Master Supply Agreement

This Master Supply Agreement (“Agreement”) applies to a purchase of one or more Offerings (as defined in Section 1 below) and are made part of a legally binding agreement by and between Solace Corporation (“Solace”) and the purchaser identified on the Order (as defined in Section 1 below) (“Customer”). If you are entering into the Agreement on behalf of a legal entity, for example the company or organization you work for, you represent to Solace that you have legal authority to bind such legal entity. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT (OR YOU DO NOT HAVE THE LEGAL AUTHORITY TO ENTER INTO CONTRACTS OR TO BIND THE LEGAL ENTITY ON WHOSE BEHALF YOU ARE PROVIDING SUCH ACCEPTANCE), YOU SHALL NOT ACCESS, USE, DOWNLOAD, AND/OR INSTALL THE SOLACE OFFERING. THE CONTINUED RIGHT TO ACCESS AND USE THE SOLACE OFFERING IS CONTINGENT ON CONTINUED COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT BY YOU (AND BY THE LEGAL ENTITY ON WHOSE BEHALF YOU ARE PROVIDING ACCEPTANCE). Solace and Customer are sometimes herein referred to individually as “Party” and collectively as “Parties”.

IN CONSIDERATION of the commitments set forth below, the Parties agree as follows:

1. Contract Structure; Orders; provision of offerings.

1. 1. Agreement Framework. Each Order (as defined in Section 1.3), together with this Master Supply Agreement, the applicable Offering Schedules (as defined in Section 1.2), Statement(s) of Work, and any other exhibits or appendices attached to this Agreement, constitute the complete “Agreement” between Customer and Solace.
   2. Offering Schedules.  The products and/or services that Solace may make available to Customer under this Agreement, including Hardware, Software, Cloud Service, Professional Services, and/ or Support Services (each, an “Offering”) are subject to additional Offering-specific terms and conditions set out in the applicable Offering schedule (each schedule, an “Offering Schedule”). Without limiting the foregoing,

1. 2. 1. if an Order calls for Software to be provided by Solace to Customer, the Software Schedule available at https://legal.solace.com/legal-msa/msa-software-schedule-d45fe1eb will apply to that portion of the Offering; 
      2. if an Order calls for Hardware to be provided by Solace to Customer, the Hardware Schedule available at https://legal.solace.com/legal-msa/msa-hardware-schedule-1867379b will apply to that portion of the Offering;
      3. if an Order calls for Cloud Service to be provided by Solace to Customer, the Cloud Service Schedule available at https://legal.solace.com/legal/msa-cloud-service-schedule-af7a1cdc will apply to that portion of the Offering; 
      4. if an Order calls for Professional Services to be provided by Solace to Customer, the Professional Services Schedule available at https://legal.solace.com/legal-msa/msa-professional-services-schedule-26fd4eefwill apply to that portion of the Offering;  
      5. if an Order calls for Education Services to be provided by Solace to Customer, the Education Services Schedule available at https://legal.solace.com/legal-msa/msa-education-services-schedule-fec97783 will apply to that portion of the Offering; and
      6. if an Order calls for Support Services to be provided by Solace to Customer, any such support will be provided under the applicable Support Plan pursuant to Support Schedule available at https://www.solace.com/***.

1. 3. Order. An “Order” for one or more Offering(s) means the form by which Customer purchases an Offering from Solace which may take the form of: a Solace quote, Customer purchase order (excluding any pre-printed terms and conditions), Statement of Work, or other document used to purchase directly from Solace or through a Solace-authorized reseller or marketplace.
   4. Order of Priority. A provision in an Order executed by both Parties will prevail over any conflicting provision elsewhere in this Agreement, and, subject to the foregoing, a provision in a Schedule will prevail with respect to the applicable Offering over any conflicting provision in this Agreement.

2. Fees and Taxes.

1. 1. Fees. Customer must pay to Solace all Fees specified in each Order. Except as otherwise expressly provided in this Agreement, Fees are non-refundable. Except as otherwise stated in the applicable Order: (a) the Fees will be invoiced before the beginning of the Order Term; (b) Customer will pay all undisputed amounts payable under this Agreement within thirty (30) days of the date of the invoice, without setoff or counterclaim, and without any deduction or withholding; and (c) all invoices and payments will be in United States dollars.
   2. Late Payments. Solace may charge Customer interest for late fees at the lesser of 1.5% per month or the maximum rate permitted by law. In addition, if payment is not received within ten (10) business days of written notice that a payment is delinquent, Solace may suspend provision of all or part of an Offering and may refuse any additional Orders.  Any suspension by Solace under the preceding sentence will not excuse Customer from its obligation to make all payment(s) under this Agreement. Solace will not exercise its rights under this Section 2.2 (Late Payments) to the extent a Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
   3. Renewal Fees. Upon renewal of any Order, Solace is entitled to increase the pricing in such Order by the amount equal to the greater of five percent (5%) and the annual increase in the U.S Consumer Price Index in the previous twelve (12) month period as determined by the Bureau of Labor Statistics.
   4. Taxes. Customer will be responsible for any taxes (other than taxes based on Solace’s net income), fees, duties, or other similar governmental charge. Should any taxes be due, Customer will pay such taxes. Sales and use taxes can be reduced if Customer provides Solace with an exemption certificate or document acceptable to the appropriate authorities exempting Customer from payment of these taxes. Solace, for its part, will provide Customer with applicable certificates, forms, or other information as Customer reasonably requests to document exemption or reduction of withholding tax, which is the liability of the Customer.

