Contracts
- Website Terms of Use
- Privacy Policy
- Solo.io Subscription Terms
- Subscriber Data Processing Agreement
- Technical Support Policy
- Product Descriptions
- Single Transaction Reseller Agreement
- Partner Portal Terms: Gloo Partner Network
- Subprocessors
- Electronic Signature Terms
- Subcontractor Data Processing Addendum
Website Terms of Use
Effective October 25th 2023
DownloadTable of Contents
Solo.io Website Terms of Use
We are Solo.io, Inc., doing business as Solo (“Solo,” “we,” “us,” or “our”), a company registered in the State of Delaware. We operate the website https://solo.io (the “Website”). These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and concerning your access to and use of the Website. You agree that by accessing or using the Website, you have read, understood, and agree to be bound by all of these Terms of Use. BY USING THE WEBSITE, YOU ARE IRREVOCABLY AGREEING TO ALL OF THESE TERMS AND CONDITIONS OF THE TERMS OF USE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOU MAY NOT USE THE WEBSITE.
Supplemental terms and conditions or documents that may be posted on the Website from time to time are hereby expressly incorporated herein by reference. We reserve the right, in Solo’s sole discretion, to make changes or modifications to these Terms of Use from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed as each time you access the Website, you will be subject to, and will be deemed to have been made aware of and to have accepted, the then applicable Terms of Use.
This Website is intended for business users who are at least 18 years old. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to the Terms of Use and to fully indemnify and hold harmless Solo if your child breaches or disaffirms any term or condition of the Terms of Use. If you are using this Website on behalf of an entity, you represent that you are authorized to legally bind such entity to the Terms of Use. If Solo believes that you do not meet any of these requirements Solo may immediately terminate your use of the Website. If you are under the age of 13 years old, you may not use the Website.
SOFTWARE AND SERVICES
Your use of any software offered for download on the Website, and your access to and use of any services offered on the Website, are governed by the terms of the applicable end user license or customer or other agreement which accompanies or is included with the software or services. You will not install any software or use any services that are accompanied by or include such an agreement, unless you first agree to the terms of the applicable agreement. SOFTWARE AND SERVICES OFFERED THROUGH THIS WEBSITE ARE WARRANTED, IF AT ALL, IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE AGREEMENT. EXCEPT AS SET FORTH IN THE APPLICABLE AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, we retain all right, title, and interest in and to the software, services and the Website, including without limitation all graphics, user interfaces, databases, functionality, software, website designs, audio, video, text, photographs, graphics, logos, and trademarks or service marks. These Terms of Use do not grant you any intellectual property license or rights in or to the software and the Website or any of its components, except to the limited extent that these Terms of Use specifically sets forth your license rights to it. You recognize that the software, services and the Website and their components are protected by copyright and other laws.
USER REPRESENTATIONS
By using the Website, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Website through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Website for any illegal or unauthorized purpose; and (7) your use of the Website will not violate any applicable law or regulation.
PROHIBITED ACTIVITIES
You may not use the Website to post, transmit or link to: (i) any advertisement, promotional materials or solicitation related to any product or service that is competitive with Solo products or services; (ii) software or programs which contain any harmful code, including, but not limited to, viruses, worms, time bombs or Trojan horses; (iii) content that defames, abuses, harasses, stalks, threatens, or otherwise violates the legal rights (such as rights of privacy and publicity) of others; (iv) content that includes racially, ethnically, or otherwise offensive language; (v) content that discusses or incites illegal activity; or (vi) content that includes explicit/obscene language or solicit/post sexually explicit images (actual or simulated). In addition, you may not: (a) deploy to the Website any robot, spider, scraper, website search/retrieval application, or other application designed to retrieve, index, "data mine," information from the Website; (b) use the Website to disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation; (c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (d) alter the opinions or comments posted by others on this Website; or (e) post anything on the Website that is contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. Solo reserves the right to (i) terminate access to your account and your ability to post to this Website and (ii) refuse, delete or remove any content; with or without cause and with or without notice, for any reason or no reason, or for any action that Solo determines to be inappropriate or disruptive to this Website or to any other user of this Website. Solo may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Solo's discretion, Solo will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Website.
FORUMS, COMMUNITY BOARDS AND LEARNING CENTER
We may host public message boards, chat rooms, blogs, and other interactive forums or services (each, a “Forum”) on the Website. Forums are intended to serve as discussion centers. Any user failing to comply with these Terms of Use or the forum rules may be expelled from and refused continued access to Forums. You acknowledge and agree that Forums are public spaces and that your participation in Forums creates no expectation of privacy. Further, you acknowledge that any personal information you communicate in Forums may be seen and used by others. We are not responsible for information that you or others choose to communicate in Forums, or for your actions or the actions of other users. Solo or its designated agents may remove or alter any information or content posted or otherwise disclosed in any Forum at any time for any reason. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN A FORUM OR OTHERWISE ON OR THROUGH THE WEBSITE, YOU DO SO AT YOUR OWN RISK.
THIRD-PARTY WEBSITES AND CONTENT
This Website may be linked to other websites that are not Solo websites (collectively, "Third Party Sites"). Any and all of the Third Party Sites may change from time to time. You acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Solo, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, user guides and privacy policies of any of Third Party Sites. Solo is providing links to the Third Party Sites to you as a convenience, and Solo does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. YOU AGREE THAT SOLO WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED IN WRITING, SOLO DOES NOT ENDORSE SUCH THIRD PARTY SITES OR ANY PRODUCTS OR SERVICES ASSOCIATED THEREWITH, AND YOU AGREE THAT SOLO HAS NO LIABILITY FOR ANY DAMAGES YOU MAY INCUR IN CONNECTION WITH THE USE OF ANY THIRD PARTY SITE.
PRIVACY NOTICE
We care about data privacy and security. Please review our Privacy Policy to understand our use of your personal information. You acknowledge that you have reviewed and understand our Privacy Policy.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
Notifications
We respect the intellectual property rights of others. If you believe that any material available on or through the software, services or the Website infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the software, services or the Website infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the software, services or the Website are covered by the Notification, a representative list of such works on the software, services or the Website; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Counter Notification
If you believe your own copyrighted material has been removed from the Website as a result of a mistake or misidentification, you may submit a written counter notification to our Designated Copyright Agent using the contact information provided below (a “Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following: (1) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled; (2) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located; (3) a statement that you will accept service of process from the party that filed the Notification or the party’s agent; (4) your name, address, and telephone number; (5) a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (6) your physical or electronic signature.
Designated Copyright Agent: legal@solo.io
TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Website. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE WEBSITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON IF WE REASONABLY CONSIDER THAT SUCH PERSON IS IN BREACH OF THESE TERMS OF USE, OR OF ANY APPLICABLE LAW OR REGULATION, INCLUDING WITHOUT LIMITATION BREACHES OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE.
WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE WEBSITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION IF WE CONSIDER THAT YOU HAVE BREACHED, OR ARE LIKELY TO BREACH, ANY OF THE ABOVE.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the Website from time to time to comply with new laws or regulations or to update our offerings.
GOVERNING LAW
These Terms of Use are governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without regard to its conflict of law principles.
WARRANTY DISCLAIMER
THE WEBSITE AND THE WEBSITE CONTENT ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SOLO MAKES NO REPRESENTATION OR WARRANTY THAT THE WEBSITE OR THE WEBSITE CONTENT ARE COMPLETE, SUITABLE FOR YOUR PURPOSE, OR ACCURATE. ON BEHALF OF ITSELF AND ITS LICENSORS, SOLO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES WITH RESPECT TO THE WEBSITE AND THE WEBSITE CONTENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO RESULTS OBTAINED THROUGH USE OF THE WEBSITE AND/OR THE WEBSITE CONTENT RESTS WITH YOU. SOLO MAKES NO REPRESENTATION OR WARRANTY THAT THE AVAILABILITY OF THE WEBSITE WILL BE UNINTERRUPTED, OR THAT THE WEBSITE AND/OR THE WEBSITE CONTENT WILL BE ERROR FREE OR SECURE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT SOLO SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF OR CONNECTED TO YOUR USE OF, OR INABILITY TO USE, THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR STATUTORY DAMAGES, INCLUDING ANY LOSS OF BUSINESS, LOSS OR PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF SOLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE. The foregoing limitations of liability do not limit the liability of Solo arising from gross negligence or willful intent, to the extent such damages may not be excluded or limited under applicable law.
FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to Solo, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Website, Website content or any services offered through the Website, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby grant to Solo a royalty-free, worldwide, transferable, irrevocable, perpetual license, including the right to grant and authorize sublicenses, to use or incorporate into the Website and/or any products or services any and all Feedback. For the avoidance of doubt, Solo shall be free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, importing, having imported, licensing, marketing, distributing, reproducing, and selling, directly or indirectly, products and services using such Feedback, and otherwise exploiting in any manner such Feedback. You understand and agree that Solo is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
EXPORT CONTROL
You hereby represent and warrant that you understand and acknowledge that some Website Content may be subject to export, re-export and import restrictions under applicable law and that you are not located in, under the control of, or a national or resident of, any country to which the United States has embargoed goods.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email or through the Website, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CONTACT US
In order to resolve a complaint regarding the Website or to receive further information, please contact us at: info@solo.io.
Effective January 20th 2023 to October 25th 2023
DownloadTable of Contents
Solo.io Website Terms of Use
We are Solo.io, Inc., doing business as Solo (“Solo,” “we,” “us,” or “our”), a company registered in the State of Delaware. We operate the website https://solo.io (the “Website”). These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and concerning your access to and use of the Website and the Services. You agree that by accessing the Services, you have read, understood, and agree to be bound by all of these Terms of Use. BY USING THE WEBSITE, YOU ARE IRREVOCABLY AGREEING TO ALL OF THESE TERMS AND CONDITIONS OF THE TERMS OF USE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOU MAY NOT USE THE WEBSITE.
Supplemental terms and conditions or documents that may be posted on the Website from time to time are hereby expressly incorporated herein by reference. We reserve the right, in Solo’s sole discretion, to make changes or modifications to these Terms of Use from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed as each time you access the Website, you will be subject to, and will be deemed to have been made aware of and to have accepted, the then applicable Terms of Use.
