AGREEMENT BETWEEN USER AND SOLACE
The Solace Web Site is comprised of various Web sites and Web pages operated by Solace or its affiliates (collectively, the “Solace Web Sites”). The Solace Web Sites are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Solace Web Sites constitutes your agreement to all such terms, conditions, and notices. Your use of a particular Solace Web Site included within the Solace Web Sites may also be subject to additional terms outlined elsewhere in this agreement (the “Additional Terms”).
Additionally, the Solace Web Sites may themselves contain additional terms that govern particular features or offers (for example, user forums or chat areas). In the event that any of the terms, conditions, and notices contained herein conflict with the Additional Terms or other terms and guidelines contained within any particular Solace Web Site, then these terms shall control.
PRIVACY AND PROTECTION OF PERSONAL INFORMATION
See the Privacy Statement here for disclosures relating to the collection and use of your information.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
If a particular Solace Site/Service requires you to open an account, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You then will choose a password and user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Solace immediately of any unauthorized use of your account or any other breach of security. Solace will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Solace or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
VIDEO VIEWING DATA
Our third-party provider collects anonymous viewer data, such as click-through rates and video watch time, and shares it with us for sales and marketing purposes only. Users of the Solace web site consent to the collection of that data for those purposes.
Solace reserves the right to change the terms, conditions, and notices under which the Solace Sites/Services are offered, including but not limited to the charges associated with the use of the Solace Sites/Services. You are responsible for regularly reviewing these terms and conditions and additional terms posted on particular websites. Your continued use of the Solace Sites/Services constitutes your agreement to all such terms, conditions, and notices.
PERSONAL AND NON-COMMERCIAL USE LIMITATION
Unless otherwise specified, the Solace Sites/Services are for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Solace Sites/Services.
LINKS TO THIRD PARTY SITES
Any dealings with third parties (including advertisers) included within the Solace Sites/Services or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. Solace shall not be responsible or liable for any part of any such dealings or promotions.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Solace Sites/Services, you will not use the Solace Sites/Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Solace Sites/Services in any manner that could damage, disable, overburden, or impair any Solace Site/Service(s) (or the network(s) connected to any Solace Site/Service(s)) or interfere with any other party’s use and enjoyment of any Solace Site/Service(s). You may not attempt to gain unauthorized access to any Solace Site/Service, other accounts, computer systems or networks connected to any Solace Site/Service, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Solace Sites/Services.
USE OF SERVICES
The Solace Sites/Services may contain e-mail services, bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable you to communicate with others (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
Use the Communication Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents to do the same.
Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another.
Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
Restrict or inhibit any other user from using and enjoying the Communication Services.
Violate any code of conduct or other guidelines that may be applicable for any particular Communication Service.
Harvest or otherwise collect information about others, including e-mail addresses.
Violate any applicable laws or regulations.
Create a false identity for the purpose of misleading others.
Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of a Solace Site/Service(s) or other user or usage information or any portion thereof.
Solace has no obligation to monitor the Communication Services. However, Solace reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Solace reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.
Solace reserves the right at all times to disclose any information as Solace deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Solace’s sole discretion.
Always use caution when giving out any personally identifying information about yourself in any Communication Service. Solace does not control or endorse the content, messages or information found in any Communication Service and, therefore, Solace specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Solace spokespersons, and their views do not necessarily reflect those of Solace. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
MATERIALS PROVIDED TO SOLACE OR POSTED AT ANY SOLACE WEB SITE
Solace does not claim ownership of the materials you provide to Solace (including feedback and suggestions) or post, upload, input or submit to any Solace Site/Service or its associated services for review by the general public (each a “Submission” and collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Solace, its affiliated companies and necessary sub-licensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of your Submission, as provided herein. Solace is under no obligation to post or use any Submission you may provide and Solace may remove any Submission at any time in its sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
SOFTWARE AND CONTENT AVAILABLE THROUGH THE SOLACE SITES/SERVICES
All content and software (if any) that is made available to view and/or download in connection with the Solace Sites/Services, excluding content and/or software that may be made available by end-users through a Communication Service, (“Software”) is owned by and is the copyrighted work of Solace Corporation and/or its suppliers and is protected by copyright laws and international treaty provisions. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
LIABILITY DISCLAIMER THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SOLACE SITES/SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE SOLACE SITES/SERVICES AND TO THE INFORMATION THEREIN. SOLACE AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SOLACE SITES/SERVICES AT ANY TIME. ADVICE RECEIVED VIA THE SOLACE SITES/SERVICES SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION. SOLACE CORPORATION AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED WITHIN THE SOLACE SITES/SERVICES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. SOLACE AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WORKMANLIKE EFFORT.
TITLE AND NON-INFRINGEMENT
YOU SPECIFICALLY AGREE THAT SOLACE SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH AN SOLACE SITE/SERVICE. YOU SPECIFICALLY AGREE THAT SOLACE IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE THAT SOLACE IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR INCLUDED IN A SOLACE SITE/SERVICE BY ANY THIRD PARTY.
IN NO EVENT SHALL SOLACE AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SOLACE SITES/SERVICES, WITH THE DELAY OR INABILITY TO USE THE SOLACE SITES/SERVICES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SOLACE SITES/SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SOLACE SITES/SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SOLACE OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
Solace reserves the right, in its sole discretion, to terminate your access to any or all Solace Sites/Services and the related services or any portion thereof at any time, without notice. Solace may also terminate or suspend your access to Solace Site/Service(s) for inactivity, which is defined as failing to log into a particular service for an extended period of time, as determined by Solace. Upon termination of the Solace Site/Service, your right to use the Solace Site/Service immediately ceases.
It is the express will of the parties that this agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
This agreement is governed by the laws of the Province of Ontario, Canada. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in the Regional Municipality of Ottawa, Ontario, Canada. in all disputes arising out of or relating to the use of the Solace Sites/Services. Use of the Solace Sites/Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Solace as a result of this agreement or use of the Solace Sites/Services. You agree to indemnify and hold Solace, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to or arising out of your use of or conduct on the Solace Sites/Services. Solace reserves the right to disclose any personal information about you or your use of the Solace Sites/Services, including its contents, without your prior permission if Solace has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Solace or its affiliated companies; (3) enforce the terms or use; or (4) act to protect the interests of its members or others. Solace’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Solace’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Solace Sites/Services or information provided to or gathered by Solace with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Solace with respect to the Solace Sites/Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Solace with respect to the Solace Sites/Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
COPYRIGHT AND TRADEMARK NOTICES
All contents of the Solace Web Sites are: Copyright (c) 2008 Solace Corporation and/or its suppliers, 535 Legget Drive, Third Floor, Ottawa, Ontario K2K 2X3, Canada.
Solace, Solace design, and/or other Solace products referenced herein are either trademarks or registered trademarks of Solace. The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
Any rights not expressly granted herein are reserved.
I. Corporate Commitment to Privacy
II. GDPR Compliance
III. Definition of Personal Information
Personal information refers to any information relating to an identified or identifiable natural person, such as an identification number, physical, physiological, mental, economic, cultural, or social identifiers (“personal information”).
IV. Definition of Non-Personal Information
We may also collect information that is related to you but that does not personally identify you (“non-personal information”). Non-personal Information also includes information that could personally identify you in its original form, but that we have modified (for instance, by aggregating, anonymizing or de-identifying such information) in order to remove or hide any Personal Information.
