THIS DEMONSTRATION SOLUTION TRIAL LICENCE and any documents expressly referred to in this agreement (the “Agreement”) between SOLACE CORPORATION (“SOLACE”) and the end user licensee that accepts this Agreement (“You” or “Your” or the “Licensee”) (together the “Parties”, and each a “Party”), is made on the Effective Date (as defined below).
BY ACCEPTING THE TERMS OF THIS AGREEMENT, EITHER BY: A) ACCEPTING THE AGREEMENT ONLINE, OR B) ACTIVATING OR USING THE SOLUTION (the earlier of which shall be deemed the “Effective Date”), YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND YOU HAVE THE AUTHORITY TO AGREE TO, AND ARE CONFIRMING THAT YOU ARE AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF, AFTER READING THIS AGREEMENT, YOU DO NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHALL NOT ACTIVATE OR USE THE SOLUTION.
1 DEFINITIONS
“Documentation” means the documentation made accessible by SOLACE via a URL provided to Licensee.
“Product” means the SOLACE product accessed and used by Licensee for trial purposes under this Agreement.
“Solution” means the Product and Documentation accessed and used by Licensee.
2 LICENSE GRANT
2.1 General License to Solution
(a) Provided Licensee complies with this Agreement, SOLACE hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable license to use the Solution in object code form (i) during the term stated below, (ii) solely for the Licensee’s internal business purposes, (iii) in a development environment, and (iv) solely for the purpose of quality assurance, testing and staging. The Solution may not be used in a live production environment under this Agreement.
(b) SOLACE shall make the Solution available in electronic form.
(c) Licensee will not: (i) copy the Solution or any portion thereof; (ii) modify, reverse engineer, disassemble, decompile, or translate the Solution, or otherwise attempt to derive the source code version of the Solution, except if and only to the extent expressly permitted or prohibited by applicable law, and provided that Licensee first approaches SOLACE and seeks permission in writing; (iii) transfer, distribute, sub-license, rent, lease, loan the Solution or any part thereof to any third party; (iv) use the Solution in violation of applicable laws; (v) use the Solution to develop services or products for sale or include any components of the Solution in any product; (vi) use any portion of the Solution to develop a competitive service, product or technology; (vii) make the Solution available to the public in any manner; (viii) use the Solution in a production environment; (ix) remove any product identification, proprietary, copyright or other notices contained in the Solution; (x) publicly disseminate performance information or analysis (including without limitation, benchmarks) from any source relating to the Solution, or (xi) circumvent any user limits or other license timing or use restrictions that are built into the Solution.
3 OWNERSHIP
3.1 Except for the licenses expressly granted in this Agreement, nothing in this Agreement or the provision of the Solution conveys or otherwise provides to Licensee title, interest or any intellectual property rights in or to: (a) the Solution, or (b) know-how, ideas, or any other subject matter protectable under laws applicable to intellectual property rights of any jurisdiction. As between Licensee and SOLACE, SOLACE and its affiliates and licensors are the sole and exclusive owners of the Product and the Documentation, including all intellectual property rights therein.
3.2 Licensee will not display or make any use of SOLACE’s or its affiliates’ names, marks or logos without the prior written approval of SOLACE.
3.3 Licensee may use the Product to access its content and upload Licensee’s own content (“User Content”). User Content is owned by the Licensee. However, by uploading any User Content to the Solution, Licensee agrees that SOLACE may store and display User Content solely as necessary in connection with the Solution. Licensee understands that all User Content is the sole responsibility of the person from which such User Content originated. This means that Licensee, and not SOLACE, is entirely responsible for all User Content that Licensee uploads, posts, transmits or otherwise makes available in the Product.
3.4 Licensee acknowledges and agrees that SOLACE may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; or (c) respond to claims that any User Content violates the rights of third parties. If SOLACE discloses User Content to comply with legal process or respond to claims that any User Content violates the rights of third parties, to the extent permitted by law, regulation or legal process, SOLACE agrees to provide Licensee with prompt notice of any such legal or governmental demand and reasonably cooperate with Licensee in any effort to seek a protective order or otherwise to contest such required disclosure.
