every thirty
(30) days. A license is required for each Named User.
• “Named End User”. Under the Named End User model, which only
applies to Ivanti Neurons for HR and Ivanti Neurons for Facilities, a Named End
User is a single User that is authorized to access and/or use the Software in a
self-service function to consume services, report issues, or use other tools
within the Software, regardless of whether or not the individual actually uses
the Software. You may not transfer a license from one Named End User to another
Named End User more than once every thirty (30) days. A license is required for
each Named End User.
• “Concurrent User”. Under the Concurrent User model, licenses are
required for the maximum number of simultaneous Users authorized by You to
access or use the Software at any given moment during the previous thirty (30)
days (each a “Concurrent User”), regardless of the number of connections used by
that individual. A license is required for each Concurrent User.
• “Named Analyst”. Under the Named Analyst model, a Named Analyst
is a single Analyst authorized by You, who is assigned a dedicated license to
access or use the Software, regardless of whether or not the individual is using
the Software. A Named Analyst license cannot be shared across multiple Analysts
simultaneously and may not be transferred from one Analyst to another Analyst
more than once every thirty (30) days. A license is required for each Named
Analyst.
• “Concurrent Analyst”. Under the Concurrent Analyst model,
licenses are required for the maximum number of simultaneous Analysts authorized
by You to access or use the Software at any given moment during the previous
thirty (30) days (each a “Concurrent Analyst”), regardless of the number of
sessions used by that individual. A license is required for each Concurrent
Analyst.
• “Device-Based”. Under the Device-Based model, licenses are
required for each Registered Device or each Device on which the Software is
deployed, whether physical or virtual. You may not transfer a license from one
Device to another Device, whether physical or virtual, more than once every
thirty (30) days.
• “Device-Limited”. Under the Device-Limited model, licenses are
required for each Device on which the Software is deployed. A license may only
be transferred from one Device to another Device of the same make and model in
the event of accidental destruction.
• “Asset-Based”. Under the Asset-Based model, licenses are required
for each Asset, whether physical or virtual, which is tracked by or input into
the Software. You may not transfer a license from one Asset to another Asset,
whether physical or virtual, more than once every thirty (30) days.
• “Concurrent Connection”. Under the Concurrent Connection model,
licenses are required for the maximum number of simultaneous Connections to the
Software at any given moment during the previous thirty (30) days (each a
“Concurrent Connection”), regardless of the number of individuals creating the
Connections. A license is required for each Concurrent Connection.
• “Throughput”. Under the Throughput model, Throughput is
determined by the total amount of data which is passed through or is processed
by the Software, and Your access and ability to utilize the Software is limited
by the amount of Throughput You purchase.
• “Management”. Under the Management model, a license is required
for each Device or Ivanti Platform managed by the Software. You may not transfer
a license from one Device or Ivanti Platform to another Device or Ivanti
Platform more than once every thirty (30) days.
• "Per Instance". Under the Per Instance model, a license is
required for each specific realization of the Software used to implement the
Ivanti product(s), and each implementation is referred to as an “Instance”.
b. Entitlement. The Invoice shall set forth the License Type,
License Model, and the means of provisioning of the Software which You are
purchasing.
c. Evaluation, Community or Beta. If the Software is offered to You
as an evaluation, trial, Beta or community edition license, then You are granted
a limited, non-exclusive, non-sublicensable, non-transferrable license to use
such licenses solely on a trial use basis to, notwithstanding any contrary
provision in this Agreement, use the Software only for internal demonstration,
test or evaluation purposes in a non-production environment (except as otherwise
allowed for herein or permitted by Ivanti in writing), and for the period
specified on the software license key (if not indicated, this period will be
forty-five (45) days from delivery) following which, unless the Software
automatically disables itself, You are required to immediately remove and
destroy all copies of the Software, including all backup copies. You acknowledge
that Ivanti is not obligated to permit further use of the Software past the
expiration date and that You have no right to Support and Maintenance Services
with any such evaluation licenses. Notwithstanding anything to the contrary, a
community edition license may be used in a production environment, but You agree
and understand that You assume all risks and liabilities for any such usage in a
production environment. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT
THE EVALUATION, TRIAL, BETA, OR COMMUNITY EDITION SOFTWARE IS PROVIDED “AS-IS”
WITHOUT SUPPORT OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Save for death and
personal injury caused by IVANTI’S negligence, IVANTI shall have no liability of
any kind in any circumstances whatSOever to YOU in respect of ANY SUCH
EVALUATION, TRIAL, BETA, OR COMMUNITY EDITION Software. In particular, IVANTI
shall have no liability in any circumstances whatSOever for any data loss or
corruption and YOU agree that YOU HAVE sole responsibility for protecting YOUR
data during YOUR USE OF AND ACCESS TO the Software.
d. Operating System. If You have a license to the Software which is loaded on a
Ivanti Platform that You have purchased, the operating system software installed
on the Ivanti Platform, along with the Software, may only be used on said Ivanti
Platform and may not be installed or used on any other appliance. In the event
You sell or otherwise transfer an Ivanti Platform, You understand that Your
license to use the operating system software installed on the Ivanti Platform,
along with the Software, will terminate even if such licenses are Perpetual
Licenses.
3. SAAS OFFERINGS.
a. SaaS Offering Supplemental Terms. If You purchase a SaaS
Offering, as identified in the Invoice as a SaaS or cloud offering, then You
agree and are subject to the terms and conditions contained in this Agreement
and Ivanti’s then-current Supplemental Terms for the SaaS Offering found at
https://www.ivanti.com/company/legal/saas.
b. Reinstatement Fee. If You purchase a SaaS Offering and at the end
of the Initial Term or a Renewal Term and choose to change any portion of a SaaS
Offering to an on-premise Perpetual License, then Ivanti may assess You with a
one (1) time reinstatement fee equal to ten percent (10%) of the cost assessed
to You for the SaaS Offering in the Invoice.
