Contracts
Website Terms of Use
Effective January 20, 2023
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Solo.io Website Terms of Use
We are Solo.io, Inc., doing business as Solo (“Solo,” “we,” “us,” or “our”), a company registered in the State of Delaware. We operate the website https://solo.io (the “Website”). These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and concerning your access to and use of the Website and the Services. You agree that by accessing the Services, you have read, understood, and agree to be bound by all of these Terms of Use. BY USING THE WEBSITE, YOU ARE IRREVOCABLY AGREEING TO ALL OF THESE TERMS AND CONDITIONS OF THE TERMS OF USE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOU MAY NOT USE THE WEBSITE.
Supplemental terms and conditions or documents that may be posted on the Website from time to time are hereby expressly incorporated herein by reference. We reserve the right, in Solo’s sole discretion, to make changes or modifications to these Terms of Use from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed as each time you access the Website, you will be subject to, and will be deemed to have been made aware of and to have accepted, the then applicable Terms of Use.
This Website is intended for business users who are at least 18 years old. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to the Terms of Use and to fully indemnify and hold harmless Solo if your child breaches or disaffirms any term or condition of the Terms of Use. If you are using this Website on behalf of an entity, you represent that you are authorized to legally bind such entity to the Terms of Use. If Solo believes that you do not meet any of these requirements Solo may immediately terminate your use of the Website. If you are under the age of 13 years old, you may not use the Website.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, we retain all right, title, and interest in and to the Software, Solo Technology and the Website, including without limitation all graphics, user interfaces, databases, functionality, software, website designs, audio, video, text, photographs, graphics, logos, and trademarks or service marks reproduced through the System. These Terms of Use do not grant you any intellectual property license or rights in or to the Software and the Website or any of its components, except to the limited extent that these Terms of Use specifically sets forth your license rights to it. You recognize that the Software, Solo Technology and the Website and their components are protected by copyright and other laws.
USER REPRESENTATIONS
By using the Website, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Website through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Website for any illegal or unauthorized purpose; and (7) your use of the Website will not violate any applicable law or regulation.
PROHIBITED ACTIVITIES
You may not use the Website to post, transmit or link to: (i) any advertisement, promotional materials or solicitation related to any product or service that is competitive with Solo products or services; (ii) software or programs which contain any harmful code, including, but not limited to, viruses, worms, time bombs or Trojan horses; (iii) content that defames, abuses, harasses, stalks, threatens, or otherwise violates the legal rights (such as rights of privacy and publicity) of others; (iv) content that includes racially, ethnically, or otherwise offensive language; (v) content that discusses or incites illegal activity; or (vi) content that includes explicit/obscene language or solicit/post sexually explicit images (actual or simulated). In addition, you may not: (a) deploy to the Website any robot, spider, scraper, website search/retrieval application, or other application designed to retrieve, index, "data mine," information from the Website; (b) use the Website to disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation; (c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (d) alter the opinions or comments posted by others on this Website; or (e) post anything on the Website that is contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. Solo reserves the right to (i) terminate access to your account and your ability to post to this Website and (ii) refuse, delete or remove any content; with or without cause and with or without notice, for any reason or no reason, or for any action that Solo determines to be inappropriate or disruptive to this Website or to any other user of this Website. Solo may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Solo's discretion, Solo will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Website.
You agree to indemnify and hold Solo and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs of defense) Solo or any other indemnified party suffers in relation to or arising from any violation by you of these Terms of Use, and/or any claim or demand from a third-party that your use of this Website or the use of this Website by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions), violates any applicable law or regulation, or the patents, copyrights, trademark rights or other rights of any third-party.You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
THIRD-PARTY WEBSITES AND CONTENT
This Website may be linked to other websites that are not Solo websites (collectively, "Third Party Sites"). Any and all of the Third Party Sites may change from time to time. You acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Solo, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, user guides and privacy policies of any of Third Party Sites. Solo is providing links to the Third Party Sites to you as a convenience, and Solo does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. YOU AGREE THAT SOLO WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED IN WRITING, SOLO DOES NOT ENDORSE SUCH THIRD PARTY SITES OR ANY PRODUCTS OR SERVICES ASSOCIATED THEREWITH, AND YOU AGREE THAT SOLO HAS NO LIABILITY FOR ANY DAMAGES YOU MAY INCUR IN CONNECTION WITH THE USE OF ANY THIRD PARTY SITE.
PRIVACY NOTICE
We care about data privacy and security. Please review our Privacy Policy to understand our use of your personal information. You acknowledge that you have reviewed and understand our Privacy Policy.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
Notifications
We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by the Notification, a representative list of such works on the Services; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Counter Notification
If you believe your own copyrighted material has been removed from the Website as a result of a mistake or misidentification, you may submit a written counter notification to our Designated Copyright Agent using the contact information provided below (a “Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following: (1) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled; (2) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located; (3) a statement that you will accept service of process from the party that filed the Notification or the party’s agent; (4) your name, address, and telephone number; (5) a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (6) your physical or electronic signature.
Designated Copyright Agent: legal@solo.io
TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Website. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE WEBSITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON IF WE REASONABLY CONSIDER THAT SUCH PERSON IS IN BREACH OF THESE TERMS OF USE, OR OF ANY APPLICABLE LAW OR REGULATION, INCLUDING WITHOUT LIMITATION BREACHES OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE.
WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE WEBSITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION IF WE CONSIDER THAT YOU HAVE BREACHED, OR ARE LIKELY TO BREACH, ANY OF THE ABOVE.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the Website from time to time to comply with new laws or regulations or to update our offerings.
GOVERNING LAW
These Terms of Use and your use of the Services are governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without regard to its conflict of law principles.
WARRANTY DISCLAIMER
THE WEBSITE AND THE WEBSITE CONTENT ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SOLO MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE OR THE SITE CONTENT ARE COMPLETE, SUITABLE FOR YOUR PURPOSE, OR ACCURATE. ON BEHALF OF ITSELF AND ITS LICENSORS, SOLO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES WITH RESPECT TO THE SITE AND THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO RESULTS OBTAINED THROUGH USE OF THE SITE AND/OR THE SITE CONTENT RESTS WITH YOU. SOLO MAKES NO REPRESENTATION OR WARRANTY THAT THE AVAILABILITY OF THE SITE WILL BE UNINTERRUPTED, OR THAT THE SITE AND/OR THE SITE CONTENT WILL BE ERROR FREE OR SECURE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT SOLO SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF OR CONNECTED TO YOUR USE OF, OR INABILITY TO USE, THE SITE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR STATUTORY DAMAGES, INCLUDING ANY LOSS OF BUSINESS, LOSS OR PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF SOLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE. The foregoing limitations of liability do not limit the liability of Solo arising from gross negligence or willful intent, to the extent such damages may not be excluded or limited under applicable law.
FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to Solo, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Website, Website content or any services offered through the Website, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby grant to Solo a royalty-free, worldwide, transferable, irrevocable, perpetual license, including the right to grant and authorize sublicenses, to use or incorporate into the Site and/or any products or services any and all Feedback. For the avoidance of doubt, Solo shall be free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, importing, having imported, licensing, marketing, distributing, reproducing, and selling, directly or indirectly, products and services using such Feedback, and otherwise exploiting in any manner such Feedback. You understand and agree that Solo is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
EXPORT CONTROL
You hereby represent and warrant that you understand and acknowledge that some Website Content may be subject to export, re-export and import restrictions under applicable law and that you are not located in, under the control of, or a national or resident of, any country to which the United States has embargoed goods.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CONTACT US
In order to resolve a complaint regarding the Website or to receive further information, please contact us at: info@solo.io.
