This MANAGED SERVICE PROVIDER AGREEMENT, including all attachments and Addendum (collectively, the “MSP Agreement” or the “Agreement”) is entered into by and between the ControlUp entity (“Vendor” or “ControlUp”) and the MSP as defined in the Schedule (“MSP”). Vendor and MSP hereinafter referred to individually as “Party” or collectively as “Parties”.
This MSP Agreement governs and applies to the ordering document executed by the Parties to which this Agreement is attached, referenced, hyperlinked, or otherwise incorporated (the “Schedule”). Any reference to “Customer” in a Schedule shall be deemed to reference MSP and its Authorized Users.
This MSP Agreement sets forth the general terms and conditions under which the MSP, in its capacity as a managed service provider, is granted the right to access and use the ControlUp Software and Services (the “ControlUp Offering”) and to receive related services. The terms of this MSP Agreement apply solely to the extent the MSP uses the ControlUp Offering in providing its Managed Service Offering for the benefit of one or more MSP End Customers, and do not apply to any ControlUp Offering licensed or purchased solely for the MSP’s internal business purposes.
All capitalized terms used in this Agreement shall have the meanings set forth in Annex A attached hereto. Capitalized terms not defined in Annex A are defined in the body of this Agreement or in related hyperlinked documents and shall have the meanings specified therein.
2.1.Software and License Terms. Subject to the terms and conditions of this Agreement, ControlUp shall provide the MSP with access to the ControlUp Offering described in the applicable Schedule(s) and grants the MSP a limited, non-exclusive, non-transferable right, during the applicable Schedule Term, to integrate, embed, or otherwise incorporate the ControlUp Offering within the MSP’s Managed Service Offering (collectively, the “Integrated Services”). Such access includes the right to deploy the ControlUp Offering to MSP End Customers and to use any associated APIs, tools, or interfaces as necessary to support such permitted integration, embedding, and deployment. This right is granted solely for use as part of the Managed Service Offering provided to MSP End Customers under an executed MSP Customer Agreement.
2.2.Licensing and Adjustments. MSP’s rights to access and use the ControlUp Offering shall be limited to the number and type of license units, metrics, or capacity expressly purchased and set forth in the applicable Schedule (“Licensed Units”), which may include, without limitation, Named Users, Endpoints, Concurrent Sessions, or other authorized usage metrics.
2.3.Evaluation Licenses and Temporary Usage. MSP may operate up to ten (10) concurrent trial instances through the Tenant Manager at any given time. Such trial instances shall not be counted toward the Committed Quantity unless converted to paid usage. Trial instances exceeding this limit, or continued use of a trial environment beyond the permitted period, may be deemed Excess Use under this Agreement. Each trial instance shall have a maximum duration of twenty-one (21) days unless otherwise approved in writing by ControlUp. MSP may issue evaluation licenses to prospective customers, which may be converted to production licenses within the MSP’s Committed Quantity.
2.4.Use of Licensed Marks. During the Schedule Term, each Party grants the other Party a limited, non-exclusive, non-transferable, non-sublicensable right to use its trade names, trademarks, service marks, and logos (“Licensed Marks”) solely to the extent reasonably necessary to market, advertise, and support the Managed Service Offering and the engagement between the Parties. ControlUp may announce its engagement with the MSP in marketing materials, press releases, or other communications, provided such use is consistent with the MSP’s brand guidelines. All use of the other Party’s Licensed Marks shall be in accordance with the owner Party’s instructions, branding guidelines, and applicable law. Either Party may revoke this license at any time, for any reason, upon written notice to the other Party.
2.5.Agent Distribution. MSP is authorized to distribute the ControlUp Agent to MSP End Customers for installation and execution on devices, for use in conjunction with the MSP Offering as part of MSP’s Managed Service Offering.
2.6.Updates to Software and Services. ControlUp reserves the right to implement updates, enhancements, or other modifications to improve the functionality, security, or overall performance of the ControlUp Offering. ControlUp may also discontinue features or adjust the manner in which the Offering is delivered, provided that such changes do not materially diminish its core functionality during the Schedule Term. ControlUp shall use commercially reasonable efforts to provide the MSP with prior notice of any material modifications or discontinuations.