(i) visitors to, or users of, its websites;
(ii) prospective and current customers using Solace hosting and information technology services;
(iii) users of any mobile-device applications that it offers (such as its iOS and Android applications);
(iv) service providers and business partners;
(v) job applicants; and
(vi) other third-parties that it interacts with.
Solace collects personal information about you in connection with many of our services. You may be prompted to make an account which may hold personal information such as your name, mailing address, email address, or credit card information. Prior to collecting this information, Solace will obtain your consent. At any point in time, you can revoke consent and we will cease using and processing your data immediately.
VII. Information Collected Automatically
Solace may also collect Technical Information about you when you visit our websites, which your web browser automatically sends whenever you visit a website on the Internet. “technical information” is information that does not, by itself, identify a specific individual but which could be used to indirectly identify you. Our servers automatically record this information, which may include your Internet Protocol (“IP“) address, browser type, browser language, and the date and time of your request. Gathering your information helps us ensure our websites and other services work correctly and support our customer analytic efforts.
Email communication – We use pixel tags and cookies in our marketing emails so that we can track your interaction with those messages, such as when you open the email or click a URL link that’s embedded within them. When recipients click on one of those URLs, they pass through a separate web server before arriving at the destination page on a company website. We use tools like pixel tags and cookies so that we can determine interest in particular topics and measure and improve the effectiveness of our communications.
Mobile communication – When you download or use our mobile-device applications, or access one of our mobile-optimized websites, we may receive information about your mobile device, including a unique identifier for your device.
Cookies and Similar Technologies – We may collect information about your use of the websites through cookies and similar technology. A “cookie” is a unique numeric code that we transfer to your computer so that we can keep track of your interests and/or preferences and recognize you as a return visitor to the websites. For example, we may use these technologies to collect information about the ways visitors use our websites, to support the features and functionality of our websites, and to personalize your experience when you use our websites.
VIII. Information Collected from Social Media Applications/Networking Websites
IX. Information Collected from Other Sources
Solace may also collect information about you from other sources to help us correct or supplement our records, improve the quality or personalization of our service to you, and prevent or detect fraud. We work closely with third parties (for example, business partners, service providers, sub-contractors, advertising networks, analytics providers, search information providers, fraud protection services) and may receive information about you from them. The following are some examples:
Third-Party Vendors – In order to provide the services and improve Solace’s websites, we may engage the services of third-party vendors. In the process of supplying services to Solace, these third-party vendors may need to collect Personal Information about you.
Co-branding – Some company websites or services may be co-branded and offered in conjunction with another company. If you use such websites or services, both Solace and the other company may receive the Personal Information that’s collected via that co-branded website or service.
Public Forums, Blogs and the Customer Reference Program – Solace websites may feature bulletin boards, blogs or forums. Any Personal Information that you choose to submit via such a forum may be read, collected, or used by others who visit these forums, and may be used to send you unsolicited messages.
Flash LSOs – We use Local Storage Objects (LSOs) such as HTML5 and Flash to store content information and preferences. We partner with third parties to provide certain features on our site or to display advertising based upon your browsing activity. Various browsers may offer their own management tools for removing HTML5 LSOs.
Log Files – Log files record website activity on our services and enable us to gather statistics about our users’ browsing habits. These entries help Solace determine (among other things) how many and how often users have accessed or used our services, which pages they’ve visited, and other similar data.
Clear GIFs – Clear GIFs, sometimes called “web bugs” or “web beacons,” are small electronic images that are placed on a web page or in an email message. We use clear GIFs to monitor user behavior, deliver cookies, collect information, count visits, understand usage and campaign effectiveness, and to tell if a recipient has opened and acted upon an email.
X. Permitted Use of Personal Information
Solace uses your personal information to provide you products and services, such as to fulfill your requests for products or to help us personalize our offerings to you. We also use your personal information to support our business functions, such as fraud prevention, marketing, and legal functions. To do this, we combine personal and non-personal information, collected online and offline, including information from third party sources.
Fulfill Requests – To fulfill your requests for products and services and communicate with you about those requests;
Understand Customer Behavior – To better understand customer behavior so that we may improve our marketing and advertising efforts and to improve the distribution of our products and services;
Personalize Offerings – To help us personalize our service offerings, websites, mobile services, and advertising;
Credit Card Information – Credit card information may be used to check the financial qualifications or collect payment from customers regarding orders of products and services;
Protection – To protect the security and integrity of our websites, mobile services, and our business;
Legal – To comply with legal and/or regulatory requirements;
Responding to Customer – To respond to reviews, comments, or other feedback you provide us;
Industry Benchmarking – For industry benchmarking and analysis consistent with our legitimate business purpose;
Employment Applications – In connection with a job application or inquiry, you may provide us with data about yourself, including your educational background or resume and other information. We may use this information throughout Solace, its subsidiaries and affiliates, and its joint ventures for the purpose of employment consideration.
XI. Promotional Messaging or Advertising
Solace uses your contact information to recommend products and services that might be of interest to you, to send you marketing and advertising messages such as newsletters, announcements, or special offers or to notify you about our upcoming events.
XII. Ability to Opt-In to Promotional Messaging or Advertising
Solace allows you to opt-in to receive advertisements based on your interests. If you do not opt-in, you will still receive advertisements but they will not be tailored to your interests. Solace also allows you to opt-in to receive communications, such as mailings or text message marketing. To opt-out of advertisements, visit https://go.solace.com/UnsubscribePage.html.
XIII. Disclosure of Personal Information to Third Parties
Solace will not rent or sell your Personal Information to others but may disclose personal information with third-party vendors and service providers that work with Solace. We will only share personal information to these vendors and service providers to help us provide a product or service to you. Examples of third parties we work with are call center operators, shippers, servicers, information processors, and financial institutions. These third parties only have access to personal information necessary for them to complete their service.
XIV. Disclosure of Personal Information for Legal and Safety Reasons
Solace may be required to disclose personal information to government authorities, law enforcement agencies, government agencies, or legal entities. We may disclose information by law, litigation, or as a matter of national security to:
a) comply with valid legal process including subpoenas, court orders or search warrants, and as otherwise authorized by law;
b) in the event of an emergency that threatens an individual’s life, health, or security; or
c) to the extent permitted by applicable law in special cases in which we believe it is reasonably necessary to investigate, identify, or take preventive measures or bring legal action against someone who may commit or cause harm, fraud, abuse, or illegal conduct, such as a threat of harm to you or anyone else, interference with our rights or property, or interference with U.S. homeland or national security or public safety anywhere in the world.
XV. Disclosure of Personal Information Via Links to Third-Party Websites, Services, and Applications
XVII. Ability to Disable Technologies
Some web browsers (including some mobile web browsers) provide settings that allow you to control or reject cookies or to alert you when a cookie is placed on your computer, tablet or mobile device. Although you are not required to accept cookies, if you block or reject them, you may not have access to all features available through our services. For more information, visit the help page for your web browser or see http://www.allaboutcookies.org
XVIII. Consequences of Disabling Technologies
Please note that if you disable your web browser’s cookies and other technologies, certain features of our website and services will be disabled and you will limit the functionality we can provide when you visit our site.