This Website is intended for business users who are at least 18 years old. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to the Terms of Use and to fully indemnify and hold harmless Solo if your child breaches or disaffirms any term or condition of the Terms of Use. If you are using this Website on behalf of an entity, you represent that you are authorized to legally bind such entity to the Terms of Use. If Solo believes that you do not meet any of these requirements Solo may immediately terminate your use of the Website. If you are under the age of 13 years old, you may not use the Website.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, we retain all right, title, and interest in and to the Software, Solo Technology and the Website, including without limitation all graphics, user interfaces, databases, functionality, software, website designs, audio, video, text, photographs, graphics, logos, and trademarks or service marks reproduced through the System. These Terms of Use do not grant you any intellectual property license or rights in or to the Software and the Website or any of its components, except to the limited extent that these Terms of Use specifically sets forth your license rights to it. You recognize that the Software, Solo Technology and the Website and their components are protected by copyright and other laws.
USER REPRESENTATIONS
By using the Website, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Website through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Website for any illegal or unauthorized purpose; and (7) your use of the Website will not violate any applicable law or regulation.
PROHIBITED ACTIVITIES
You may not use the Website to post, transmit or link to: (i) any advertisement, promotional materials or solicitation related to any product or service that is competitive with Solo products or services; (ii) software or programs which contain any harmful code, including, but not limited to, viruses, worms, time bombs or Trojan horses; (iii) content that defames, abuses, harasses, stalks, threatens, or otherwise violates the legal rights (such as rights of privacy and publicity) of others; (iv) content that includes racially, ethnically, or otherwise offensive language; (v) content that discusses or incites illegal activity; or (vi) content that includes explicit/obscene language or solicit/post sexually explicit images (actual or simulated). In addition, you may not: (a) deploy to the Website any robot, spider, scraper, website search/retrieval application, or other application designed to retrieve, index, "data mine," information from the Website; (b) use the Website to disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation; (c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (d) alter the opinions or comments posted by others on this Website; or (e) post anything on the Website that is contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. Solo reserves the right to (i) terminate access to your account and your ability to post to this Website and (ii) refuse, delete or remove any content; with or without cause and with or without notice, for any reason or no reason, or for any action that Solo determines to be inappropriate or disruptive to this Website or to any other user of this Website. Solo may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Solo's discretion, Solo will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Website.
You agree to indemnify and hold Solo and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys' fees and costs of defense) Solo or any other indemnified party suffers in relation to or arising from any violation by you of these Terms of Use, and/or any claim or demand from a third-party that your use of this Website or the use of this Website by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions), violates any applicable law or regulation, or the patents, copyrights, trademark rights or other rights of any third-party.You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
THIRD-PARTY WEBSITES AND CONTENT
This Website may be linked to other websites that are not Solo websites (collectively, "Third Party Sites"). Any and all of the Third Party Sites may change from time to time. You acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Solo, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, user guides and privacy policies of any of Third Party Sites. Solo is providing links to the Third Party Sites to you as a convenience, and Solo does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. YOU AGREE THAT SOLO WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED IN WRITING, SOLO DOES NOT ENDORSE SUCH THIRD PARTY SITES OR ANY PRODUCTS OR SERVICES ASSOCIATED THEREWITH, AND YOU AGREE THAT SOLO HAS NO LIABILITY FOR ANY DAMAGES YOU MAY INCUR IN CONNECTION WITH THE USE OF ANY THIRD PARTY SITE.
PRIVACY NOTICE
We care about data privacy and security. Please review our Privacy Policy to understand our use of your personal information. You acknowledge that you have reviewed and understand our Privacy Policy.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
Notifications
We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notification”). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by the Notification, a representative list of such works on the Services; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Counter Notification
If you believe your own copyrighted material has been removed from the Website as a result of a mistake or misidentification, you may submit a written counter notification to our Designated Copyright Agent using the contact information provided below (a “Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following: (1) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled; (2) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located; (3) a statement that you will accept service of process from the party that filed the Notification or the party’s agent; (4) your name, address, and telephone number; (5) a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (6) your physical or electronic signature.
Designated Copyright Agent: legal@solo.io
TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Website. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE WEBSITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON IF WE REASONABLY CONSIDER THAT SUCH PERSON IS IN BREACH OF THESE TERMS OF USE, OR OF ANY APPLICABLE LAW OR REGULATION, INCLUDING WITHOUT LIMITATION BREACHES OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE.
WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE WEBSITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION IF WE CONSIDER THAT YOU HAVE BREACHED, OR ARE LIKELY TO BREACH, ANY OF THE ABOVE.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the Website from time to time to comply with new laws or regulations or to update our offerings.
GOVERNING LAW
These Terms of Use and your use of the Services are governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without regard to its conflict of law principles.
WARRANTY DISCLAIMER
THE WEBSITE AND THE WEBSITE CONTENT ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SOLO MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE OR THE SITE CONTENT ARE COMPLETE, SUITABLE FOR YOUR PURPOSE, OR ACCURATE. ON BEHALF OF ITSELF AND ITS LICENSORS, SOLO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES WITH RESPECT TO THE SITE AND THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO RESULTS OBTAINED THROUGH USE OF THE SITE AND/OR THE SITE CONTENT RESTS WITH YOU. SOLO MAKES NO REPRESENTATION OR WARRANTY THAT THE AVAILABILITY OF THE SITE WILL BE UNINTERRUPTED, OR THAT THE SITE AND/OR THE SITE CONTENT WILL BE ERROR FREE OR SECURE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT SOLO SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF OR CONNECTED TO YOUR USE OF, OR INABILITY TO USE, THE SITE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR STATUTORY DAMAGES, INCLUDING ANY LOSS OF BUSINESS, LOSS OR PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF SOLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE. The foregoing limitations of liability do not limit the liability of Solo arising from gross negligence or willful intent, to the extent such damages may not be excluded or limited under applicable law.
FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to Solo, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Website, Website content or any services offered through the Website, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby grant to Solo a royalty-free, worldwide, transferable, irrevocable, perpetual license, including the right to grant and authorize sublicenses, to use or incorporate into the Site and/or any products or services any and all Feedback. For the avoidance of doubt, Solo shall be free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, importing, having imported, licensing, marketing, distributing, reproducing, and selling, directly or indirectly, products and services using such Feedback, and otherwise exploiting in any manner such Feedback. You understand and agree that Solo is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
EXPORT CONTROL
You hereby represent and warrant that you understand and acknowledge that some Website Content may be subject to export, re-export and import restrictions under applicable law and that you are not located in, under the control of, or a national or resident of, any country to which the United States has embargoed goods.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CONTACT US
In order to resolve a complaint regarding the Website or to receive further information, please contact us at: info@solo.io.
Privacy Policy
Effective April 11th 2024
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Privacy Policy
This Solo Privacy Policy (or “Privacy Policy“) applies to Solo, which is owned and operated by Solo.io, Inc. (“Company” or “we” or “us”). When you visit our website and use our Services, you trust us with your personal information. We take your privacy very seriously. In this Privacy Policy, we explain to you what information we collect, how we use it and what rights you have in relation to your privacy. If there are any terms in this Privacy Policy that you do not agree with, please discontinue use of our sites and our services.
This Privacy Policy applies to all information collected through our website, and/or any related services, sales, marketing or events (we refer to them collectively in this Privacy Policy as the "Services").
Please read this Privacy Policy carefully. If there are any terms in this Privacy Policy that you do not agree with, please discontinue use of our sites and services.
1. What Information Do We Collect?
We only collect the minimum information needed to do business with you, to provide better security, and to collect feedback to improve our products and services. There are two buckets of information we collect:
- Information Submitted to the Services. We collect information that you submit to the Services, such as your name, email address, job title, employer, comments, suggestions, feedback, opinions, and media.
- Information Automatically Collected. We automatically collect certain information when you visit, use or navigate the Services through our Site or from your mobile device. This information does not reveal your specific identity (like your name or contact information) but may include device and usage information, such as your IP address, browser and device characteristics, operating system, language preferences, referring URLs, device name, country, location, information about how and when you use our Services and other technical information. This information is primarily needed to maintain the security and operation of our Services, and for our internal analytics and reporting purposes.
2. How Do We Use Your Information?
We use personal information collected via our Services for a variety of business purposes described below. We process your personal information for these purposes in reliance on our legitimate business interests, in order to enter into or perform a contract with you, with your consent, and/or for compliance with our legal obligations. We indicate the specific processing grounds we rely on next to each purpose listed below.
We use the information we collect or receive:
- To Provide the Services. We may use your information to provide, operate and maintain our Services, and to improve, personalize and expand out Services.
- To Process Transactions. We may use your information to process your transactions in connection with the Services.
- To Communicate with You. We may use your information to communicate with you, either directly or through one of our partners (e.g., via push notifications or text messages), including for customer service, to send you marketing and promotional e-mails, and to provide you with updates and other information relating to our products and Services.
- To Protect our Services. We may use your information as part of our efforts to keep our Services safe and secure (for example, for fraud monitoring and prevention).
- To Enforce our terms, conditions and policies for Business Purposes, Legal Reasons and Contractual. We may use your information to protect our legal rights and to enforce our terms, including this Privacy Policy and our Terms of Service, and to protect the rights of our users and the public. We may also use your information as may be required by applicable laws and regulations.
- To Respond to legal requests and prevent harm. If we receive a subpoena or other legal request from a judicial process or governmental agency, we may need to inspect the data we hold to determine how to respond.
- For other Business Purposes. We may use your information for other Business Purposes, such as data analysis, identifying usage trends, determining the effectiveness of our promotional campaigns and to evaluate and improve our Services, products, and your experience. We may use and store this information in aggregated and anonymized form so that it is not associated with individual end users and does not include personal information. We will not use identifiable personal information without your consent.
3. How Will We Share Your Information?
We may process or share data based on the following legal bases:
- Consent: if you have given us specific consent to use your personal information in a specific purpose.
- Legitimate Interests: when it is reasonably necessary to achieve our legitimate business interests.
- Performance of a Contract: to fulfill the terms of a contract we have entered with you.