3.1.Implementation of Services and Software. ControlUp shall provide commercially reasonable, advisory assistance to the MSP for the implementation, configuration, and integration of the Software into the MSP’s Managed Service Offering, as expressly set forth in the applicable Schedule(s). Such assistance may include technical guidance, installation and configuration instructions, integration guidance, best practices, testing assistance, documentation, and training. ControlUp’s assistance is advisory in nature only. MSP remains solely responsible for the design, implementation, operational execution, third party integrations, and delivery of its Managed Service Offering and all customer facing services.
3.2.ControlUp Support Services. ControlUp shall respond to MSP escalations strictly in accordance with the priorities, scope, and response commitments set forth in the applicable Service Level Agreement and Support Plan. The level and type of support services provided to MSP shall be based on the Plan purchased by MSP. ControlUp will provide MSP with technical support, maintenance, and updates for the Software in accordance with the Service Level Agreement (“SLA”) attached to the applicable Schedule(s).
4.1.Operational Use of the ControlUp Offering. MSP shall be solely responsible for: (a) selecting qualified users to access and use the ControlUp Offering, who understand the information, calculations, and reports used as input and output of the ControlUp Offering; (b) all use of the ControlUp Offering by MSP and its Authorized Users; (c) ensuring the ControlUp Offering is used only for lawful purposes; (d) providing, at its sole expense, all connectivity, computer equipment, and other hardware or software required to operate the ControlUp Offering as part of the MSP’s Managed Service Offering and (e) determining which Customer Data is collected, submitted, stored, or otherwise processed through its Managed Service Offering.
4.2.Authorized Users. MSP may permit MSP’s Authorized Users to access and use the ControlUp Offering in connection with the MSP’s Managed Service Offering, and subject to the terms and conditions of this Agreement. MSP will remain responsible for any Authorized User’s actions relating to their use of the ControlUp Offering. Authorized Users are either: (a) employees or contractors of the MSP performing services under the MSP’s Managed Service Offering; or (b) End Customer personnel authorized by the MSP to access the ControlUp Offering, solely for the purposes permitted under this Agreement.
4.3.Account Security. MSP acknowledges that it retains administrative control over who may access Customer Data hosted or processed in the ControlUp Offering and is solely responsible for maintaining the security of its ControlUp account, including all administrative and user passwords and associated files. MSP shall promptly notify ControlUp if it becomes aware of any unauthorized use or access to its account or the ControlUp Offering.
4.4.MSP End-Customer Support. MSP shall be solely responsible for providing support and maintenance services to MSP End Customers for the MSP’s Managed Service Offering, including any ControlUp Offering integrated therein. MSP shall use all commercially reasonable efforts to respond to support queries without reliance on ControlUp. For avoidance of doubt, ControlUp shall not provide support directly to any MSP End Customer and shall have no liability for any actions or omissions by MSP in providing support or maintenance to MSP End Customers.
4.5.Restrictions and Acceptable Use. Except as expressly permitted by this Agreement, MSP and its Authorized Users shall not: (a) copy, modify, adapt, distribute, sublicense, assign, make available, resell, create derivative works of, disassemble, reverse compile, reverse engineer, or otherwise reduce to human-perceivable form any part of the ControlUp Offering or ControlUp Intellectual Property, or discover or disclose the source code, methods, or concepts embodied therein; (b) introduce any malicious code, including viruses, worms, malware, spyware, Trojan horses, or other harmful code; (c) intentionally interfere with or disrupt the integrity or performance of the ControlUp Offering; (d) access or use the ControlUp Offering to (i) develop a product or service competitive with the ControlUp Offering, or (ii) copy any ideas, features, functions, or graphics of the ControlUp Offering;
4.6.Suspension. If ControlUp has a good faith basis to believe that MSP or its Authorized Users have violated, or attempted to violate, the restrictions above, or that MSP’s or its Authorized Users’ use of the ControlUp Offering presents a material security risk, ControlUp may suspend access to the ControlUp Offering until the violation is corrected. ControlUp shall, to the extent commercially reasonable, notify MSP and attempt to resolve the issue prior to such suspension.
4.7.Incorporation and Preservation of ControlUp Terms. MSP shall ensure that any service agreement between MSP and its Customers contains terms that are no more permissive, and at least as protective of ControlUp, as the terms of this Agreement. Such agreement shall include, without limitation, provisions addressing: (a) software and use grants; (b) use restrictions and limitations; and (c) confidentiality obligations. MSP is responsible for ensuring that all Customers comply with the restrictions and responsibilities set forth in this Agreement. To the extent MSP fails to implement these obligations in its agreements with Customers, MSP shall be liable for any acts or omissions of its Customers as if MSP committed such acts or omissions itself.