XIX. Security Measures Taken to Protect Personal Information by Company
Data Breach Notification
Security of all information is of the utmost importance for Solace. Solace uses technical and physical safeguards to protect the security of your personal information from unauthorized disclosure. We use encryption technology to keep all information secure. We also make all attempts to ensure that only necessary people and third parties have access to personal information. Nevertheless, such security measures cannot prevent all loss, misuse or alteration of personal information and we are not responsible for any damages or liabilities relating to any such incidents to the fullest extent permitted by law. In the case of a data breach, we will notify you without delay of any loss, misuse or alteration of personal information that may affect you. We will notify relevant regulatory bodies within 72 hours of a breach.
XX. Security Measures to Protect Personal Information by Third Parties
We require that our third party service providers and channel partners agree to keep all confidential information we share with them and to use the information only to perform their obligations in the agreements we have in place with them. These third party service providers and channel partners are expected to maintain privacy and security protections that are consistent with Solace’s privacy and information security policies.
XXI. Data Retention and Storage
Solace retains your information for business purposes, for as long as your account is active, and/or as long as is reasonably necessary to provide you with our products and services. Solace will also retain your information as reasonably necessary to comply with our legal obligations, resolve disputes and enforce our agreements. We may also retain cached or archived copies of your information for a reasonable period of time. At any point in time, you can withdraw consent and we will immediately stop processing your data.
XXII. Choice: Your Privacy Rights
Solace gives you choices about the ways we collect, use, and share your personal information. You can choose what contact and financial information will be stored and preferences. If at any point in time you wish know what data we process about you, you can request to access the information by contacting our Data Protection Officer at email@example.com.
XXIII. Access to and Correction of Personal Information
XXIV. Collection of Information from Children
The Company recognizes the importance of protecting the privacy and safety of children. Our website and services are primarily directed towards the general audience and are not directed towards children. We do not knowingly collect information about children under the age of 13. A parent or guardian of a child may contact us at firstname.lastname@example.org to request that we delete such information.
XXV. International Transfer of Personal Information
Solace may share customer information within our family of companies for a variety of purposes, for example to provide you with the latest information about our products and services and offer you our latest promotions. To facilitate our global operations, Solace may transfer personal data from your home country to other Solace locations across the world. To protect your personal information, we will only transfer data to countries who provide an “adequate” level of personal data protection. If the data is transferred to countries without ‘adequate’ protection as determined by the European Parliament, we will use additional safeguards to ensure your data is protected.
XXVI. Questions/Updates to Policy
XXVII. Contact Point to Update/Delete Personal Information
You have the right to access and limit the use and disclosure of your personal data. If you would like to express your point of view, challenge an explanation of data use, or otherwise obtain further information, contact email@example.com. If at any time after registering for information, your personal information changes, notify us and we will update your contact information. Please note, at any time, if you desire to obtain or transfer your information, we will provide you with your personal data in a structured and commonly used electronic format.
XXVIII. Location of Data Processing/Storage
Any personal information collected about EU data subjects via our websites is processed in Canada and the United States by Solace or by a third party acting on our behalf. When you provide personal information to Solace, you consent to the processing of your information in Canada and the United States. Our websites are hosted in Canada.
XXIX. Applicable Regulations – California Privacy Rights
California Civil Code Section 1798.83 permits users of our website that are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please send an e-mail to firstname.lastname@example.org or write us at Data Protection Officer, Solace Corporation, 535 Legget Drive, 3rd Floor, Ottawa, Ontario, Canada K2K 3B8.
XXX. GDPR Rights
Right of Access – At any point in time, you may confirm your data is being processed and request to access your data. If you wish to access/confirm your data is being processed, please contact email@example.com.
Right to Consent – Before collecting and using your personal data, Solace will obtain consent. At any point in time, you can revoke consent and Solace will stop using and processing your personal data.
Right to Erasure – You have the right to request Solace to erase all of your personal data on a number of grounds, including if the data is no longer necessary for its original purpose or if you withdraw consent. If Solace receives a request, we will inform all third parties who have the data of this request. For additional information on when you can request data erasure, please contact firstname.lastname@example.org.
Right to Rectification – If any personal data is inaccurate or incomplete, you can request Solace corrects the data. When this occurs, Solace will notify third parties who have access to the data of the change. If you wish to alter your data, please contact email@example.com.
Right to Restrict Processing – Even if personal data is still stored by Solace, now or in the future, you can request Solace stops using or processing your data. If you wish to restrict data processing, please contact firstname.lastname@example.org.
Right to Object – You have the right to object to your personal data being processed for profiling, direct marketing, scientific research, and statistics. If you wish to object, please contact email@example.com.
Rights Related to Automatic Decision Making and Profiling – At any point in time, you can contact a Solace representative to express your point of view, challenge an explanation of data use, or otherwise obtain further information on automatic data processing.
Right to Data Portability – You have the right to transfer your personal data from one electronic processing system to another without being prevented from doing so by Solace’s data processor.
1. PRODUCT AND RELEASE DEFINITIONS
1.1. Solace Product Types
“SolOS”: The package of operating system, firmware, associated environment and executables which runs on a Solace messaging appliance.
“Software”: Any separately distributable and supported Solace software product. Software includes but is not limited to the Solace Virtual Messaging Router (VMR), SolCache, SolAdmin, SolGeneos Agent, and the Solace Messaging Application Programming Interfaces (APIs).
“Hardware”: The physical Solace messaging appliance and its components. Other devices, such as external computers running Software are not included.
Solace product version numbers have the form A.B.C.D. For example, 22.214.171.1249 is a product version number.
“Major Release”: A Software and/or SolOS release that provides additional functionality and maintenance fixes. The first and second components of the version number (A.B) signify the Major Release level.
“Maintenance Release”: An incremental release that primarily adds maintenance fixes and may add additional functionality. A Maintenance Release increments the third component (C) of the product version.
“Hotfix Release”: A minimal Software or SolOS update to one or more Solace products released to address one or more critical customer issues. The fourth component (D) of the product version number is changed with a Hotfix Release.
2 MAINTENANCE SERVICES
2.1 Term of Service
The First term for all Support Services described in this Section 2, other than Basic Warranty Support, will be twelve (12) months from the date of shipping of the equipment, where End-User elects to contract for the Support Service prior to delivery. Basic Warranty Support will be for ninety (90) days from shipping only. Upon expiration of the First Term and each Subsequent Term, this Support Service may be renewed by End-User for additional one year periods (the “Subsequent Terms”), up until product is declared Final Support Renewal and one additional year of support services may be purchased (refer to Solace Lifecycle Policy document for more details). The End-User will provide a purchase order for this Support Service prior to the expiration of the First Term or any Subsequent Term.
When subsequent products are purchased, arrangements can be made with Solace for a First Term other than 12 months to allow purchased Support Services to co-expire on the same date as previously purchased products.
In the event the support agreement lapses by more than twelve (12) months, the Buyer shall pay all back support, and current year’s support. Alternately, if the support agreement lapses by less than twelve (12) months, the Buyer shall pay the current year’s fee to receive support.
2.2 Product Support Plans
Product support plans cover the purchased appliance Hardware as well as Software and all elements of SolOS.