3. Term and Termination.

1. 1. Initial Term and Renewal. This Agreement will commence as of the Effective Date and will continue for a period of five (5) years (the “Initial Term”) unless earlier terminated in accordance with this Agreement. The Initial Term will automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either Party provides written notice of termination not less than thirty (30) days prior to the end of the Initial Term or any Renewal Term. If at the time of expiration or termination of this Agreement there exists an Order or SOW that is not simultaneously being terminated and for which the Subscription Term continues beyond the effective termination date of this Agreement or under which one or both of the Parties have unfulfilled obligations, this Agreement will continue to govern such Order and/or SOW until the earlier of: (a) the end of the then-current Subscription Term under such Order; (b) such Order or SOW is terminated by the Parties in accordance with the terms thereof or otherwise by mutual agreement; or (c) there has been full performance of the Parties’ respective obligations under such Order or SOW. The Initial Term and any Renewal Terms are hereinafter collectively referred to as the “Term”.
   2. Subscription Term. Subscriptions commence on: (a) the start date specified in the Order; and (b) if no start date is specified in the Order, the date of invoice for such Order, and continue for the Subscription Term specified therein unless terminated earlier as provided for in this Agreement. Unless Customer gives Solace written notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term, Subscriptions will automatically renew for additional periods of one (1) year (or such other such period as agreed upon in the applicable Order).
   3. Termination for Convenience. Customer may terminate an Order at any time for any reason by giving Solace at least sixty (60) days’ written notice. Except as expressly stated in the applicable Offering schedule, Solace will not be required to refund to Customer any fees paid in advance.
   4. Termination for Cause. Either Party may, at its option, terminate this Agreement (or any Order) if the other Party: (a) fails to cure its material breach of this Agreement (including a failure to pay Fees when due) within thirty (30) days of receiving written notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within sixty (60) days.
   5. Each Order Distinct. Termination of an Order does not terminate other Orders then in effect.
   6. Effects of Termination and Expiration. Upon the termination or the expiry of this Agreement or an Order:

1. Solace will have no further obligation to provide the applicable Offering(s), and Customer must immediately (i) discontinue all use of the Offerings, (ii) destroy all copies of the Software and related Documentation, (iii) uninstall and remove from all computers all copies of the Software and related Documentation, (iv) return all Subscription Hardware to Solace, and (v) if requested by Solace, certify in writing to Solace that it has complied with the foregoing requirements of this Section 3.6 (Effects of Termination).
2. Customer must pay to Solace all outstanding fees under this Agreement or the terminated Order, as applicable, in accordance with Section 2 (Fees and Taxes).

1. 7. Transition Assistance. At Customer’s reasonable request and expense, and upon mutual agreement of scope documented in a SOW, Solace will provide assistance to Customer as may be reasonably necessary to assist Customer to transition to an alternative solution.  If requested, such transition assistance will continue for the period of time set out in the SOW, which will in no event be more than six (6) months following the expiration or termination of this Agreement.  Such transition assistance is governed by the terms and conditions of this Agreement, as applicable.
   8. Survival. The provisions of this Agreement that by their nature extend beyond the termination of this Agreement including without limitation “Fees and Taxes”, “Proprietary Rights”, “Mutual Confidentiality Obligations”, “Indemnification from Third Party Claims”, and “Mutual Limitations on Liability” will survive termination.

4. Proprietary Rights.

1. 1. Reservation of Rights. Solace and its licensors own and will retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property and proprietary rights), in and to the Hardware, Software, Cloud Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which will be deemed part of the Hardware, Software, Cloud Service and Documentation and subject to all of the provisions of this Agreement. Customer will keep the Hardware, Software, Cloud Service and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, Solace reserves all rights, title and interest in and to the Hardware, Software, Cloud Service and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
   2. Documentation. Provided Customer complies with this Agreement, Customer may reproduce the Documentation, for use on an internal basis only, and solely in support of Customer’s licensed use of the Offerings. Distribution of the Documentation outside of Customer is prohibited without the express written permission of Solace. Customer must reproduce all copyright and other proprietary notices that are on the original copy of the Documentation.
   3. Feedback. Customer may, at its option, provide suggestions, ideas, enhancement requests, recommendations, or feedback regarding the Offering(s) (“Feedback”), provided however, that Feedback does not include any Confidential Information of Customer, Customer’s Affiliates, or any Customer Data. Solace may use and incorporate Feedback in Solace’s Offering(s) without compensation. Customer will have no obligation to provide Feedback, and all Feedback is provided by Customer “as is” and without warranty of any kind.