5.1.MSP Training. ControlUp shall provide product, sales, and operational training, as well as marketing materials, to MSP’s designated personnel in accordance with ControlUp’s programs for MSPs in effect from time to time.
5.2.MSP Access to the ControlUp Offering. ControlUp shall provide MSP with access to the ControlUp Offering, which may include: (a) secure storage for Customer Data and operational data; (b) real-time access to and use of Customer Data through the ControlUp Offering; (c) file and data backup, retention, and recovery in accordance with the Documentation; (d) functionality for MSP to monitor, manage, and control end-user access to the ControlUp Offering embedded within MSP’s Managed Service Offering; and (e) monitoring and reporting tools reasonably necessary for MSP to track usage, performance, and operational status of the ControlUp Offering within MSP’s Managed Service Offering.
5.3.Personnel and Subcontracting. The ControlUp Offering will be performed exclusively by ControlUp Personnel and in exceptional cases ControlUp may engage subcontractors to perform its obligations under this Agreement only with MSP’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. ControlUp shall remain fully responsible for the acts and omissions of any approved subcontractor as if performed by ControlUp itself and shall ensure that all subcontractors are bound by written obligations at least as protective of MSP’s Confidential Information, data, and security requirements as those set forth in this Agreement.
5.4.Service Levels. ControlUp shall deliver the ControlUp Offering in accordance with the service levels, availability, response times, and other performance metrics set forth in the Service Level Agreement (“SLA”) referenced in the applicable Schedule(s). MSP acknowledges that the SLA constitutes the sole and exclusive service level commitments of ControlUp with respect to the ControlUp Offering.
6.1.Information Security Addendum. The Parties agree that all data security, data availability, and related processing terms governing MSP’s use of the ControlUp Offering shall be governed by the Data Security Addendum, located at https://www.controlup.com/msp-data-security/ (the “Data Security Addendum”), which is hereby incorporated into this Agreement by reference.
7.1.ControlUp Intellectual Property. ControlUp owns and retains all right, title, and interest in and to the ControlUp Offering, including all Intellectual Property rights related thereto and all derivative or related works. ControlUp also owns all rights, title, and interest in any improvements, enhancements, or modifications to the ControlUp Offering made under or in connection with this Agreement, and any software, applications, inventions, or other technology developed related to the ControlUp Offering.
7.2.MSP Intellectual Property. MSP owns and retains all right, title, and interest in and to its Managed Service Offerings excluding any portions or developments derived from the ControlUp Offering, including all Intellectual Property rights related thereto and all derivative or related works. MSP also owns all rights, title, and interest in any improvements, enhancements, or modifications to its Managed Service Offerings made independently by MSP under or in connection with this Agreement, whether alone or jointly with ControlUp to the extent such improvements do not derive from ControlUp IP, and any software, applications, inventions, or other technology developed related to its Managed Service Offerings.
7.3.Customer and MSP Data. All data and information uploaded by MSP or its End Customers into the Software (“MSP Data”) shall remain the property of the applicable End Customer or, where applicable, MSP. ControlUp does not acquire any ownership interest in MSP Data and may access and use MSP Data solely as necessary to provide the ControlUp Offering and perform its obligations under this Agreement.
7.4.License to Customer Data. MSP grants ControlUp a limited, non-exclusive, worldwide, royalty-free license to use, reproduce, store, transmit, perform, adapt, or display MSP Data solely to the extent necessary for ControlUp to provide the ControlUp Offering under this Agreement.
8.1.Obligations. Each Party (the “Receiving Party”) shall keep all Confidential Information of the other Party (the “Disclosing Party”) confidential and use it solely for the purposes of this Agreement. The Receiving Party may disclose Confidential Information to its Representatives only to the extent necessary to perform under this Agreement and shall ensure such Representatives comply with these obligations. The Receiving Party shall remain liable for any breach by its representatives. Confidential Information shall not be disclosed to any third party without the Disclosing Party’s prior written consent, except as required to enable software or services provided to the Disclosing Party, provided such third parties are bound by equivalent confidentiality obligations. Each Party shall treat the other Party’s Intellectual Property as Confidential Information and shall not disclose, distribute, or use it except as expressly permitted under this Agreement. These obligations shall survive the termination or expiration of this Agreement indefinitely.