4. RESTRICTIONS. The Software is licensed, not sold. You may not use
the Software for any purpose beyond the scope of the licenses granted in this
Agreement, and all other rights are reserved by Ivanti or its suppliers. Without
limiting the generality of the foregoing and except as expressly permitted in
this Agreement, You will not and will not permit any User or third party to: (a)
authorize or permit access to or use of the Software by persons other than Users
or Analysts; (b) assign, sublicense, distribute, sell, lease, rent, novate or
otherwise transfer or convey the Software, or Documentation to any third party
without Ivanti’s prior written consent, except as set forth in the assignment
provision in this Agreement; (c) disclose the software license key to the
Software to any third party; (d) use the Software in violation of any applicable
law or regulation or to support or facilitate any illegal activity (e) pledge as
security or otherwise encumber the rights granted under this Agreement; (f)
modify, adapt or create any derivative works of the Software (or any component
thereof) or the Documentation; (g) decompile, disassemble, reverse engineer or
otherwise attempt to obtain or perceive the source code from which any component
of the Software except and only to the extent: (i) that applicable law expressly
permits such actions despite this limitation; or (ii) such actions are required
to debug changes to any third party open source software libraries linked to by
the Software; (h) use the Software as a service provider or application service
provider for third parties; (i) circumvent or attempt to circumvent any
technical restrictions in the Software; (j) remove, alter or obscure any
proprietary notices or legends from the Software or any copies thereof; (k)
violate Ivanti’s Acceptable Use Policy located at
https://www.ivanti.com/company/legal; (l) employ or authorize a competitor of
Ivanti to use or view the Software or Documentation without the prior written
consent of Ivanti; (m) perform any “mirroring” or “framing” of any part of the
Software, or create internet links to the Software which include log-in
information, user names, passwords, and/or secure cookies without Ivanti’s prior
written consent; (n) use the Software for purposes of product evaluation,
benchmarking, or other comparative analysis intended for publication without
Ivanti’s prior written consent or (m) detach or separate any libraries, files,
modules or other components embedded within the Software even if any such
library, file, module or other component is separately licensable, or use any
such modules, files or other components separately from the Software (except to
the extent that a documented feature of the Software product is implemented by
doing so).
To the extent that any applicable mandatory laws give You the right to perform
any of the aforementioned activities without the consent of Ivanti to gain
certain information about the Software, You hereby agree that, before You
exercise any such rights, You shall first request such information from Ivanti
in writing detailing the purpose for which You need the information. Only if and
after Ivanti, at its sole discretion, denies Your request, shall You exercise
Your statutory rights.
5. TITLE. Ivanti and its licensors (if any) retain all rights,
title, and interest, including all patent, copyright, trade secret, trademark,
moral rights, and other intellectual property rights, in and to the Software and
Ivanti expressly reserves all rights not expressly granted under this Agreement.
You hereby agree that the title and ownership to any intellectual property
rights under this Agreement shall not transfer and/or pass to You.
6. SUPPORT AND MAINTENANCE SERVICES. Standard Support and
Maintenance Services, Updates and Upgrades are included in the price of the
Software if it is purchased as a Subscription License or a SaaS Offering. You
may purchase or upgrade Support and Maintenance Services for the Software
separately. Except as set forth herein, You have no rights to any Updates or
Upgrades unless You purchase Support and Maintenance Services for the Software.
If You purchase Support and Maintenance Services for the Software, You are
required to purchase and maintain such Support and Maintenance Services for all
licenses of the Software. All Support and Maintenance Services are subject to
Ivanti’s then-current Supplemental Terms for the Support and Maintenance
Services found at https://www.ivanti.com/company/legal/support-terms and the
relevant end-of-life policies found at https://forums.ivanti.com/s/end-of-life.
7. PROFESSIONAL SERVICES AND TRAINING.
a. Statement of Work. You may engage Ivanti to provide certain
Professional Services pursuant to a statement of work or similar document,
whether in print or online, which describes the tasks or services to be provided
("SOW"). Each SOW shall incorporate this Agreement by reference, be governed by
and subject to the terms and conditions of this Agreement, and in the event of
any conflict or inconsistency between this Agreement and the SOW, this Agreement
shall take precedence.
b. Customer Cooperation. You shall provide Ivanti with all necessary
cooperation, information and support that may reasonably be required by Ivanti
for the performance of the Professional Services including, without limitation,
access to suitably configured computers, software products and applicable
passwords, at such times as Ivanti may request. You shall further perform such
other obligations as specified in the SOW.
c. Postponing and Rescheduling. Unless otherwise agreed by both
Parties in writing, if You postpone or reschedule a Professional Services
project fewer than ten (10) business days but more than five (5) business days
prior to the start date of a project, You shall pay Ivanti fees equal to the
fees quoted for one (1) day of Professional Services under the project or
$2,500, whichever is less. If You postpone or reschedule a project fewer than
five (5) business days prior to the start date of a project, You shall pay
Ivanti fees equal to the fees quoted for: (i) the number of days of Professional
Services postponed, (ii) one (1) week of Professional Services due for the
project as if it had been fully performed, or (iii) $12,500, whichever is less.