Privacy Policy
Effective January 20, 2023
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Privacy Policy
This privacy policy is designed to inform users of the www.solo.io and www.servicemeshhub.io websites (the “Sites”), which offer tools enabling companies to manage multiple service meshes in a single interface (the “Service”) about how Solo.io, Inc. (“Solo.io”, “we” or “us”) gathers and uses personal information collected by Solo.io through the Service. Solo.io will take reasonable steps to protect user privacy consistent with the guidelines set forth in this policy and with applicable U.S. laws. In this policy, “user” or “you” means any person viewing the Solo.io Sites, using the Service or submitting any personal information to Solo.io in connection with using the Service. By using the Service, you are indicating your consent to this Privacy Policy.
IF YOU DO NOT AGREE WITH THIS PRIVACY POLICY, YOU SHOULD NOT USE THE SERVICE.
What Information Do We Collect?
Personal Information
If you sign up for a Solo.io trial, we ask you for certain personal information (the “Personal Information”) for the account, including information such as your name, email address, job title and employer, and your geographic location. If you sign up for our newsletter, we ask for your e-mail address. If you contact Solo.io through the Sites, including to apply for career opportunities, we ask for your first and last name and e-mail address. If you disclose additional personal information to us, we may store that Personal Information.
Web Tracking Information
We, and third party service providers that we engage to provide services to us (“Contractors”), may use web tracking technologies such as cookies, web beacons, pixel tags and clear GIFs in order to operate the Service efficiently and to collect data related to usage of the Service. Such collected data (“Web Tracking Information”) may include the address of the websites you visited before and after you visited the Solo.io Sites, the type of browser you are using, your Internet Protocol (IP) address, what pages in the Service you visit and what links you clicked on, and whether you opened email communications we send to you. In order to collect Web Tracking Information and to make your use of the Service more efficient, we may store cookies on your computer. We may also use web tracking technologies that are placed in web pages on the Service or in email communications to collect information about actions that users take when they interact with the Service or such email communications, and our Contractors may also do so. We do not correlate Web Tracking Information to individual user Personal Information. Some Web Tracking Information may include data, such as IP address data, that is unique to you. You may be able to modify your browser settings to alter which web tracking technologies are permitted when you use the Service, but this may affect the performance of the Service.
Mobile Users
If you access the Service from a mobile device, we may collect unique identification numbers associated with your device, your geographic location data including GPS coordinates, or similar information regarding the location of your mobile device.
How Do We Use the Information We Collect?
Personal Information
We will use and store Personal Information for the purpose of delivering the Service (including to establish or renew your Solo.io account), and to analyze and enhance the operation of the Service. We may also use Personal Information for the internal operational and administrative purposes of the Service. We may enter Personal Information into our contact management database, and may use such database to send you marketing materials and to contact you regarding your interest in Solo.io products and services.
Aggregate Information
We will also create statistical, aggregated data relating to our users and the Service for analytical purposes. Aggregated data is derived from Personal Information but in its aggregated form it does not relate to or identify any individual. This data is used to understand our customer base and to develop, improve and market our services.
Web Tracking Information
We use Web Tracking Information to administer the Service and to understand how well our Service is working, to store your user preferences, and to develop statistical information on usage of the Service. This allows us to determine which features visitors like best to help us improve our Service, to personalize your user experience, and to measure overall effectiveness.
Legal Exception
Notwithstanding the above, Solo.io may use Personal Information to the extent required by law or legal process, or if in Solo.io’s reasonable discretion use is necessary to investigate fraud or any threat to the safety of any individual, to protect Solo.io’s legal rights or to protect the rights of third parties.
What Information Do We Disclose to Third Parties?
Solo.io’s Disclosure of Personal Information
Solo.io will not disclose Personal Information to any third party except as described in this section.
We may disclose Personal Information to our Contractors who are bound by written obligations of confidentiality. Our Contractors help us perform statistical analysis, send you email or postal mail, conduct marketing and promotional activities, operate the Service, and provide customer support. Our Contractors are prohibited from using your personal information except to provide these services to Solo.io.
Web Tracking Information
We disclose Web Tracking Information to Contractors, in order to analyze the performance of the Service and the behavior of users, and to operate and improve the Service. Certain Web Tracking information, such as the popularity ranking of certain pages of the Service, may be published on the Service and so disclosed to all users of the Service.
Aggregate Information
We may disclose aggregated data that does not contain Personal Information to any third parties, such as potential customers, business partners, advertisers, and funding sources, in order to describe our business and operations.
Successors and Law Enforcement
Notwithstanding the foregoing, Solo.io reserves the right to disclose any information Solo.io collects in connection with the Service, without further notice to you (a) to any successor to Solo.io’s business as a result of any merger, acquisition or similar transaction; and (b) to any law enforcement or regulatory authority to the extent required by law or if, in Solo.io’s reasonable discretion, disclosure is necessary to investigate fraud or any threat to the safety of any individual, to protect Solo.io’s legal rights or to protect the rights of third parties.
Consent
Solo.io may disclose your Personal Information with your consent.
How Can You Opt Out of Use and Disclosure of Your Information?
If you wish to be removed from our mailing list, please contact us at privacy@solo.io. In the event of any such removal, Solo.io may retain copies of information for its archives. If you wish to opt out of promotional emails, you may do so by following the “unsubscribe” instructions in the email, or by editing your account settings, or by sending a request to privacy@solo.io. All users receive administrative emails, and so you cannot opt out of them while you remain an active user of the Service.
Access and Updating of Information
You can update your Personal Information by using the profile editing tools on the Service. Solo.io will respond to any reasonable request by a user to review or amend his or her Personal Information held in our mailing list or database. Solo.io reserves the right to verify your identity in order to provide such access. Please contact us by sending an email to privacy@solo.io.
Security
We use reasonable security precautions to protect the security and integrity of your Personal Information and User Data in accordance with this policy and applicable law. Solo.io secures the personally identifiable information you provide on computer servers in a controlled, secure environment, protected from unauthorized access, use or disclosure. When personal information is transmitted through the Service, it is protected through the use of encryption, such as the Secure Socket Layer (SSL) protocol. However, no Internet transmission is completely secure, and we cannot guarantee that security breaches will not occur. Without limitation of the foregoing, we are not responsible for the actions of hackers and other unauthorized third parties that breach our firewalls, secure server software, and other reasonable security procedures.
BY USING OUR SERVICE, YOUR ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO ASSUME THIS RISK.
Links
The Service may contain links to other websites. Solo.io is not responsible for the privacy practices or the content of those websites. Users should be aware of this when they leave our Sites and review the privacy statements of each website they visit that collects information. This Privacy Policy applies solely to personal information collected by Solo.io.
Amendments
Solo.io may modify or amend this policy from time to time. If we make any material changes, as determined by Solo.io, in the way in which Personal Information or User Data is collected, used or transferred, we will notify you of these changes by modification of this Privacy Policy, which will be available for review by you at the Service.
Service Visitors from outside the United States
Solo.io and its servers are located in the United States and are subject to the applicable state and federal laws of the United States. If you choose to access the Service, you consent to the use and disclosure of information in accordance with this privacy policy and subject to such laws.
California Privacy Rights
Please see our California Privacy Rights Statement for information about California Privacy Rights, and other required disclosures.