8.2.Exclusions. Confidential Information does not include information that: (i) is or becomes publicly known without breach of this Agreement; (ii) was in the Receiving Party’s possession prior to disclosure without restriction; (iii) is lawfully received from a third party without restriction; (iv) is independently developed without reference to the Disclosing Party’s Confidential Information; or (v) is disclosed to an unaffiliated third party by the Disclosing Party without obligation of confidentiality.
8.3.Disclosure Required by Laws If the Receiving Party is required by law, regulation, or court order to disclose Confidential Information, it shall provide prompt written notice to the Disclosing Party (to the extent legally permitted) so that the Disclosing Party may seek a protective order or other remedy. If such protection is not obtained, the Receiving Party may disclose only the minimum required, in accordance with legal advice, and shall remain obligated to protect such Confidential Information to the extent possible.
8.4.Return or Destruction. Upon termination or expiration of this Agreement, or at the Disclosing Party’s request, the Receiving Party shall return or securely destroy all Confidential Information in its possession. Destruction may be certified in writing by an officer of the Receiving Party. Notwithstanding this, the Receiving Party may retain copies as required by law or for internal record retention, provided such copies remain subject to confidentiality obligations.
9.1.Fees. MSP shall pay all fees as set forth in the applicable Schedule.
9.2.Overdue Fees. Unpaid fees not subject to a good faith dispute shall accrue interest at 1.5% per month, or the maximum rate permitted by law, from the due date until paid. If any undisputed fees remain unpaid forty-five (45) days after the due date and ControlUp provides written notice of non-payment, ControlUp may suspend MSP’s access and disable accounts to all or part of the ControlUp Offering until payment is made. ControlUp shall promptly restore access upon receipt of payment.
9.3.Taxes. All fees are exclusive of taxes, duties, or other governmental charges (“Transaction Taxes”). MSP is responsible for paying all Transaction Taxes in accordance with applicable law. ControlUp may charge applicable Transaction Taxes unless MSP provides an exemption certificate or equivalent documentation acceptable to the relevant tax authority.
9.4.Billing Information. MSP shall provide complete and accurate billing and contact information and update ControlUp within thirty (30) days of any changes. MSP is responsible for any delays, disputes, penalties, or liabilities resulting from inaccurate information.
9.5.Monitoring and Audit Rights. ControlUp may monitor MSP’s use of the ControlUp Offering, including through technical means, to verify compliance with the license metrics, quantities, and other limitations set forth in this Agreement and the applicable Schedule. Any such monitoring shall be conducted in a commercially reasonable manner and in accordance with the data protection terms of the Agreement.
9.6.MSP Usage Records. MSP shall maintain accurate and up-to-date records of its deployment, allocation, and use of Licensed Units, including usage by End Customers, and shall provide such records to ControlUp upon reasonable request. MSP shall submit quarterly usage reports, due by the tenth (10th) day of the month following each calendar quarter, including accurate customer data and license consumption. MSP acknowledges that such reporting is essential for ControlUp to monitor compliance with the Commit-to-Consume model, manage license provisioning, and ensure accurate invoicing.
10.1.Agreement Term. This Agreement shall commence on the Effective Date and shall remain in effect for so long as any Schedule entered into hereunder remains in force, unless earlier terminated in accordance with this Agreement. This Agreement shall automatically expire upon expiration or termination of the last remaining active Schedule.
10.2.Schedule Term. Each Schedule shall commence on its Effective Date and remain in effect for the term specified therein. To the extent there is any active Schedule in effect at the time of termination of this Agreement, this Agreement shall remain in force solely with respect to such Schedule until the end of its respective term. Any individual Schedule shall only renew or extend upon the written agreement of both MSP and ControlUp.
10.3. Termination for Convenience. Either Party may terminate this Agreement, for any reason or no reason, by providing the other Party with at least thirty (30) days’ prior written notice. Termination for convenience of this Agreement shall not terminate or otherwise affect any active Schedule, which shall continue in full force and effect in accordance with its terms unless terminated for cause or as otherwise expressly permitted therein. Fees due under any Schedule shall remain payable, and ControlUp shall continue to provide the ControlUp Offering in accordance with the terms of the applicable Schedule.