5. mutual Confidentiality obligations.

1. 1. Meaning of Confidential Information. “Confidential Information” means any non-public information directly or indirectly disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or accessible to the Receiving Party pursuant to this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including technical data, business processes, product plans, product designs, product performance, security information, the terms of this Agreement (including pricing), the Offerings and Documentation, and Customer Data (which is the Confidential Information of Customer). Confidential Information will not include any information which: (a) was publicly known or made generally available to the public prior to the time of disclosure; (b) becomes publicly known or made generally available after disclosure through no fault of the Receiving Party; (c) is in the possession of the Receiving Party, without restriction as to use or disclosure, at the time of disclosure by the Disclosing Party; (d) was lawfully received, without restriction as to use or disclosure, from a third party (who does not have an obligation of confidentiality or restriction on use itself); or (e) is developed by the Receiving Party independently from this Agreement and without use of or reference to the Disclosing Party’s Confidential Information. Except for rights expressly granted in this Agreement, each Party reserves all rights in and to its Confidential Information.
   2. Standard of Care. The Parties will maintain as confidential and will avoid disclosure and unauthorized use of Confidential Information of the other Party using reasonable precautions. Each Party will protect such Confidential Information with the same degree of care that a prudent person would exercise to protect its own confidential information of a like nature (but in no event using less than reasonable care), and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof or access thereto. Each Party will restrict Confidential Information to individuals who need to know such Confidential Information and who are bound to confidentiality obligations at least as protective as the restrictions described in this Section (Mutual Confidentiality Obligations). Neither Party will use Confidential Information of the other Party for any purpose except in fulfilling its obligations or exercising its rights under this Agreement. Each Party will promptly notify the other Party if it becomes aware of any unauthorized use or disclosure of the other Party’s Confidential Information, and reasonably cooperate with the other Party in attempts to limit disclosure.
   3. Compelled Disclosure. If and to the extent required by law, including regulatory requirements, discovery request, subpoena, court order or governmental action, the Receiving Party may disclose or produce Confidential Information but will give reasonable prior notice (to the extent permitted by applicable law) to the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or confidential treatment therefor or other appropriate remedy regarding such disclosure. Disclosure of any Confidential Information pursuant to any legal requirement will not be deemed to render it non-confidential, and the Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party will not be changed or lessened by virtue of any such disclosure.
   4. Remedies. Each Party agrees that in the event of a breach or threatened breach of this Section (Mutual Confidentiality Obligations), the non-breaching Party will be entitled to seek injunctive relief against the breaching Party in addition to any other remedies to which the non-breaching Party may be entitled.
   5. Return of Confidential Information. Upon termination or expiration of this Agreement, the Receiving Party must return all copies of Confidential Information to Disclosing Party or certify, in writing, the destruction thereof.
   6. Survival.  The obligations of this Section (Mutual Confidentiality Obligations) will survive any expiration or early termination of this Agreement for a period of three (3) years, except in the case of any trade secrets, which will continue in perpetuity or until such time as the Disclosing Party no longer treats such information as a trade secret or such information falls within an exception under this Agreement.

6. Data Protection.

1. 1. Data Processing Addendum. To the extent that Solace processes any Personal Data (as defined in the latest version of Solace’s Data Processing Addendum (“DPA”), which is available at https://www.solace.com/***) on Customer’s behalf and in performance of this Agreement, the terms of the DPA is hereby incorporated by reference, will apply and the Parties agree to comply with such terms.  Customer’s acceptance of this Agreement will be treated as acceptance of the DPA (including the Standard Contractual Clauses attached to the DPA). Solace reserves the right to update the DPA from time to time to comply with legal and regulatory requirements. The latest version posted on Solace’s website will always apply.
   2. Customer Representation and Warranty. Customer hereby represents and warrants to, and covenants with Solace that Personal Data provided to Solace by Customer will only include data in respect of which Customer has provided all notices and disclosures, obtained all applicable consents, including third party consents, and permissions and otherwise has all authority, in each case as required by applicable law, to enable Solace to provide the Offering, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Data, including by or to Solace and to or from all applicable third parties in accordance with this Agreement.

