COMMUNITY TERMS OF SERVICE
Use of the SolarWinds Worldwide, LLC and its subsidiaries and affiliates ("SolarWinds") website and associated links to these sites by SolarWinds (this "Website"), including without limitation SolarWinds.com, thwack.com, and SolarWinds.net, is governed by the terms and conditions below (“Terms”). These Terms are legally binding on all users of this Website and constitute a legally binding agreement between you ("User") and SolarWinds. By accessing this Website, User expressly and irrevocably agrees to the Terms and to abide by these Terms. These Terms currently list SolarWinds current policies and terms and conditions, but as noted herein, the Terms may be adjusted from time to time at SolarWinds’ discretion. If User does not agree with any of these Terms, User may not, under any circumstances, utilize the SolarWinds Website.
"Website" means any SolarWinds domain name that is being utilized by the User, including without limitation, the thwack.solarwinds.com, SolarWinds.com, thwack.com, SolarWinds.net, kiwisyslog.com domains.
"Content" means all information and materials, regardless of format, including all content, text, images, data, information, sound, video clips, and other material displayed, available or present on or through this Website or the Services.
“Purpose” means the objective to provide a repository of software and corresponding tools to facilitate the sharing and development of software.
"SolarWinds Repository" is the software database that is hosted on the Website(s).
"SolarWinds Web Software" means the software, owned by SolarWinds, that provides the primary functionality of the Website(s).
"Service(s)" means the processes and functionality provided by SolarWinds Web Software, the SolarWinds Repository, and the Websites.
1. RIGHT OF USE
SolarWinds grants to User the rights herein, provided that User accepts, without modification, the Terms set forth in this Agreement, and that User is in compliance with the Terms of this Agreement.
SolarWinds grants to User a personal, non-exclusive, world-wide and non-transferable license to SolarWinds Web Software as a tool to post comments and download software using Content from the SolarWinds Repository.
SolarWinds also grants to User 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 Website in conjunction with the Services.
User agrees 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. 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.
If SolarWinds does require a password and registration details, it shall be a condition of use of this Website that User 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 at any point in time. If SolarWinds believes that the details are not correct, current or complete, SolarWinds will have the right to refuse and/or prohibit User access to and use of the Website or any of its resources, and to terminate or suspend User's account, if any. User grants to SolarWinds the right to use User Registration Information in connection with Content that User uploads, posts, emails, transmits, or stores using the Services.
User will receive a User ID and password (collectively, the "User ID") upon completing the registration process on the Website. User is solely responsible for the use of the User ID, whether or not such use is authorized by User, and for maintaining the confidentiality of User ID. User shall immediately notify SolarWinds of any unauthorized use of the User ID. SolarWinds shall not be liable for any loss or damage arising from User’s failure to comply with this Section.
Whether publicly posted or privately transmitted, all Content on the Website 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. User is completely and absolutely responsible for all Content that User uploads, posts, emails, transmits, or stores using the Services. User 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 use(s) of intellectual property.
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 of this Agreement or to be 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, SolarWinds’ users, 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, User may be exposed to Content that is offensive, indecent, or objectionable. User 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
User agrees 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, ideas, documents, and any and all other information, including Content, User submits via the Services or transmits to SolarWinds, including, without limitation, ideas contained therein for new or improved software, products, builds, and services. User agrees that User shall have no recourse against SolarWinds for any alleged or actual infringement or misappropriation of any proprietary right in User submitted materials, ideas, documents, or any and all other information. SolarWinds does not guarantee than any ideas submitted will actually be incorporated into any SolarWinds product.
4. THWACK POINTS REWARDS
- Eligibility: Eligible participants are registered thwack members who are eighteen (18) years of age or older. Employees of SolarWinds Worldwide, LLC, its subsidiaries or affiliates (“SolarWinds”), as well as the immediate family (spouse, parents, siblings, and children) and household members of each such employee are not eligible. Eligibility is subject to federal, state, and local laws and regulations and is void where prohibited.
- Agreement to Official Rules: Participation in thwack and the consequential awarding of thwack points constitutes Participant’s full and unconditional agreement to and acceptance of these Terms and Conditions. Awarding of thwack points is contingent upon fulfilling all requirements set forth on www.thwack.com.
- Qualifying for thwack Points: Successfully complete any of the tasks for which thwack points are awarded and receive thwack points.