4 SUPPORT
SOLACE shall have no support or maintenance obligations with respect to the Solution licensed to Licensee under this Agreement.
5 FEES
No payment is due from Licensee for the use of the Solution under this Agreement.
6 CONFIDENTIAL INFORMATION
Any Product, Documentation or technical information provided by SOLACE (or its agents) in connection with Licensee’s trial use of the Solution shall be deemed “SOLACE confidential information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any SOLACE confidential information. You acknowledge that disclosure of SOLACE confidential information would cause substantial harm to SOLACE that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, SOLACE shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
7 PRIVACY
IN ORDER TO OPERATE AND PROVIDE THE SOLUTION TO YOU, SOLACE COLLECTS INFORMATION ABOUT YOU. SOLACE USES AND PROTECTS THE INFORMATION AS DESCRIBED IN SOLACE’S PRIVACY POLICY. YOU ACKNOWLEDGE YOUR USE OF THE SOLUTION IS SUBJECT TO SOLACE’S PRIVACY POLICY (LOCATED HERE) AND UNDERSTAND THAT IT IDENTIFIES HOW SOLACE COLLECTS, STORES, AND USES CERTAIN INFORMATION.
8 DISCLAIMER OF WARRANTIES
8.1 THE SOLUTION PROVIDED BY SOLACE UNDER THIS AGREEMENT, IS PROVIDED ‘AS-IS’ AND ‘AS AVAILABLE’ WITHOUT WARRANTY OF ANY KIND AND SOLACE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
8.2 Under no circumstances will SOLACE be liable in any way for (a) any User Content, including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, transmitted or otherwise made available via the Product; and (b) the deletion of, or the failure to store or to transmit, any User Content maintained by the Product.
9 LIMITATION OF REMEDIES AND DAMAGES
IN NO EVENT SHALL SOLACE BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SOLUTION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SOLACE’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY SOLACE’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED $1,000.
The Parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10 TERM AND TERMINATION
10.1 Term. Unless terminated earlier in accordance with Section 10.2 of the Agreement, this Agreement will be effective from the Effective Date and will continue for seven (7) calendar days (“Term”) as may be renewed by Licensee following the renewal procedure provided in the Solution. Notwithstanding anything to the contrary in this Section 10, if Licensee chooses to purchase the Product, the Product will be governed by separate terms and conditions to be mutually agreed upon by the Parties.
10.2 Termination. SOLACE may terminate this Agreement (a) for convenience upon notice to Licensee; (b) if Licensee breaches any term of this Agreement; and (c) if Licensee becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Effects of Termination. Upon expiry or termination of this Agreement, (a) the Solution will be disabled; and (b) the license and other rights granted to Licensee in this Agreement will terminate.
10.4 Survival. Neither the expiration nor the earlier termination of this Agreement will release either of the Parties from any obligation or liability that accrued prior to such expiration or termination. The provisions of this Agreement requiring performance or fulfilment after the expiration or earlier termination of this Agreement, namely Sections 3, 4, 6, 7, 8, 9, 10.3, 10.4, 11 and 12 and such other provisions as are necessary for the interpretation thereof and any other provisions hereof, the nature and intent of which is to survive termination or expiration of this Agreement, will survive the expiration or earlier termination of this Agreement.
11 GENERAL
11.1 Third Party Code. If designated in the Documentation, the Product may contain or be provided with certain third-party code (including code which may be made available to You in source code form). Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation, including without limitation as set forth in additional licenses applicable to such third party code and open source code, which shall take precedence over this Agreement.
11.2 Amendments, Waivers. This Agreement may be modified only by a written amendment agreed to by both Licensee and SOLACE. To be effective, any waiver by a Party of any of its rights or any other Party’s obligations under this Agreement must be made in a writing signed by the Party to be charged with the waiver.
11.3 Governing Law and Jurisdiction. This Agreement is governed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to its conflict of laws provisions. Any Claim arising out of or related to this Agreement must be brought exclusively in a federal or provincial court located in Ottawa, Canada, and Licensee hereby consents to the jurisdiction and venue of such courts.
Revision Date: October 26, 2022.