10.4.Termination for Material Breach. Either Party may terminate this Agreement or any affected Schedule upon written notice if the other Party materially breaches this Agreement or such Schedule and fails to cure such breach within thirty (30) days following written notice (or immediately if such breach is incapable of cure).
10.5.Effects of Termination. Upon expiration or termination of a Schedule, MSP’s rights to access and use the ControlUp Offering under such Schedule shall immediately cease, and all accrued, past due, and unpaid fees, together with all remaining fees committed for the remainder of the applicable Schedule Term, shall become immediately due and payable. Sections which by their nature should survive termination shall survive, including without limitation provisions relating to intellectual property, confidentiality, payment obligations, limitation of liability, and indemnification.
11.1.Mutual Representations and Warranties. Each Party represents and warrants that: (i) it will comply with all applicable laws, rules, and regulations governing the exercise of its rights and the performance of its obligations under this Agreement, including those relating to the collection, access, use, disclosure, and protection of MSP End Customer Data; and (ii) it has the full power and authority to enter into and perform its obligations under this Agreement.
11.2.MSP Representations and Warranties. MSP shall not make any warranty commitments, whether written or oral, on ControlUp’s behalf. MSP shall remain solely responsible for any warranties provided to MSP End Customers to the extent such warranties are broader than those made by ControlUp to MSP. MSP further represents and warrants that: (i) it has and will maintain all relevant ownership or license rights to perform its Managed Service Offering; (ii) the Managed Service Offering will not materially damage or compromise the normal and intended operation of the ControlUp Offering; and (iii) it will perform the Managed Service Offering in compliance with all applicable data protection and privacy laws.
11.3.ControlUp Representations and Warranties. ControlUp represents and warrants that: (i) the ControlUp Offering shall perform in accordance with the Documentation and operate without material defects and error ; and (ii) any professional services provided in connection with the ControlUp Offering shall be performed in a professional, workmanlike manner consistent with generally accepted industry standards and performance standards set forth in the applicable Schedule and any Addendum;
11.4.Non-Infringement. ControlUp represents, warrants, and covenants that neither the ControlUp Offering nor its use as contemplated under this Agreement infringes, misappropriates, or violates any third-party intellectual property or proprietary rights.
11.5.Compliance with Laws and Regulations. ControlUp represents, warrants, and covenants that it is, and has been, in compliance with all applicable laws, rules, and regulations relating to anti-bribery and anti-corruption, anti-money laundering and terrorist financing, economic and financial sanctions, and export and import controls, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, the OECD Convention on Combating Bribery, the Bank Secrecy Act and USA PATRIOT Act, OFAC and HMT sanctions, and all applicable U.S. and foreign export/import laws. ControlUp shall not, directly or indirectly, offer, give, or authorize any improper payments or bribes, and shall maintain compliance programs reasonably designed to ensure ongoing compliance with the foregoing. ControlUp shall promptly notify MSP of any circumstances that may indicate a breach of these obligations and shall provide periodic certifications of compliance upon MSP’s request. ControlUp shall also identify in the applicable Schedule any encryption used in the ControlUp Offering and all applicable export licenses or exceptions.
11.6. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12.1.Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY SCHEDULE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, SERVICE INTERRUPTION, BUSINESS, VALUE, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF CONTROLUP, MSP, OR ANYONE ACTING ON ITS BEHALF FOR ALL CLAIMS, LOSSES, DAMAGES, OR COSTS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY MSP TO CONTROLUP FOR THE RELEVANT CONTROLUP OFFERING IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
12.2.Exclusions from Limitations. THE LIMITATIONS IN SECTIONS 1 AND 2 SHALL NOT APPLY TO: (I) FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE BY EITHER PARTY; (II) BREACHES OF CONFIDENTIALITY OR UNAUTHORIZED ACCESS TO, LOSS, OR COMPROMISE OF CONFIDENTIAL INFORMATION OR CUSTOMER DATA; (III) A PARTY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 13 BELOW; AND (IV) CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE, INCLUDING COSTS ASSOCIATED WITH THE RECOVERY OR REPLACEMENT OF LOST OR DAMAGED DATA.