Any rescheduling of Professional Services under a SOW shall be subject at all
times to the SOW’s completion criteria and/or any long-stop dates specified in
the SOW.
d. Implementation Practices. Ivanti uses, develops, and refines
processes, procedures, best practices, computer software code, general
knowledge, skills, experience, ideas, know-how, and implementation techniques
(collectively, "Implementation Practices") by providing implementation and
configuration services to many customers. You benefit from those Implementation
Practices and agree that Ivanti owns and is free to use the Implementation
Practices in its sole discretion, including Implementation Practices developed
or refined in the course of providing Professional Services to You, so long as
the Implementation Practices do not include the use of or reference to Your
Confidential Information (as defined below). Ivanti grants You a non-exclusive,
non-transferable, royalty-free, perpetual, and limited license to use the
Implementation Practices within Your organization, for the purpose for which the
Professional Services were provided. In the event that the Professional Services
involve Ivanti software products licensed to You under a separate license
agreement, only the terms set out in such separate license agreement shall apply
in respect to each such Ivanti software product. For the avoidance of doubt, all
materials provided by You to Ivanti in connection with the Professional Services
shall remain Your property.
e. Travel. As it relates to Ivanti’s outcome-based, prepaid
Professional Services packages, the amount of time that Ivanti will be on-site
at Your location for Professional Services is subject to the Ivanti project
manager’s discretion. If You require that Ivanti be on-site for more time than
advised by the Ivanti project manager for an outcome-based, prepaid Professional
Services package, then Ivanti will only provide the on-site Professional
Services after providing You with a quote and receiving a purchase order from
You for the additional cost of the on-site Professional Services.
f. Training Courses. You may also purchase training from the Ivanti
Advantage Learning. Payment for training courses is managed through the purchase
of an individual license (1 User) or enterprise license (10 Users). Private
training courses may be purchased as well. Cancellation fees are due for
customer cancelled onsite private training courses at a rate of fifty percent
(50%) of the course fee if cancelled within one (1) week of the start of the
course, or one hundred percent (100%) of the course fee if the course is not
attended or if notice of cancellation is given less than one (1) week before the
start of the course. All Ivanti Advantage Learning courses and offerings are
subject to Ivanti’s then-current terms of use for Ivanti Advantage Learning
found at
https://www.ivanti.com/company/legal/terms-of-use-ivanti-advantage-learning.
Orders for Ivanti Advantage Learning training courses and Professional Services
expire if not used within one (1) year from the date of order.
g. Subscription Professional Services. If You purchase subscription
Professional Services as outlined in the Invoice then You agree and are subject
to the terms and conditions contained in this Agreement and Ivanti’s
then-current Supplemental Terms for the Subscription Professional Services found
at https://www.ivanti.com/company/legal/subscription-professional-services.
8. PAYMENT. You agree to pay, without setoff or deduction, the
amounts set forth in the Invoice. Fees for any Support and Maintenance Services
shall be paid in advance of the relevant term covered. Renewal fees are due on
or before the annual renewal date. Fees for the Software purchased as a
Subscription License or a SaaS Offering shall be paid for either i) as a lump
sum for the entire Initial Term or Renewal Term at the time of purchase, or ii)
according to the annual payment schedule for each year of the Initial Term or
Renewal Term set forth in the Invoice.
Ivanti will provide the Professional Services as set forth on the applicable
quote. Professional Services shall be delivered on either (a) a prepaid basis
which will be invoiced upon receipt of a purchase order, or (b) a time and
materials basis which will be invoiced monthly as the Professional Services are
performed. In the event the Professional Services are performed on-site (and are
not included in the price of the outcome-based, prepaid Professional Services
package), Ivanti will quote and invoice You a fixed daily rate to cover all of
Ivanti’s travel and accommodation expenses. All charges are non-refundable
unless specifically stated otherwise in the relevant SOW.
Unless otherwise agreed, all such fees shall be due and payable within thirty
(30) days from the date of the Invoice in U.S. Dollars, Euros, or British Pound
Sterling, depending on the local currency of the contracting Ivanti entity or
Reseller, or as otherwise indicated in the Invoice. A hard copy purchase order
number and VAT ID (where applicable) must be provided with all orders.
If You fail to make a payment when due, You agree that Ivanti may charge
interest at the lesser of a rate of one and one-half percent (1.5%) per month or
the maximum rate allowed by law, which interest will accumulate on the
outstanding balance on a daily basis until paid in full. You agree to reimburse
Ivanti for all reasonable costs, including legal fees and related costs, Ivanti
incurs in collecting any late payments and interest. Ivanti will be entitled to
terminate all licenses, and services provided hereunder upon thirty (30) days
prior written notice to You if You fail to pay any required fees when due. If
You fail to pay undisputed amounts in accordance with the terms and conditions
of this Agreement for any SaaS Offering, Ivanti shall have the right, in
addition to any of its other rights or remedies, to suspend Your access to the
SaaS Offering, without liability to You until such amounts are paid in full.
Except as expressly provided otherwise in this Agreement, all payments by You
(whether to Ivanti or a Reseller) are nonrefundable and not available for credit
for the purchase of other Software.
If You dispute any fees, taxes, or other charges billed by a Reseller or Ivanti
under this Agreement, You must notify Ivanti, in writing, of the disputed amount
and any relevant information regarding the circumstances of the dispute. Ivanti
shall acknowledge receipt of the disputed information in writing to You. All
Parties agree to work cooperatively to resolve any such disputed amounts. If You
fail to provide Ivanti with a notice of such a disputed amount within twenty
(20) business days following receipt of the Invoice for such disputed charge,
then such amount is deemed undisputed and due.
All prices exclude value-added tax, sales tax, and any other applicable tax,
unless expressly stated otherwise. In the event that any withholding, sales,
value-added, use or other taxes or government fees, assessments or charges are
payable because of this Agreement, then You agree to pay all such taxes, fees,
assessments, and charges in addition to all other payments. If Ivanti is
required to make any such payments, You agree to reimburse Ivanti for such
payments promptly upon notice.