Children
Solo.io does not knowingly collect or maintain personally identifiable information from persons under 13 years of age, and no part of the Service is directed at persons under 18. If you are under 18 years of age, then please do not use the Service. If Solo.io learns that personal information of persons less than 13 years of age has been collected without verifiable parental consent, then Solo.io will take the appropriate steps to delete this information. To make such a request, please contact us at privacy@solo.io.
Contact Information
Solo.io welcomes your comments regarding this Privacy Policy. If you believe that Solo.io has not adhered to this Privacy Policy, please contact us at privacy@solo.io. We will use commercially reasonable efforts to promptly investigate and remedy the problem.
Product Descriptions
Effective September 15, 2023
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Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support. Istio Support includes access to Solo-provided images of Istio, which are considered Solo Software.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Core (formerly known as Gloo Production Istio Support) includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective August 29, 2023 to September 15, 2023
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Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support. Istio Support includes access to Solo-provided images of Istio, which are considered Solo Software.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Production Istio Support includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective July 28, 2023 to August 29, 2023
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Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Production Istio Support includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective January 20, 2023 to July 28, 2023
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Product Descriptions
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Solo.io Subscription Terms
Effective August 29, 2023
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SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products. For the avoidance of doubt, all Subscriptions include access to Software.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as in the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless made in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means software provided by Solo that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software, except to the extent any portion thereof is modified by Solo and provided to Subscriber for use during the Subscription Term.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable Scope Limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means software provided by Solo that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software, except to the extent any portion thereof is modified by Solo and provided to Subscriber for use during the Subscription Term.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the Scope Limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Subscriber. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective August 1, 2023 to August 29, 2023
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as in the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless made in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable Scope Limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the Scope Limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Subscriber. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective March 13, 2023 to August 1, 2023
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo Reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as is the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable quantitative volume limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the quantitative volume limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective February 1, 2023 to March 13, 2023
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SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo Reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as is the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) DPA (if applicable), (iv) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable quantitative volume limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the quantitative volume limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective January 20, 2023 to February 1, 2023
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at [TECHNICAL SUPPORT POLICY LINK] (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo Reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as is the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) DPA (if applicable), (iv) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable quantitative volume limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the quantitative volume limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Technical Support Policy
Effective June 26, 2023
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form for the Ship-To entity.
- Severity Levels
Severity Level 1: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
Severity Level 2: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Severity Level 3: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Severity Level 4: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. This is the default severity level until otherwise indicated by Solo in writing.
- Targeted Response Times
Severity Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
1* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
2 | 4 Business Hours Local Time | 2 hours (24/7/365) |
3 | 8 Business Hours Local Time | 4 Business Hours Local Time |
4 | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Severity Level 1 issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Severity 1 as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Severity 1 issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Dedicated Engineering Support Offering
Subscriber may purchase for an additional fee at any time during the Subscription Term of a Software Subscription access to a dedicated* Solo engineering resource (“Dedicated Engineering Support Subscription”). This must be purchased with (or during the term of an existing) Software Subscription to support the Software for the use case permitted on the Order Form for the business unit that purchased such Software Subscription (unless otherwise authorized by Solo in writing). The Dedicated Engineering Support Subscription grants Subscriber access during Local Hours to a named engineering resource from Solo to perform platform architecture, design, troubleshooting and enablement on a remote basis without access to Subscriber’s environments, including (but not limited to):
- Leading virtual workshops for Subscriber’s teams throughout the year
- Developing instructional guides specific to Subscriber’s environment
- Over the shoulder guidance for platform enhancements and troubleshooting
- Providing configuration for installation of platform and specific integrations
- Providing production release support
- Develop GitOps and release management strategies for Gloo Platform
- Facilitating software enhancement and defect resolution requests with Solo engineering teams
Such names engineering resource should average approximately 8 hours per week for the duration of the Subscription. All other terms that apply to Support Services apply to the Dedicated Engineering Support Subscription. *Solo may replace or substitute such dedicated resource in its sole discretion on a permanent or temporary basis.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective April 18, 2023 to June 26, 2023
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form for the Ship-To entity.
- Severity Levels
Severity Level 1: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
Severity Level 2: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Severity Level 3: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Severity Level 4: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. This is the default severity level until otherwise indicated by Solo in writing.
- Targeted Response Times
Severity Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
1* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
2 | 4 Business Hours Local Time | 2 hours (24/7/365) |
3 | 8 Business Hours Local Time | 4 Business Hours Local Time |
4 | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Severity Level 1 issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Severity 1 as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Severity 1 issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective February 1, 2023 to April 18, 2023
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form for the Ship-To entity.
- Severity Levels
Severity Level 1: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations and no procedural workaround exists.
Severity Level 2: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations and no procedural workaround exists.
Severity Level 3: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Severity Level 4: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. This is the default severity level until otherwise indicated by Solo in writing.
- Targeted Response Times
Severity Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
1* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
2 | 4 Business Hours Local Time | 2 hours (24/7/365) |
3 | 8 Business Hours Local Time | 4 Business Hours Local Time |
4 | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Severity Level 1 issues, Subscriber must contact Solo’s Product Support Hotline at 1-601-476-5646.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Single Transaction Reseller Agreement
Effective August 15, 2023
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SINGLE TRANSACTION RESELLER AGREEMENT
This Single Transaction Reseller Agreement, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between the Solo entity (“Solo”), and the entity identified as “Reseller” (“Reseller”), each as set forth on the signature block of the Order Form, as of the date specified on uch Order Form (“Effective Date”). This agreement permits Reseller to resell certain Solo Offerings (as defined below) in a specified territory subject to the following terms and conditions.
1. DEFINITIONS
1.1“Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Agreement Term” means the term of this Agreement, including the initial term and subsequent renewal terms.
1.3 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Reseller (or its Affiliates) to resell Solo Offerings to the Subscriber listed on such Order Form, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.4 “Reseller Program Guide” means the documentation that contains specific details, requirements and discounts for participation as a reseller of Solo, which may be modified by Solo from time to time, in its reasonable discretion.
1.5 “Solo Offerings” means the products and/or services listed in the Reseller Program Guide.
1.6 "Subscriber” means an end user customer identified as the Ship-To entity in an Order Form.
1.7 “Subscriber Agreement” means the Subscriber terms set forth at https://legal.solo.io/#subscription-terms.
1.8 “Support Services” means the maintenance and support services purchased, if any, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
1.9 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Solo Offerings is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. RESELLER OBLIGATIONS.
2.1 Appointment. Subject to the terms and conditions of this Agreement, including the Reseller Program Guide, Solo appoints Reseller as an authorized, non-exclusive, reseller of Solo Offerings to distribute to Subscribers during the Agreement Term, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Solo Offerings directly to Subscribers and potential Subscribers in the Territory, but solely (i) for use by such Subscribers only and without any right of further resale and (ii) pursuant to the applicable Subscriber Agreement(s). Reseller shall not market or resell Solo Offerings outside the Territory, or to a party that Reseller knows or has reason to know will use the Solo Offerings outside the Territory.
2.2 Second Tier Reselling. If permitted on an Order Form, Solo agrees that Reseller may resell Solo Offerings to a third party reseller approved by Solo and identified in an applicable Order Form (“Second Tier Reseller”) provided that: (i) Reseller must cause the Second Tier Reseller to enter into a written executed agreement with the Reseller (“Second Tier Reseller Agreement”), binding such Second Tier Reseller to terms and conditions substantially similar to, and no less protective of Solo’s interests than, those in this Agreement, and (ii) the Second Tier Reseller must obtain consent from the Subscriber in a legally enforceable manner to a Subscriber Agreement for each Solo Offering. Reseller shall be free to determine the price at which it resells the Solo Offerings to such Second Tier Reseller. Any right of Second Tier Reseller to market or resell the Solo Offerings pursuant to the foregoing provision shall terminate immediately upon any termination or expiration of this Agreement, and Solo shall not be obligated to honor or fulfill any orders for Solo Offerings placed by any Second Tier Reseller which are not already the subject of an Order Form fully executed by Solo and Reseller prior to the date of termination.