12.3.Data Breach Super Cap. WITH RESPECT TO UNAUTHORIZED DESTRUCTION, LOSS, ALTERATION, THEFT, OR COMPROMISE OF CONFIDENTIAL INFORMATION OR CUSTOMER DATA, CONTROLUP’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE LESSER OF (I) FIVE (5) TIMES THE TOTAL FEES PAID OR PAYABLE BY MSP UNDER THE APPLICABLE SCHEDULE, OR (II) FIVE MILLION U.S. DOLLARS ($5,000,000).
12.4.Fines and Penalties ANY FINES, PENALTIES, OR SIMILAR ASSESSMENTS IMPOSED ON A PARTY UNDER APPLICABLE LAW ARISING FROM THE OTHER PARTY’S BREACH OF THIS AGREEMENT SHALL BE TREATED AS DIRECT DAMAGES AND ARE NOT SUBJECT TO THE FOREGOING LIMITATIONS.
13.1.Indemnification by ControlUp. ControlUp shall defend, indemnify, and hold harmless MSP, its officers, directors, employees, and agents from and against any and all claims, demands, suits, or proceedings brought by a third party (including governmental authorities) alleging that the ControlUp Offering infringes or misappropriates any third party’s intellectual property rights, including patents, copyrights, trademarks, or trade secrets (“IP Claim”). ControlUp’s obligations under this Section shall not apply to the extent the claim arises from: (i) Customer Data; (ii) modifications to the ControlUp Offering not made, authorized, or directed by ControlUp; (iii) combination of the ControlUp Offering with other products or services not reasonably contemplated by the Parties; (iv) MSP’s use of the ControlUp Offering in a manner contrary to written instructions provided by ControlUp; (v) MSP’s failure to implement corrections or enhancements made available by ControlUp; or (vi) MSP’s continued use of the ControlUp Offering after notice of actual infringement. In the event of an IP Claim, ControlUp may, at its sole discretion and expense: (a) modify the ControlUp Offering to avoid infringement while maintaining substantially similar functionality; (b) obtain a license to allow MSP to continue using the ControlUp Offering; or (c) terminate the affected ControlUp Offering and refund MSP any prepaid fees covering the unused portion of the term.
13.2.Indemnification by MSP. MSP shall defend, indemnify, and hold harmless ControlUp, its officers, directors, employees, and agents from and against any and all claims, demands, suits, or proceedings brought by a third party (including governmental authorities) to the extent arising from: (i) MSP’s unauthorized use or combination of the ControlUp Offering with other products or services not approved by ControlUp; (ii) MSP’s violation of the terms of this Agreement; or (iii) MSP’s violation of applicable laws, rules, or regulations, including data privacy and security laws.
13.3.Indemnification Procedure. For any claim subject to indemnification under this Section: (a) The indemnified Party shall provide the indemnifying Party with prompt written notice of the claim; (b) The indemnifying Party shall have sole control over the defense and settlement of the claim, provided that it may not settle any claim that admits fault or imposes liability on the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed; (c) The indemnified Party shall provide reasonable cooperation and assistance, at the indemnifying Party’s expense, in the defense of the claim; and (d) Each Party may, at its own expense, be represented by counsel of its choosing.
14.1.Non‑Solicitation Obligation. During the Term of this Agreement, MSP shall not, directly or indirectly, solicit, induce, or attempt to induce any current or prospective Customer of ControlUp with whom MSP had contact or whose information MSP obtained in connection with the performance of this Agreement to: (a) cease or reduce its business with ControlUp; or (b) engage any service, product, or solution that competes with the ControlUp Offering.
14.2.Exceptions. The restrictions in this Section shall not apply to: (a) general marketing or advertising that is not specifically targeted at ControlUp’s Customers; or (b) Customers who independently initiate contact with MSP without any direct or indirect solicitation by MSP in violation of this Agreement.
15.1.Additional Terms and Conditions. Each ControlUp Offering shall also be governed by any additional terms and conditions specific to such Offering as set forth in the applicable Schedule and hyperlinked Addendum, each of which is incorporated herein by reference where applicable.
15.2.Purchase Orders. If Customer issues a purchase order, such purchase order shall be issued solely for the total fees set forth in the applicable Schedule. Any additional or conflicting terms included in a purchase order, procurement portal, or other Customer ordering document are expressly rejected and shall be null and void, and ControlUp’s acceptance of any such document does not constitute acceptance of those terms. The terms and conditions of this Agreement and the applicable Schedule (or other documents expressly signed by both parties) are the only binding terms between the parties.
