Thwack.com Terms of Service

TERMS OF SERVICE

Use of the THWACK.COM (“THWACK”) Website (this “Website”) is governed by the terms and conditions below. These terms and conditions are legally binding on all users of this Website. By accessing this Website, you (“User”) agree to abide by these terms and conditions. If you as the User of this Website do not agree with any of these terms and conditions please do not use this Website, because by using the Website you will be deemed to have irrevocably agreed to these terms and conditions.

DEFINITIONS

“Web Site” means the THWACK.COM domain.

“Content” means all information and materials, regardless of format.

“SolarWinds Repository” is the software database that is hosted on the Web Site.

“Thwack” means the software, owned by SolarWinds, that provides the primary functionality of the Web Site.

“Service” means the processes and functionality provided by Thwack, the SolarWinds Repository and the Web Site.

1. RIGHT OF USE

SolarWinds grants to you the rights herein, provided that you accept, without modification, the terms and conditions set forth in this Agreement and that you are in compliance with the terms and conditions of this Agreement.

SolarWinds grants to you a personal, non-exclusive, world-wide and non-transferable license to Thwack as a tool to post comments and download software using Content from the SolarWinds Repository.

SolarWinds also grants to you the right to use the Services to upload software into the SolarWinds Repository, to download software from the SolarWinds Repository, and to access Content on the Web Site in conjunction with the Services.

You agree not to resell any of the Services.

2. REGISTRATION OBLIGATIONS

SolarWinds may or may not at times require a User to have a password and provide registration details to access this Website or portions of this Website. If SolarWinds does require a password and registration details, it shall be a condition of use of this Website that all the details User provides are correct, current and complete. If SolarWinds believes that the details are not correct, current or complete, SolarWinds will have the right to refuse User access to the Website, or any of its resources, and to terminate or suspend User’s account, if any. User is responsible for maintaining the confidentiality of any password(s) User is given to access this Website, and User is fully responsible for all activities that occur under User’s password(s). User agrees to notify SolarWinds immediately of any unauthorized use of User’s password(s). SolarWinds reserves the absolute right not to issue a password to any person or entity.

You must provide true, accurate, current and complete information in the registration process on the Web Site (collectively, the "Registration Information") and must maintain and promptly update the Registration Information as necessary. SolarWinds reserves the right to terminate this Agreement and to prohibit any and all current or future use by you of the Services, if SolarWinds has reasonable grounds to suspect that your Registration Information is untrue, inaccurate, not current or incomplete. You grant to SolarWinds the right to use your Registration Information in connection with Content that you upload, post, email, transmit or store using the Services.

For more information on how SolarWinds uses your personal information, consult the privacy policy at: http://www.SolarWinds.com/privacy.aspx

You will receive a User ID and password (collectively, the “User ID”) upon completing the registration process on the Web Site. You are solely responsible for the use of your User ID, whether or not such use is authorized by you, and for maintaining the confidentiality of your User ID. You shall immediately notify SolarWinds of any unauthorized use of your User ID. SolarWinds shall not be liable for any loss or damage arising from your failure to comply with this Section.

3. CONTENT

Whether publicly posted or privately transmitted, all Content on the Web Site and all Content contained in the SolarWinds Repository that originated from users of the Services is the sole responsibility of the person from which such Content originated. You are responsible for all Content that you upload, post, email, transmit or store using the Services. You shall not upload, post, email, transmit or store Content or conduct or participate in any activities using the Services which, in the judgment of SolarWinds, are likely to be prohibited by law in any applicable jurisdiction, including laws governing the encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property.

The purpose of the Services is to provide a repository of software and corresponding tools to facilitate the sharing and development of software (the “Purpose”). SolarWinds will not pre-screen or review Content, but SolarWinds reserves the right to refuse or delete any Content, of which it becomes aware, that it reasonably deems not to fulfill the Purpose. In addition, SolarWinds shall have the right, but not the obligation, in its sole discretion to refuse or delete any Content that it reasonably considers to violate the terms and conditions of this Agreement or be otherwise illegal.