7. Customer Data.

1. 1. Ownership. As between Solace and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Solace does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any Customer Data.
   2. Responsibility. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data.
   3. Access to Customer Data. When Solace is provided Customer Data or given access to Customer Data through Customer systems, Solace will comply with Customer’s reasonable administrative, technical, and physical safeguards to protect such data and guard against unauthorized access. In connection with such access, Customer will be responsible for providing Solace personnel with user authorizations and passwords to access its systems and revoking such authorizations and terminating such access, as Customer deems appropriate from time to time. Customer will not grant Solace access to Customer systems or personal information (of Customer or any third party) unless such access is essential for the performance of Solace’s obligations (including the provision of any Offering(s)) under this Agreement.
   4. Customer Data Portability and Deletion. Upon request by Customer made during the term hereof or within thirty (30) days after the end of the Subscription Term, Solace will make the Customer Data (excluding Customer Message Data) available to Customer for export or download as provided in the Documentation. After such thirty (30) day period, Solace will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.

8. CUSTOMER’S RESPONSIBILITIES.

1. 1. Customer’s Users. Customer is responsible for the use of the Offering by any individual, organization or legal entity who directly or indirectly receives access to, or the ability to Use, the Offering or any component thereof through Customer. Any act or omission of a User with respect to an Offering is deemed to be the act or omission of Customer.
   2. Customer’s Affiliates. Customer may permit its Affiliates to use Subscriptions purchased by Customer hereunder, provided: (i) Customer will remain responsible for each such Affiliate’s compliance with the terms of this Agreement, and (ii) any such use together with Customer’s use must be, in the aggregate, within the limitations set forth in the applicable Order.  
   3. Customer’s Contractors. Customer may permit its contractors to Use an Offering solely for the purposes of providing outsourced services to Customer, provided that each contractor: (a) is bound by an agreement with Customer pursuant to which it is liable to Customer for its actions and failures when interacting on Customer’s behalf with third party products and services such as Solace’s Offerings. Customer will be solely responsible for such contractor’s compliance with the terms of this Agreement and will be fully liable for any breach thereof. Solace accepts no responsibility for the actions or the failures to act of any such contractor with respect to the Offerings.
   4. General Restrictions. Customer must not (and must not allow Users or any third party to): (a) host, time-share, rent, lease, sell, license, sublicense, assign, distribute or otherwise transfer or allow third parties to exploit any component of any Offering, except as provided in this Agreement; (b) copy, modify, translate, reverse engineer, de-compile or disassemble, or create derivative works from any Offering except to the extent that law explicitly prohibits this restriction notwithstanding a contractual restriction to the contrary; (c) attempt to find, circumvent, bypass, exploit, defeat, or disable any limitations, restrictions, security vulnerabilities, security mechanisms, filtering capabilities, or entitlement mechanisms that are present or embedded in any Offering or any component thereof; (d) provide any passwords or other log-in information provided by Solace as part of any Offering to any third party; (e) share non-public features or content of any Offering with any third party; (f) access any Offering in order to build or benchmark against a competitive product or service, or to build a product or service using similar ideas, features, or functions of any Offering; (g) use any Offering to transmit or store content or communications (commercial or otherwise) that is harmful, unwanted, confirmed to be criminal misinformation or that otherwise poses a threat to the public, or viruses, malware, worms, time bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents or programs; (h) attempt to gain unauthorized access to any Offering, or to gain access by any means, including automated means (e.g. bots); or (i) use any Offering other than in compliance with all applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or rights of any third party (including any moral right, privacy right or right of publicity).
   5. High-Risk Applications. The Offerings are not designed or developed for use in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Offerings could lead to severe physical or environmental damages (“High-Risk Applications”). Customer will not use the Offerings for High-Risk Applications and any attempt to do so will be at Customer’s own risk. Solace expressly disclaims any liability or express or implied warranty of fitness for High-Risk Applications.

9. Security.

1. 1. Solace’s Security Obligations. Solace will comply with the security practices (if any) incorporated or referenced in the Documentation for the Offering, provided however that at all times Solace will, consistent with industry standard practices, implement and maintain physical, administrative and technical safeguards and other security measures: (a) to maintain the security and confidentiality of Customer Data; and (b) to maintain the availability and integrity of Customer Data and to protect Customer Data from known or reasonably anticipated threats or hazards to its security, including accidental loss, unauthorized use, access, alteration or disclosure. Solace will inform Customer promptly upon discovery of any material unauthorized access to, any unauthorized loss, use or disclosure of any Customer Data (a “Security Incident”), provided that such notification is not prohibited by law. Solace will investigate the cause of the Security Incident and take reasonable steps to prevent further unauthorized access, loss, use or disclosure of Customer Data. At Customer’s request and cost, Solace will reasonably cooperate with Customer in complying with its obligations under applicable law pertaining to responding to a Security Incident. Solace’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by Solace of any fault or liability with respect to the Security Incident.
   2. Customer’s Security Obligations. Customer acknowledges that it has a role in ensuring that the confidentiality, integrity, and availability of Solace’s Offerings and Customer’s data and systems.  To the extent applicable to the Offering and within Customer’s control, Customer will: (a) maintain a security program designed to ensure its systems and data are protected in accordance with its legal obligations and industry recognized standards; (b) configure the Offering sufficient for its purposes and standards; (c) use the current version of the Offering and promptly update Customer’s systems and network with the latest security patches; (d) take reasonable steps to prevent unauthorized access to the Offering, including without limitation, securing and protecting the confidentiality of its access credentials to the Offering; and (e) promptly notify Solace of any unauthorized access to the Offering.