15.3.Use of Resellers. MSP may acquire the ControlUp Offering through an authorized Reseller. Orders placed through a Reseller are executed by ControlUp and MSP via a Schedule that references this Agreement. Any terms agreed solely between the Reseller and MSP do not amend or modify this Agreement and are enforceable only between those parties. Resellers are not authorized to make representations, warranties, or commitments on behalf of ControlUp, and ControlUp is not bound by any obligations between a Reseller and MSP, except as expressly set forth in this Agreement.
15.4.Governing Law. This Agreement, including all Schedules and Addenda, shall be governed, construed, and enforced in accordance with the laws applicable to the relevant ControlUp entity specified in the Schedule, without giving effect to its conflict of law provisions. The parties agree to submit to the exclusive jurisdiction of the courts listed below for any dispute arising out of or in connection with this Agreement:
ControlUp, Inc.: Laws of the State of New York, USA; exclusive jurisdiction in the courts of New York County, New York.
ControlUp Technologies Ltd.: Laws of Israel; exclusive jurisdiction in the courts of Tel Aviv, Israel.
ControlUp GmbH: Laws of Germany; exclusive jurisdiction in the courts of Frankfurt, Germany.
ControlUp UK Limited: Laws of England and Wales; exclusive jurisdiction in the courts of London, UK.
ControlUp Pty Ltd: Laws of New South Wales, Australia; exclusive jurisdiction in the courts of Sydney, NSW, Australia.
ControlUp Canada Inc.: Laws of the Province of Ontario, Canada; exclusive jurisdiction in the courts of Toronto, Ontario.
15.5.Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party, and any attempted assignment or delegation without such consent shall be null and void. Notwithstanding the foregoing, any change of control of ControlUp shall be deemed an assignment for purposes of this Agreement.
15.6.Notices. All notices under this Agreement must be in writing. Notices to ControlUp must be sent by registered mail to the address below or by email to legal@controlup.com. A notice sent by registered mail is deemed received 7 business days after mailing. A notice sent by email is deemed received 2 business days after it is sent to ControlUp. Notices to MSP must be sent by registered mail or email to the contact information provided in the applicable Schedule. Registered mail is deemed received 7 business days after mailing, and email is deemed received 2 business days after it is sent to MSP.
ControlUp Mailing Address:
Pinnacle Corporate Park
550 W. Cypress Creek Rd – suite 330
Fort Lauderdale, Florida 33309
15.7.No Waiver by Conduct. No waiver of any provision of this Agreement or any Schedule will be valid unless in writing and designated as a waiver. Delay or inaction by either Party in exercising any right under this Agreement shall not constitute a waiver of such right, whether for that occurrence or any future occurrence.
15.8.Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. The Parties shall replace any invalid, illegal, or unenforceable provision with a valid provision that most closely reflects the Parties’ original intent.
15.9.Third Party Beneficiaries. Except as expressly stated in this Agreement, no third party shall have any right, benefit, or cause of action under this Agreement. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns.
15.10.Counterparts; Modifications. This Agreement, including all Schedules and Exhibits, may be executed in counterparts, each of which shall be deemed an original. ControlUp may modify the terms of this Agreement by posting a revised version on ControlUp’s website or by otherwise notifying MSP. Such modifications shall become effective as of the date of posting or notification, unless otherwise specified. No modification shall materially diminish MSP’s existing rights under this Agreement. MSP’s continued use of the ControlUp Offering after receipt of notice of a modification constitutes acceptance of the revised terms. If MSP does not accept a modification, ControlUp and MSP shall then negotiate the terms of the modification in good faith. If the parties are unable to agree on the modification after good faith negotiations, MSP may terminate this Agreement by providing written notice to ControlUp.
Last version: January, 2026
ANNEX A – DEFINITIONS
“Addendum” means any additional terms, including data protection, security, service level, or other ancillary documents attached to or referenced in the Agreement or any Schedule via link.
“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party. For purposes of this definition, “control” means: (i) the power, direct or indirect, to direct or cause the direction of the management, policies or operations of an entity; or (ii) ownership or control of at least fifty percent (50%) of the voting securities or interests of such entity. An entity that qualifies as an Affiliate after execution of the Agreement shall be deemed an Affiliate. For the purposes of this Agreement the term MSP also includes MSP’s Affiliates.