- General Conditions: SolarWinds may, in its sole discretion, (a) terminate the provision of thwack points at any time; or (b) suspend the awarding of thwack points at any time. . SolarWinds reserves the right in its sole discretion to disqualify any individual from receiving thwack points if it finds such individual to be tampering with thwack, the awarding of thwack points, or the process or the operation of the thwack or to be acting in violation of these Terms and Conditions, or to be acting in an unsportsmanlike or disruptive manner. Any attempt by any person to undermine the legitimate operation of thwack may be a violation of criminal and civil law, and, should such an attempt be made, the SolarWinds reserves the right to seek damages from any such person to the fullest extent permitted by law. Failure by the SolarWinds to enforce any provision of these Terms and Conditions shall not constitute a waiver of that provision. In the event of a dispute as to any award of thwack points, the authorized account holder of the e-mail address used to register for thwack membership will be deemed to be the thwack member. The “authorized account holder” is the natural person who is assigned to an e-mail address by an Internet access provider, online service provider, or other organization responsible for assigning e-mail addresses for the domain associated with the submitted e-mail address.
- Release and Limitations of Liability: By participating in the thwack community, Participants agree to release and hold harmless the SolarWinds, its officers, directors, employees, and agents (the “Released Parties”) from and against any claim or cause of action arising out of participation in thwack or receipt or use of thwack points, including, but not limited to: (a) unauthorized human intervention in thwack; (b) printing errors; (c) lost, late, postage-due, misdirected, or undeliverable mail; (d) errors in the administration of thwack or the processing of thwack points; or (e) injury (including death) or damage to persons or property which may be caused, directly or indirectly, in whole or in part, from entrant’s participation in thwack or receipt of thwack points. Entrant further agrees that in any cause of action, the Released Parties’ liability will be limited to the cost of entering and participating in thwack, and in no event shall the Released Parties be liable for attorney’s fees. Entrant waives the right to claim any damages whatsoever, including, but not limited to, punitive, consequential, direct, or indirect damages.
- Disputes: Except where prohibited, Participant agrees that any and all disputes, claims and causes of action arising out of, or connected with, awarded thwack points shall be resolved individually, without resort to any form of class action, and exclusively by the appropriate court located in Texas. All issues and questions concerning the construction, validity, interpretation and enforceability of these Terms and Conditions, entrant’s rights and obligations, or the rights and obligations of the SolarWinds in connection with thwack points, shall be governed by, and construed in accordance with, the laws of Texas, without giving effect to any choice of law or conflict of law rules (whether of Texas or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than Texas.
- Modification and Termination. SolarWinds reserves the right to modify or terminate thwack points at any time by posting amended terms or a termination notice on www.thwack.com.
5. INTELLECTUAL PROPERTY RIGHTS
The Content, Services, the SolarWinds Web Software, and the SolarWinds Repository, including any intellectual property rights in or associated with the same(including without limitation trademarks and copyrights) (hereinafter "Intellectual Property Rights"), are the property of SolarWinds, its licensors, or the designated owners and are protected by applicable intellectual property laws, including domestic and international trademark and copyright laws. User should assume that everything User sees or reads on this Website is protected by intellectual property rights, unless otherwise noted, and may not be used without the written permission of SolarWinds, except as provided in these Terms.
All SolarWinds trademarks are listed on the trademark list posted on the Website, which may be updated from time to time and which is incorporated herein. The owner of the copyrights and trademarks will generally be SolarWinds, its affiliates, or other third party licensors. Publications, builds, Content, or Services referenced herein or on the Website, or in the Services are the exclusive intellectual property, including trademarks or service marks of SolarWinds. All other trademarks or registered trademarks or build and company names mentioned on the Website or in the Services are used for identification purposes only and may be trademarks or registered trademarks of their respective companies.
Authorized and Prohibited Uses
User may access, use and display this Website and Services 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 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 agrees that it will not infringe upon or misappropriate any Intellectual Property Rights or remove or modify related proprietary notices contained in this Website or the Content.
6. WEBSITE AND REGISTRATION ADMINISTRATION
No link shall be made to any page of this Website, except a direct link to the top page of the Website, without framing. Moreover, in the event SolarWinds deems User's linking practices in relation to this Website inappropriate, SolarWinds may provide notice to the User concerning removal or modification of the inappropriate link. User agrees in advance to comply with any and all requirements of SolarWinds relating thereto. User may link to this Website unless and until SolarWinds provides User 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, 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.
7. USER REQUIREMENTS AND OBLIGATIONS COMPLIANCE
User will comply with all applicable laws in connection with its use of this Website.