2.3 Reserved.
2.4 Trademarks. Subject to Reseller’s compliance with this Agreement, Solo hereby grants to Reseller a non-exclusive, non-transferable, royalty-free right and license to use certain Solo.io trademarks made available to Reseller (the “Solo Trademarks”) in connection with the promotion and marketing of the Solo Offerings during the Agreement Term. All right, title and interest to the Solo Trademarks will remain with Solo and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to Reseller to use the Solo Trademarks will terminate. Prior to any use of the Solo Trademarks, Reseller will provide Solo with a sample of all promotional materials that make use of the Solo Trademarks for Solo to approve each such use; provided, that once particular promotional materials have been approved, Reseller may reuse them in a similar context (without modification) without obtaining separate approval from Solo. Reseller will not challenge, directly or indirectly, Solo.io rights in or with respect of the Solo Trademarks.
2.5 Subscriber Agreement. When executing an Order Form with Solo, Reseller represents and warrants that Reseller will obtain consent from Subscriber in a legally enforceable way to the applicable Subscriber Agreement. To the extent Subscriber and Solo have separate written terms governing the purchase of the Solo Offerings listed in an Order Form (“Negotiated Subscriber Agreement”), Reseller warrants and represents that Reseller will (i) verify that such Negotiated Subscriber Agreement governs the Solo Offerings under the Order Form prior to execution and (ii) reference that such Negotiated Subscriber Agreement governs on Reseller’s ordering document with Subscriber or, to the extent that such Negotiated Subscriber Agreement does not govern the Solo Offering, obtain consent from the Subscriber for the Subscriber Agreement (Subscriber Agreement and Negotiated Subscriber Agreement, collectively, the “Applicable Subscriber Agreement”).
2.6 No Unauthorized Representations and Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Solo Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the Applicable Subscriber Agreement. Reseller shall be solely responsible for, and Solo shall have no legal obligation to honor, any warranties that Reseller provides to Subscribers to the extent that such warranties are broader or greater in scope than those made by Solo to Reseller hereunder or by Solo to Subscriber under the Applicable Subscriber Agreement.
2.7 Insurance. Reseller shall at its own cost during the the Agreement Term maintain insurance with a reputable company that is customary for its business to cover the business activities contemplated by this Agreement.
2.8 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Reseller and its Affiliates, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
2.9 Records. During the Agreement Term and for at least five (5) years thereafter, Reseller will keep and maintain commercially reasonable written records regarding Reseller’s use and distribution of the Solo Offerings and related business activities ("Records"). No more than once per year, Solo may, at its own expense, verify the Records to verify Reseller’s compliance with this Agreement. This verification will take the form of requests for information, documents or Records (to which Reseller will respond promptly). The parties will act reasonably and cooperate with each other in respect of such verifications.
2.10 Reserved.
3. SUPPORT SERVICES
3.1 Support Services Delivered by Solo. If Solo provides Support Services to Subscriber, Solo will provide Support Services in accordance with the technical support policy more fully described on an Order Form (the “Technical Support Policy”). Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the term of the Order Form.
3.2 Support Services Managed by Reseller. If indicated in an Order Form, Reseller may manage Support Services on behalf of Subscriber. In such instance, Subscriber will not have access to the Support Services directly and the Technical Support Policy will apply to Reseller’s submission of support tickets to Solo. Reseller will have the discretion to define a support structure with the Subscriber directly.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under the Solo Offerings, all add-ons to any Solo Offerings or the like, any training and other educational materials, and any deliverables created or made available as part of the Solo Offerings and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Solo Offerings and/or Support Services. Reseller agrees not to infringe, misappropriate or violate any intellectual property rights of Solo.
4. CONFIDENTIAL INFORMATION
4.1. Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than to the extent required for Solo to provide the Solo Offerings to Subscriber and for Reseller to resell the Solo Offerings and, if applicable, provide Support Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Orders, Fees and Payment. Reseller shall place orders for Solo Offerings under this Agreement by executing an Order Form. Reseller agrees to pay for all fees due under each Order Form or otherwise incurred by Reseller or the applicable Subscriber under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Solo Offerings purchased, not actual usage.
5.2 Prices and Discounts. Prices for Solo Offerings are set at then-current prices, less any applicable discounts offered to Reseller. Reseller is solely responsible for establishing the prices at which it resells Solo Offerings. Solo may change prices or discounting offered at any time.
5.3 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Reseller will reimburse Solo for any costs to collect late payments.
5.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Solo Offerings purchased by Reseller under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Reseller provides evidence of an exemption from the relevant Taxes, Reseller will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Reseller is responsible for under this Agreement and which Reseller did not pay Solo, Solo may invoice Reseller and Reseller will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.5 Future Functionality. Reseller’s purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Solo regarding future functionality or features. Reseller is purchasing Solo Offerings based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated or has not expired.
6.2 Termination.
6.2.1 Reserved.
6.2.2 For Breach. If a party fails to a cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate any Order Form in effect.
6.2.3 Effect of Termination. Upon expiration or termination of this Agreement, Reseller shall cease to be an authorized reseller of Solo Offerings and will have no right to market, sell or distribute the Solo Offerings and will cease use of all Solo Confidential Information. Any Solo Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the Applicable Subscriber Agreement. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties. Any warranty for Solo Offerings will be provided directly from Solo to Subscriber under the applicable Subscriber Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
8. INDEMNIFICATION
8.1 Solo Indemnification.
8.1.1 IP Claims. Solo will, at Solo’s expense, either defend Reseller from or settle any claim, proceeding or suit brought by a third party against Reseller, alleging that Reseller’s marketing or resale of the Solo Offerings during the Agreement Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Reseller from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Reseller to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Reseller prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt of the IP Claim by Reseller will be at Reseller’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Reseller once the IP Claim is tendered to Solo.
8.1.2 Exclusions. Solo will have no obligation under Section 8.1.1 to the extent an IP Claim is based upon: (i) Reseller’s marketing or resale of a Solo Offering that has been that has been modified if such modification is not made by Solo or its authorized subcontractor, or (ii) use of a Solo Offering or Solo Technology other than in accordance with this Agreement.
8.1.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing marketing and reselling the Solo Offerings or Solo Technology; (ii) modify the infringing technology to avoid the infringement, or (iii) terminate Reseller’s right to market or resell the Solo Offerings or Solo Technology. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Reseller, for any actual or alleged infringement of any intellectual property right related to a Solo Offering and/or Solo Technology.
8.2 Reseller Indemnification. Reseller shall defend, indemnify and hold Solo harmless from any and all costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees and costs of litigation) resulting from (i) Reseller’s failure to comply with Sections 2.5 and/or 2.6, or (ii) a third-party claim resulting from Second Tier Reseller’s breach of the Second Tier Reseller Agreement (each, a “Solo Claim”).