- Legal Obligations: where we are legally required to do so in order to comply with applicable law, governmental requests, a judicial proceeding, court order, or legal process, such as in response to a court order or a subpoena (including in response to public authorities to meet national security or law enforcement requirements).
- Vital Interests: where we believe it is necessary to investigate, prevent, or take action regarding potential violations of our policies, suspected fraud, situations involving potential threats to the safety of any person and illegal activities, or as evidence in litigation in which we are involved.
More specifically, we may need to process your data or share your personal information in the following situations:
- Vendors, Consultants and Other Third-Party Service Providers. We may share your data with third party vendors, service providers, contractors or agents who perform services for us or on our behalf and require access to such information to do that work. Examples include: payment processing, data analysis, email delivery, hosting services, customer service and marketing efforts. We may allow selected third parties to use tracking technology on the Services, which will enable them to collect data about how you interact with the Services over time. This information may be used to, among other things, analyze and track data, determine the popularity of certain content and better understand online activity. Unless described in this Policy, we do not share, sell, rent or trade any of your information with third parties for their promotional purposes.
- Aggregated Information. When legally permissible, we may use and share information about users with our partners in aggregated or de-identified form that cannot be reasonably used to identify you or any individual.
- Business Transfers. We may share or transfer your information in connection with, or during negotiations of, any merger, sale of company assets, financing, or acquisition of all or a portion of our business to another company.
- Third-Party Advertisers. We may use third-party advertising companies for analytics when you visit the Services. These companies may use information about your visits to our website(s) and other websites that are contained in web cookies and other tracking technologies in order to provide advertisements about goods and services of interest to you.
- Business Partners. We may share your information with our business partners to offer you certain products, services or promotions.
- As Required by Law and Similar Disclosures. We may also share information to (i) satisy any applicable law, regulation, legal process, or governmental request; and (ii) enforce this Privacy Policy and our Terms of Service, including investigation of potential violations hereof.
- Other Users. When you share personal information (for example, by posting comments, contributions or other content to the Services) or otherwise interact with public areas of the Services, such personal information may be viewed by all users and may be publicly distributed outside the Services in perpetuity. Similarly, other users will be able to view descriptions of your activity, communicate with you within our Services, and view your profile.
4. Is Your Information Transferred Internationally?
Our servers are located in the United States. If you are accessing our Services from outside United States, please be aware that your information may be transferred to, stored, and processed by us in our facilities and by those third parties with whom we may share your personal information, in the United States, and other countries.
If you are a resident in the European Economic Area, then these countries may not have data protection or other laws as comprehensive as those in your country. We will however take all necessary measures to protect your personal information in accordance with this Privacy Policy and applicable law.
With respect to Personal Data of Data Subjects located in the EEA, Switzerland, or the United Kingdom that Customer transfers to us or permits us to access, the parties agree that by executing the DPA they also execute the Standard Contractual Clauses, which will be incorporated by reference and form an integral part of the DPA. The parties agree that, with respect to the elements of the Standard Contractual Clauses that require the parties’ input, Schedules 1-3 contain all the relevant information.
5. What Are Cookies, Beacons and Analytics?
When you interact with the Services, we strive to make your experience easy and meaningful. Our Services use technology, or those of third party service providers, such as cookies, web beacons (clear GIFs, web bugs) and similar technologies to track user activity and collect site data. We may combine this data with the personal information we have collected from you.
- Cookies. We (including our chosen third party service providers) use cookies to track visitor activity on the Services. A cookie is a text file that a website transfers to your computer’s hard drive for record-keeping purposes. Our cookies assign a random, unique number to each visitor’s computer. They do not contain information that would personally identify the visitor, although we can associate a cookie with any identifying information that is or has been provided to us while visiting the Services. We use cookies that remain on your computer for a specified period of time or until they are deleted (persistent cookies). We may also use cookies that exist only temporarily during an online session (session cookies) – these cookies allow us to identify you temporarily as you move through the Services. Most browsers allow users to refuse cookies but doing so may impede the functionality of some portions of our Services.
- Web Beacons. Web beacons are tiny graphics with a unique identifier, similar in function to cookies, that are used to track the online movements of Web users. In contrast to cookies, which are stored on your computer’s hard drive, Web beacons are embedded invisibly on webpages and may not be disabled or controlled through your browser.
- Third Party Analytics. We may also engage third parties to track and analyze Services activity on our behalf. TO do so, these third parties may place cookies or web beacons to track user activity on our Services. We use the data collected by such third parties to administer and improve the quality of the Services, analyze usage of the Services, and provide a more enhanced user experience on the Services, such as personalizing and delivering relevant offers and content based on user activity on the Services. We do not provide these third parties with your Personal Information. We may use analytics services such as Google Analytics to collect and process certain analytics data. These services may also collect information about your use of other websites, apps, and online resources. You can learn about Google’s practices by going to https://www.google.com/policies/privacy/partners/, and opt-out of them by downloading the Google Analytics opt-out browser add-on, available at https://tools.google.com/dlpage/gaoptout.
6. How Long Do We Keep Your Information?
We will only keep your personal information for as long as it is necessary for the purposes set out in this Privacy Policy, unless a longer retention period is required or permitted by law (such as tax, accounting or other legal requirements). We retain personal information we collect from you where we have an ongoing legitimate business need to do so. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
Some of your personal information is retained by the third parties that we engage with pursuant to this Privacy Policy; if any third parties retain or store your personal information, your personal information will be subject to the privacy policies of those third parties, including their data retention policies. We do not have any liability for retention of your personal information by such third parties.
7. How Do We Keep Your Information Safe?
We are committed to protecting your information. To do so, we employ a variety of reasonable technical and organizational security measures designed to protect the security and integrity of any personal information we process, and to protect such information from unauthorized access, use, or disclosure. The measures we use are designed to provide a level of security appropriate to the risk of processing your personal data and are in accordance with this Privacy Policy and applicable law. We secure the personally identifiable information you provide on computer servers in a controlled, secure environment, and when personal information is transmitted through the Services, it is protected through the use of encryption, such as Secure Socket Layer (SSL) protocol. However, please also remember that we cannot guarantee that the internet itself is 100% secure. Although we will do our best to protect your personal information, transmission of personal information to and from our Services is at your own risk, and we cannot guarantee that unauthorized access, hacking, data loss or a data breach will never occur. You should only access the services within a secure environment. BY USING OUR SERVICE, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO ASSUME THIS RISK.
8. Do We Collect Information From Minors?
We do not knowingly solicit data from or market to children under 13 years of age, and minors under the age of 13 are prohibited from using our Services. No part of the Services is directed at persons under 18; if you are under 18 years of age, then please do not use the Service. If we learn that personal information from users less than 13 years of age has been collected, we will take reasonable measures to promptly delete such data from our records. If you become aware of any data we have collected from children under age 13, please contact us at privacy@solo.io.
9. What Are Your Privacy Rights?
If you are a resident of the EEA, you have the following data protection rights:
- If you wish to access, correct, update, or request deletion of your personal information, you can do so at any time by emailing privacy@solo.io.
- To exercise your rights to deletion of your personal data under the GDPR, you can deactivate and purge your account by emailing privacy@solo.io. All account data will be deleted within 90 days of the request.
- In addition, you can object to the processing of your personal data, ask us to restrict the processing of your personal data, or request portability of your personal data. Again, you can exercise these rights by emailing privacy@solo.io.
- You have the right to opt-out of marketing communications we send you at any time. You can exercise this right by clicking on the “unsubscribe” or “opt-out” link in the marketing emails we send you. To opt-out of other forms of marketing, please contact us by emailing privacy@solo.io.
- Similarly, if we have collected and process your personal data with your consent, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing we conducted prior to your withdrawal, nor will it affect the processing of your personal data conducted in reliance on lawful processing grounds other than consent.
- You have the right to complain to a data protection authority about our collection and use of your personal data. For more information, please contact your local data protection authority. You can find their contact details here: http://ec.europa.eu/justice/data-protection/bodies/authorities/index_en.html.
10. What Are the Controls For Do-Not-Track Features?
Most web browsers and some mobile operating systems and mobile applications include a Do-Not-Track (“DNT”) feature or setting you can activate to signal your privacy preference not to have data about your online browsing activities monitored and collected. No uniform technology standard for recognizing and implementing DNT signals has been finalized. As such, we do not currently respond to DNT browser signals or any other mechanism that automatically communicates your choice not to be tracked online. If a standard for online tracking is adopted that we must follow in the future, we will inform you about that practice in a revised version of this Privacy Policy.
11. Do California Residents Have Specific Privacy Rights?
California Civil Code Section 1798.83, also known as the “Shine The Light” law, permits our users who are California residents to request and obtain from us, once a year and free of charge, information about categories of personal information (if any) we disclosed to third parties for direct marketing purposes and the names and addresses of all third parties with which we shared personal information in the immediately preceding calendar year. If you are a California resident and would like to make such a request, please submit your request in writing to us using the contact information provided below.
If you are under 18 years of age, reside in California, and have a registered account with the Services, you have the right to request removal of unwanted data that you publicly post on the Services. To request removal of such data, please contact us using the contact information provided below, and include the email address associated with your account and a statement that you reside in California. We will make sure the data is not publicly displayed on the Services, but please be aware that the data may not be completely or comprehensively removed from our systems.
12. Do We Make Updates To This Policy?
We may update this Privacy Policy from time to time. The updated version will be indicated by an updated “Revised” date and the updated version will be effective as soon as it is accessible. If we make material changes to this Privacy Policy, we may notify you either by prominently posting a notice of such changes or by directly sending you a notification. We encourage you to review this Privacy Policy frequently to be informed of how we are protecting your information.
13. What About Third Party Links?
The Services may contain links to other, third party websites. Any access to and use of such linked websites is not governed by this Privacy Policy, but instead, is governed by the privacy policies of those third party websites. We are not responsible for the information practices of such third party websites.
14. How Can You Review, Update, Or Delete The Data We Collect From You?
You can update your personal information by using the profile editing tools through the Service. We will respond to any reasonable request by a user to review or amend personal information held in our mailing list or database. Solo reserves the right to verify your identity in order to provide such access. Please contact us by sending an email to privacy@solo.io.