If You are purchasing the Software, Support and Maintenance Services and/or
Professional Services through a Reseller, then the payment terms and associated
payment obligations herein do not apply to You to the extent of such
purchase(s), instead Your payment terms and obligations with the Reseller would
apply to any such purchase(s).
9. CONFIDENTIALITY. Each Party shall keep confidential, and not
disclose to any third party (except each Party’s respective employees or staff
members or as maybe required by law or any legal or regulatory authority) any
Confidential Information which may be provided in connection with this
Agreement. Information communicated orally will be considered to be Confidential
Information if such information is identified as Confidential Information at the
time of its disclosure, or if such information by its nature should reasonably
be understood by the receiving Party to be confidential.
Notwithstanding anything to the contrary, Confidential Information will not
include any information that: (a) was publicly known prior to the time of
disclosure by the disclosing Party; (b) becomes publicly known after disclosure
by the disclosing party to the receiving Party through no action or inaction of
the receiving Party; (c) is already in the possession of the receiving Party at
the time of disclosure by the disclosing Party (as shown by the receiving
Party's files and records) prior to the time of disclosure; (d) is obtained by
the receiving Party from a third party without a breach of such third party's
obligations of confidentiality; or (e) is independently developed by the
receiving Party without use of or reference to the disclosing Party's
Confidential Information (as shown by documents and other competent evidence in
the receiving Party's possession).
Notwithstanding the obligations set forth above, the receiving Party may
disclose the Confidential Information of the disclosing Party to the limited
extent such disclosure is required by law (this includes (i) an order of any
court of competent jurisdiction or any regulatory, judicial, governmental or
similar body or any taxation authority of competent jurisdiction; (ii) the rules
of any listing authority or stock exchange on which its shares are listed; or
(iii) the laws or regulations of any country to which its affairs are subject)
to be disclosed by the receiving Party, provided that the receiving Party will
promptly give the disclosing Party written notice of such requirement prior to
any disclosure so that the disclosing Party may have sufficient time to seek a
protective order or other appropriate relief.
Each Party agrees that it shall take reasonable measures to protect the secrecy
of and avoid disclosure and unauthorized use of the Confidential Information of
the other Party. Without limiting the foregoing, each Party shall take at least
those measures that it takes to protect its own most highly confidential
information and shall ensure that its employees, consultants, contractors, or
agents who have access to Confidential Information of the other Party have
signed a non-use and non-disclosure agreement in content similar to the
provisions hereof, prior to any disclosure of Confidential Information to such
employees, consultants, contractors, or agents. The receiving Party shall
remain liable for any non-compliance of such employee, consultant, contractor,
or agent with the terms of this Agreement. Notwithstanding the foregoing, if You
purchase the products and services under this Agreement from a Reseller, each
Party may disclose the terms of this Agreement and any Invoice to such Reseller,
subject to conditions of confidentiality.
10. INDEMNIFICATION.
a. Defense of Infringement Claims. Ivanti will, at its expense,
either defend You from or settle any claim, proceeding, or suit brought by a
third party against You alleging that Your use of the Software infringes or
misappropriates any patent, copyright, trade secret, trademark, or other
intellectual property right ("Infringement Claim"). You must (i) give Ivanti
prompt written notice of the Infringement Claim; (ii) grant Ivanti full and
complete control over the defense and settlement of the Infringement Claim;
(iii) provide assistance in connection with the defense and settlement of the
Infringement Claim as Ivanti may reasonably request; (iv) comply with any
settlement or court order made in connection with the Infringement Claim; and
(v) not make any admission of liability, agreement or compromise in relation to
the Infringement Claim nor defend or settle any Infringement Claim without
Ivanti’s prior written consent. You may participate in the defense of the
Infringement Claim at Your own expense and with counsel of Your own choosing,
subject to Ivanti’s sole control over the defense and settlement of the
Infringement Claim as provided above.
b. Indemnification of Infringement Claims. Ivanti will indemnify You
and Your Affiliates from and pay: (i) all damages, costs, and reasonable
attorneys’ fees finally awarded against You and Your Affiliates in any
Infringement Claim; (ii) all out-of-pocket costs, including reasonable
attorneys’ fees incurred by You in connection with the defense of an
Infringement Claim (other than attorneys’ fees and costs incurred without
Ivanti’s consent after Ivanti has accepted defense of the Infringement Claim and
expenses incurred pursuant to the last sentence of the prior section); and (iii)
all amounts that Ivanti agrees to pay to any third party to settle any
Infringement Claim.
c. Exclusions from Obligations. Ivanti has no obligation to
indemnify You for any Infringement Claim to the extent that it arises out of or
is based upon (i) Your use of the Software in combination with third-party
products or services not authorized by Ivanti or the Documentation; (ii) any
aspect of the Software configured specifically for You to comply with designs,
requirements, or specifications required by or provided by or on Your behalf;
(iii) use of the Software by You, any User, any Analyst, or any third party
outside the scope of the rights granted in this Agreement; (iv) failure of You,
any User, any Analyst, or any third party to use the Software in accordance with
the Documentation or any instructions provided by Ivanti; (v) failure of You to
use the most recent version of the Software (including any Updates or Upgrades
provided to You by Ivanti) if use of the most recent version of the Software is
required to avoid the Infringement Claim; or (vi) any unauthorized modification
of the Software or SaaS Offering.
d. Infringement Remedies. In the defense or settlement of any
Infringement Claim, Ivanti may, at its sole option and expense: (i) procure for
You a license to continue using the Software or SaaS Offering; (ii) replace or
modify the allegedly infringing technology to avoid the infringement; or (iii)
if the foregoing options are not commercially feasible in Ivanti’s sole
judgment, refund any prepaid, unused SaaS Offering fees as of the date of
termination or Software license fees depreciated on a straight line basis over
thirty-six (36) months. The foregoing states Ivanti’s sole and exclusive
liability, and Your sole and exclusive remedy, for the actual or alleged
infringement or misappropriation of any third-party intellectual property right
by the Software or SaaS Offering.