10. free or Evaluation products.

1. 1. Free Products. “Free Product” means any free-of-charge software products and associated deployment tools that Solace makes available for download to Customer via Solace’s website or third-party website pursuant to a separate end user license agreement (“EULA”) provided at the time of download. Subject to the terms of the EULA, the use of a Free Product by Customer may require the purchase of a Solace Support Plan.
   2. Evaluation Products. “Evaluation Use” or trial use is a short-term evaluation of an Offering that is specifically labeled as “Trial”, “Evaluation”, “Beta”, “Pilot”, “Proof of Concept”, or by a similar designation (“Evaluation Products”). Evaluation Use will be subject to all applicable provisions of this Agreement that are not in conflict with the provisions of this Section. Evaluation Use period ends the earlier of: (a) the date Customer enters into a committed Order for the Offering; or (b) unless otherwise stated at the time of download or otherwise agreed upon by the Parties in the Order, ninety (90) days from the start of Evaluation Use. Evaluation Use period may be extended upon mutual written agreement by Solace and Customer.  Evaluation Use will be limited to trial and evaluation use of the Offering in a non-production environment with non-production data, and solely for the purposes of making a buying decision. In particular, Customer must not transmit production data or data regulated by law or regulation into the Cloud Service during Evaluation Use. Solace is under no obligation to provide Support Services during Evaluation Use. Solace reserves the right to discontinue or modify the provision of the Offering subject to Evaluation Use at any time with or without notice. Use of Evaluation Products is: (a) “AS IS”; and (b) without indemnification, warranty, or condition of any kind. No service level commitment will apply. Solace will have no liability of any type with respect to the use of Free Products or Evaluation Products, unless such exclusion of liability is not enforceable under applicable law in which case Solace’s liability for any losses related to or resulting from Evaluation Use is subject to a cumulative and aggregate limit of $1,000.00. 

11. Professional Services.

Customer may purchase Professional Services in association with the Offerings as part of an annual subscription plan, or on an as-needed basis for a particular engagement described in a SOW.  Each SOW will be mutually agreed upon by the Parties in writing and will be governed by the terms of this Agreement. The SOW will set out the scope and details of the Professional Services, including, if and as applicable, milestones, delivery dates, Deliverables, acceptance criteria, fees and payment terms, expense reimbursement, location of services, resource specialist(s), and any other requirements related to the Professional Services.

12. Support services.  

1. 1. Support for Subscription Offerings. Support Services for Hardware, Software, and Cloud Services are included in the Subscription Fees.
   2. Support for Offerings Purchased on Perpetual Basis. Support Services for Software and Hardware purchased on a perpetual basis are not included in the purchase price. Support Services must be purchased separately and on an on-going basis in order to receive the entitlements to support (including, for clarity, updates and upgrades to Software).
   3. Support Plan. Solace will provide Support Services as described in the Order and in accordance with the applicable Support Plan.

13. Third-Party PRODUCTS.

Solace may from time to time recommend, provide Customer with access to, or enable third party software, applications, products, services or website links (collectively, “Third-Party Products”) for Customer’s use, in each case with Customer’s consent. For clarity, Third-Party Products are not third-party components of the Offerings themselves; they are separate products or add-ons that can be used with the Offerings at the election of Customer. Solace does not control and has no liability for Third-Party Products. Customer’s use of Third-Party Products is subject to the relevant provider’s terms of use.

14. Limited Warranties and disclaimers.

1. 1. General Warranties. Each Party represents and warrants that: (a) it has full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized; (b) this Agreement and such Party’s performance hereunder will not breach any other agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party; and (c) it will comply with all applicable laws, rules, and regulations including, but not limited to, those related to or arising from general working conditions, working hours, health and safety, and wages.         
   2. Warranty Disclaimers.  Except as expressly provided in Section 14.1 (General Warranties) or in the applicable Offering Schedule, the Offerings are provided “AS IS”. Solace makes no other warranties of any kind, whether express or implied, statutory or otherwise, including warranties of merchantability or fitness for a particular purpose, title or non-infringement. Solace makes no representations, conditions or warranties regarding any third-party product or service, with which any Offering may interoperate. Solace does not warrant that Customer’s use of the Offerings will be uninterrupted or error-free. Solace is not liable for delays, failures or problems inherent in use of the internet and electronic communications or other systems outside Solace’s control.