Based on the laws of some countries, you may have additional rights to request access to the personal information we collect from you, change that information, or delete it in some circumstances. To request to review, update, or delete your personal information, please submit a request by sending an email to privacy@solo.io. We will respond to your request within 30 days.
15. How Can You Opt Out of Use and Disclosure of Your Information?
If you wish to be removed from our mailing list, please contact us at privacy@solo.io. In the event of any such removal, Solo may retain copies of information for its archives. If you wish to opt out of promotional emails, you may do so by following the “unsubscribe” instructions in the email, or by editing your account settings, or by sending a request to privacy@solo.io. All users receive administrative emails, and so you cannot opt out of them while you remain an active user of the Service.
16. How Can You Contact Us About This Policy?
Solo welcomes your comments regarding this Privacy Policy. If you believe that Solo has not adhered to this Privacy Policy, please contact us at privacy@solo.io. We will use commercially reasonable efforts to promptly investigate and remedy the problem.
Effective January 20th 2023 to April 11th 2024
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Privacy Policy
This privacy policy is designed to inform users of the www.solo.io and www.servicemeshhub.io websites (the “Sites”), which offer tools enabling companies to manage multiple service meshes in a single interface (the “Service”) about how Solo.io, Inc. (“Solo.io”, “we” or “us”) gathers and uses personal information collected by Solo.io through the Service. Solo.io will take reasonable steps to protect user privacy consistent with the guidelines set forth in this policy and with applicable U.S. laws. In this policy, “user” or “you” means any person viewing the Solo.io Sites, using the Service or submitting any personal information to Solo.io in connection with using the Service. By using the Service, you are indicating your consent to this Privacy Policy.
IF YOU DO NOT AGREE WITH THIS PRIVACY POLICY, YOU SHOULD NOT USE THE SERVICE.
What Information Do We Collect?
Personal Information
If you sign up for a Solo.io trial, we ask you for certain personal information (the “Personal Information”) for the account, including information such as your name, email address, job title and employer, and your geographic location. If you sign up for our newsletter, we ask for your e-mail address. If you contact Solo.io through the Sites, including to apply for career opportunities, we ask for your first and last name and e-mail address. If you disclose additional personal information to us, we may store that Personal Information.
Web Tracking Information
We, and third party service providers that we engage to provide services to us (“Contractors”), may use web tracking technologies such as cookies, web beacons, pixel tags and clear GIFs in order to operate the Service efficiently and to collect data related to usage of the Service. Such collected data (“Web Tracking Information”) may include the address of the websites you visited before and after you visited the Solo.io Sites, the type of browser you are using, your Internet Protocol (IP) address, what pages in the Service you visit and what links you clicked on, and whether you opened email communications we send to you. In order to collect Web Tracking Information and to make your use of the Service more efficient, we may store cookies on your computer. We may also use web tracking technologies that are placed in web pages on the Service or in email communications to collect information about actions that users take when they interact with the Service or such email communications, and our Contractors may also do so. We do not correlate Web Tracking Information to individual user Personal Information. Some Web Tracking Information may include data, such as IP address data, that is unique to you. You may be able to modify your browser settings to alter which web tracking technologies are permitted when you use the Service, but this may affect the performance of the Service.
Mobile Users
If you access the Service from a mobile device, we may collect unique identification numbers associated with your device, your geographic location data including GPS coordinates, or similar information regarding the location of your mobile device.
How Do We Use the Information We Collect?
Personal Information
We will use and store Personal Information for the purpose of delivering the Service (including to establish or renew your Solo.io account), and to analyze and enhance the operation of the Service. We may also use Personal Information for the internal operational and administrative purposes of the Service. We may enter Personal Information into our contact management database, and may use such database to send you marketing materials and to contact you regarding your interest in Solo.io products and services.
Aggregate Information
We will also create statistical, aggregated data relating to our users and the Service for analytical purposes. Aggregated data is derived from Personal Information but in its aggregated form it does not relate to or identify any individual. This data is used to understand our customer base and to develop, improve and market our services.
Web Tracking Information
We use Web Tracking Information to administer the Service and to understand how well our Service is working, to store your user preferences, and to develop statistical information on usage of the Service. This allows us to determine which features visitors like best to help us improve our Service, to personalize your user experience, and to measure overall effectiveness.
Legal Exception
Notwithstanding the above, Solo.io may use Personal Information to the extent required by law or legal process, or if in Solo.io’s reasonable discretion use is necessary to investigate fraud or any threat to the safety of any individual, to protect Solo.io’s legal rights or to protect the rights of third parties.
What Information Do We Disclose to Third Parties?
Solo.io’s Disclosure of Personal Information
Solo.io will not disclose Personal Information to any third party except as described in this section.
We may disclose Personal Information to our Contractors who are bound by written obligations of confidentiality. Our Contractors help us perform statistical analysis, send you email or postal mail, conduct marketing and promotional activities, operate the Service, and provide customer support. Our Contractors are prohibited from using your personal information except to provide these services to Solo.io.
Web Tracking Information
We disclose Web Tracking Information to Contractors, in order to analyze the performance of the Service and the behavior of users, and to operate and improve the Service. Certain Web Tracking information, such as the popularity ranking of certain pages of the Service, may be published on the Service and so disclosed to all users of the Service.
Aggregate Information
We may disclose aggregated data that does not contain Personal Information to any third parties, such as potential customers, business partners, advertisers, and funding sources, in order to describe our business and operations.
Successors and Law Enforcement
Notwithstanding the foregoing, Solo.io reserves the right to disclose any information Solo.io collects in connection with the Service, without further notice to you (a) to any successor to Solo.io’s business as a result of any merger, acquisition or similar transaction; and (b) to any law enforcement or regulatory authority to the extent required by law or if, in Solo.io’s reasonable discretion, disclosure is necessary to investigate fraud or any threat to the safety of any individual, to protect Solo.io’s legal rights or to protect the rights of third parties.
Consent
Solo.io may disclose your Personal Information with your consent.
How Can You Opt Out of Use and Disclosure of Your Information?
If you wish to be removed from our mailing list, please contact us at privacy@solo.io. In the event of any such removal, Solo.io may retain copies of information for its archives. If you wish to opt out of promotional emails, you may do so by following the “unsubscribe” instructions in the email, or by editing your account settings, or by sending a request to privacy@solo.io. All users receive administrative emails, and so you cannot opt out of them while you remain an active user of the Service.
Access and Updating of Information
You can update your Personal Information by using the profile editing tools on the Service. Solo.io will respond to any reasonable request by a user to review or amend his or her Personal Information held in our mailing list or database. Solo.io reserves the right to verify your identity in order to provide such access. Please contact us by sending an email to privacy@solo.io.
Security
We use reasonable security precautions to protect the security and integrity of your Personal Information and User Data in accordance with this policy and applicable law. Solo.io secures the personally identifiable information you provide on computer servers in a controlled, secure environment, protected from unauthorized access, use or disclosure. When personal information is transmitted through the Service, it is protected through the use of encryption, such as the Secure Socket Layer (SSL) protocol. However, no Internet transmission is completely secure, and we cannot guarantee that security breaches will not occur. Without limitation of the foregoing, we are not responsible for the actions of hackers and other unauthorized third parties that breach our firewalls, secure server software, and other reasonable security procedures.
BY USING OUR SERVICE, YOUR ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO ASSUME THIS RISK.
Links
The Service may contain links to other websites. Solo.io is not responsible for the privacy practices or the content of those websites. Users should be aware of this when they leave our Sites and review the privacy statements of each website they visit that collects information. This Privacy Policy applies solely to personal information collected by Solo.io.
Amendments
Solo.io may modify or amend this policy from time to time. If we make any material changes, as determined by Solo.io, in the way in which Personal Information or User Data is collected, used or transferred, we will notify you of these changes by modification of this Privacy Policy, which will be available for review by you at the Service.
Service Visitors from outside the United States
Solo.io and its servers are located in the United States and are subject to the applicable state and federal laws of the United States. If you choose to access the Service, you consent to the use and disclosure of information in accordance with this privacy policy and subject to such laws.
California Privacy Rights
Please see our California Privacy Rights Statement for information about California Privacy Rights, and other required disclosures.
Children
Solo.io does not knowingly collect or maintain personally identifiable information from persons under 13 years of age, and no part of the Service is directed at persons under 18. If you are under 18 years of age, then please do not use the Service. If Solo.io learns that personal information of persons less than 13 years of age has been collected without verifiable parental consent, then Solo.io will take the appropriate steps to delete this information. To make such a request, please contact us at privacy@solo.io.
Contact Information
Solo.io welcomes your comments regarding this Privacy Policy. If you believe that Solo.io has not adhered to this Privacy Policy, please contact us at privacy@solo.io. We will use commercially reasonable efforts to promptly investigate and remedy the problem.
Solo.io Subscription Terms
Effective February 1st 2024
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SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and its employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 "DPA” means the version of the data processing agreement located at https://legal.solo.io/#subscriber-dpa that is in effect as of the Effective Date.
1.4 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.5 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.6 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.7 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.8 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.9 “Software” means software provided by Solo that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software, except to the extent any portion thereof is modified by Solo and provided to Subscriber for use during the Subscription Term.
1.10 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.11 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial Use and Beta Features. Sections 7 and 8 of this Agreement do not apply to any trial use or beta versions of the Products. Section 2.2 applies to all trials, except that such use is (i) limited to non-production purposes only and (ii) limited to a time agreed between Subscriber and Solo in writing (email acceptable). At the end of a trial, Subscriber must uninstall and cease use of all Software.
2.2 Software Terms.
2.2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.2.3 Unlimited Enterprise License. To the extent Subscriber is granted an unlimited, enterprise license in an applicable Order Form, Subscriber has no quantitative volume limitations (API calls or routes, nodes, cores or the like) with regards to such a license and is not subject to Section 2.2.4 below.
2.2.4 Use Case License. For all other licenses limited by quantitative volumes in an Order Form, Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable Scope Limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage.
2.3 Bundled Solution Terms. If Subscriber intends to purchase a Subscription that includes Software for embedded use, additional terms can be found in Addendum A.