e. Ivanti Indemnitees. You agree to hold harmless, indemnify, or at
Your option, settle, any third party claim, suit or proceeding brought against
Ivanti, its Affiliates and their respective employees, officers and directors
(“Ivanti Indemnitee(s)”) arising out of (i) Your unauthorized use of the
Software and related services; (ii); Ivanti’s compliance with Your designs,
specifications or instructions; (iii) Your unauthorized modification of the
Software or SaaS Offering; and (iv) Your instructions or Your failure to comply
with the obligations as set forth in Section 15(c) of this Agreement and the
DPA, and You shall pay all third party costs and damages awarded in judgment of
such claim or agreed to in settlement of such claim between You and such third
party; provided that Ivanti Indemnitee(s): (a) provide You with prompt
notification of the claim, such that You are not prejudiced by any delay in such
notification; and (b) provide reasonable assistance in connection with the
defense or settlement, at Your expense.
11. LIMITED WARRANTY AND DISCLAIMER.
a. Limited Warranty. Ivanti warrants that: (i) for a period of
ninety (90) days from the date of purchase, the Software will perform
substantially in accordance with the Documentation, (ii) for the duration of the
applicable subscription term to the SaaS Offering, the SaaS Offering will
perform substantially in accordance with the Documentation, and (iii) the
Support and Maintenance Services and Professional Services will be provided in a
professional and workmanlike manner. If the Support and Maintenance Services or
Professional Services are not provided in a workmanlike manner, You have a
period of thirty (30) days from delivery to provide written notice of Your
warranty claim. This limited warranty will not apply unless: (i) the Software
has been properly installed and used at all times in accordance with the
Documentation; (ii) no unauthorized modification, deletion or addition has been
made to the Software, SaaS Offering, Support and Maintenance Services, or
Professional Services; and (iii) Ivanti receives written notice of the
non-conformity within the warranty period. Ivanti disclaims all warranty claims
and any liability that may arise if and to the extent that the warranty claims
and liability are caused by the acts of a third party that has provided support
services, consulting services and/or professional services of any kind without
Ivanti’s approval. Ivanti will use commercially reasonable efforts to deliver
the Software to You free from any viruses and malicious programs or programming
devices designed to modify, delete, damage, disable or provide unauthorized
access to the Software or Your data.
b. Exclusive Remedy. Ivanti and its Resellers’ entire liability and
Your exclusive remedy under this warranty will be, at the sole option of Ivanti
and subject to applicable law, (i) to repair or replace the Software, the SaaS
Offering, Support and Maintenance Services and/or Professional Services to
perform per the warranty within a reasonable time, (ii) to refund, on a
pro-rated basis, the fees paid for the nonconforming SaaS Offering and terminate
this Agreement and Your right to use the SaaS Offering, or (iii) to refund the
fees paid for the nonconforming Software, Support and Maintenance Services
and/or Professional Services and terminate this Agreement and Your right to use
the Software (subject to You deleting all copies of the Software within Your
possession and control and certifying in writing to Ivanti that You have done
so).
c. Third Party Products and Services. As a convenience to You,
Ivanti resells certain products that are owned by third parties and are not
licensed by Ivanti (“Resale Products”). Resale Products are not included as part
of the Software, are not required or necessary for use of the Software and will
be identified on the Invoice as Resale Products. Any Resale Products provided by
Ivanti are provided pursuant to the terms of the applicable third-party
agreement, and Your use of any such Resale Products constitutes agreement to
comply with the terms of the applicable third-party agreement. Ivanti assumes no
responsibility for, and specifically disclaims any liability or obligation with
respect to, any Resale Products. All Resale Products are provided with the third
party’s warranty and without any additional warranty of any kind, whether
express or implied. If support and maintenance is offered for a specific Resale
Product and You purchase directly from Ivanti, Ivanti shall distribute the
applicable Resale Product error correction, update, upgrade, and other release
provided to Ivanti by the third-party licensor.
The Software may contain features designed to interface with applications or
services provided or made available by third parties that are not In-Licensed
Materials (“Third-Party Services”). In order to use a feature in connection with
a Third-Party Service, You must have a subscription or license from the provider
of the relevant Third-Party Service. If the Third-Party Services are no longer
available or if the applicable third-party provider no longer allows the
Third-Party Services to interface with the Software (for whatever reason), then
such features will no longer be available or function in the Software and You
will not be entitled to any refund, credit, or other compensation from Ivanti or
the provider of the applicable Third-Party Service. Ivanti hereby disclaims all
warranties, indemnities, obligations, and other liabilities in connection with
any interface or integration with the Third-Party Service. Further, Ivanti
disclaims all warranties, indemnities, obligations, and other liabilities in
connection with any Third-Party Service.
d. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND
EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE SOFTWARE, SAAS OFFERING, SUPPORT AND
MAINTENANCE SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “WITH
ALL FAULTS” AND IVANTI AND ITS LICENSORS MAKE NO WARRANTIES OR CONDITIONS OF ANY
KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT,
NON-INTERFERENCE, VALUE, ACCURACY OR QUALITY OF DATA, AS WELL AS ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY
DEFECTS THEREIN, WHETHER LATENT OR PATENT. IVANTI CANNOT GUARANTEE AND DOES NOT
WARRANT THAT THE OPERATION OF THE SOFTWARE OR PROVISION OF THE SAAS OFFERING
WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN BE CORRECTED. THE
SOFTWARE AND SAAS OFFERING ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE
OR DISTRIBUTION WITH ANY EQUIPMENT, THE FAILURE OF WHICH COULD LEAD DIRECTLY TO
DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
12. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES AGREE THAT NEITHER PARTY, ITS RESPECTIVE AFFILIATES
OR ITS OR THEIR LICENSORS OR RESELLERS SHALL BE LIABLE FOR ANY LOSS OF INCOME,
LOSS OF OPPORTUNITY OR PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM USE OF THE
SOFTWARE, UPDATES OR UPGRADES, THIRD PARTY SOFTWARE, SAAS OFFERING, OR OTHERWISE
ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DPA,
THE SUPPORT AND MAINTENANCE SERVICES AND/OR PROFESSIONAL SERVICES, HOWSOEVER
CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE
AGGREGATE LIABILITY OF EITHER PARTY, ITS RESPECTIVE AFFILIATES OR ITS OR THEIR
LICENSORS OR RESELLERS ARISING OUT OF OR REALTED TO THIS AGREEMENT EXCEED THE
AMOUNT PAID FOR THE AFFECTED SOFTWARE OR SAAS OFFERING, OR APPLICABLE SUPPORT
AND MAINTENANCE SERVICE OR PROFESSIONAL SERVICE IN THE TWELVE (12) MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION WILL APPLY EVEN IF
A PARTY, ITS AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF
ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THIS
ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS
OR EXCLUSIONS MAY NOT APPLY TO YOU. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR
USE IN MISSION CRITICAL APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE COULD
CAUSE SUBSTANTIAL PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH. IVANTI DISCLAIMS
ANY LIABILITY FOR USE OF THE SOFTWARE IN ANY SUCH MISSION CRITICAL
APPLICATION(S). THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO:
(A) YOUR OBLIGATION TO PAY FEES PURSUANT TO SECTION 8 (PAYMENT); (B) ANY
VIOLATION OF SECTION 4 (RESTRICTIONS); OR (C) EITHER PARTY’S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION).
13. TERM AND TERMINATION.
a. Term. The term of this Agreement will be the period specified in
the Invoice, or if no period is specified, as otherwise agreed upon or until the
Agreement is terminated (the “Initial Term”). At the end of the Initial Term,
this Agreement will automatically renew for additional terms of one (1) year or
as otherwise agreed to by the Parties (each a “Renewal Term”). Either Party may
terminate this Agreement at the end of the Initial Term or any Renewal Term (as
measured from the Effective Date) on ninety (90) days’ prior notice to the other
Party.
b. Termination for Cause. Either Party may terminate this Agreement
in the event that the other Party (i) materially breaches this Agreement and the
breaching Party fails to remedy such breach (if such breach is capable of
remedy) within thirty (30) days from the other Party’s written notice or (ii)
becomes insolvent or bankrupt, is liquidated or is dissolved, or ceases
substantially all of its business activities.
c. Early Termination. If You terminate the Agreement before the end
of the Initial Term or Renewal Term for any reason other than a material breach
of the Agreement by Ivanti, then Ivanti may assess and invoice You for all
unpaid fees for the remainder of the Initial Term or Renewal Term. (“Termination
Fees”). Additionally, Ivanti may assess and invoice You for any upcoming renewal
fees if You do not provide Ivanti with written notice of Your intent to
terminate the Agreement at least ninety (90) days prior to the end of the
Initial Term or a Renewal Term (“Renewal Fees”). You shall not be entitled to
any refund or credit for any unused fees upon any such termination.
d. Effect of Termination. Upon termination of this Agreement, all
rights granted herein will terminate and You must immediately remove and destroy
all copies of the Software, including all backup copies. Any obligations to pay
fees or expenses, including any applicable Termination Fees and/or Renewal Fees,
incurred prior to or at the time of termination shall survive termination.
14. AUDIT.
a. On Premise Software. As it relates to Your purchase of Perpetual
Licenses or Subscription Licenses that are deployed on-premise or otherwise not
hosted by Ivanti, You agree to maintain accurate and complete records regarding
Your use of such Software (“Records”) and shall provide such records to Ivanti,
upon request, any time during the term of this Agreement and for two (2) years
after the later of (i) termination of the Agreement or Support and Maintenance
Services for the applicable Software, or (ii) installation of the Software
Ivanti has the right to remotely audit the Records and Your use of the Software
to verify that Your use of the Software is in compliance with this Agreement.
Within thirty (30) days of written request by Ivanti, You shall provide Ivanti
with the Records and/or permit Ivanti (or such persons appointed by Ivanti) to
conduct a remote audit of Your use of the Software using such tools and/or
software approved by You and available to Ivanti from time to time. Ivanti may
only conduct an audit once per calendar year and all such audits shall take
place during normal business hours, upon reasonable prior notice and will not
unreasonably interfere with Your day-to-day operations. You agree not to (i)
delete or remove distributed licenses or (ii) receive a transfer of licenses
from Your managed service provider (if any) to ensure You are in compliance in
anticipation of or during an audit. The aforementioned limit on the number of
audits that can be performed in a calendar year shall not apply if any such
misconduct is discovered or reasonably suspected by Ivanti. Without prejudice to
any other rights and remedies, where such audit reveals any underpayment, You
shall promptly pay Ivanti at the then-current list price as follows: (i) for
Subscription Licenses You shall pay for all Subscription Licenses of the
Software needed to become compliant for (y) the current term (if applicable),
and (z) for the previous period of over usage, up to three (3) years; and/ or
(ii) for Perpetual Licenses You shall pay for (x) all Perpetual Licenses of the
Software needed to become compliant, (y) Support and Maintenance Services for
the current term (if applicable), and (z) Support and Maintenance Services for
the period of over usage, up to three (3) years. If any such underpayment is
more than five percent (5%) of the amounts paid or payable by You for the
audited period, You shall, in addition to paying for Your overuse of the
Software as outlined above, promptly reimburse Ivanti for the reasonable costs
of the audit.
