THIS NINJAONE PROFESSIONAL SERVICES ADDENDUM (THIS “ADDENDUM”) ADDS THE TERMS AND CONDITIONS BELOW TO THE END USER LICENSE AGREEMENT (THE “EULA”) ENTERED INTO BY AND BETWEEN YOU AND NINJAONE. THIS ADDENDUM SHALL BE INCORPORATED INTO AND FORM PART OF THE EULA UPON YOUR EXECUTION OF AN ORDER FORM OR A PURCHASE ORDER WHICH INCLUDES PROFESSIONAL SERVICES TO BE PERFORMED BY NINJAONE.
1. All capitalized terms in this Addendum have the meanings ascribed to them in the EULA or set forth below, as applicable.
1.1 “Deliverables” include, but are not limited to, scripts, policies, configurations, automations, monitors, alerts, and other processes that NinjaOne creates, sets up, and/or implements in Your NinjaOne environment, typically in accordance with Your instructions and/or based on Your specific requirements, as a part or result of the Services.
1.2 “Fees” means the fees for the Services as specified in an Order Form or Purchase Order, as well as any interest and Taxes applicable to such fees.
1.3 “Personnel” means a party’s and its Affiliates’ respective employees and subcontractors.
1.4 “Services” means the professional services, which may include or result in Deliverables, provided by NinjaOne to You hereunder, as further specified on the Order Form or Purchase Order.
1.5 “Work Product” means work product created by NinjaOne as a result of providing the Services to You, which may include Deliverables.
2. Services.
2.1 Services. Subject to the terms and conditions of this Addendum, including, but not limited to, Your obligation to pay Fees hereunder, NinjaOne will provide Services to You in accordance with this Addendum and the Order Form or Purchase Order.
2.2 Changes to Services. Any changes to the scope or nature of the Services shall require Your written approval, which may be provided by You via email to the primary NinjaOne Personnel performing the Services.
2.3 Personnel. NinjaOne will determine, at its sole reasonable discretion, which of its Personnel will perform the Services. If You request a change of Personnel and provide a reasonable basis for such request, NinjaOne will use commercially reasonable efforts to replace the assigned Personnel with alternative Personnel.
2.4 Virtual Nature. Unless otherwise expressly indicated on the Order Form or Purchase Order, all Services will be performed virtually and remotely by NinjaOne Personnel.
2.5 Completion and Acceptance. Once NinjaOne has finished performing the Services, the parties shall promptly conduct a call to review the Services (the “Review”). Upon conclusion of the Review, the Services shall be deemed completed and You shall be deemed to have accepted the Services, unless You provide written notice of Your rejection of the Services (or any part thereof) to NinjaOne within 3 business days of the conclusion of the Review. Your failure to provide such written notice shall not affect Your rights under Section 6. Any rejection of the Services must be made in good faith and based on material deficiencies in the Services or NinjaOne’s performance thereof.
2.6 No Further Obligation. Upon completion and Your acceptance of the Services, NinjaOne shall have no obligation to maintain, update, and/or improve the Services.
3. Your Obligations.
3.1 Cooperation. You shall provide reasonable and timely cooperation in connection with NinjaOne’s provision of the Services. You shall also promptly provide NinjaOne with information, materials, and/or access to Your environments, networks, systems, and/or devices required for NinjaOne to perform the Services. If You fail to provide any of the foregoing and You do not cure the failure within 3 business days after being informed thereof, then NinjaOne may suspend or cease performing the Services and terminate this Addendum without further notice.
3.2 Consents. As between You and NinjaOne, You are solely responsible for obtaining any consents and providing any notices required to permit Your receipt and use of the Services.
3.3 Removal of Access. Upon completion of the Services, You shall terminate the access of any NinjaOne Personnel to Your environment and, upon NinjaOne’s written request, provide evidence of such termination.
3.4 Personal Data. To the extent that NinjaOne processes Personal Data in its provision of the Services, the terms and conditions of the EULA which govern NinjaOne’s processing of Personal Data thereunder shall apply to such processing hereunder.
3.5 No Liability. Notwithstanding anything to the contrary herein, NinjaOne shall not be liable for any breach of this Addendum or any damages that You may incur resulting from Your failure to comply with this Section 3.
4. Fees.
4.1 Direct Customers. If You are a direct customer of NinjaOne, Fees are due and payable as set forth on the Order Form and as otherwise required under this Addendum. NinjaOne will issue an invoice for the Services immediately after You sign the Order Form which includes the Services, and payment thereof is due upon Your receipt of the invoice (even if the payment terms on the Order Form are different).
4.2 Customers Through Resellers. If You are a customer of NinjaOne through a Reseller, Fees are due and payable as set forth on the Purchase Order and/or as agreed between You and Your Reseller and as otherwise required under this Addendum.
4.3 Fee Changes. If there is a material change in the time, effort, and/or resources required to provide the Services, NinjaOne (and/or Your Reseller, as applicable) shall have the right to increase or otherwise change the Fees associated with the Services in its sole reasonable discretion.
5. Intellectual Property.
5.1 Work Product. As between You and NinjaOne, NinjaOne owns all Work Product, including, but not limited to, any and all intellectual property rights therein (except to the extent that such Work Product consists exclusively of Your Data). NinjaOne may freely use and publish such Work Product, at its sole discretion, provided that it does not contain any information that is proprietary to You and/or could reasonably identify You or any of You Users or Personnel.
5.2 Licenses. You grant to NinjaOne a non-exclusive, royalty-free, worldwide license to use, reproduce, store, process, and display Your Data and perform all acts with respect to Your Data, but only to the extent necessary for NinjaOne to perform the Services. NinjaOne grants to You a non-exclusive, royalty-free, worldwide license to use the Work Product solely for Your legitimate internal business purposes in the manner it was intended to be used upon creation.