SolarWinds, in its sole and absolute discretion, may preserve Content and may also disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined useful by SolarWinds to protect the rights, property or personal safety of SolarWinds, users of the Services, or the public. SolarWinds does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will SolarWinds be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Services.

By using the Services, you may be exposed to Content that is offensive, indecent or objectionable. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

4. LICENSES AND IDEA SUBMISSIONS

You agree to grant to SolarWinds a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information you submit via the Services or transmit to SolarWinds, including, without limitation, ideas contained therein for new or improved builds and services. You agree that you shall have no recourse against SolarWinds for any alleged or actual infringement or misappropriation of any proprietary right in your submitted materials or other information.

5. INTELLECTUAL PROPERTY RIGHTS

Ownership

The Contents of the Services are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are SolarWinds, its affiliates or other third party licensors. Publications, builds, content or services referenced herein or in the Services are the exclusive trademarks or servicemarks of SolarWinds. Other build and company names mentioned in the Services are the trademarks of their respective owners.

All content, text, images, data, information and other material displayed, available or present on this Website (“Content”), including any intellectual property rights in such Content (including without limitation trademarks and copyrights) (hereinafter “Intellectual Property Rights”), are the property of SolarWinds, its affiliates, its licensors or the designated owners, and are protected by applicable intellectual property laws. User should assume that everything User sees or reads on this Website is copyrighted unless otherwise noted, and may not be used without the written permission of SolarWinds except as provided in these terms and conditions.

Authorized and Prohibited Uses

User may access, use and display this Website on a single computer only and download and print copies of the Content only for non-commercial, informational, personal use, without modification or alteration in any way, and only so long as User complies with these terms and conditions and applicable laws. User may not otherwise reproduce, sell, publish, distribute, modify, display, or use any of this Website or the Content without the prior written permission of SolarWinds; provided, however, if the functionality of the Website permits the e-mailing of certain Content or a link through the use of an “e-mail to a friend” (or similar) icon, User may send that particular Content or link to others by e-mail, as indicated. User will not infringe upon any Intellectual Property Rights or remove or modify related proprietary notices contained in this Website or the Content.

6. WEBSITE AND REGISTRATION ADMINISTRATION

Linking

In the event SolarWinds deems User’s linking practices in relation to this Website to be inappropriate, SolarWinds may provide notice to the User concerning removal or modification of the inappropriate link, and User agrees to comply with any and all requirements of SolarWinds relating thereto. Upon notification of SolarWinds as provided above, User may link to this Website unless and until SolarWinds gives notice that User must discontinue linking to this Website.

Authority of Website Administrator

SolarWinds may in its discretion modify, edit, translate, suspend, restrict access to or terminate this Website, these terms and conditions, the Content or any link at any time without liability or prior notice. SolarWinds may in its discretion terminate the browsing of, registration with and use of this Website by any User at any time without liability or prior notice for any reason, including for any breach of these terms and conditions.

7. USER REQUIREMENTS AND OBLIGATIONS COMPLIANCE

User will comply with all applicable laws in connection with its use of this Website.

Unsuitable Conduct

User will not engage in conduct on or in connection with this Website that is illegal, misleading, infringing, defamatory, obscene, offensive, or otherwise objectionable. User will not cause damage, embarrassment or adverse publicity to SolarWinds.

User Cooperation and Notification

User will cooperate with all reasonable requests of SolarWinds and will notify SolarWinds promptly upon learning of any actual or suspected breach of these terms and conditions by User or unauthorized use or abuse of this Website.

Third Party Sites and Other Information

As a convenience to User, this Website may contain Content, links, and other information submitted by third parties over whom SolarWinds has no control or responsibility. SolarWinds has no obligation to monitor, control or restrict the use of this Website, or third party websites accessible via links on this Website. These other sites are not under the control of SolarWinds, and User acknowledges that (whether or not such sites are affiliated in any way with SolarWinds) SolarWinds is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by SolarWinds or any association with its operators. Moreover, SolarWinds has no obligation to verify any Content submitted by a user or to provide any registration or other information to User concerning any Content.