2.4 Data Processing. Solo is not a cloud-based service; however, to the extent Solo receives personally identifiable information from Subscriber's use of Support Services and/or Professional Services, Solo will comply with the DPA.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copies are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Subscriptions and/or Solo Technology shall terminate and Subscriber will cease use of all Subscriptions and/or Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Virus Warranty. Solo warrants that at the time the Software is made available for download, it will be free of any virus.
7.1.5 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.4, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as in the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption and Compliance with Laws. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws. Each party agrees to comply with all laws applicable to such party’s performance of its obligations under this Agreement. Subscriber acknowledges that Subscriber is responsible for complying with laws applicable to its use of the Subscriptions and/or Professional Services.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Equal Employment Opportunity. Each party agrees that it is an equal-opportunity employer and does not discriminate on the basis of age, race, creed, color, religion, sex, sexual orientation, gender identity, national origin, disability, marital or veteran status, or any other basis that is prohibited by applicable law. Solo and Subscriber shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741-5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national original. Additionally, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, or disability.
10.5 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.7 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.8 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.9 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.10 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.11 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.12 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.13 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.14 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless made in an express writing signed by the waiving party.
10.15 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) DPA, (ii) Order Form (but only for the transaction thereunder), (iii) an applicable Addendum, (iv) this Agreement, and (v) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the Scope Limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Subscriber. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective August 29th 2023 to February 1st 2024
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products. For the avoidance of doubt, all Subscriptions include access to Software.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as in the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless made in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means software provided by Solo that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software, except to the extent any portion thereof is modified by Solo and provided to Subscriber for use during the Subscription Term.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable Scope Limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means software provided by Solo that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software, except to the extent any portion thereof is modified by Solo and provided to Subscriber for use during the Subscription Term.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the Scope Limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Subscriber. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective August 1st 2023 to August 29th 2023
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as in the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless made in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable Scope Limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable Scope Limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the Scope Limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Subscriber. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective March 13th 2023 to August 1st 2023
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SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo Reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as is the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable quantitative volume limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the quantitative volume limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective February 1st 2023 to March 13th 2023
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo Reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as is the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) DPA (if applicable), (iv) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable quantitative volume limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the quantitative volume limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Effective January 20th 2023 to February 1st 2023
DownloadTable of Contents
SOLO.IO SUBSCRIPTION TERMS
NOT FOR EDITING OR NEGOTIATION
The Solo.io Subscription Terms (“Subscription Terms”) apply to the extent (1) referenced in an Order Form (as defined below), or (2) you download, install or execute any Software (as defined below) from www.solo.io (“Solo’s Website”) as part of a free trial except to the extent Separate Licenses (as defined below) apply. These Subscription Terms, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between Solo,io, Inc. (“Solo”), and the entity identified as the “Ship-To” of an applicable Order Form or the individual that downloads, installs or executes any Software from Solo’s Website(“Subscriber”).
1. DEFINITIONS
1.1 “Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Persons” means Subscriber’s employees, Affiliates and their employees, or a Permitted Third Party, who are bound to confidentiality obligations no less protective than this Agreement.
1.3 “Documentation” means Solo’s user documentation available online or through the delivery of Support Services relating to a Product.
1.4 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Subscriber (or its Affiliates) to purchase Subscriptions and/or Professional Services, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.5 “Permitted Third Party” means an entity under contract with Subscriber or Subscriber’s Affiliate that needs to access or use a Subscription or Professional Services to perform its obligations to Subscriber, provided that (i) such entity must not be a direct competitor of Solo, and (ii) Subscriber remains responsible to Solo for the compliance of such entity and its employees and Affiliates with the terms and conditions of this Agreement.
1.6 “Product” means Solo-branded paid software, cloud-based service or the like, made available for use and/or access from Solo.
1.7 “Professional Services” means the professional service described in an Order Form, which may include implementation, configuration, consulting or training.
1.8 “Subscription” means Subscriber’s right during the term specified in an Order Form (“Subscription Term”) to install, use and/or access a Product and/or to receive Support Services, as applicable.
1.9 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at [TECHNICAL SUPPORT POLICY LINK] (the “Technical Support Policy”).
2. PRODUCT TERMS AND CONDITIONS.
2.1 Trial / Proof of Concept Terms. The terms and conditions of Addendum A apply to any trial use of the Software. Sections 7 and 8 of this Agreement, and Section 2.3 of Addendum A, do not apply to any trial use of the Software.
2.2 Software Terms. Additional terms found in Addendum A apply to the extent Subscriber is purchasing a Subscription that includes Software for internal use. Sections 7 and 8 of this Agreement do not apply to any beta versions of Products.
2.3 Bundled Solution Terms. Additional terms found in Addendum B apply to the extent Subscriber is purchasing a Subscription that includes Software for embedded use.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1 Professional Services. Subscriber will provide all assistance, cooperation, information and resources reasonably necessary to enable Solo to perform the Professional Services. The details of the Professional Services to be performed will be determined on a per-project basis and described in an Order Form. Unless otherwise specified in an applicable Order Form, Professional Services must be consumed within twelve (12) months of the start date indicated on the Order Form and any unused portion will expire after such time. For the avoidance of doubt, Subscriber will be invoiced for all Professional Services contained in an Order Form even if not used. If the parties need to make changes to the Order Form, the parties will execute a new Order Form referencing the original Order Form memorializing any changes; provided that, if Subscriber’s requested changes materially increase the scope of the effort required, such new Order Form will also include any additional fees owed by Subscriber. In the event Subscriber requests that Professional Services be rescheduled, Subscriber shall reimburse Solo for any additional costs or expenses incurred by Solo to reschedule the performance of such Professional Services, including without limitation, fees, charges and penalties related to airfare, visas and accommodations. Further, upon Subscriber’s consent, not to be unreasonably withheld, Solo may engage qualified subcontractors to provide Professional Services, and Solo remains responsible for any subcontractor’s compliance with this Agreement.
3.2 Support Services. Support Services will be delivered to Authorized Persons during the applicable Subscription Term remotely, electronically and through the Internet, and when applicable, via telephone in accordance with the Technical Support Policy and any quantitative limitations specified on an Order Form. Support Services are not delivered on-site at Subscriber’s location. Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the Subscription Term.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under any Product and Documentation, all add-ons to the Product or the like, any training and other educational materials, and any deliverables created or made available as part of the Professional Services and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Authorized Persons may use Solo Technology only in connection with a Subscription, subject to the same usage rights and restrictions as such Subscription. Solo grants Subscriber a royalty-free, perpetual, non-transferable and non-exclusive license to use and reproduce any reports (excluding Solo Technology) created specifically for Subscriber in the performance of Support Services and/or Professional Services for Subscriber’s internal business purposes. Subscriber’s rights to Solo Technology are limited to those expressly set forth in this Agreement. Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Professional Services and/or Support Services.
3.4 Third Party Components. Further, Subscriber acknowledges that Solo Technology may contain third party components subject to third party or open source license terms (“Separate License”). This Agreement does not alter any rights Subscriber might have with respect to a third party component under such Separate License and, to the extent there is a conflict between the Separate License and this Agreement, the Separate License takes precedence with respect to such third party component. Separate Licenses do not impose any additional restrictions or obligations on the use of the Solo Technology under this Agreement. A list of third party components and corresponding Separate Licenses are available upon request to Solo.
3.5 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Subscriber, its Affiliates and Permitted Third Parties, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
4. CONFIDENTIAL INFORMATION
4.1 Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Technology, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than Authorized Persons to the extent required to be able to access and use a Subscription and/or Professional Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Fees and Payment. Subscriber agrees to pay for all fees due under each Order Form or otherwise under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Subscription(s) and/or Professional Services purchased, not actual usage.
5.2 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Subscriber will reimburse Solo for any costs to collect late payments.
5.3 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Subscription and/or Professional Services purchased by Subscriber under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Subscriber provides evidence of an exemption from the relevant Taxes, Subscriber will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Subscriber is responsible for under this Agreement and which Subscriber did not pay Solo, Solo may invoice Subscriber and Subscriber will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.4 Future Functionality. Subscriber’s purchase is not dependent on any oral or written comments made by Solo regarding future functionality or features. Subscriber understands and agrees that any features or functions of Products, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Subscriber is purchasing Subscriptions and/or Professional Services based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
5.5 Reseller Transactions. If Subscriber places an order for Subscriptions or Professional Services from an authorized Solo Reseller the terms of this Agreement apply to Subscriber’s use of such Subscriptions or Professional Services except for (1) payment and taxes which shall be addressed in the agreement between the reseller and Subscriber and (2), where reseller manages Support Services on behalf of Subscriber, the Technical Support Policy.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated and for which the Subscription Term, or term for Professional Services as detailed in Section 3.1 of this Agreement, as applicable, has not expired.
6.2 Termination.
6.2.1 For Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party if there are no Order Forms in effect. Neither party may terminate an Order Form for convenience. The parties may mutually agree in writing to terminate this Agreement at any time.
6.2.2 For Breach. If a party fails to cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.3 Effect of Termination. Upon termination of this Agreement or an applicable Order Form, any licenses to Solo Technology shall terminate and Subscriber will cease use of all Solo Technology. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties.
7.1.1 Professional Services Warranty. Solo warrants it will perform the Professional Services in a professional, workmanlike, manner in accordance with generally accepted industry practice using personnel with the necessary skills, experience, and training and in accordance with the terms of the Order Form.
7.1.2 Support Services Warranty. Solo warrants it will perform the Support Services in accordance with the Technical Support Policy.
7.1.3 Product Warranty. Solo warrants that, during the applicable Subscription Term, the Products, in the form provided by Solo, will materially perform in accordance with the Documentation. This warranty does not apply to (i) any trial or beta use, (ii) any use of a Product not in accordance with the Documentation or terms of this Agreement, or (iii) any bug or defect attributable to software, hardware or a product not supplied by Solo.