8.3 Indemnification Conditions. The indemnified party must: (i) give the indemnifying party prompt notice of the IP Claim or Solo Claim (collectively, the “Claims”), provided that failure to do so will only relieve the indemnifying party of its obligation under this Section 8 to the extent the indemnifying party ability to defend the Claim is materially prejudiced, (ii) grant the indemnifying party the full and complete control over the defense and settlement over the Claim; provided that the indemnifying party will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of the indemnified party other than the obligation for Reseller or Subscriber to cease using the affected Solo Offering or Solo Technology unless the indemnified party consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the Claim. The indemnified party may participate in the defense of the Claim at the indemnified party’s own expense.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER UNDER THE ORDER FORM FOR THE AFFECTED SOLO OFFERINGS OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THIS ALLOCATION IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Solo may assign this Agreement to any Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of Solo’s assets or stock. Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns. Nothing will restrict Solo from subcontracting its obligations under this Agreement.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Solo Offerings without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Reseller may not access or use any Solo Offerings to compete with Solo.
10.4 Export Compliance. The Solo Offerings and Solo Technology are subject to the export laws and regulations of the United States. Reseller represents that, it is not located in, and will not export, re-export, access or use, or permit any person to export, re-export, access or use, any Solo Offering or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Reseller acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
10.7 Government Rights. If a software Solo Offering or Solo Technology is licensed under a U.S. government contract, Reseller acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Solo Offering, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Reseller acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Solo Offering under this Agreement and in any subcontract under which a software Solo Offering are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of this Agreement. Such notices will be deemed delivered if acknowledged received by return e-mail, or if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 Publicity. Reseller agrees that Solo may identify Reseller as a reseller of Solo Offerings on its website and other promotional materials.
10.10 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.11 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.12 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.13 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) this Agreement, and (iii) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase of Solo Offerings, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). The Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
Effective July 11, 2023 to August 15, 2023
DownloadTable of Contents
SINGLE TRANSACTION RESELLER AGREEMENT
This Single Transaction Reseller Agreement, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between the Solo entity (“Solo”), and the entity identified as “Reseller” (“Reseller”), each as set forth on the signature block of the Order Form, as of the date specified on uch Order Form (“Effective Date”). This agreement permits Reseller to resell certain Solo Offerings (as defined below) in a specified territory subject to the following terms and conditions.
1. DEFINITIONS
1.1“Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Agreement Term” means the term of this Agreement, including the initial term and subsequent renewal terms.
1.3 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Reseller (or its Affiliates) to resell Solo Offerings to the Subscriber listed on such Order Form, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.4 “Reseller Program Guide” means the documentation that contains specific details, requirements and discounts for participation as a reseller of Solo, which may be modified by Solo from time to time, in its reasonable discretion.
1.5 “Solo Offerings” means the products and/or services listed in the Reseller Program Guide.
1.6 "Subscriber” means an end user customer identified as the Ship-To entity in an Order Form.
1.7 “Subscriber Agreement” means the Subscriber terms set forth at https://legal.solo.io/#subscription-terms.
1.8 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
1.9 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Solo Offerings is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. RESELLER OBLIGATIONS.
2.1 Appointment. Subject to the terms and conditions of this Agreement, including the Reseller Program Guide, Solo appoints Reseller as an authorized, non-exclusive, reseller of Solo Offerings to distribute to Subscribers during the Agreement Term, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Solo Offerings directly to Subscribers and potential Subscribers in the Territory, but solely (i) for use by such Subscribers only and without any right of further resale and (ii) pursuant to the applicable Subscriber Agreement(s). Reseller shall not market or resell Solo Offerings outside the Territory, or to a party that Reseller knows or has reason to know will use the Solo Offerings outside the Territory.
2.2 Second Tier Reselling. If permitted on an Order Form, Solo agrees that Reseller may resell Solo Offerings to a third party reseller approved by Solo and identified in an applicable Order Form (“Second Tier Reseller”) provided that: (i) Reseller must cause the Second Tier Reseller to enter into a written executed agreement with the Reseller (“Second Tier Reseller Agreement”), binding such Second Tier Reseller to terms and conditions substantially similar to, and no less protective of Solo’s interests than, those in this Agreement, and (ii) the Second Tier Reseller must obtain consent from the Subscriber in a legally enforceable manner to a Subscriber Agreement for each Solo Offering. Reseller shall be free to determine the price at which it resells the Solo Offerings to such Second Tier Reseller. Any right of Second Tier Reseller to market or resell the Solo Offerings pursuant to the foregoing provision shall terminate immediately upon any termination or expiration of this Agreement, and Solo shall not be obligated to honor or fulfill any orders for Solo Offerings placed by any Second Tier Reseller which are not already the subject of an Order Form fully executed by Solo and Reseller prior to the date of termination.
2.3 Reserved.
2.4 Trademarks. Subject to Reseller’s compliance with this Agreement, Solo hereby grants to Reseller a non-exclusive, non-transferable, royalty-free right and license to use certain Solo.io trademarks made available to Reseller (the “Solo Trademarks”) in connection with the promotion and marketing of the Solo Offerings during the Agreement Term. All right, title and interest to the Solo Trademarks will remain with Solo and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to Reseller to use the Solo Trademarks will terminate. Prior to any use of the Solo Trademarks, Reseller will provide Solo with a sample of all promotional materials that make use of the Solo Trademarks for Solo to approve each such use; provided, that once particular promotional materials have been approved, Reseller may reuse them in a similar context (without modification) without obtaining separate approval from Solo. Reseller will not challenge, directly or indirectly, Solo.io rights in or with respect of the Solo Trademarks.
2.5 Subscriber Agreement. When executing an Order Form with Solo, Reseller represents and warrants that Reseller will obtain consent from Subscriber in a legally enforceable way to the applicable Subscriber Agreement. To the extent Subscriber and Solo have separate written terms governing the purchase of the Solo Offerings listed in an Order Form (“Negotiated Subscriber Agreement”), Reseller warrants and represents that Reseller will (i) verify that such Negotiated Subscriber Agreement governs the Solo Offerings under the Order Form prior to execution and (ii) reference that such Negotiated Subscriber Agreement governs on Reseller’s ordering document with Subscriber or, to the extent that such Negotiated Subscriber Agreement does not govern the Solo Offering, obtain consent from the Subscriber for the Subscriber Agreement (Subscriber Agreement and Negotiated Subscriber Agreement, collectively, the “Applicable Subscriber Agreement”).
2.6 No Unauthorized Representations and Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Solo Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the Applicable Subscriber Agreement. Reseller shall be solely responsible for, and Solo shall have no legal obligation to honor, any warranties that Reseller provides to Subscribers to the extent that such warranties are broader or greater in scope than those made by Solo to Reseller hereunder or by Solo to Subscriber under the Applicable Subscriber Agreement.
2.7 Insurance. Reseller shall at its own cost during the the Agreement Term maintain insurance with a reputable company that is customary for its business to cover the business activities contemplated by this Agreement.
2.8 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Reseller and its Affiliates, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
2.9 Records. During the Agreement Term and for at least five (5) years thereafter, Reseller will keep and maintain commercially reasonable written records regarding Reseller’s use and distribution of the Solo Offerings and related business activities ("Records"). No more than once per year, Solo may, at its own expense, verify the Records to verify Reseller’s compliance with this Agreement. This verification will take the form of requests for information, documents or Records (to which Reseller will respond promptly). The parties will act reasonably and cooperate with each other in respect of such verifications.
2.10 Reserved.
3. SUPPORT SERVICES
3.1 Support Services Delivered by Solo. If Solo provides Support Services to Subscriber, Solo will provide Support Services in accordance with the technical support policy more fully described on an Order Form (the “Technical Support Policy”). Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the term of the Order Form.