15. Indemnification FROM THIRD PARTY CLAIMS.

1. 1. Intellectual Property Indemnity.

15. 1. 1. Indemnity. Solace will defend at its expense (including, for clarity, bearing court costs and reasonable attorney’s fees) Customer against any Claims alleging that the Offering furnished and used within the scope of this Agreement infringes a third party’s patent, trademark, copyright, trade secret or other intellectual property or proprietary right (an “IP Claim”), and will indemnify Customer against any (a) amounts finally awarded against Customer by a court or arbitrator in any proceeding related to such IP Claim, or (b) settlement amounts approved in accordance with Section 15.3 (Process).
       2. Mitigation by Solace. In addition to Solace’s obligations under Section 15.1.1 (Indemnity), if Solace becomes aware of an actual or potential IP Claim, or if Customer provides Solace with notice of an actual or potential IP Claim, Solace may (or in the case of an injunction against Customer, will), at Solace’s sole option and expense: (a) procure for Customer the right to continue using the affected Offering in accordance with the license granted under this Agreement; or (b) modify or replace the affected Offering so that the modified or replacement Offering is reasonably comparable in functionality. If, in such circumstances, Solace cannot successfully accomplish any of the foregoing actions on a commercially reasonable basis, Solace will notify Customer and either Party may terminate the Subscription for the affected Offering, in which case Solace will refund to Customer any fees prepaid to Solace by Customer prorated for the unused portion of the Subscription.
       3. Limitations. Solace will have no liability or obligation under Section 15.1 (Intellectual Property Indemnity) with respect to any IP Claim to the extent attributable to: (a) Customer’s modification of the Offering without Solace’s written consent; (b) Customer’s use of the Offering in combination with third-party equipment or software not provided or made accessible by Solace, unless the Documentation refers to or recommends combination with such third-party equipment or software, or such combination achieves functionality described in the Documentation (provided the Documentation directs the User not to perform such combination); (c) use of the Offering by Customer in breach of this Agreement; or (d) use of an unsupported version of the Hardware or Software.
       4. Exclusive Remedy. This Section 15.1 (Intellectual Property Indemnity) sets out Customer’s exclusive remedy and Solace’s entire liability with respect to any claim of the nature herein.
    2. Customer Indemnity.
       1. Indemnity. Customer will defend at its expense Solace and its officers, directors, employees, agents and representatives (collectively “Solace Indemnified Parties”) from and against any and all Claims to the extent arising out of or alleging unauthorized or unlawful receipt, processing, transmission or storage of Customer Data by Solace in the performance of its obligations as permitted under this Agreement resulting from breach of Customer’s obligations under Section 6.2 (Customer Representation and Warranty). Customer will indemnify Solace against all costs, damages and amounts finally awarded by a court or agreed upon in settlement (as set forth in Section 15.3 (Process)) and any government fines and penalties assessed against or incurred by Solace Indemnified Parties in any such Claims.
       2. Limitations. Customer will have no liability or obligation under Section 15.2 (Customer Indemnity) with respect to any Claim to the extent attributable to any use of the Customer Data by Solace in breach of this Agreement.
    3. Process. The Party(ies) seeking indemnification pursuant to Section 15 (Indemnification from Third Party Claims), (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) will give the other Party (the “Indemnifying Party”) prompt notice of each Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will give the Indemnifying Party their reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Parties informed of the status of each Claim. An Indemnified Party may participate in the defense at its own expense. The Indemnifying Party will control the defense or settlement of the Claim, provided that the Indemnifying Party, without the Indemnified Parties’ prior written consent: (a) will not enter into any settlement that: (i) includes any admission of guilt or wrongdoing by any Indemnified Party; (ii) imposes any financial obligations on any Indemnified Party that Indemnified Party is not obligated to pay under this Section 15 (Indemnification from Third Party Claims); (iii) imposes any non-monetary obligations on any Indemnified Party; and (iv) does not include a full and unconditional release of any Indemnified Parties; and (b) will not consent to the entry of judgment, except for a dismissal with prejudice of any Claim settled as described in (a). The Indemnifying Party will ensure that any settlement into which it enters for any Claim is made confidential, except where not permitted by applicable law.