7.1.4 Remedies for Warranty Breach. In the event of a breach of any of the foregoing warranties in Section 7.1.1 through 7.1.3, Subscriber’s sole and exclusive remedy is limited to correction of the non-conforming Products or re-performance of the Support Services or Professional Services, as applicable, and, if correction or re-performance is not commercially feasible within thirty (30) days of receipt of notice from Subscriber, then Subscriber may terminate the applicable Order Form upon written notice to Solo, and Solo shall promptly refund to Subscriber all prepaid, unused fees paid by Subscriber to Solo under such terminated Order Form. The foregoing is conditioned upon Subscriber notifying Solo within thirty (30) days that Subscriber becomes aware of the condition giving rise to a claim during the Subscription Term.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
7.3 High-Risk Activities. Subscriber shall not use Solo Technology, Support Services and/or Professional Services in high-risk activities, where their use could reasonably be expected to lead to death, personal injury or severe physical or environmental damage (such as is the creation or operation of aircraft, autonomous vehicles, life support systems, weapon systems, or nuclear facilities).
8. SOLO INDEMNIFICATION
8.1 IP Claims. Solo will, at Solo’s expense, either defend Subscriber from or settle any claim, proceeding or suit brought by a third party against Subscriber and its Authorized Persons, alleging that Subscriber’s use of a Product or Support Services during the Subscription Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Subscriber and its Authorized Persons from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Subscriber and its Authorized Persons to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Subscriber and its Authorized Persons prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Subscriber’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Subscriber once the IP Claim is tendered to Solo.
8.2 Exclusions. Solo will have no obligation under Section 8.1 to the extent an IP Claim is based upon: (i) use of the Products or Solo Technology in combination with any product or service not supplied by Solo; (ii) any modification of a Product or Solo Technology not made by Solo or its authorized subcontractor; (iii) any configuration of a Product or Solo Technology to meet Subscriber’s specifications; (iv) Subscriber’s Confidential Information; (v) failure to install an update to a Product or Solo Technology if such update would have addressed the infringement issue, or (vi) use of a Product or Solo Technology other than in accordance with this Agreement.
8.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing using the affected Product or Solo Technology; (ii) replace or modify the infringing technology with substantially equivalent functionality to avoid the infringement, or (iii) if neither (i) or (ii) are commercially practicable in Solo’s reasonable opinion, terminate Subscriber’s right to use the affected portion of the Product or Solo Technology and, upon Subscriber’s written request, terminate all affected Order Forms and promptly refund to Subscriber all prepaid unused fees paid by Subscriber to Solo under such terminated Order Forms.
8.4 IP Claim Conditions. Subscriber must: (i) give Solo prompt notice of the IP Claim, provided that failure to do so will only relieve Solo of its obligation under this Section 8 to the extent Solo’s ability to defend the IP Claim is materially prejudiced, (ii) grant Solo full and complete control over the defense and settlement of the IP Claim; provided that Solo will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Subscriber other than the obligation to cease using the affected Product or Solo Technology unless Subscriber consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the IP Claim. Subscriber may participate in the defense of the IP Claim at Subscriber’s own expense. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Subscriber, for any actual or alleged infringement of any intellectual property right related to a Product, Support Services, Professional Services and/or Solo Technology.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THESE ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Any assignment of this Agreement by either party without the prior written consent of the other party will be null and void, except an assignment to an Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of the assigning party’s assets or stock, provided that Subscriber may not transfer this Agreement to an Affiliate that is a competitor of Solo’s without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Product, Support Services or Professional Services or be authorized as a Permitted Third Party without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Subscriber and Authorized Persons may not access or use any Product, Support Services or Professional Services to compete with Solo.
10.4 Export Compliance. The Products, Support Services, Professional Services and/or Solo Technology are subject to the export laws and regulations of the United States. Subscriber represents that, it is not located in, and will not export, re-export, access or use, or permit any Authorized Person to export, re-export, access or use, any Product, Support Services, Professional Services and/or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Subscriber acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Subscriber acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Subscriber acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of the Order Form, or if no Order Form exists, to the email address associated with the use of the Software. Such notices will be deemed delivered if acknowledged received by return e-mail, or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Order Form, including but not limited to Subscriber’s Affiliates or Permitted Third Parties.
10.10 Publicity. Upon Subscriber’s written consent, in each instance, Solo may identify Subscriber as a user of the Products, Support Services and/or Professional Services on its website, in marketing materials, through a press release or other promotional materials.
10.11 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.12 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.13 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.14 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) an applicable Addendum, (iii) DPA (if applicable), (iv) this Agreement, and (iv) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Subscriber issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
ADDENDUM A: SOFTWARE SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Software Subscription Addendum (“Software Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software for internal use or uses Software as part of a free trial.
1. DEFINITIONS
1.1 “Software” means Solo software that is licensed for use on premise or in a cloud account managed by Subscriber (or an Authorized Person) under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third party open source software that operates in connection with the Software.
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses) solely for Subscriber’s internal business operations, during the Subscription Term, to (i) install and use, in object code format, the Software, (ii) use, and distribute internally a reasonable number of copies of the Documentation, provided that Subscriber must include on such copies all marks and notices; (iii) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, where applicable, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon (1) provision of such license key, where applicable, or (2) the download of the Software for trial use, and the Software is deemed to be accepted by Subscriber upon delivery.
2.2 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as permitted with respect to Authorized Persons, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) alter or remove any marks and notices in the Software; (vi) make available to any third party (other than Permitted Third Parties) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, or (vii) use the Software in excess of the Scope Limitations.
2.3 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
3. LICENSE TYPE
3.1 Unlimited Enterprise License. This Section 3.1 applies to the extent Subscriber is granted an unlimited, enterprise license. Subscriber has no quantitative volume limitations (API calls or routes, nodes, or the like) with regards to such a license under this Section, other than as specifically listed on an applicable Order Form.
3.2 Use Case Specific License.
3.2.1 Limitations. This Section 3.2 applies to the extent Subscriber is not granted an unlimited, enterprise license and is subject to quantitative limitations as specified on an Order Form. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
3.2.2 True-Up. No more than once per year during the Subscription Term and for one (1) year after the termination of expiration of such Subscription Term, Solo may request confirmation of Subscriber’s usage volume, in writing, of the Software based on the applicable quantitative volume limitations noted on an applicable Order Form. Subscriber must provide Solo the usage volume within ten (10) business days of a request from Solo. To the extent Solo does not receive a confirmation of usage volume Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 3.2.1 above.
3.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
ADDENDUM B: BUNDLED SOLUTION SUBSCRIPTION ADDENDUM TO THE MASTER RELATIONSHIP AGREEMENT
This Bundled Solution Subscription Addendum (“Bundled Solution Addendum”) is subject to, and hereby incorporated into, the Agreement to the extent Subscriber purchases of one or more Subscriptions for Software to offer a Bundled Solution (as defined below) to Subscriber’s End Users (as defined below).
1. DEFINITIONS
1.1 “Bundled Solution” means an integrated solution, including the Software, distributed to End Users by Subscriber, and as described on an Order Form.
1.2 “End User” means an unaffiliated third party of Subscriber to whom Subscriber sells a Bundled Solution.
1.3 “End User License Agreement” means an end user license agreement between Subscriber and End Users for the Bundled Solution on terms determined by Subscriber, provided that such terms will be consistent with the terms of this Bundled Solution Addendum.
1.4 “Non-Production Purposes” means use of the Software to enable for any non-production purpose, including development, demonstration, trial, marketing, testing and training purposes; provided such use enables the integration and promotion of the Bundled Solution to End Users.
1.5 “Software” means Solo software that is licensed under a Subscription, including all updates thereto and new releases thereof, that are made generally available by Solo. Software excludes any third-party open source software that operates in connection with the Software.
1.6 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. SOFTWARE LICENSE AND RESTRICTIONS
2.1 Appointment as a Solo Distributor. Subject to the terms and conditions of this Agreement, Solo hereby appoints Subscriber, for the Subscription Term stated on an applicable Order Form, as a non-exclusive distributor of the Software as part of the Bundled Solution and Documentation in the Territory. Subscriber may include Solo’s technical and marketing information provided by Solo in marketing materials about the Bundled Solution to End Users to promote the sale and distribution of the Bundled Solution.
2.2 Bundled Solution License Grant. In the case where Subscriber is using the Software as part of a Bundled Solution, subject to the terms and conditions of this Agreement, including payment, Solo grants to Subscriber a limited, non-exclusive, non-transferable, fully paid up, right and license, during the Subscription Term, to (i) install and use, in object code format, the Software for Non-Production Purposes, (ii) use, and distribute the Software, in object code format, and associated Documentation, solely as part of the Bundled Solution; (iii) grant to each End User of the Bundled Solution subject to an End User License Agreement the right to use the Software, in object code format, solely as part of the Bundled Solution and for End User’s internal business purposes, (iv) prepare derivative works of the Documentation provided by Solo to Subscriber, for the purpose of creating documentation for the Bundled Solution, and (v) permit Authorized Persons to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use by Authorized Persons must be solely for Subscriber’s benefit. Subscriber’s, and End Users’, rights are subject to any scope, quantitative or usage limitations set forth in the applicable Order Form (“Scope Limitations”). Following execution of an applicable Order Form, Solo will deliver a license key to Subscriber to use the Software. The Software will be deemed to have been delivered to Subscriber upon provision of such license key, and the Software is deemed to be accepted by Subscriber upon delivery.
2.3 Use Restrictions. Except as expressly permitted by law, Subscriber shall not, and will not permit any Authorized Person or End User to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to human readable form, (ii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iii) except as expressly permitted in Section 2.2 of this Bundled Solution Addendum, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iv) circumvent the limitations on use of the Software that are imposed or preserved by any license key, (v) make available to any third party (including End Users) any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of Solo, (vi) use the Software in excess of the Scope Limitations; (vii) market, sell or otherwise distribute the Software other than as part of the Bundled Solution; or (vii) make any representation or warranty with respect to the Software or Support Services beyond those stated in this Agreement. Subscriber shall be responsible for all acts and omissions of End Users who use the Bundled Solution.
2.4 Marketing and Branding. Nothing herein shall be construed to limit Solo’s ability to license and market any Product Product, either independently or in concert with other strategic partners, and likewise nothing herein shall be construed to limit Subscriber’s ability to sell and market other products, either independently, or in concert with other strategic partners. Subscriber has no right to use the trade names, service marks and trademarks of Solo (collectively, the “Solo Marks”) in connection with the Bundled Solution other than where the Solo Marks are found in the Software.