3.2 Support Services Managed by Reseller. If indicated in an Order Form, Reseller may manage Support Services on behalf of Subscriber. In such instance, Subscriber will not have access to the Support Services directly and the Technical Support Policy will apply to Reseller’s submission of support tickets to Solo. Reseller will have the discretion to define a support structure with the Subscriber directly.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under the Solo Offerings, all add-ons to any Solo Offerings or the like, any training and other educational materials, and any deliverables created or made available as part of the Solo Offerings and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Solo Offerings and/or Support Services. Reseller agrees not to infringe, misappropriate or violate any intellectual property rights of Solo.
4. CONFIDENTIAL INFORMATION
4.1. Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than to the extent required for Solo to provide the Solo Offerings to Subscriber and for Reseller to resell the Solo Offerings and, if applicable, provide Support Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Orders, Fees and Payment. Reseller shall place orders for Solo Offerings under this Agreement by executing an Order Form. Reseller agrees to pay for all fees due under each Order Form or otherwise incurred by Reseller or the applicable Subscriber under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Solo Offerings purchased, not actual usage.
5.2 Prices and Discounts. Prices for Solo Offerings are set at then-current prices, less any applicable discounts offered to Reseller. Reseller is solely responsible for establishing the prices at which it resells Solo Offerings. Solo may change prices or discounting offered at any time.
5.3 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Reseller will reimburse Solo for any costs to collect late payments.
5.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Solo Offerings purchased by Reseller under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Reseller provides evidence of an exemption from the relevant Taxes, Reseller will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Reseller is responsible for under this Agreement and which Reseller did not pay Solo, Solo may invoice Reseller and Reseller will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.5 Future Functionality. Reseller’s purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Solo regarding future functionality or features. Reseller is purchasing Solo Offerings based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated or has not expired.
6.2 Termination.
6.2.1 Reserved.
6.2.2 For Breach. If a party fails to a cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.2.3 Effect of Termination. Upon expiration or termination of this Agreement, Reseller shall cease to be an authorized reseller of Solo Offerings and will have no right to market, sell or distribute the Solo Offerings and will cease use of all Solo Confidential Information. Any Solo Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the Applicable Subscriber Agreement. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties. Any warranty for Solo Offerings will be provided directly from Solo to Subscriber under the applicable Subscriber Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
8. INDEMNIFICATION
8.1 Solo Indemnification.
8.1.1 IP Claims. Solo will, at Solo’s expense, either defend Reseller from or settle any claim, proceeding or suit brought by a third party against Reseller, alleging that Reseller’s marketing or resale of the Solo Offerings during the Agreement Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Reseller from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Reseller to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Reseller prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt of the IP Claim by Reseller will be at Reseller’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Reseller once the IP Claim is tendered to Solo.
8.1.2 Exclusions. Solo will have no obligation under Section 8.1.1 to the extent an IP Claim is based upon: (i) Reseller’s marketing or resale of a Solo Offering that has been that has been modified if such modification is not made by Solo or its authorized subcontractor, or (ii) use of a Solo Offering or Solo Technology other than in accordance with this Agreement.
8.1.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing marketing and reselling the Solo Offerings or Solo Technology; (ii) modify the infringing technology to avoid the infringement, or (iii) terminate Reseller’s right to market or resell the Solo Offerings or Solo Technology. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Reseller, for any actual or alleged infringement of any intellectual property right related to a Solo Offering and/or Solo Technology.
8.2 Reseller Indemnification. Reseller shall defend, indemnify and hold Solo harmless from any and all costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees and costs of litigation) resulting from (i) Reseller’s failure to comply with Sections 2.5 and/or 2.6, or (ii) a third-party claim resulting from Second Tier Reseller’s breach of the Second Tier Reseller Agreement (each, a “Solo Claim”).
8.3 Indemnification Conditions. The indemnified party must: (i) give the indemnifying party prompt notice of the IP Claim or Solo Claim (collectively, the “Claims”), provided that failure to do so will only relieve the indemnifying party of its obligation under this Section 8 to the extent the indemnifying party ability to defend the Claim is materially prejudiced, (ii) grant the indemnifying party the full and complete control over the defense and settlement over the Claim; provided that the indemnifying party will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of the indemnified party other than the obligation for Reseller or Subscriber to cease using the affected Solo Offering or Solo Technology unless the indemnified party consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the Claim. The indemnified party may participate in the defense of the Claim at the indemnified party’s own expense.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER UNDER THE ORDER FORM FOR THE AFFECTED SOLO OFFERINGS OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THIS ALLOCATION IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Solo may assign this Agreement to any Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of Solo’s assets or stock. Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns. Nothing will restrict Solo from subcontracting its obligations under this Agreement.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Solo Offerings without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Reseller may not access or use any Solo Offerings to compete with Solo.
10.4 Export Compliance. The Solo Offerings and Solo Technology are subject to the export laws and regulations of the United States. Reseller represents that, it is not located in, and will not export, re-export, access or use, or permit any person to export, re-export, access or use, any Solo Offering or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Reseller acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
10.7 Government Rights. If a software Solo Offering or Solo Technology is licensed under a U.S. government contract, Reseller acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Solo Offering, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Reseller acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Solo Offering under this Agreement and in any subcontract under which a software Solo Offering are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of this Agreement. Such notices will be deemed delivered if acknowledged received by return e-mail, or if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 Publicity. Reseller agrees that Solo may identify Reseller as a reseller of Solo Offerings on its website and other promotional materials.
10.10 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.11 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.12 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.13 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) this Agreement, and (iii) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). The Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
Effective February 16, 2023 to July 11, 2023
DownloadTable of Contents
SINGLE TRANSACTION RESELLER AGREEMENT
This Single Transaction Reseller Agreement, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between the Solo entity (“Solo”), and the entity identified as “Reseller” (“Reseller”), each as set forth on the signature block of the Order Form, as of the date specified on uch Order Form (“Effective Date”). This agreement permits Reseller to resell certain Solo Offerings (as defined below) in a specified territory subject to the following terms and conditions.
1. DEFINITIONS
1.1“Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Agreement Term” means the term of this Agreement, including the initial term and subsequent renewal terms.
1.3 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Reseller (or its Affiliates) to resell Solo Offerings to the Subscriber listed on such Order Form, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.4 “Reseller Program Guide” means the documentation that contains specific details, requirements and discounts for participation as a reseller of Solo, which may be modified by Solo from time to time, in its reasonable discretion.
1.5 “Solo Offerings” means the products and/or services listed in the Reseller Program Guide.
1.6 "Subscriber” means an end user customer identified as the Ship-To entity in an Order Form.
1.7 “Subscriber Agreement” means the Subscriber terms set forth at https://legal.solo.io/#subscription-terms.
1.8 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
1.9 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. RESELLER OBLIGATIONS.
2.1 Appointment. Subject to the terms and conditions of this Agreement, including the Reseller Program Guide, Solo appoints Reseller as an authorized, non-exclusive, reseller of Solo Offerings to distribute to Subscribers during the Agreement Term, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Solo Offerings directly to Subscribers and potential Subscribers in the Territory, but solely (i) for use by such Subscribers only and without any right of further resale and (ii) pursuant to the applicable Subscriber Agreement(s). Reseller shall not market or resell Solo Offerings outside the Territory, or to a party that Reseller knows or has reason to know will use the Solo Offerings outside the Territory.