8. CHANGES TO THIS AGREEMENT

SolarWinds reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement periodically. Such modifications shall be effective immediately upon posting of the modified Agreement to the Web Site. Your continued use of the Services following the posting of changes to this Agreement will mean that you accept those changes.

SolarWinds reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services, or any part thereof. SolarWinds shall not be liable to you or any other third party for any such modification, suspension or discontinuance except as expressly provided herein.

9. CONFIDENTIALITY

You agree to maintain the confidentiality of any information provided to you by SolarWinds that is marked or otherwise identified as confidential or proprietary (“SolarWinds Proprietary Information”). Nothing in this Agreement shall be construed to convey any title or ownership rights to the SolarWinds Proprietary Information to you.

The provisions of this section shall remain in full force and effect despite termination of this Agreement for whatever reason.

10. NO UNLAWFUL OR PROHIBITED USE

By using the Services, you warrant to SolarWinds that you will not use the Services, or any of the Content obtained from the Services, for any purpose that is unlawful or prohibited by this Agreement. If you violate any of the terms and conditions of this Agreement, your permission to use the Services automatically terminates.

11. TERM AND TERMINATION

This Agreement shall continue in force perpetually unless terminated by SolarWinds. Cause for termination shall include, but not be limited to, (a) breaches of any material provision of this Agreement, (b) a request for termination by you, (c) discontinuance or modification of the Services or any part thereof, (d) extended periods of inactivity, and/or (e) automatic termination as set forth herein. Upon termination for any reason, your right to access, use and/or possess the Services shall immediately cease. You shall immediately stop using the Services and shall destroy all copies of the Thwack software possessed by you.

12. INDEMNIFICATION

You agree to defend, indemnify and hold SolarWinds harmless against any losses, expenses, costs or damages; including SolarWinds reasonable attorneys' fees, experts' fees and other reasonable costs of litigation; arising from, incurred as a result of, or in any manner related to (1) your breach of the terms of this Agreement, (2) your unauthorized or unlawful use of the Services, and (3) the unauthorized or unlawful use of the Services by any other person using your UserID

User will defend, indemnify and hold harmless SolarWinds and its affiliates, officers, directors, employees and contractors from any demands, claims, damages, liabilities, expenses or harms, including attorneys fees, arising in connection with User’s use of this Website, online conduct, breach of these terms and conditions or dealings or transactions with other persons resulting from use of this Website.

13. WARRANTIES

THIS WEBSITE, ITS CONTENT, AND ITS LINKS ARE PROVIDED ON AN “AS IS” BASIS AND ARE USED ONLY AT THE SOLE RISK OF USER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. SOLARWINDS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THIS WEBSITE (INCLUDING ITS CONTENT, HARDWARE, SOFTWARE AND LINKS), INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY AND FREEDOM FROM COMPUTER VIRUS. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO USER, THE ABOVE EXCLUSIONS WILL APPLY TO USER TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

SOLARWINDS DOES NOT GUARANTEE CONTINUOUS UNINTERRUPTED OR SECURE ACCESS TO THE WEB SITE OR SERVICES. OPERATION OF THE WEB SITE OR SERVICES MAY BE SUBJECT TO INTERFERENCE FROM NUMEROUS FACTORS OUTSIDE OUR CONTROL. FURTHER, SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT SERVICES OR ACCESS TO THE WEB SITE.

SOLARWINDS WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES, INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES AND LOST PROFITS, IN CONNECTION WITH USE OF THE INTERNET, THIS WEBSITE, ITS CONTENT, OR ITS LINKS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SOLARWINDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOLARWINDS WILL NOT BE A PARTY TO, AND WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR, ANY TRANSACTION NEGOTIATED OR ARRANGED BY A USER ARISING IN CONNECTION WITH THIS WEBSITE. IN ANY EVENT, IF ANY OF THE ABOVE PROVISIONS IN THIS SECTION ARE NOT ENFORCEABLE IN AN APPLICABLE JURISDICTION, THE MAXIMUM LIABILITY OF SOLARWINDS WILL BE LIMITED TO, IN THE SOLE DISCRETION OF SOLARWINDS, EITHER THE (1) CORRECTION OR DELETION OF ANY INACCURATE CONTENT OR LINK; OR (2) REFUND OF ANY FEES FOR THIS WEBSITE RECEIVED BY SOLARWINDS FROM USER.