3. SUPPORT SERVICES
3.1 Subscriber Support. Solo will provide Support Services to Subscriber for Subscriber’s development use of the Software as part of the Bundled Solution in accordance with the Technical Support Policy
3.2 End User Support. Subscriber will provide support directly to End Users under the End User License Agreement. Solo will not provide Support Services to End Users.
4. WARRANTIES
4.1 Subscriber Warranties. Subscriber warrants that it will: (i) avoid misleading or unethical business practices in representing the Bundled Solution; (ii) fairly and accurately represent the Software; and (iii) not violate any applicable laws in integrating the Software as part of the Bundled Solution.
4.2 Additional Solo Warranties. Solo warrants that at the time the Software is made available for download, it will be free of any Virus.
5. REPORTING AND TRUE-UP
5.1 Excess Usage. Subscriber agrees to promptly notify Solo in writing as soon as Subscriber becomes aware of use of the Software in excess of any applicable quantitative volume limitations as indicated on an Order Form, and Subscriber agrees that Solo will invoice Subscriber for the difference in fees paid and the fees that should have been paid in accordance with the terms of the applicable Order Form and this Agreement. For clarity, such invoice may be issued after the expiration or termination of this Agreement.
5.2 Quarterly Reporting and True-Up. Every three (3) months during the Subscription Term, Subscriber shall provide Solo with a written report of its total volume usage to confirm Subscriber’s usage is within the quantitative volume limitations stated on an applicable Order Form. To the extent Solo does not receive a confirmation of usage volume every three (2) months, Subscriber shall be deemed to be in material breach of this Agreement. If Subscriber’s usage volume exceeds that stated on an applicable Order Form, Solo may invoice Subscriber for the excess usage in accordance with Section 4.1 of this Bundled Solution Addendum.
5.3 Termination and Expiration. Subscriber will immediately cease use of the Software upon termination or expiration of an applicable Order Form or this Agreement (to the extent termination of the Agreement terminates the applicable Order Form).
6. SUBSCRIBER INDEMNIFICATION
6.1 Third Party Claims. Subscriber will, at Subscriber’s expense, either defend Solo from or settle any claim, proceeding or suit brought by a third party against Solo and its Affiliates, and its and their respective employees, directors, officers, and/or licensors (collectively, the “Solo Indemnitees”), resulting from (i) the combination by Subscriber of the Software with products or services not supplied by Solo including the Bundled Solution, (ii) use of the Software in a manner not expressly authorized by Solo, (iii) unauthorized representations or warranties with respect to the Software, Documentation or Support Services beyond those contained in this Agreement, (“Third Party Claim”). Subscriber will indemnify Solo Indemnitees from and pay: (a) all damages, costs and attorneys’ fees finally awarded against Solo Indemnitees to such third party to the extent resulting from such Third Party Claim; (b) any settlement amounts consented to by Subscriber in connection with such Third Party Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such Third Party Claim by Solo Indemnitees prior to tendering the defense of a Third Party Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Solo’s own cost and expense, and (2) Subscriber will not pay for any out-of-pocket costs incurred by Solo once the Third Party Claim is tendered to Subscriber.
6.2 Indemnification Conditions. Solo must: (i) give Subscriber prompt notice of the Third Party Claim, provided that failure to do so will only relieve Subscriber of its obligation under this Section 6 to the extent Subscriber’s ability to defend the Third Party Claim is materially prejudiced, (ii) grant Subscriber full and complete control over the defense and settlement over the Third Party Claim; provided that Subscriber will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of Solo unless Solo consents otherwise in writing, and (iii) provides reasonable assistance in connection with the defense and settlement of the Third Party Claim. Solo may participate in the defense of the Third Party Claim at Solo’s own expense.
Subscriber Data Processing Agreement
Effective January 31st 2024
DownloadTable of Contents
Subscriber – Solo Data Processing Addendum
This Data Processing Addendum (“DPA”) forms part of the agreement (“Agreement”) between “Subscriber” (as defined in the signature block of an applicable Order Form) and “Solo” (as defined in the signature block of an applicable Order Form) for the services purchased by Subscriber.
This DPA describes the commitments of Solo and Subscriber concerning the Processing of Personal Data in connection with the provision of Support Services and/or Professional Services (individually and collectively, the “Solo Offerings”) contemplated by the Agreement.
The capitalized terms used in this DPA have the meaning set forth in this DPA. Capitalized terms not otherwise defined herein have the meaning given to them in the Agreement.
Subscriber and Solo agree as follows:
1. Definitions
1.1“Applicable Data Protection Laws” means, to the extent applicable to a party’s Processing of Subscriber Personal Data under the Agreement, (i) European Data Protection Laws; (ii) Canadian Privacy Laws; and (iii) US Privacy Laws; in each case as may be amended, superseded, or replaced.
1.2 “Authorized Affiliate” means an Affiliate of Subscriber who has not signed an Order Form but acts as a Controller or Processor for the Subscriber Personal Data Processed by Solo pursuant to the Agreement, for so long as such entity remains a Subscriber Affiliate.
1.3 “Canadian Privacy Laws” means, as applicable, (i) the federal Personal Information Protection and Electronic Documents Act (PIPEDA), the provincial Personal Information Protection Act in place in each of Alberta and British Columbia, and an Act Respecting The Protection of Personal Information In The Private Sector (Québec) as amended by An Act to modernize legislative provisions as regards the protection of personal information (Law 25), and each of their implementing regulations; and (ii) the Canada Anti-Spam Act Legislation (CASL) and its implementing regulations.
1.4 “Controller” has the meaning attributed to the term in the relevant Applicable Data Protection Law or, if not defined, then means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of Processing Personal Data. If the CCPA applies to Solo hereunder, then a reference to Controller when the context indicates use in connection with the CCPA means “business”, as such term is defined in the CCPA.
1.5 “EEA” means the countries that are parties to the agreement on the European Economic Area.
1.6 “European Data Protection Laws” means, as applicable, (i) Regulation 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) (“GDPR”); (ii) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC (e-Privacy Directive); (iii) any applicable national implementations of (i) and (ii); (iv) the Switzerland Federal Act on Data Protection, as amended by the Federal Act of 25 September 2020 on Data Protection (nFADP), and its ordinances (“Swiss DPA”); and (v) the United Kingdom (“UK”) Data Protection Act 2018 and the GDPR as saved into UK law by virtue of Section 3 of the UK’s European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as they continue to have effect by virtue of Section 2 of the UK’s European Union (Withdrawal) Act 2018; in each case as may be amended, superseded, or replaced.
1.7 “Personal Data” means any information that relates to an identified or identifiable natural person and that is protected as “personal data,” “personal information,” “personally identifiable information,” or a like defined term under the relevant Applicable Data Protection Law.
1.8 “Process,” “Processes,” “Processed,” and “Processing” has the meaning attributed to the term in the relevant Applicable Data Protection Law or, if not defined, then means any operation or set of operations performed on Personal Data, including access, storage, and use.
1.9 “Processor” has the meaning attributed to the term in the relevant Applicable Data Protection Law or, if not defined, then means a natural or legal person that Processes Subscriber Personal Data on behalf of Subscriber. If the CCPA applies to Solo hereunder, then a reference to Processor when the context indicates use in connection with the CCPA means “service provider”, as such term is defined in the CCPA.
1.10 “Restricted Transfers” means (i) where the GDPR applies, a transfer of Subscriber Personal Data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission (an “EEA Restricted Transfer”); (ii) where the UK GDPR applies, a transfer of Subscriber Personal Data from the UK to any other country which is not subject to adequacy regulations pursuant to Section 17A of the UK Data Protection Act 2018 (a “UK Restricted Transfer”); and (iii) where the Swiss DPA applies, a transfer of Subscriber Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner (a “Swiss Restricted Transfer”).
1.11 “Security Incident” means any breach of security that results in the accidental or unlawful destruction, loss, or alteration or unauthorized disclosure of or unauthorized access to Subscriber Personal Data transmitted, stored, or otherwise Processed by Solo or its Sub‑processors in connection with the provision of the Solo Offerings.
1.12 “Standard Contractual Clauses” or “SCCs” means the standard contractual clauses as adopted by the EU Commission by means of the Implementing Decision EU 2021/914 of June 4, 2021 found at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc/standard-contractual-clauses-international-transfers_en.
1.13 “Sub-processor” means any Processor engaged by Solo or a Solo Affiliate to assist in fulfilling Solo’s obligations with respect to providing the Solo Offerings.
1.14 “Subscriber Personal Data” means the Personal Data that Solo receives from or on behalf of Subscriber for Processing in connection with the Solo Offerings, as more particularly described in Section 2.6.6 of this DPA.
1.15 “UK Addendum” means that certain international data transfer addendum to the SCCs issued by the UK Information Commissioner for Parties making transfers of Personal Data from the UK to any other country which is not deemed adequate under Article 46 of the UK GDPR.
1.16 “US Privacy Laws” means all United States state data privacy, information security, and data breach notification laws and implementing regulations to the extent applicable to the Processing of Subscriber Personal Data by Solo in Solo’s performance of the Solo Offerings, including but not limited to the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (CPRA) (together the “CCPA”), the Virginia Consumer Data Protection Act (VCDPA), the Connecticut Data Privacy Act (CTDPA), the Colorado Privacy Act (CPA), and the Utah Consumer Privacy Act (UCPA), and each of their implementing regulations.
1.17 The terms “data subject” and “supervisory authority” shall have the meanings given to them in the applicable European Data Protection Laws; and the terms “business purpose”, “consumer”, and “sell” shall have the meanings given to them in the CCPA or, to the extent applicable, another US Privacy Law. Sell includes “sale of personal data” as such term is defined by an applicable US Privacy Law.
2. Roles and Scope of Processing
2.1 Scope. This DPA applies to the extent that Solo Processes in its capacity as a Processor any Subscriber Personal Data in connection with the Solo Offerings.