b. SaaS Offering. As it relates to Your purchase of a SaaS Offering,
You agree Ivanti has the right to continuously monitor Your access and usage of
the SaaS Offering. In the event Ivanti discovers any access or usage that is not
in compliance with this Agreement, Ivanti may initiate a remote audit to
determine the reason for the non-compliance. Without prejudice to any other
rights and remedies, where such audit reveals any underpayment, You shall
promptly pay Ivanti at the then-current list price for the Subscription Licenses
of the applicable SaaS Offering(s) needed to become compliant for (i) the
current Subscription License term, and (ii) for the previous period of over
usage.
c. If You fail to comply with Ivanti’s requests in this Section 14,
You will be in material breach of this Agreement and Ivanti may reduce the
functionality of the Software, restrict Your access to the Software, or render
the Software inoperative in addition to any other rights and remedies under this
Agreement. You agree that Ivanti’s right to review the Records and perform an
audit under this Agreement will not require any amendments, addendum, or
additional agreements.
15. GENERAL.
a. Applicable Laws. Each Party will comply with any statutes and
regulations that apply to its performance under this Agreement, including but
not limited to those applicable to the privacy and security of personal
information, including trans-border data transfers and data breach notification
requirements as required by law.
b. Data. In addition to any other provisions with respect to data
use and handling included in this Agreement and any supplemental terms and
conditions, Ivanti uses and handles Your data in accordance with its Privacy
Policy located at https://www.ivanti.com/company/legal/privacy-policy.
c. Personal Data. Ivanti’s processing of personal data is subject to
its Data Processing Addendum found at
https://www.ivanti.com/company/legal/data-processing-addendum (the “DPA”).
d. FedRAMP Rules of Behavior. If You purchase Ivanti’s FedRAMP SaaS
Environment then You, along with Your system administrators, employees,
contractors, end-users, and other third parties who are given access to the
FedRAMP SaaS Environment, are subject to the FedRAMP Rules of Behavior located
at http://www.ivanti.com/company/legal/fedramp.
e. Export Restriction. The Software may be subject to certain export
and import control laws and regulations, including the United States Export
Administration Act (and its associated regulations), and regulations of the
United States Bureau of Industry and Security, the United Kingdom Department for
Business, Innovation & Skills and other applicable agencies. You agree not to
directly or indirectly, export, re-export, or release the Software to, or make
the Software accessible from, any country, jurisdiction or person to which
export, re-export, or release is prohibited by applicable law. You shall comply
with all applicable laws and complete all required undertakings (including
obtaining any necessary export license or other governmental approval) prior to
exporting, re-exporting, releasing, or otherwise making the Software available
to Users outside Your country of domicile. You represent that You and Your
Affiliates are not on any denied persons or restricted party list or other list
published by the U.S. Government of persons or entities to whom exports or
re-exports of products subject to export controls are forbidden. You agree to
promptly notify Ivanti if at any time the representation in the foregoing
sentence is no longer accurate.
f. U.S. Government End Users. Each of the components that constitute
the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101,
consisting of “commercial computer software” and/or “commercial computer
software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent
with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S.
Government end users acquire the Software with only those rights set forth
herein. If Software is acquired for or on behalf of the U.S. Government, then it
is recognized and agreed that the Software: (i) was developed at private
expense; (ii) was not required to be originated or developed under a Government
contract; and (iii) was not generated as a necessary part of performing a
Government contract. United States government agencies and entities and others
acquiring under a United States government contract shall have only those
rights, and shall be subject to all restrictions, set forth in this Agreement.
g. Authorized Resellers. If You purchase the Software through a
Reseller, You acknowledge that the Reseller and Ivanti are independent of each
other and that the Reseller does not have any authority to bind Ivanti in any
way, make any modifications to this Agreement or to make any warranties or
representations on Ivanti’s behalf and that Ivanti has no liability whatsoever
for any actions or omissions of any Reseller.
h. Governing Law. If the Agreement is with Ivanti, Inc. or Ivanti
Comércio de Software Brasil Ltda, it will be governed by the laws of the State
of Utah without regard to conflict of laws principles and in any dispute arising
out of or in connection with the Agreement You consent to the exclusive
jurisdiction and venue in the State and Federal courts within Salt Lake County,
Utah. If this Agreement is with Ivanti U.K. Ltd. or Ivanti International
Limited, it will be governed by the laws of England and Wales without regard to
conflict of laws principles and any dispute arising out of or in connection with
this Agreement You consent to the exclusive jurisdiction and venue in the courts
within London, United Kingdom. If this Agreement is with Ivanti Software K.K.,
it will be governed by the laws of Japan without regard to conflict of laws
principles and any dispute arising out of or in connection with the Agreement
You consent to the exclusive jurisdiction and venue in the courts within Tokyo,
Japan. If this Agreement is with Ivanti Software (Beijing) Co., Ltd., it will be
governed by the laws of China without regard to conflict of laws principles and
any dispute arising out of or in connection with the Agreement You consent to
the exclusive jurisdiction and venue in the courts within Beijing, China. The
United Nations Convention for the International Sale of Goods shall not apply to
this Agreement.
i. Severability. If any provision of this Agreement is held to be
unenforceable, void, or invalid under applicable law, such provision shall be
deemed omitted and the remaining provisions will remain in full force.
j. Entire Agreement; English Language Agreement Controls. This
Agreement, including without limitation the Supplemental Terms or DPA represent
the complete and exclusive statement of the agreement between Ivanti and You
with respect to the Software, Support and Maintenance Services, and Professional
Services, and supersedes all prior or contemporaneous oral or written
communications and arrangements concerning the subject matter contained herein.