Table 1 Support Plan Summary
|Premium Support Plan||Standard Support Plan|
|Basic Warranty Support|
|In-Region Hardware Sparing & On-Site Field Repair Service||On-Site Field Repair Service Only|
|Term||Yearly subscription, renewable annually||Yearly subscription, renewable annually||Yearly subscription, renewable annually||Ninety (90) days following product shipment|
|Access to Maintenance and Hotfix Releases||Yes||Yes||Yes||Yes|
|Access to Major Releases||Yes||Yes||Yes||No|
|All shipments from Solace are insured||Yes||Yes||Yes||Yes|
|24x7x365 support for Severity 1 and 2 issues||Yes||Yes||Yes||No|
|On-Site Field Repair Service||Yes.|
On Site Response Time is dependent on geographical location of Hardware.
On Site Response Time is dependent upon delivery of Hardware spares.
|Location of Hardware Spares||Spares maintained at stocking locations in same region as the Hardware||Spares maintained at Solace in Ottawa, Canada||Spares maintained at Solace in Ottawa, Canada||Spares maintained at Solace in Ottawa, Canada|
|Delivery of Hardware Spares||Delivered by On-Site Field Repair technician or local courier. Delivery is coincident with service visit.||Replacement hardware shipped from Ottawa next business day. Delivery times dependent on customer location, courier and customs.||Replacement hardware shipped from Ottawa next business day. Delivery times dependent on customer location, courier and customs.||Replacement hardware shipped from Ottawa after receipt of failed component. Delivery times dependent on customer location, courier and customs.|
|Physical replacement of failed Hardware (both field-replaceable units and entire chassis)||Performed by Solace-supplied technician||Performed by Solace-supplied technician||Responsibility of End-User||Responsibility of End-User|
|Return Material Shipping Responsibility||Material handling and return shipping done by Solace technician.||End-User coordinates return shipping.||End-User coordinates return shipping.||End-User coordinates return shipping.|
2.3 Support Response and Neutralization Times
“Initial Response Time”: The time between initial contact by End-User to Solace Support and return contact from a Solace Support Engineer acknowledging receipt of the problem. NOTE: for severity 1 or 2 issues contact must be by telephone in order to measure Initial Response Time.
“On-Site Response Time”: The amount of time from the point when Solace customer support deems a technician visit is necessary until the technician arrives on site. On-Site Response Time applies only to the On-Site Field Repair Service.
“Remote Neutralization Time”: The amount of time between initial response and proposed workaround provided by Solace or determination that the problem is not with a Solace product.
“Severity 1”: Critical error in a production system. Service is down or business operation critically impacted. No known workaround.
“Severity 2”: System defect with workaround. Either a critical error for which a work around exists or a non-critical error that significantly affects the functionality of SolOS, Hardware and/or Software.
“Severity 3”: Isolated or benign error. This is an error which does not significantly affect the functionality of SolOS, Hardware and/or Software, disables only certain non-essential functions and does not materially impact system performance.
“Severity 4”: Information request, documentation issue or assistance with product functionality, installation or configuration. No impact to business operations.
“Enhancement”: Product enhancement request that is not binding on Solace.
“Business Day”: Monday through Friday, excluding Solace-observed holidays in Canada and Singapore.
“Normal Business Hours”: 9:00 AM to 5:00 PM on Business Days.
Solace shall use commercially reasonable efforts to respond within the timeframes mentioned in the table below and provide End-User with a workaround solution or determination that the problem is not with a Solace Product.
Table 2 Response and Remote Neutralization Times
|Initial Issue Severity||Response Time||Remote Neutralization Time|
|Severity 1||Fifteen (15) minutes from initial contact by End-User to Solace via telephone 24x7x365||Four (4) hours from initial contact by End-User to Solace via telephone|
|Severity 2||One (1) hour from initial contact by End-User to Solace via telephone during Normal Business Hours otherwise next Business Day||Thirty (30) Business Days from initial contact by End-User to Solace|
|Severity 3||Next Business Day from initial contact by End-User to Solace via telephone or email during Normal Business Hours||N/A|
|Severity 4||Next Business Day from initial contact by End-User to Solace via telephone or email during Normal Business Hours||N/A|
|Enhancement||Five (5) Business Days from initial contact by End-User to Solace via telephone or email during Normal Business Hours||N/A|
2.3.1 Remote Neutralization
Solace Support’s highest priority is restoring service. For a Severity 1 problem, emphasis is placed on re-activation of End-User production system and/or elimination of the critical impact to business operations by the fastest means available. Once neutralized in this way, the problem severity will be reclassified as appropriate to Severity 2, 3 or 4.
2.3.2 Remote Problem Neutralization Caveats
End-User will promptly provide remote access to the Solace Products affected. Use of a Web collaboration tool between Solace Support and End-User is an acceptable form of remote access. If remote access cannot be established, problem neutralization is on a best-effort basis.
The commitment to four (4) hour Neutralization of Severity 1 issues assumes Solace Hardware has been deployed in a redundant pair.
Remote Problem Neutralization Time applies to faults which can be handled remotely, and does not cover the turnaround time to swap or replace Hardware.
The appropriate resources must be made available from End-User to assist in the investigation and neutralization.
If a maintenance window is required, but not immediately available to resolve the fault then the counting of Remote Problem Neutralization Time is suspended until the activity can be performed.
2.4 Support Staff
The support organization is the first point of contact for End-User and is the external interface group coordinating all internal activities required to correctly address End-User problems. This includes: resolving the immediate problem, providing Software or SolOS fixes, arranging for replacement Hardware, updating End-User on the status of fixes and answering questions about the Product.
2.5 Issue Escalation
End-User may increase an issue’s Severity level by contacting Solace Support if the currently assigned Severity level is inappropriate. Escalations to Severity 1 or 2 must be accompanied by telephone contact in order to ensure a timely response.
If Solace’s response to any support issue is insufficient, End-User may escalate via telephone to the Vice President, Customer Support and Quality Assurance and subsequently to the Senior Vice President, Product Development and Operations.
2.6 Failed Hardware Replacement
In the event of a Hardware failure for a Product under support, a Return Material Authorization (“RMA”) must be given by Solace Support before the Hardware is replaced under a support plan or warranty.
Solace will supply the required replacement parts for failed Hardware with functionally equivalent same or better-specified Hardware. Hardware replacements initiated after the 90 day initial warranty period has expired may be fulfilled with refurbished parts.
2.7 End-User Responsibilities for Return Shipping
Under the Premium Support Plan with In-Region Sparing, the Solace technician handles all aspects of return shipping of failed hardware. Packaging failed hardware and coordinating return shipment is the responsibility of End-User under all other support plans and under Basic Warranty Support. Shipping costs for failed hardware returns are covered by Solace.
The defective Product must be shipped to Solace no more than twenty (20) business days after the replacement product is received by End-User. Should the defective Product not be shipped within this period, End-User will be billed the then-current list price of the replacement equipment.
If the Product is defective for reasons other than normal use, including damage in return shipping caused by insufficient packaging by End-User, End-User will be billed the then-current list price of the replacement equipment. If Product is defective due to damage in shipping from Solace any replacement will be provided free of charge.
2.8 Product Support Duration
2.8.1 Product Versions 7.2 and Greater
Major Releases of SolOS firmware and Software products version 7.2 and greater are supported for three (3) years from the date of their first General Availability (GA) release.