16. MUTUAL LimitationS oN Liability.

1. 1. Exclusion of Indirect and Consequential Damages. To the maximum extent permitted by law, in no event will either Party have any liability to the other Party for any indirect, special, incidental, punitive, or consequential damages (including, without limitation, damages for loss of business, opportunities, revenues, profits, savings, goodwill, reputation, customers, use, or data) or costs of reprocurement or business interruption.
   2. Limitation of Liability. To the maximum extent permitted by law, in no event will either Party’s aggregate liability arising out of or related to this Agreement for all claims, costs, losses and damages exceed the Fees paid or payable by Customer under this Agreement in the twelve (12) months preceding the event giving rise to the damages, less any refunds, service credits or deductions.
   3. Certain Damages Not Excluded or Limited. The  exclusions of and limitations on liability set forth in Sections  16.1 and 16.2 will not apply to: (a) a Party’s indemnification obligations under Section 15 (Indemnification from Third Party Claims); (b) a Party’s breach of its confidentiality obligations under Section 5 (Mutual Confidentiality Obligations); (c) a Party’s infringement or misappropriation of the other Party’s intellectual or proprietary rights; (d) non-payment by Customer; (e) a Party’s own willful misconduct or fraud; (f) death or bodily injury caused by a Party’s own negligence; or (g) other matters for which liability cannot be excluded or limited under applicable law.
   4. Application of Exclusions and Limitations.  The exclusions and limits in this Section (Mutual Limitations on Liability) apply: (a) regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise; (b) even if a Party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages; and (c) even if the remedies fail of their essential purpose. Customer acknowledges that Solace has set its prices and entered into this Agreement in reliance on the limitations and exclusions in this Section (Mutual Limitations on Liability), which form an essential basis of this Agreement. The foregoing provisions limiting the liability of Solace will also apply to its officers, directors, employees, contractors, suppliers, licensors, resellers, and agents.

17. General.

1. 1. Amendment. This Agreement may not be modified except by formal agreement in writing executed by both Parties. 
   2. Assignment. Neither Party may assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of the other Party, which will not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, Solace may assign this Agreement, in its entirety, and delegate its obligations to its affiliates or to any entity acquiring all or substantially all of its assets, whether by sale of assets, sale of stock, merger or otherwise. Solace will provide notice to Customer of any such assignment or sale transaction within thirty (30) days of such assignment.
   3. Background Checks. Solace personnel involved in providing the services under this Agreement will pass background checks that conform with Solace’s then-current background check process and requirements, applied pursuant to applicable law.
   4. Compliance with Laws. Each Party must comply with all laws applicable to its business in its performance of obligations or exercise of rights under this Agreement.
   5. Entire Agreement.  This Agreement and items expressly incorporated into any part of this Agreement form the entire agreement of the Parties. Terms and conditions in any vendor portal or on any purchase orders, supplier registration forms, supplier code of conduct, or similar document issued by Customer will be of no force or effect notwithstanding any term or statement to the contrary made in such document.
   6. Export Laws and Regulations. Customer hereby represents and warrants that Customer is not located in, under the control of, and is not a national or resident of, any country to which the export of the Offering(s) or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer also represents and warrants that Customer is not an individual to whom the export of the Offering(s) or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer must comply with the export laws and regulations of Canada and the United States that are applicable to the Offerings and any underlying technology and related information and Customer will comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Offerings or related information, and Customer represents and warrants that Customer has complied with any such applicable laws and/or regulations. 
   7. Force Majeure. Neither Solace nor Customer will be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Solace hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God or nature, acts of civil or military authority, civil disturbance, epidemics or pandemics, terrorism (including cyber terrorism), strikes, fires or other catastrophes, changes in applicable laws and regulations, lack of or inability to obtain export permits or approvals, and acts or defaults of third party suppliers of Solace (“Force Majeure Event”).  In the event that a Force Majeure Event directly or indirectly causes a failure or delay in Solace’s performance of its obligations under this Agreement, Solace will not be in default or liable for any loss or damages where performance is impossible or commercially impracticable.
   8. Governing Law. This Agreement will be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario will have jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. In the event that any matter is brought to court, each Party waives any right that such Party may have to a jury trial. To the maximum extent permitted by applicable law, the Parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods, as amended, will not apply to this Agreement.
   9. Insurance. Both Parties will have and maintain in force appropriate insurance with reputable authorized insurers in good financial standing to insure against claims that may arise from or in connection with this Agreement.  Each Party will provide, upon written request of the other Party, but not more than once in any twelve (12) month period, written evidence that such insurances are in effect. The availability or unavailability of insurance coverage will not limit, increase, modify or otherwise impact either Party’s other obligations or liabilities under this Agreement.
   10. Language of Agreement. The definitive version of this Agreement is written in English. If this Agreement is translated into another language and there is a conflict between the English version and the translated version, the English language version controls. If Customer is located in Quebec, the Parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English; les Parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.
   11. Notices. A Party may give notice by means of electronic mail or by written communication sent by first class mail or pre-paid post, either of which will constitute written notice under this Agreement. Customer must give notice to Solace in writing by mail at 4000 Innovation Drive, 3rd Floor, Ottawa, Ontario, Canada K2K 3K1, Attn: Legal Department, or by e-mail notice sent to legal@solace.com. Solace will provide notice to Customer at the e-mail address provided by Customer or to the mailing address designated on the most current Order (or the then-current mailing address provided by Customer).
   12. Publicity. Solace may include Customer’s logo on its website and in Solace’s customer lists and promotional materials, unless instructed not to do so by Customer. Solace’s use of Customer’s name and logo will be in accordance with any Customer supplied guidelines.
   13. Relationship of Parties. The relationship of the Parties will be that of independent contractors. Each Party assumes full responsibility for its acts and the acts of its personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.
   14. Severability. If any term or condition of this Agreement is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent permitted by law.
   15. Signature, Counterparts, and Delivery. This Agreement may be executed in two or more counterparts, all of which will constitute one and the same agreement. Counterparts may be delivered by email (including PDF or through DocuSign or an equivalent system) and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. Electronic signatures will be deemed originals and will comply with applicable law.
   16. Subcontracting. Solace may use subcontractors in its performance under this Agreement, provided that  Solace remains responsible for all its duties and obligations hereunder and the use of any subcontractor will not relieve or reduce any liability of Solace under this Agreement.
   17. Third-Party Beneficiaries. Except as expressly stated in this Agreement, nothing express or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than the Parties, any rights, remedies, obligations or liabilities whatsoever.
   18. Waiver. The failure of a Party to claim a breach of any term of this Agreement will not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. 