Any printed or other terms and conditions on a purchase order or similar order
document conflicting with, or purporting to add to, the terms and conditions of
this Agreement or its exhibits and addenda will be of no force or effect. You
agree that you shall have no remedies in respect of any statement,
representation, assurance, or warranty (whether made innocently or negligently)
that is not set out in this Agreement, or any document(s) expressly referred to
herein. it. In the event of any inconsistency between this Agreement in English
language and any translation of it into another language, the English language
version of the Agreement shall control. Unless the Parties have a different
agreement signed by both Parties, all use of the Software, SaaS Offering,
Support and Maintenance Services, and Professional Services are subject to the
terms of this Agreement.
k. No Waiver. No failure or delay to exercise any right or remedy
provided under this Agreement or by law shall constitute a waiver of that or any
other rights or remedy, nor shall it preclude or restrict the further exercise
of that or any other right or remedy. No single or partial exercise of such
right shall preclude or restrict the further exercise of that or any other right
or remedy. No statement or representation, other than by a Party’s authorized
representative in a written waiver, shall constitute a waiver of any rights or
remedies.
l. No Assignment. Except for a transfer of all or substantially all
of a Party’s business and assets, whether by merger, sale of assets, sale of
stock, or otherwise, neither Party shall assign, transfer, charge, sub-contract
or deal in any other manner with all or any of its rights or obligations under
the Agreement without the prior written consent of the other Party.
m. Force Majeure. Neither Party will incur any liability to the other
Party for any loss or damage resulting from any delay or failure to perform any
part of the Agreement if such failure or delay is caused by circumstances beyond
the Parties’ reasonable control including, without limitation, flood, fire, acts
of war, terrorism, earthquake, acts of God, and governmental acts, orders, or
restrictions; however, inability to meet financial obligations is expressly
excluded. Ivanti shall not be liable for any failure of or delay in performing
its obligations on account of Your failure to perform Your obligations under
this Agreement.
n. Third Party Rights. A person who is not a party to the Agreement
shall not have any rights under or in connection with it.
o. Variation. Any variation or amendment to the Agreement, except as
provided for herein, shall only be binding when agreed in writing and signed by
both Parties.
p. Counterparts. The Agreement may be executed in counterparts, each
of which so executed will be deemed to be an original and such counterparts
together will constitute one and the same agreement. The Agreement may be
executed in person or electronically and delivered physically or electronically
in Portable Document Format (“PDF”). The Parties agree that such electronic
execution and delivery shall have the same force and effect as delivery of an
original document with original signatures, and that each Party may use such
facsimile, PDF, or e-signatures as evidence of the execution and delivery of
this Agreement by all Parties to the same extent that an original signature
could be used.
q. Survival. Sections 2, 3, 6, 7, 9, 10, 11, 12, 13, 14 and 15 shall
survive the termination or expiration of this Agreement.
r. Referrals. You agree to make commercially reasonable efforts to
work with Ivanti in the event Ivanti asks You to be part of Ivanti’s reference
or referral programs or to develop marketing materials about Your experience as
an Ivanti customer. Specific activities, usage, rights and obligations will be
covered in a separate written agreement for any such activities.
s. Contact Information. Please direct legal notices or other
correspondence, if to Ivanti, Inc., to 10377 South Jordan Gateway, South Jordan,
UT 84095, Attention: Legal Department.
t. Intellectual Property and Trademark Usage. The Software and SaaS
Offerings are protected by the U.S. and International Patents listed on
https://www.ivanti.com/company/legal/ivanti-patents. For information regarding
acceptable third-party use of Ivanti trademarks, refer to
https://www.ivanti.com/company/legal/trademark or contact Ivanti legal
representatives.
u. Hardware. If You purchase any Ivanti Platform or hardware from
Ivanti, then such hardware shall be provided under the hardware terms and
conditions that (i) accompany the hardware, and/or (ii) are found at
https://www.ivanti.com/company/legal/hardware.
v. In-Licensed Materials and Open Source. The Software may contain
or may operate with software, services or other technology that is not owned by
Ivanti but has been licensed to Ivanti by a third party and may be necessary for
the full operation of the Software (“In-Licensed Materials”) or that is
available under open source or free software licenses. The In-Licensed Materials
may be subject to additional terms and conditions, as identified on
https://www.ivanti.com/company/legal/thirdpartyterms or as otherwise made
available to You. Such terms and conditions are incorporated by reference
herein. To the extent Ivanti uses open-source software in the Software, the
terms and restrictions in this Agreement shall not prevent or restrict You from
exercising additional or different rights to such open-source software in
accordance with the applicable open-source licenses.
w. Your Affiliates. Your Affiliates may purchase Ivanti products
and/or services under this Agreement by (i) executing a participation agreement
with Ivanti pursuant to which it agrees to be bound by the terms of this
Agreement applicable to You, and (ii) passing an Ivanti credit check, after
which it may purchase Ivanti products and/or services directly from Ivanti or
from a Reseller. For purposes of such purchase, references to “You” and “Your”
shall be deemed to refer to Your Affiliate making such purchase.
x. Microsoft Intune®. Certain functionalities within Ivanti Patch
for MEM are enabled by accessing Microsoft Intune® through the Microsoft API and
use of Ivanti Patch for MEM and accompanying services does not remove the need
for users to have a valid license for their use of the Microsoft Intune®
service.
y. Subcontractors. Ivanti may engage third parties to perform
obligations under this Agreement at Ivanti’s discretion. However, Ivanti is and
will remain responsible under this Agreement for the performance of any such
third parties.
z. Logo Usage. You agree that Ivanti may use Your name and logo on
Ivanti’s website and customer-facing presentations.
VERSION 05.23
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