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, including by User, or unauthorized use or abuse of this Website. Further to Section 5, User acknowledges and agrees that the Content and no part of the Website or the Services may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial enterprise, without SolarWinds’ express prior written consent.
User may not change, reorganize, modify, copy, reverse engineer, or create derivative works from the Services or anything associated with the Websites in order to build a competitive product or service; disable, hide, or render inoperable any portion of the Services or related interface. User may not attempt to gain access to any portion or feature of the Website or Services to gain unauthorized access to user names, email addresses, or any other personal information of SolarWinds’ customers. Unauthorized commercial advertisements and other forms of solicitation may be removed from the Website and/or Services without notice and may result in termination of User rights. User agrees not to use the Services, Content, or Website(s) to interfere with the proper working of the same or any transaction being conducted thereon.
User may not post or transmit any advertising, promotional materials, or any other solicitation of other users to use or buy products, goods, or services, except in areas that are specifically designated for such purpose.
Third Party Sites and Other Information
As a convenience to User, this Website may contain Content, links and sites related thereto, reports, comments, opinions from other technology professionals, scripts, white papers, and other information submitted by third parties over whom SolarWinds has no control or responsibility (“Third Party Content and Links”). These Third Party Content and Links are provided solely as a convenience to User. SolarWinds has no obligation to monitor, control, or restrict the use of this Website, Third Party Content and Links. The Third Party Content and Links 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 Third Party Content and Links. The inclusion of such Third Party Content and Links do not imply endorsement by SolarWinds or any association with its operators. Moreover, SolarWinds has no obligation to verify any Third Party Content and Links submitted by a user or third party or to provide any registration or other information to User concerning any such Third Party Content and Links. SolarWinds does not guarantee the accuracy of Third Party Content and Links, and User, at its sole risk and discretion, shall be solely responsible for any reliance upon the same.
8. CHANGES TO THIS AGREEMENT
These Terms constitute the complete agreement between the parties with respect to their subject matter and supersede any prior agreement or communication. 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 Website. User’s continued use of the Services following the posting of changes to this Agreement will mean that User accepts those changes.
SolarWinds reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website, the Content, the Services, or any part thereof. SolarWinds shall not be liable to User or any other third party for any such modification, suspension or discontinuance except as expressly provided herein.
User agrees to maintain the confidentiality of any information provided to User 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 User.
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 Website or Services, User warrants to SolarWinds that User will not use the Website or Services, or any of the Content obtained therefrom, for any purpose that is unlawful or prohibited by this Agreement. If User violates any of the terms and conditions of this Agreement, User’s 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 User, (c) discontinuance or modification of the Website, Services, or any part thereof, (d) extended periods of inactivity, and/or (e) automatic termination as set forth herein. Upon termination for any reason, User’s right to access, use, and/or possess the Website and/or Services shall immediately cease. User shall immediately stop using the Services and shall destroy all copies of the SolarWinds Web Software possessed by User.
User agrees 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) User’s breach of the Terms of this Agreement, (2) User’s unauthorized or unlawful use of the Website, Services, and/or Content, and (3) the unauthorized or unlawful use of the Website, Services, and/or Content by any other person using the UserID
User will defend, indemnify and hold harmless SolarWinds from any demands, claims, damages, liabilities, expenses, or harms, including attorneys’ fees, arising in connection with use of this Website, the Services, the Content, online conduct, breach of these Terms, or dealings or transactions with other persons resulting from use of this Website, the Services, and/or Content.
THIS WEBSITE, ITS CONTENT, THE SERVICES, AND LINKS ARE PROVIDED ON AN "AS IS" AND AS AVAILABLE 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 AND THE SERVICES (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) ANY FEES FOR THIS WEBSITE RECEIVED BY SOLARWINDS FROM USER.
14. LIMITATIONS OF LIABILITY
USER AGREES AND ACKNOWLEDGES THAT USER’S USE OF THE CONTENT AND SERVICES IS ENTIRELY AT USER’S OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOLARWINDS BE LIABLE TO USER 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. SOLARWIND’ LIABILITY HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY USER FOR THE SPECIFIC CONTENT OR SERVICES WHICH GAVE RISE TO SUCH DAMAGES.
User understands 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. User is responsible for implementing sufficient procedures and checkpoints to satisfy User 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.
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 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 regarding any use of this Website, unless otherwise expressly stated.
Dispute Resolution; Applicable Law and Forum
Modification of Terms and Conditions, Etc.
User on this Website, or these Terms. User 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 venture partner 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 User 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.
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.
Copyright 2012 SolarWinds Worldwide, LLC. All Rights Reserved.