Major Releases of APIs version 7.2 and greater are supported for four (4) years from the date of their first General Availability (GA) release.
2.8.2 Product Versions 7.1 and Below
Software and SolOS releases version 7.1 and below are supported for at least two (2) years after they are replaced by a subsequent Major Release. For example, since version 7.1.0 was released March 2015, support for all product versions 7.0 and below expire in March 2017 regardless of the date of the last version 7.0 Maintenance or Hotfix Release.
2.8.3 Hardware Considerations
New features introduced as part of a SolOS Major Release may not be supported on all Hardware versions or may require the purchase of licenses.
Future SolOS Major Releases may not be supported on all Hardware versions as described by the Solace Product Lifecycle Policy.
2.9 On-site Field Repair Service
The On-site Field Repair Service is a component of the Premium Support Plan. Under this service, Solace Support will dispatch a technician to replace failed Solace Hardware at specific End-User premises.
Solace will provide technicians who will be trained in all relevant aspects of computing hardware and datacenter procedures relevant to performing the field maintenance and repair.
A technician will be dispatched by Solace Support once the related support request has been investigated and a Hardware repair activity is deemed necessary. Solace Support will serve as the single point of contact for End-User. End-User may not contact a technician directly.
2.9.2 Locations Covered
All locations covered by this service must be identified in writing under the terms of any agreement in place between Solace and End-User in advance of the service being offered to that location. Solace may not be able to provide this service to all locations.
Solace Support must be informed in advance of moving Hardware to a new location to ensure Premium Support is made available when the equipment is deployed.
This is a repair service for Solace Hardware only. It does not include installation of new Hardware. Troubleshooting of End-User physical infrastructure such as power feeds and Ethernet cabling is the responsibility of End-User
2.9.4 On-Site Response Time Targets
On-Site Response Time targets will vary depending on the exact location of the deployed Hardware and the specific component being replaced. The target On-Site Response Time will be established on a location by location basis at the commencement of the Premium Support Plan depending on the actual street address of the deployed hardware.
The target On-Site Response Time for a specific location may be 4 hours, 8 hours or Next Business Day. Next Business Day response is provided for redundant components such as disk drives and power supplies.
For sites under Next Business Day response, service visits can be scheduled for any time during the day, night or weekend provided the call is scheduled at least one (1) Business Day in advance. For example, a visit arising from a ticket raised on a Thursday could be scheduled for Friday or Saturday. If the ticket was raised on a Friday the on-site visit would not occur sooner than the following Monday.
3 PROCEDURE AND OTHERS
3.1 Raising Support Requests
3.1.1 24×7 Support Telephone Hotline
All service-affecting production issues must be phoned in to the Solace Support hotline in order to guarantee a timely response:
1-866-Solace1 (866-765-2231) in USA or Canada
All calls to the Solace Support hotline are initially handled by Solace’s call center. An engineer will call back the originator within 15 minutes of the first incoming call for Severity 1 production emergencies. Responses to Severity 2, 3, 4 or enhancement calls may be over email according to the guidelines described in section 2.3.
Every incoming call to the support hotline automatically generates a ticket in the Solace support ticketing system for proper issue tracking.
Any email addressed to firstname.lastname@example.org will automatically create a support ticket in the Solace support ticketing system. An auto-generated reply including the ticket ID will be immediately sent to the originator to confirm receipt and to remind the originator to call the 24/7 support hotline for urgent production issues.
All email correspondence relating to a ticket is logged in the support ticket and can be reviewed using the Customer Self-Service Portal.
3.1.3 Customer Self-Service Web Portal
Solace provides customers with a Self-Service Portal to raise, review and update support tickets. The portal is a secure web-based interface accessed through individual user accounts. Account creation is done by Solace support on request.
The Web Portal is located at https://rt.solace.com/rt
3.2 Solace Product Notifications
Solace sends out email notifications of new product versions or technical issue advisories. Solace requires End-User supply email addresses of people to receive these announcements. A group address such as email@example.com is preferred over individual accounts as this allows End-User to control individual recipients. Addresses can be added to or removed from the notification list by sending an email request to firstname.lastname@example.org.
3.3 Technical Support Contact Summary
Email (Severity 2, 3, 4 issues and enhancements):
Telephone (Severity 1 and 2 production issues only):
1-866-Solace1 (866-765-2231) USA/Canada
4.Solace Cloud Service Level Agreement
This Solace Cloud Service Level Agreement (this “Agreement”) is our agreement governing the use of the Messaging Services (defined below) by you or the entity you represent (“you”) under the terms of the Solace Cloud Terms of Service (the “Terms of Service”) between Solace Corporation and its affiliates (“Solace”, “us” or “we”) and you. This Agreement applies separately to each account using the Messaging Services. Unless otherwise provided herein, this Agreement is subject to the Terms of Service and capitalized terms will have the meaning specified in the Terms of Service. We reserve the right to change the terms of this Agreement in accordance with the Terms of Service.
- Support Services. During the applicable subscription period, Solace shall provide Customer the following services with respect to the applicable Messaging Services (“Support Services”):
- Telephone/Email/Web Support. Solace shall provide Customer’s Designated Support Contacts (as defined below) access to Solace’s customer support personnel via telephone, email, and the web to assist Customer in resolving technical questions regarding any applicable Messaging Services, 24 hours a day, 7 days a week.
- Issue Reporting. Customer may document and report all suspected errors or malfunctions of any Messaging Services to Solace via email or Solace’s case tracking system, and, for any reported errors or malfunctions, reasonably cooperate with Solace in its bug investigation by phone, email, and through Solace’s case tracking system. Solace will provide Customer with a trouble ticket number that Customer shall use to track the status of any confirmed error or malfunction in the applicable Messaging Services (e., any confirmed failure of any Messaging Services to meet Solace’s specifications for such Messaging Services described in the relevant Documentation) (“Confirmed Error”). Solace may close the trouble ticket without further responsibility if Customer does not provide requested information related to the Confirmed Error to Solace within thirty (30) days of receiving a patch or workaround, or if Customer fails to respond to a request for additional information or confirm that trouble ticket is resolved. Customer may at any time add a new trouble ticket.
- Customer Obligations; Designated Support Contacts. Customer shall appoint up to ten (10) individuals who shall be sufficiently knowledgeable in the operation of the applicable Messaging Services to serve as primary Customer contacts with Solace for support calls for all Messaging Services (“Designated Support Contacts”). Customer may change its primary or alternate Designated Support Contacts at any time upon written notification to Solace (including by email). As applied to Messaging Services, Customer may provide Solace access to the logs and access to perform remote troubleshooting sessions on the affected server or component, as reasonably requested by Solace, in order for Solace to provide Support Services.
- Limitations. Solace shall be responsible for a Confirmed Error in the applicable Messaging Services, however, Solace shall not be responsible for providing Support Services for software, firmware, hardware not supplied by Solace. Services described herein do not include any support of any failure or defect in any Messaging Services solely caused by Customer, or if any Messaging Services (or any component of the foregoing) has been used in a manner not materially conforming to the requirements or suggestions in Documentation or in the Agreement, or if any Messaging Services (or any component of the foregoing) is used by Customer on an unsupported platform or hardware or has been altered or modified by Customer without Solace’s approval or otherwise in a manner reasonably contemplated by this Agreement.