2.2 Second Tier Reselling. If permitted on an Order Form, Solo agrees that Reseller may resell Solo Offerings to a third party reseller approved by Solo and identified in an applicable Order Form (“Second Tier Reseller”) provided that: (i) Reseller must cause the Second Tier Reseller to enter into a written executed agreement with the Reseller (“Second Tier Reseller Agreement”), binding such Second Tier Reseller to terms and conditions substantially similar to, and no less protective of Solo’s interests than, those in this Agreement, (ii) the Second Tier Reseller must obtain consent from the Subscriber in a legally enforceable manner to a Subscriber Agreement for each Solo Offering. Reseller shall be free to determine the price at which it resells the Solo Offerings to such Second Tier Reseller. Any right of Second Tier Reseller to market or resell the Solo Offerings pursuant to the foregoing provision shall terminate immediately upon any termination or expiration of this Agreement, and Solo shall not be obligated to honor or fulfill any orders for Solo Offerings placed by any Second Tier Reseller which are not already the subject of an Order Form fully executed by Solo and Reseller prior to the date of termination.
2.3 Reserved.
2.4 Trademarks. Subject to Reseller’s compliance with this Agreement, Solo hereby grants to Reseller a nonexclusive, nontransferable, royalty-free right and license to use certain Solo.io trademarks made available to Reseller (the “Solo Trademarks”) in connection with the promotion and marketing of the Solo Offerings during the Agreement Term. All right, title and interest to the Solo Trademarks will remain with Solo and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to Reseller to use the Solo Trademarks will terminate. Prior to any use of the Solo Trademarks, Reseller will provide Solo with a sample of all promotional materials that make use of the Solo Trademarks for Solo to approve each such use; provided, that once particular promotional materials have been approved, Reseller may reuse them in a similar context (without modification) without obtaining separate approval from Solo. Reseller will not challenge, directly or indirectly, Solo.io rights in or with respect of the Solo Trademarks.
2.5 Subscriber Agreement. When executing an Order Form with Solo, Reseller represents and warrants that Reseller will obtain consent from Subscriber in a legally enforceable way to the applicable Subscriber Agreement. To the extent Subscriber and Solo have separate written terms governing the purchase of the Solo Offerings listed in an Order Form (“Negotiated Subscriber Agreement”), Reseller warrants and represents that Reseller will (i) verify that such Negotiated Subscriber Agreement governs the Solo Offerings under the Order Form prior to execution and (ii) reference that such Negotiated Subscriber Agreement governs on Reseller’s ordering document with Subscriber or, to the extent that such Negotiated Subscriber Agreement does not govern the Solo Offering, obtain consent from the Subscriber for the Subscriber Agreement (Subscriber Agreement and Negotiated Subscriber Agreement, collectively, the “Applicable Subscriber Agreement”).
2.6 No Unauthorized Representations and Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Solo Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the applicable Subscriber Agreement. Reseller shall be solely responsible for, and Solo shall have no legal obligation to honor, any warranties that Reseller provides to Subscribers to the extent that such warranties are broader or greater in scope than those made by Solo to Reseller hereunder or by Solo to Subscriber under the Applicable Subscriber Agreement.
2.7 Insurance. Reseller shall at its own cost during the the Agreement Term maintain insurance with a reputable company that is customary for its business to cover the business activities contemplated by this Agreement.
2.8 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Reseller and its Affiliates, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
2.9 Records. During the Agreement Term and for at least five (5) years thereafter, Reseller will keep and maintain commercially reasonable written records regarding Reseller’s use and distribution of the Solo Offerings and related business activities ("Records"). No more than once per year, Solo may, at its own expense, verify the Records to verify Reseller’s compliance with this Agreement. This verification will take the form of requests for information, documents or Records (to which Reseller will respond promptly). The parties will act reasonably and cooperate with each other in respect of such verifications.
2.10 Reserved.
3. SUPPORT SERVICES
3.1 Support Services Delivered by Solo. If Solo provides Support Services to Subscriber, Solo will provide Support Services in accordance with the technical support policy more fully described on an Order Form (the “Technical Support Policy”). Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the term of the Order Form.
3.2 Support Services Managed by Reseller. If indicated in an Order Form, Reseller may manage Support Services on behalf of Subscriber. In such instance, Subscriber will not have access to the Support Services directly and the Technical Support Policy will apply to Reseller’s submission of support tickets to Solo. Reseller will have the discretion to define a support structure with the Subscriber directly.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under the Solo Offerings, all add-ons to any Solo Offerings or the like, any training and other educational materials, and any deliverables created or made available as part of the Solo Offerings and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Solo Offerings and/or Support Services. Reseller agrees not to infringe, misappropriate or violate any intellectual property rights of Solo.
4. CONFIDENTIAL INFORMATION
4.1. Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than to the extent required for Solo to provide the Solo Offerings to Subscriber and for Reseller to resell the Solo Offerings and, if applicable, provide Support Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Orders, Fees and Payment. Reseller shall place order for Solo Offerings under this Agreement by executing an Order Form. Reseller agrees to pay for all fees due under each Order Form or otherwise incurred by Reseller or the applicable Subscriber under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Solo Offerings purchased, not actual usage.
5.2 Prices and Discounts. Prices for Solo Offerings are set at then-current prices, less any applicable discounts offered to Reseller. Reseller is solely responsible for establishing the prices at which it resells Solo Offerings. Solo may change prices or discounting offered at any time.
5.3 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Reseller will reimburse Solo for any costs to collect late payments.
5.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Solo Offerings purchased by Reseller under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Reseller provides evidence of an exemption from the relevant Taxes, Reseller will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Reseller is responsible for under this Agreement and which Reseller did not pay Solo, Solo may invoice Reseller and Reseller will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.5 Future Functionality. Reseller’s purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Solo regarding future functionality or features. Reseller is purchasing Solo Offerings based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated or has not expired.
6.2 Termination.
6.2.1 Reserved.
6.2.2 For Breach. If a party fails to a cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.2.3 Effect of Termination. Upon expiration or termination of this Agreement, Reseller shall cease to be an authorized reseller of Solo Offerings and will have no right to market, sell or distribute the Solo Offerings and will cease use of all Solo Confidential Information. Any Solo Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the Applicable Subscriber Agreement. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties. Any warranty for Solo Offerings will be provided directly from Solo to Subscriber under the applicable Subscriber Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
8. INDEMNIFICATION
8.1 Solo Indemnification.
8.1.1 IP Claims. Solo will, at Solo’s expense, either defend Reseller from or settle any claim, proceeding or suit brought by a third party against Reseller, alleging that Reseller’s marketing or resale of the Solo Offerings during the Agreement Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Reseller from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Reseller to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Reseller prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Reseller’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Reseller once the IP Claim is tendered to Solo.
8.1.2 Exclusions. Solo will have no obligation under Section 8.1.1 to the extent an IP Claim is based upon: (i) Reseller’s marketing or resale of a Solo Offering that has been that has been modified if such modification is not made by Solo or its authorized subcontractor, or (ii) use of a Product or Solo Technology other than in accordance with this Agreement.
8.1.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing marketing and reselling the Solo Offerings or Solo Technology; (ii) modify the infringing technology to avoid the infringement, or (iii) terminate Reseller’s right to market or resell the Solo Offerings or Solo Technology. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Reseller, for any actual or alleged infringement of any intellectual property right related to a Solo Offering and/or Solo Technology.
8.2 Reseller Indemnification. Reseller shall defend, indemnify and hold Solo harmless from any and all costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees and costs of litigation) resulting from (i) Reseller’s failure to comply with Sections 2.5 and/or 2.6, or (ii) a third-party claim resulting from Second Tier Reseller’s breach of the Second Tier Reseller Agreement (each, a “Solo Claim”).