“Committed Quantity” means the minimum number of Licensed Units MSP commits to purchase for the applicable Schedule Term, as specified in the Schedule.
“Confidential Information” means any nonpublic information disclosed by one Party (“Discloser”) to the other (“Recipient”) that is identified as confidential or should reasonably be understood to be confidential, including business plans, pricing, MSP Data, End Customer Data, technical information, Documentation, security information, processes, financial information, and contractual terms. Confidential Information does not include information that the Recipient can demonstrate: (i) is or was publicly available without breach; (ii) was lawfully in the Recipient’s possession without restriction; (iii) is received from a third party without confidentiality obligations; or (iv) is independently developed without reference to the Discloser’s Confidential Information.
“ControlUp Agent” means the software component provided by ControlUp that is installed on devices owned or managed by an End Customer, enabling monitoring, management, and optimization of those devices in connection with the ControlUp Offering.
“ControlUp Offering” means the proprietary software-as-a-service platform, software, dashboards, analytics, technology, tools, and related services made available by ControlUp to MSP under a Schedule. For avoidance of doubt, “ControlUp Offering” includes all Licensed Products and Licensed Units.
“Customer Data” or “End Customer Data” means all data submitted by, collected from, or otherwise relating to End Customers and their authorized users in connection with use of the ControlUp Offering or Integrated Services.
“Documentation” means all current technical manuals, user guides, product descriptions, training materials, and other written or electronic materials made available by ControlUp relating to the ControlUp Offering.
“Effective Date” means the effective date of a Schedule as executed by both Parties.
“End Customer” means a third party that receives managed or outsourced services from MSP and to whom MSP ultimately provides access to or the benefit of the ControlUp Offering through MSP’s Integrated Services.
“Facilities” means the application software, systems, servers, networks, communication devices, infrastructure, and other equipment or technology used by ControlUp in hosting, provisioning, or delivering the ControlUp Offering.
“Hosted Services” means the cloud-based hosting, infrastructure, storage, processing, security, availability, and related platform services operated or provided by or on behalf of ControlUp that enable access to and operation of the ControlUp Offering.
“Integrated Services” means MSP’s bundled or managed services offering provided to End Customers that incorporates Licensed Products with MSP-branded services, pricing, packaging, or support to create a combined service offering delivered by MSP.
“Intellectual Property Rights” or “IP Rights” means all intellectual and proprietary rights worldwide, whether registered or unregistered, including patents, copyrights, trademarks, trade secrets, moral rights, and all similar rights.
“Licensed Units” means the ControlUp Offering components licensed to MSP under a Schedule, including any metrics, quantities, or usage-based units applicable to such licenses.
“Managed Service Offering” means the managed IT or operational services MSP provides to MSP End Customers that include or rely on the ControlUp Offering as part of MSP’s service delivery.
“MSP” means the Managed Service Provider identified in the Schedule, licensed to use the ControlUp Offering to deliver Integrated Services to its End Customers.
“MSP Customer Agreement” means the agreement between the MSP and an End Customer for use of the Managed Service Offering. For clarity, it does not modify or supersede this Agreement, and in the event of any conflict, the terms of this Agreement shall govern.
“MSP Data” means all business, technical, operational, personal, or other information provided by or on behalf of MSP or its End Customers to ControlUp, or generated through use of the ControlUp Offering.
“Representative(s)” means a Party’s officers, directors, employees, contractors, subcontractors, agents, auditors, advisors, and other authorized personnel.
“Schedule Term” means the period during which the licenses, Services, or obligations in a Schedule remain in effect.
“Service Level Agreement” or “SLA” means the service availability and support standards referenced in the Agreement or applicable Schedule.
“Services” means the ControlUp Offering, Hosted Services, Support Services, onboarding, enablement, and any other services provided by ControlUp under the Agreement or a Schedule.
“Software” means the version of any ControlUp software components licensed under a Schedule, including updates, bug fixes, patches, and other modifications made available during the Schedule Term.
“Support Plan” means the level and scope of technical support services, response times, support channels, maintenance services, and related entitlements to which MSP is entitled based on its purchase, as set forth in and governed by the applicable Service Level Agreement (SLA) and the corresponding Schedule.