- Service Level Commitment
- Service Level. During the Term, Solace agrees that the online components of Solace Cloud will be operational and available to Customer as follows:
|Configuration||Service Level Commitment|
|Messaging Services||VMR HA Group||99.95% or higher|
|Messaging Services||Single Node||99.5% or higher|
|Messaging Services||Shared Tenancy|
|98% or higher|
|Solace Cloud Console and REST API||98% or higher|
except for: (i) Scheduled Downtime, or (ii) unavailability of the Messaging Services due to the exclusions described in Section 6 below (“Performance Commitment Exclusions”). If Solace does not meet the Performance Commitment, Customer will receive the Service Credit described below. This Agreement states Customer’s sole and exclusive remedy for any failure by Solace to provide the Messaging Services in accordance with the Performance Commitment.
- Definitions. The following definitions shall apply to the Solace Performance Commitment.
- (i) “Downtime” means, for a Customer, if the Messaging Service(s) is not accessible to or functional for the Customer.
- (ii) “Messaging Services” means the Solace Cloud software made available to the Customer as a service and purchased by the Customer from time to time.
- (iii) “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month. If the Terms of Service are for a partial month, then the numerator and denominator of the Monthly Uptime Percentage shall only include those days during which Customer received the Messaging Services.
- (iv) “Scheduled Downtime” means a period of time, typically lasting less than 4 hours, during which Solace conducts regular maintenance and upgrades.
- (v) “Service Credit” means the following:
- VMR HA Groups Messaging Services
|Monthly Uptime Percentage||Service Credit|
|99.95% or higher||None|
|98.0% to 99.949%||5%|
- Single Node Messaging Services
|Monthly Uptime Percentage||Service Credit|
|99.5% or higher||None|
|98% to 99.49%||5%|
- Shared Tenancy Messaging Services
|Monthly Uptime Percentage||Service Credit|
|98% or higher||None|
- Solace Cloud Console and REST API
|Monthly Uptime Percentage||Service Credit|
|98% or higher||None|
- Scheduled Downtime.
- Solace shall publish or notify Customers in advance of periods of Downtime: (i) for scheduled maintenance, typically at least seven (7) days advance notice; and (ii) for emergency maintenance, typically at least twenty-four (24) hours advance notice.
- Scheduled Downtime will typically be scheduled during non-business hours in the region in which the Component resides. When Scheduled Downtime occurs in accordance with this Section, such Scheduled Downtime is not considered Downtime for purposes of the Performance Commitment.
- During Scheduled Downtime, which requires upgrades or maintenance, Messaging Services may experience brief periods of downtime or minor degradation in performance.
- Remedies. If Customer wishes to claim a Service Credit from Solace, the Customer shall submit to Solace a written claim, within two months of the Downtime, notifying Solace of the applicable Downtime. Solace shall review such claim and calculate the applicable Service Credit, if any, in accordance with the terms of this Agreement. Except as set forth herein, Service Credits may not be exchanged for, or converted to, monetary amounts. In addition, in the event the Monthly Uptime Percentage falls below 98% for two (2) out of any three (3) consecutive months, Customer shall have the right to immediately terminate this Agreement upon notice to Solace.
- Performance Commitment Exclusions. The Performance Commitment does not apply to (a) immaterial outages of 2 minutes or less; (b) unavailability of the Messaging Services caused by factors outside of Solace’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Solace employees); (c) unavailability of the Messaging Services that result from equipment and/or software of third parties where such equipment and/or software is not within the reasonable control of Solace; (d) unavailability of the Messaging Services caused by use of the Messaging Services (or any component thereof) by Customer in a manner not materially conforming to the requirements described in the Documentation or in the Agreement.
- Amendments. Except where prohibited by applicable law or as otherwise agreed in the order form, company may unilaterally amend these terms of service, in whole or in part (each, an “Amendment”), by: (i) giving customer prior notice of such Amendment; or (ii) posting notice of such Amendment on the website. Unless otherwise indicated by Solace any such Amendment will become effective as of the date the notice of such Amendment is provided to Customer or is posted on the website (whichever is the earlier).
5.Solace Cloud Terms of Service
Solace Inc. (“Solace”) owns certain Software (as defined herein) that it has developed and makes commercially available to its customers for use as a cloud based, hosted service offering (the “Service”, as more fully defined below).
In connection with the use of the Service you and/or your organization or corporation (the “Customer”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).
BY ACCEPTING THE TERMS OF SERVICE, EITHER BY: A) ACCEPTING THE TERMS OF SERVICE ONLINE, B) SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, OR C) USING, OR ACCESSING THE SERVICE AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING Solace’S PRIVACY STATEMENT LOCATED AT https://solace.com/privacy, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN COMPANY AND THE CUSTOMER. IF, AFTER READING THE TERMS OF SERVICE, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE SERVICE.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1.1 In this Agreement:
“Agreement” means the Order Form and these Terms of Service.
“Customer” means the customer named in the applicable Order Form.
“Customer Data” means the data submitted by or for Customer to the Service or collected and processed by or for Customer using the Service, including the
data of Customer’s employees, contractors or customers.
“Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the processing of Personal Information.
“Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.
“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Information under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Information relates.
“Documentation” means the written or electronic documentation, including user manuals, reference materials and/or release notes, if any, that Solace generally makes available to subscribers to the Service, as the case may be.
“Fees” mean Subscription Fees, and Support Services Fees, as applicable.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means (i) an electronic form provided by Solace on its website for ordering Service Subscriptions and Support Services, or (ii) a written document executed by Solace and Customer in respect to Customer’s purchases of Service Subscriptions and Support Services from Solace.
“Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Service” means Solace’s proprietary messaging as a service platform known as “Solace Cloud” for which Customer is granted rights of access and use in accordance with this Agreement, which resides on servers operated by or on behalf of Solace and which will be remotely accessible over the Internet by Customer and its Users, including any ancillary services available in connection therewith through the Website, as such Service may be updated from time to time by Solace in its sole discretion.
“Subscription” means the right granted by Solace to Customer to access and use the Service in accordance with these Terms of Service and the applicable Order Form, for the Subscription Term specified in the applicable Order Form.
“Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Order Form.
“Subscription Term” means the period of time that Customer is authorized by Solace to access and use the Service (including the Documentation).
“Support Services” means the technical support services for the Service provided by Solace as described in, and in accordance with, the Support Terms.
“Support Terms” means the terms on which Solace, or an authorized support partner, provides Support Services to Customer and which are available at https://solace.com/legal#support-services.
“User” means an employee or contractor of Customer to whom Customer (or Solace at Customer’s request) has supplied a user identification and password.
“Website” means any website used by us to provide the Services, including the website located at cloud.solace.com.
2. The Service
2.1 Right to Use the Service. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, Solace hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the Service, solely during the Subscription Term; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Customer’s permitted use of the Service during the Subscription Term.
2.2 Reservation of Rights. Solace and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of this Agreement. Customer shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, Solace reserves all rights, title and interest in and to the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
2.3 Restrictions. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Service or any part of the Service, including but not limited any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of Solace’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Service or Documentation in any form to any person without the written consent of Solace; (f) remove any proprietary notices, labels, or marks from the Service or Documentation; (g) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; or (h) use the Service to create, collect, transmit, store, use or process any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).