5.3 Reservation. All rights and licenses not expressly granted by either party to the other party herein are expressly reserved.
5.4 Feedback. Any suggestions, feedback, or proposed modifications to the Services (in any form) provided by You to NinjaOne may be freely used by NinjaOne without limitation, and any modifications to the Services resulting from such suggestions, feedback, or proposed modifications shall be exclusively owned by NinjaOne.
6. Warranty.
6.1 Limited Warranty. NinjaOne warrants as follows: (i) it will perform the Services in a professional and workmanlike manner and in accordance with industry standards; and (ii) it will use Personnel with the requisite skills, experience, and qualifications to perform the Services (the “Warranty”). You acknowledge and agree that, due to circumstances outside of NinjaOne’s control, NinjaOne cannot guarantee that each Deliverable can be created and/or will perform as intended for any length of time.
6.2 Breach. If You believe that NinjaOne has breached the Warranty, You must provide written notice of such breach to NinjaOne within 30 days after NinjaOne has completed the Services. Failure to provide such notice shall constitute Your waiver of Your right to any remedy for any such breach, as described below.
6.3 Remedy. NinjaOne’s entire liability and Your sole remedy for NinjaOne’s breach of this Warranty shall be for NinjaOne to, at its option: (i) use commercially reasonable efforts to re-perform the Services; or (ii) terminate this Addendum and refund any applicable Fees received for the nonconforming Services.
6.4 Disclaimer. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND NINJAONE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. Term and Termination.
7.1 Term. The term of this Addendum will start upon the commencement of the Services and end upon the completion of the Services (the “Addendum Term”), unless terminated earlier in accordance with Subsection 7.2.
7.2 Termination for Cause. NinjaOne may suspend performance of the Services or terminate this Addendum with 3 business days’ written notice to You if You breach this Addendum, unless the breach is cured within the notice period. Notwithstanding the foregoing, if You or Your Reseller (as applicable) fail(s) to pay any amount due to NinjaOne with respect to the Services by the due date and remain(s) in default for more than 5 days, NinjaOne may immediately suspend performance of the Services and/or terminate this Addendum. In addition, NinjaOne may terminate this Addendum immediately if (i) You breach this Addendum, and the breach is egregious, uncurable, and/or would damage the Software or NinjaOne’s reputation; or (ii) if You become insolvent or if bankruptcy or receivership proceedings are initiated by or against You. NinjaOne’s decision to suspend performance of the Services is without prejudice to its right to terminate this Addendum or the EULA for the same cause(s) underlying the suspension.
7.3 Effects of Termination. If this Addendum is terminated prior to the natural expiration of the Addendum Term, then, as of the date of such termination, (i) NinjaOne shall have no obligation to perform, continue, and/or complete the Services, and (ii) You shall immediately pay to NinjaOne any and all Fees owed for the Services performed. Termination of this Addendum, whether upon natural expiration or otherwise, shall not affect the Term of the EULA, which shall remain in effect in accordance with its own terms and conditions.
7.4 Survival. Any provision of this Addendum that by its nature is intended to survive the expiration or termination of this Addendum shall so survive. These include, but are not limited to, the provisions of Section 4, Section 5, Section 6, Section 7, Section 8, Section 9, and Section 11.
8. Damages Cap. The parties agree that, with respect to any damages related to the Services, this Section 8 shall supersede and apply in lieu of the terms and conditions of the EULA which limit NinjaOne’s liability for direct damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ADDENDUM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NINJAONE (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND SUCCESSORS) BE LIABLE TO YOU, THE USERS OR CLIENTS IN RELATION TO THE SERVICES OR THIS ADDENDUM IN AN AGGREGATE AMOUNT GREATER THAN (i) THE AMOUNT OF FEES PAID OR PAYABLE BY YOU UNDER THE ORDER FORM OR PURCHASE ORDER FOR THE SERVICES, OR (ii) $500, WHICHEVER IS GREATER. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. For avoidance of doubt, this Section 8 does not affect any terms and conditions of the EULA which exclude or limit NinjaOne’s liability for indirect, special, or consequential damages.
9. Indemnification. NinjaOne shall indemnify, defend, and hold You harmless from and against any and all third-party claims, demands, losses, liabilities, and costs (including, but not limited to, reasonable attorney’s fees and costs) arising from NinjaOne’s infringement of third-party intellectual property rights directly resulting from Your receipt and use of the Services. This Section 9 states NinjaOne’s entire liability (and shall be Your sole and exclusive remedy) with respect to infringement claims.
The foregoing obligation does not apply (i) with respect to Services or Deliverables which have been (a) modified in whole or in part by You or any third party after delivery by NinjaOne, where the alleged infringement relates to such modification, or (b) combined with other services, products, processes, or materials, where the alleged infringement relates to such combination; (ii) where You continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (iii) where the receipt or use of the Services by You is not strictly in accordance with this Addendum.
10. Insurance. During the term of this Addendum, each party will maintain, at its own expense, appropriate insurance coverage applicable to the performance of its respective obligations under this Addendum, such as general commercial liability, worker’s compensation, automobile liability, and professional liability.
11. Conflicts. To the extent of any conflict between this Addendum and the EULA, this Addendum shall supersede and govern the parties’ rights and obligations, but only with respect to the Services. To the extent of any conflict between this Addendum and the Order Form, the Order Form shall supersede and govern the parties’ rights and obligations, but only with respect to the Services, except as stated in Section 4 above. To the extent of any conflict between this Addendum and the Purchase Order, this Addendum shall supersede and govern the parties’ rights and obligations, but only with respect to the Services.