14. LIMITATIONS OF LIABILITY

YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE CONTENT AND SERVICES IS ENTIRELY AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOLARWINDS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SOLARWINDS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. SOLARWINDS'S LIABILITY HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY YOU FOR THE SPECIFIC CONTENT OR SERVICES WHICH GAVE RISE TO SUCH DAMAGES.

You understand that SolarWinds cannot and does not guarantee or warrant that Content available via the Services will be free from infection by viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Services for the reconstruction of any lost data.

15. MISCELLANEOUS

Separate Terms and Conditions

In connection with User’s use of and/or access to Content contained in certain areas of this Website, it may be necessary for User to consent to policies or terms and conditions in addition to the terms and conditions set forth herein, which User should read carefully before making any use of such Content or areas of this Website. Any such terms will not vary or replace these terms and conditions regarding any use of this Website, unless otherwise expressly stated.

Privacy Policy

SolarWinds is concerned about privacy and has developed a policy to address privacy concerns. Users can find the current privacy policy at www.SolarWinds.com/privacy.aspx (the “Privacy Policy”). The Privacy Policy is hereby incorporated into these terms and conditions by reference, and constitutes a part of these terms and conditions.

Dispute Resolution; Applicable Law and Forum

With respect to any and all disputes arising out of or in connection with this Website or these terms and conditions (including without limitation the Privacy Policy), SolarWinds and User agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. SolarWinds has no obligation to become involved in any dispute between a User and any other person. This Website, these terms and conditions and any dispute arising in connection therewith shall be exclusively governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of law principles. SolarWinds and User agree that all disputes arising under this agreement will be settled exclusively through confidential binding arbitration in Austin, Texas or another forum mutually agreed upon by the parties, pursuant to the Rules of Arbitration (“Rules”) of the International Chamber of Commerce (“ICC”) by a sole arbitrator nominated by agreement of the parties and confirmed in accordance with the said Rules. The arbitrator’s award shall be binding and may be entered as a judgment in a court of competent jurisdiction. User agrees that SolarWinds is entitled to obtain preliminary injunctive relief to the extent allowed by law to enforce any of the terms of these terms and conditions pending a final arbitral decision.

Modification of Terms and Conditions, Etc.

These terms and conditions and the Privacy Policy referenced herein constitute the complete agreement between the parties with respect to their subject matter and supersede any prior agreement or communication. These terms and conditions are subject to change from time to time. SolarWinds will endeavor to post a notice of any changes to these terms and conditions for a period of thirty (30) days following any such modifications. Therefore, User is advised to review these terms and conditions occasionally, or at least every thirty (30) days. User’s continued use of this Website subsequent to SolarWinds’ notice of modification of these terms and conditions shall constitute User’s acceptance of the modified terms and conditions. If any term or provision of these terms and conditions shall be found to be invalid, illegal or otherwise unenforceable, such finding shall not affect the other terms or provisions of these terms and conditions, or the whole of these terms and conditions, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in these terms and conditions. User’s obligations pursuant to these terms and conditions shall survive termination of this Website, any use by User of this Website, any Content of User on this Website, or these terms and conditions.You may not assign this Agreement or any license granted or created hereunder. SolarWinds may assign this Agreement to a successor as the result of an acquisition, merger or other such change of control either in whole or in part of SolarWinds' business.

The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

The failure of SolarWinds to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by SolarWinds of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. SolarWinds will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of SolarWinds as reflected in the original provision

Definitions set forth in any part of this Agreement shall apply to all parts of this Agreement.

The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.

Neither party shall be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by force majeure or any cause beyond its reasonable control.

This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.