2.4 Rights in Derivative Data. The Service may send information and data to Solace to provide aggregated usage, analytics and diagnostic statistics of Customers’ use of the Service. Customer hereby grants to Solace a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual fully paid-up and royalty-free license to collect, process and aggregate such information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to improve the Service, develop new products and services, to understand usage, and for any other business purpose and Solace may disclose Derivative Data solely in aggregated or other anonymized form in connection with its business.
3. User Accounts
Users shall provide accurate and complete registration when creating an account to use the Service (each a “User Account”). Customer hereby acknowledges and agrees that it is responsible for the compliance by all of its Users with this Agreement, any guidelines and policies published by us from time to time, and the activities of all Users using the Service. Customer shall ensure that all Users only use the Service through the User Account(s) and will not share the User Account with any other person who is not a Customer employee or contractor. Customer will promptly notify Solace of any actual or suspected unauthorized use of the Service. Solace reserves the right to suspend, deactivate, or replace any User Account if Solace determines that the User Account may have been used for an unauthorized purpose.
4. Support Services and Service Level Agreement
4.1 Support. Customer will have access to Support Services in accordance with the Support Terms through email at email@example.com or through the technical support sections of the Website.
4.2 Service Levels. Solace will use commercially reasonable efforts to provide the service levels are set forth in the Service Level Agreement.
4.3 Disaster Recovery. Solace will be responsible for establishing, implementing, testing, and maintaining an effective business continuity plan (including without limitation disaster recovery and crisis management procedures) to provide continuous access to, and support for, the Service. At a minimum, Solace shall, at all times, (i) back up, archive and maintain duplicate or redundant systems that can fully recover the Service and all Customer Data on a daily basis; and (ii) establish and follow procedures and frequency intervals for transmitting backup data and systems to Solace’s backup location. Such back up storage and systems will be located at a secure physical location other than the location of Solace’s primary system(s) and be updated and tested at least annually.
5. Customer Data
- Ownership. As between Solace and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Solace does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data.
- Customer Obligations.Customeris responsible for properly configuring and using the Service in a manner that provides security and redundancy of its Customer Data to prevent unauthorized access to its Service account and to prevent unauthorized access to Customer Data and ensuring the appropriate level of backup to prevent any loss of its Customer Data.
- Customer Data Portability and Deletion. Upon request by Customer made during the term hereof or within 30 days after the effective date of termination of this Agreement, Solace will make the Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Solace will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.
6. Protection of Personal Information
Solace’s Processing of Personal Information. Solace shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Solace shall only Process Personal Information on behalf of and in accordance with Customer’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customer’s Users or customers in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.
6.2 Relationship of the Parties. In relation to all Personal Information provided by or through Customer to Solace under this Agreement, Customer will at all times remain the Data Controller and will be responsible for compliance with all applicable data protection or similar laws. To the extent that Solace Processes Personal Information in the course of providing the Service, it will do so only as a Data Processor acting on behalf of the Customer (as Data Controller) and in accordance with the requirements of this Agreement.
6.3 Subprocessors. Solace may engage third party subcontractors to assist in the provision of the Service under this Agreement. Customer authorizes Solace to subcontract the processing of Personal Information under this Agreement provided that (i) Solace shall maintain a list of such subprocessors and will provide a copy of that list to Customer upon request; and (ii) all subprocessors will be contractually required by Solace to abide by substantially the same obligations as Solace under this Agreement to protect Personal Information, such that the data processing terms of the subcontract will be no less onerous than the data processing terms set out in this Agreement.
- Data Subject Request. Solace shall, to the extent legally permitted, promptly notify Customer if Solace receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Solace shall use commercially reasonable efforts to assist Customer by appropriate technical and organizational measures, to fulfill Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. Customer shall be responsible for any costs arising from Solace’s provision of assistance with a Data Subject Request.
- Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), Solace will promptly notify Customer of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Customer, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Customer with detailed information about the Security Incident. Solace will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Customer in doing so; and will provide prior notice to Customer of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Customer’s prior written approval, not to be unreasonably withheld, conditioned or delayed. Solace will work with and coordinate with Customer on any such notices in any event. Solace will comply with this Section 6 at Solace’s cost unless the Security Incidentarosefrom Customer’s negligent or willful acts or Solace’s compliance with Customer’s express written instructions.
- GDPR. Solace shall (a) Process Personal Information in accordance with the GDPR requirements directly applicable to Solace and its provision of the Service and related services, and (b) upon Customer’s request, provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Solace. Solace shall provide reasonable assistance to Customer in the cooperation or prior consultation with Customer’s authorized representative in the performance of its tasks under this Section 7, to the extent required under the GDPR.
7. Customer Responsibilities
7.1 Users. Customer is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or the Service, and notify Solace promptly of any such unauthorized access or use; and (c) use the Service only in accordance with the Documentation and applicable laws and government regulations.
7.2 Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the Service or the data contained therein.
7.3 Processing of Personal Information. Customer shall, in its use of the Service, Process Personal Information in accordance with the requirements of Data Protection Laws. For the avoidance of doubt, Customer’s instructions to Solace for the Processing of Personal Information shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired Personal Information. Customer hereby represents and warrants to, and covenants with Solace that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Solace to provide the Service, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Solace and to or from all applicable third parties.
7.4 Equipment. Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the Service and for all expenses relating thereto. Customer agrees to access and use, and shall ensure that all Users access and use, the Service in accordance with any and all operating instructions or procedures that may be issued by Solace from time to time.
7.5 Feedback. Customer may provide reasonable feedback to Solace including, but not limited to, suitability, problem reports, suggestions and other information with respect to the Service (“Feedback”). Customer hereby grants to Solace a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software, Service, Documentation and any other Solace products or services, or for any other purposes, any Feedback provided by Customer or its Users.
8. Fees and Payment
8.1 Fees. Customer shall pay all Fees specified in each Order Form. Except as otherwise specified herein or in an Order Form, Fees are based on Subscriptions purchased and not actual usage, payment obligations are non-cancellable, Fees paid are non-refundable, and the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term stated in an Order Form.
8.2 Invoicing and Payment. Fees for Subscriptions will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Solace.
8.3 Overdue Charges. Any payment not received from Customer by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Solace’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
8.4 Suspension for Non-Payment. Solace may immediately suspend Customer’s Subscription to use the Service if Customer fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by Solace under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.
8.5 Payment Disputes. Solace will not exercise its rights under Sections 8.3 or 8.4 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
8.6 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Solace has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Solace will invoice Customer and Customer will pay that amount unless Customer provides Solace with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Solace is solely responsible for taxes assessable against it based on its income, property and employees.
Solace shall have the right, with reasonable notice and during normal business hours, at Solace’s sole expense and in as non-disrupting a manner as reasonably possible, to verify Customer’s compliance with Customer’s obligations hereunder through a remote or an on-site audit of Customer’s records, facilities and licensing processes by Solace or a third party representative of Solace. Customer shall permit up to one such audit per year, including once during the 12 month period following the termination of this Agreement for any reason. Solace may use such audit reports solely to enforce its rights hereunder and shall otherwise treat audit reports and any information received in connection with such audits as Confidential Information. In the event that an audit establishes that Customer is in material breach of its obligations hereunder, Customer shall reimburse Solace for the cost of the audit and shall promptly pay to Solace all outstanding Fees.