18. DEFINITIONS.

1. 1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement.
   2. “Claim” means any and all claims, actions, proceedings and suits brought by a third party (including government investigations).
   3. “Cloud Service” means Solace’s proprietary cloud-based event and message routing and distribution platform, for which Customer is granted rights of access and use in accordance with this Agreement for either On Premises Use or Cloud Use (which terms are both defined in the Cloud Service Schedule).
   4. “Customer Data” means all the data submitted by Customer to the Cloud Service, including the Personal Data of Customer’s Users. The term “Customer Data” excludes any Customer Message Data when the Cloud Service is Used for On Premises Use by Customer.
   5. “Customer Message Data” means all data that Customer and its Users and end users process through the Software or the Cloud Service.
   6. “Deliverables” means the deliverables specified in a Statement of Work.
   7. “Documentation” means the user guides, manuals, instructions, release notes and other materials related to the Offering, its use, operation or maintenance, that Solace publishes or provides under this Agreement, all as may be updated from time to time.
   8. “Education Services” means either Solace instructor-led courses or Solace Academy or both.
   9. “Fees” means the Subscription Fees, fees for Professional Services, and any other fees agreed to by the Parties in an Offering Schedule, Statement of Work, or an Order.
   10. “Hardware” means the event broker appliance developed and manufactured by Solace, which appliance includes the Software embedded thereon.
   11. “Professional Services” means professional services such as training, integration, and configuration services provided by Solace pursuant to an Order and/or a SOW.
   12. “Software” means the software manufactured or distributed by Solace whether as standalone software, embedded in the Hardware or available for use as a Cloud Service, and listed on any Orders, or received by Customer through Support Services or through any SOW for Professional Services that may be delivered to Customer by Solace under this Agreement for On Premises Use.
   13. “Statement of Work” or “SOW” means a statement of work to which the Parties agree upon the Professional Services to be provided by Solace to Customer, the fees to be charged, milestones, Deliverables and such other terms and conditions as the Parties may agree upon.
   14. “Subscription” means the right granted by Solace to Customer to install and Use the Hardware, Software, and/or Cloud Service, or receive related Professional Services and/or Support Services, as the case may be, in accordance with the terms of this Agreement and the applicable Order, for the Subscription Term specified in the applicable Order.
   15. “Subscription Fees” means the fees payable by Customer for a Subscription as set out in the applicable Order.
   16. “Subscription Term” means the period of time that Customer is authorized by Solace to install, Use and/or receive the applicable Offering(s).
   17. “Support Plan” means the terms on which Solace, or an authorized support partner, provides Support Services to Customer and which are available at https://www.solace.com/***.
   18. “Support Services” means the technical support services for the applicable Offerings provided by Solace or its licensors, as described in, and in accordance with, the applicable Support Plan.
   19. “Use” means to load, execute, access, utilize, perform, display, and copy (as expressly permitted by this Agreement) an Offering.
   20. “User” means an individual employee or contractor of Customer to whom Customer (or Solace at Customer’s request) has supplied a user identification and password.