8.3 Indemnification Conditions. The indemnified party must: (i) give the indemnifying party prompt notice of the IP Claim or Solo Claim (collectively, the “Claims”), provided that failure to do so will only relieve the indemnifying party of its obligation under this Section 8 to the extent the indemnifying party ability to defend the Claim is materially prejudiced, (ii) grant the indemnifying party the full and complete control over the defense and settlement over the Claim; provided that the indemnifying party will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of the indemnified party other than the obligation for Reseller or Subscriber to cease using the affected Solo Offering or Solo Technology unless the indemnified Party consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the Claim. The indemnified party may participate in the defense of the Claim at the indemnified party’s own expense.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER UNDER THE ORDER FORM FOR THE AFFECTED SOLO OFFERINGS OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THIS ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Solo may assign tis Agreement to any Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of Solo’s assets or stock. Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns. Nothing will restrict Solo from subcontracting its obligations under this Agreement.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Solo Offerings without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Reseller may not access or use any Solo Offerings to compete with Solo.
10.4 Export Compliance. The Solo Offerings are subject to the export laws and regulations of the United States. Reseller represents that, it is not located in, and will not export, re-export, access or use, or permit any person to export, re-export, access or use, any Solo Offering in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Reseller acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Reseller acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Reseller acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of this Agreement. Such notices will be deemed delivered if acknowledged received by return e-mail, or if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 Publicity. Reseller agrees that Solo may identify Reseller as a reseller of Solo Offerings on its website and other promotional materials.
10.10 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.11 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.12 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.13 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) this Agreement, and (iii) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). The Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
Partner Portal Terms: Gloo Partner Network
Effective August 1, 2023
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Partner Portal Terms for Gloo Partner Network
This agreement (“Agreement”) is between you (as “Partner,” “you,” or “your”) and Solo.io, Inc. (“Solo,” “our,” “we,” or “us”) concerning your access to and use of this Partner Portal. By using the Partner Portal, you affirm that you are of legal age to enter this Agreement. If you are an individual accessing or using the Partner Portal on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Partner Portal and to any such Organization.
BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PARTNER PORTAL.
1. Marketing; Your Responsibilities
1.1 Compliance with Laws. You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your access to the Partner Portal, including those related to data privacy, international communications, the transmission of technical or personal data, and export control laws and regulations.
1.2 Marketing. Solo and Partner shall use commercially reasonable efforts to identify potential leads and to market and promote any product and/or service provided by Solo (each, a “Solo Offering” and, collectively, the “Solo Offerings”). The parties shall cooperate in marketing the Solo Offerings and shall mutually agree upon a marketing plan. Partner shall use only materials provided by or otherwise approved by Solo to market the Solo Offerings.
1.3 Prospects. From time to time during the term of the Agreement, Solo may refer potential business inquiries it receives from individuals and organizations (“Prospects”) to you solely for the purpose (“Purpose”) of facilitating the completion of transactions the Solo Single Transaction Reseller Agreement located at https://legal.solo.io/#stra in connection with such Prospects. Any information relating to such Prospects, including their business contact information, shall be deemed Confidential Information of Solo (unless deemed otherwise in accordance with Section 3.1 above), and you agree not to disclose such information to any party other than the Prospect about whom the information concerns or use it for any purpose other than the Purpose. You agree not to directly or indirectly diminish or solicit termination of any relationship or associated goodwill between Solo and any Prospect or disparage Solo or the Solo Offerings. You will not without Solo’s prior written consent share, sell, transfer, or distribute the personal information of any Prospect, or use the personal information of any Prospect for any purpose other than the Purpose. You have implemented and will maintain a comprehensive written information security program that complies with the data protection and privacy laws applicable to your processing of such personal data, including, without limitation, appropriate technical and organizational measures, to ensure a level of security with respect to the privacy and security of information regarding the Prospects appropriate to the risk associated with processing such information.
1.4 Referrals. From time to time, Partner may refer potential customers to Solo for Solo to sell the Solo Offerings to directly (each, a “Referral”). Solo may, in its sole discretion, accept each Referral and pay Partner for the Referral based on a rate detailed in the Partner Portal after the Referral has executed an order document with Solo. For the avoidance of doubt, current customers and/or leads of Solo will not constitute Referrals. Partner will register all Referrals through the Partner Portal.
1.5 No Unauthorized Representations and Warranties. You shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning Solo Offering.
2. Access to Solo Offerings
Unless otherwise agreed to in writing and to the extent you are provided licenses permitting your access and use of any Solo Offering, you will (1) only access and use for non-production purposes, such are marketing and enablement, and (2) agree to be bound by the Solo’s Subscription Terms located at https://legal.solo.io/#subscription-terms. To the extent of a conflict with this Agreement and the Subscription Terms, the Subscription Terms will take precedent as it relates to your use of any Solo Offering.
3. Confidentiality
3.1 Definition. “Confidential Information” means any non-public information disclosed by either party to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
3.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the term of the Agreement and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4. Disclaimer of Warranties; Limitation of Liability
SOLO AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PARTNER PORTAL. SOLO AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE USE OF THE PARTNER PORTAL WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE PARTNER PORTAL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PARTNER PORTAL AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SOLO AND ITS LICENSORS. IN NO EVENT SHALL SOLO BE LIABLE TO ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Miscellaneous
5.1 Changes. We have the right, in our sole discretion, to update this Agreement from time to time. All modifications are effective immediately when we notify you thereof. Your continued use of the Partner Portal following the effective date of any modifications to this Agreement will be deemed an acceptance of the modified Agreement. You are expected to check this page frequently so you are aware of any modifications, as they are binding on you.
5.2 Competitor Access. You will not access the Partner Portal if you compete with Solo without Solo’s written consent, which may be withheld in Solo’s sole discretion.
5.3 Export Control. You acknowledge that the Partner Portal is subject to U.S export control laws and regulations and represent and warrant that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists.
5.4 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
5.5 Logo Usage. You hereby grant to Solo a non-exclusive, non-transferable, royalty-free right and license to use certain trademarks (the “Trademarks”) in connection with the Partner Portal and Solo Offerings. All right, title and interest to your Trademarks will remain with you and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to use to use your Trademarks will terminate. Solo will not challenge, directly or indirectly, your rights in or with respect of your Trademarks.
5.6 Terms of Use; Conflict. Your access to the Partner Portal is subject to Solo’s Website Terms of Use located at https://legal.solo.io/#website-terms-of-use and Privacy Policy located at https://legal.solo.io/#privacy-policy. In the event of any conflicts between the terms and conditions of this Agreement and the foregoing, the conflict shall be resolved based on the following order of precedence: (1) this Agreement, (2) the Website Terms of Use, and (3) the Privacy Policy.
5.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and us with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision in this Agreement does not affect any other provision in this Agreement or the validity, legality, or enforceability of such provision in any other jurisdiction. Our failure to act by with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason without our prior written consent, and any action or conduct in violation the foregoing will be void and without effect. We may assign, transfer, or sublicense any or all of our rights or obligations under this Agreement without restriction.
Electronic Signature Terms
Effective September 1, 2023
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The Electronic Signature Terms ("ESign Terms") apply to the extent referenced in another agreement ("Other Agreement") and a party (or multiple parties) is using an Electronic Signature, as such terms is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). To facilitate execution, the Other Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the ESIGN Act. The Other Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. These ESign Terms, together with the Other Agreement, constitute the entire agreement of the parties with respect to the subject matter of the Other Agreement.