10. Confidentiality Obligations
10.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Service and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
10.2 Confidentiality. Subject to Section 10.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Customer shall not disclose any performance, benchmarking, or feature-related information about the Service.
10.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
10.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
10.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10.6 Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 10.6.
11. Limited Warranties and Disclaimers
11.1 Limited Warranties. Solace hereby represents and warrants to Customer that:
(a) During the Subscription Term the Service will perform materially in accordance with the Documentation;
(b) the Service will not contain any Malicious Code;
(c) it owns or otherwise has sufficient rights in the Service and Documentation to grant to Customer the rights to access and use the Service and Documentation granted herein.
11.2 General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICE AND THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND Solace MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM Solace VIA THE SERVICE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. Solace DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
11.3 Internet Connectivity Disclaimer. Solace makes the Service available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and an internet connection meets the minimum specifications published by Solace in the Documentation and updated from time to time on Solace’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Service may be interrupted due to (a) website downtime for scheduled maintenance at Solace’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Solace’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Solace’s control or network intrusions. Customer hereby acknowledges and agrees that Solace shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Solace from any claims relating thereto.
12. Intellectual Property Infringement Indemnification
12.1 Indemnification by Solace. Subject to this Agreement, Solace shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Service and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (a) promptly gives written notice of the Infringement Claim to Solace; (b) gives Solace sole control of the defense and settlement of the Infringement Claim (provided that Solace may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to Solace, at Solace’s cost, all reasonable assistance and information.
12.2 Other Remedies. If (a) Solace becomes aware of an actual or potential Infringement Claim, or (b) Customer provides Solace with notice of an actual or potential Infringement Claim, Solace may (or in the case of an injunction against Customer, shall), at Solace’ sole option and determination: (i) procure for Customer the right to continue to use the Service; or (ii) replace or modify the Service with an equivalent or better Service so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Solace in its sole discretion, terminate the rights granted hereunder to the Customer to access and use the Service and refund to Customer that portion of any prepaid Subscription Fees that is applicable to the period following the termination of the Subscription pursuant to this Section 12.2, less any outstanding fees owed on such affected portion of the Service.
12.3 Exclusions. The indemnity in Section 12.1 does not extend to (1) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service with other products, software or services not provided or approved by Solace, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Service other than the most current version; or (3) any use, distribution, sublicensing or exercise of any other right outside the scope of this Agreement.
12.4 Limitation. Notwithstanding any other provision of this Agreement, the liability of Solace to Customer under this Section 12 shall not exceed $500,000. Solace agrees to obtain Customer’s consent for any settlement in excess of $500,000. In no event shall Solace be responsible for any cost, expense or compromise incurred or made by Customer without Solace’ prior written consent.
12.5 Sole Remedies. THIS SECTION 12 CONTAINS COMPANY’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.
13. Indemnification by Customer
Customer shall defend, indemnify and hold Solace harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Solace by a third party (a) alleging that the Customer Data or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that Solace (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases Solace of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.
14. Limitation of Liability
14.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 14.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
14.2 Limitation of Liability. SUBJECT TO SECTION 14.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
14.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS SUBJECT TO THE LIMITATION CONTAINED IN SECTION 12.4 HEREOF), (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
14.4 Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Solace shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.
During the term of this Agreement, Solace shall continuously maintain insurance against such risks and in such amounts that could reasonably be expected to be carried by persons acting prudently and in a business similar to that of Solace. Such insurance shall be issued and maintained with an insurance company having a rating of “A” or better by A.M. Best Solace.
16.1 Term, Renewal. This Agreement commences on the date of the initial Order Form and shall continue until terminated earlier in accordance with the provisions of this Agreement or applicable law. This Agreement shall remain in effect and govern all Order Forms until (i) the end of the Subscription Term under such Order Form, (ii) such Order Form is terminated by the parties, or (iii) there has been full performance of the parties’ respective obligations under such Order Form.
16.2 Subscriptions. Service Subscriptions commence on the earlier of the start date specified in the relevant Order Form and continue for the Subscription Term specified therein unless terminated earlier as provide for in this Agreement. Unless otherwise agreed upon in the applicable Order Form, Subscriptions shall automatically renew for additional periods of one (1) year at the list price then in effect at the time of renewal unless Customer gives Solace written notice of non-renewal at least sixty (60) days prior to the end of the applicable Subscription Term.
16.3 Termination. A party may terminate this Agreement or a Service Subscription for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
16.4 Refund or Payment upon Termination. If this Agreement or a Service Subscription is terminated by Customer in accordance with Section 16.3, Solace will refund Customer any prepaid Subscription Fees covering the remainder of the term of the Subscription Term after the effective date of termination. If this Agreement is terminated by Solace in accordance with Section 16.3, Customer will pay any unpaid Subscription Fees covering the remainder of the Subscription Term for any current Subscriptions. In no event will termination relieve Customer of its obligation to pay any Fees payable to Solace for the period prior to the effective date of termination.
16.5 Suspension of Access to Service. In addition to any termination rights of Solace pursuant to this Agreement, extraordinary circumstances may require Solace to suspend or terminate (where appropriate), as determined in Solace’s reasonable discretion, Customer’s access to and/or use of, or otherwise modify, the Service in order to: (a) prevent material damages to, or material degradation of the integrity of, Solace’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. Solace will notify Customer of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, Solace will limit such suspension to that which is minimally required and will promptly restore Customer’s access to the Service as soon as the event giving rise to the suspension has been addressed (including by Customer agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Customer: (i) all Subscription Fees related to the Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived Subscription Fees which have been pre-paid shall be refunded to Customer; and (ii) in the event of a termination in connection with this Section 16.5, Customer shall receive a refund of any and all prepaid Subscription Fees applicable to the remainder of the then-current Subscription Term.
17. Export Restrictions; US Government Licenses
Customer hereby represents and warrants that Customer is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer also represents and warrants that Customer is not an individual to whom the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software and related information and Customer shall comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Software or related information, and Customer represents and warrants that Customer has complied with any such applicable laws and/or regulations. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if Customer is an agency of the government of the United States of America, then Customer’s rights in respect of the Software and Documentation shall not exceed the rights provided under this Agreement, unless expressly agreed upon by Solace in a written agreement between Customer and Solace and signed by a Chief Operating Officer or Chief Executive Officer of Solace.
Customer may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Solace. Notwithstanding the foregoing, Solace may assign this Agreement in its entirety (including all Order Forms and Statements of Work), without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
19.1 Force Majeure. Neither Solace nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Solace hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, fires or other catastrophes.
19.2 Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
19.3 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
19.4 Independent Contractors. The relationship of Solace and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of the parties are their sole respective responsibilities.
19.5 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.
19.6 Entire Agreement. This Agreement is the entire agreement between Customer and Solace in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with Solace or a distributor of Solace.
19.7 Purchase Orders etc. The terms and conditions of this Agreement, any Order Forms and Statements of Work shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Service and Documentation and the right to access and use the Service and Documentation shall be deemed to be pursuant to the terms and conditions of this Agreement, unless Customer has executed a written license agreement with Solace or a distributor of Solace, in which case the Service and Documentation shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement.
19.8 Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
19.9 Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, COMPANY MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY COMPANY ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
19.10 Language of Agreement. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
Last update: April 20, 2018