2.2 Roles of the Parties. The parties acknowledge and agree that (i) Subscriber may be (a) a Processor acting on behalf of its own customers, who may be Controllers, with respect to the Processing of Subscriber Personal Data or (b) the Controller with respect to the Processing of Subscriber Personal Data; and (i) Solo shall Process Subscriber Personal Data only as a Processor on behalf of Subscriber, as further described in this DPA, including in Sections 2.3 and 2.6. Each party shall Process Subscriber Personal Data under or in connection with this DPA in accordance with the Applicable Data Protection Laws that are binding on such party in connection with this DPA.
2.3 Solo Processing of Personal Data. Solo agrees that it shall Process Subscriber Personal Data only for the purposes described in the Agreement and in accordance with Subscriber’s documented instructions. The parties agree that the Agreement and this DPA set out Subscriber’s instructions to Solo in relation to the Processing of Subscriber Personal Data. Subscriber understands that additional instructions outside the scope of the Agreement or this DPA shall be agreed to in writing between Solo and Subscriber (which may be in the form of a support ticket), including any additional fees that may be payable by Subscriber to Solo for carrying out such additional instructions, provided that Solo shall obtain Subscriber’s written authorization prior to incurring such additional fees. Without limiting Subscriber’s obligations in Section 2.4, Solo shall notify Subscriber in writing, unless prohibited from doing so under Applicable Data Protection Laws, (i) if Solo becomes aware or believes that any Processing instructions from Subscriber violates Applicable Data Protection Laws and, in such event, Solo may suspend performance of such instruction until Subscriber modifies the instruction in writing, provides written confirmation that the instruction is lawful, or withdraws the instruction; or (ii) if Solo is unable to follow Subscriber’s Processing instructions.
2.4 Subscriber Responsibilities. As between the parties, Subscriber is solely responsible for the accuracy, content, legality, and quality of Subscriber Personal Data Processed under or in connection with the Solo Offerings. As between the parties, Subscriber shall (i) to the extent required by Applicable Data Protection Laws, have provided, and shall continue to provide all notices and have obtained, and shall continue to obtain, all consents, permissions, and rights necessary under Applicable Data Protection Laws for Solo to lawfully Process Subscriber Personal Data as contemplated by the Agreement (including this DPA); (ii) have complied with and continue to comply with all Applicable Data Protection Laws applicable to the collection, provision, and contemplated Processing of Subscriber Personal Data in connection with the Agreement (including this DPA); and (iii) ensure its Processing instructions comply with applicable laws (including Applicable Data Protection Laws). Further, Subscriber agrees and understands that Subscriber is responsible for (a) evaluating and understanding the limitations of the Product and the Solo Offerings; (b) implementing and properly configuring the Product; (c) training Subscriber’s employees and other workforce members on the scope of Solo’s permitted Processing; and (d) providing Solo only with the Subscriber Personal Data that is necessary for Solo to perform the Solo Offerings.
2.5 Subscriber Affiliates. Solo’s obligations set forth in this DPA shall also extend to Authorized Affiliates, subject to the following conditions:
2.5.1 Subscriber shall serve as the single point of contact for Solo for all Authorized Affiliates. Given that other Authorized Affiliates who are Controllers may have certain direct rights against Solo, Subscriber shall take all necessary steps to exercise all such rights on their behalf, including, without limitation, obtaining all necessary consents and permissions from such Authorized Affiliates as well as coordinating communications among the parties. Further, Solo is hereby discharged of its obligation to inform or notify the Authorized Affiliates when Solo has provided such information or notice to Subscriber;
2.5.2 Subscriber shall be responsible for Authorized Affiliates’ compliance with this DPA. Any and all acts or omissions by an Authorized Affiliate with respect to this DPA shall be deemed to be the acts and omissions of Subscriber; and
2.5.3 Authorized Affiliates shall not bring any legal action, claim, demand, proceeding, suit, or otherwise (individually and collectively, an “Authorized Affiliate Claim”) directly against Solo. If an Authorized Affiliate seeks to assert an Authorized Affiliate Claim against Solo: (i) Subscriber must bring such Authorized Affiliate Claim directly against Solo on behalf of such Authorized Affiliate, unless Applicable Data Protection Laws require the Authorized Affiliate be a party to such Authorized Affiliate Claim; and (ii) all Authorized Affiliate Claims shall be considered claims made by Subscriber and, to the fullest extent permitted by the relevant Applicable Data Protection Law, shall be subject to any liability restrictions set forth in the Agreement, including but not limited to the damages disclaimer and any aggregate limitation of liability. Subscriber agrees on behalf of itself and each Authorized Affiliate that in no event shall Subscriber or any individual Authorized Affiliate be entitled to multiple recoveries from Solo or any of Solo’s Affiliates and that any limitation of liability set forth in the Agreement on behalf of Solo shall apply in the aggregate for all claims (including all Authorized Affiliate Claims) under both the Agreement and all DPAs established by the Agreement, and not individually and severally to Subscriber or any Authorized Affiliate.
2.6.1 Subject Matter of Processing. Subscriber Personal Data that Subscriber elects to transfer to Solo in connection with Solo’s performance of the Solo Offerings as set forth in the Agreement.
2.6.2 Frequency and Duration of Processing. The frequency of the Processing is continuous during the performance of the Solo Offerings. Solo shall Process Subscriber Personal Data for the duration of the Agreement until disposal of the Subscriber Personal Data in accordance with the Agreement, Solo’s data retention policy, and Section 6 of this DPA.
2.6.3 Nature of Processing. The nature of the Processing is to perform the Solo Offerings pursuant to the Agreement.
2.6.4 Purpose of Processing. The purpose of the Processing is as necessary to perform the Solo Offerings pursuant to the Agreement.
2.6.5 Categories of Data Subjects. Subscriber shall limit its transmission of Subscriber Personal Data for the Solo Offerings to the following categories of data subjects: Business contact information (limited to the information listed in Section 2.6.5) of Subscriber’s employees and contractors receiving and using the Solo Offerings or communicating with Solo about the Solo Offerings or the Agreement. As between the parties, Subscriber has sole discretion to determine and control the categories of data subjects transmitted in connection with the Solo Offerings and, accordingly, Subscriber shall not transmit or otherwise make available to Solo any other categories of data subjects, unless such information is anonymized in accordance with the requirements of the relevant Applicable Data Protection Laws.
2.6.6 Type of Personal Data. Subscriber shall limit its transmission of Subscriber Personal Data for the Solo Offerings to the following data types: first name and last name, name of individual’s employer, business mailing address, job title, business email address, business telephone number, the individual’s area of responsibility, and the information automatically collected by commercially available email and network systems such as Microsoft’s Outlook or Google’s Gmail product (such as the sender’s IP address). As between the parties, Subscriber has sole discretion to determine and control the types of Personal Data transmitted in connection with the Solo Offerings and, accordingly, Subscriber shall not transmit or otherwise make available to Solo any other type of Personal Data, unless such information is anonymized in accordance with the requirements of the relevant Applicable Data Protection Laws.
3.1 Authorized Sub-processors. Subscriber acknowledges and agrees that (i) Solo may engage Solo Affiliates as Sub-processors; and (ii) Solo and the Solo Affiliates may each engage third‑party Sub-processors to Process Subscriber Personal Data on Subscriber’s behalf. The list of such Sub-processors is set forth at https://legal.solo.io/#subprocessors. Subscriber hereby consents to these Sub-processors.
3.2 Sub-processor Obligations. Solo or the Solo Affiliate, as applicable, shall enter into a written agreement with each Sub-processor containing, in substance, data protection obligations no less protective than those set forth in this DPA with respect to the protection of Subscriber Personal Data to the extent applicable to the nature of the services provided by such Sub‑processor. Solo shall remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Solo to breach any of Solo’s obligations under this DPA.
3.3. Changes to Sub-processors. Solo shall notify Subscriber in writing before Solo adds to or replaces its Sub‑processors. Subscriber may object in writing to Solo’s appointment of a new Sub-processor by notifying Solo promptly in writing within ten (10) calendar days of the date Solo issues such notice. Subscriber’s objection notice shall explain in reasonably sufficient details the reasonable grounds for the objection. The parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution within ninety (90) calendar days of Solo’s receipt of Subscriber’s objection. If no such resolution can be mutually agreed upon by the parties within such ninety (90) calendar day period, then Solo shall, at its sole discretion, either not appoint the objected to Sub-processor, or permit Subscriber (as Subscriber’s sole and exclusive remedy) to suspend or terminate the affected Solo Offerings in accordance with the termination provisions in the Agreement without liability to either party (but without prejudice to any fees incurred by Solo prior to suspension or termination), which right of suspension or termination Subscriber must exercise, if at all, within thirty (30) calendar days of Subscriber’s receipt of authorization from Solo or such longer duration as expressly authorized by Solo in writing.
4. Security and Audits
4.1 Solo Security Measures. Solo shall implement and maintain appropriate technical and organizational security measures designed to protect Subscriber Personal Data from Security Incidents and to preserve the security and confidentiality of the Subscriber Personal Data (collectively, the “Security Measures”). Such Security Measures shall include, at a minimum, those organizational, physical, and technical controls described in Annex II of this DPA. Solo shall ensure that any person who is authorized by Solo to Process Subscriber Personal Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.2 Subscriber Security Responsibilities. Notwithstanding Section 4.1, Subscriber agrees that except as provided by this DPA, Subscriber shall implement and maintain appropriate Subscriber‑side technical and organizational security measures designed to protect Personal Data from Security Incidents and to preserve the security and confidentiality of the Personal Data while in Subscriber’s dominion and control, including but not limited to those measures described in Section 2.4(a) – (d). Subscriber is responsible for reviewing the information made available by Solo relating to data security and making an independent determination as to whether the Solo Offerings meet Subscriber’s requirements and legal obligations under Applicable Data Protection Laws.
4.3 Security Incident Response. Upon becoming aware of a Security Incident, Solo shall notify Subscriber without undue delay and shall: (i) provide timely information relating to the Security Incident as it becomes known to Solo or as is reasonably requested by Subscriber; and (ii) promptly take steps necessary to contain, investigate, and remediate the Security Incident.
4.4 Security Audits. No more frequently that once during any twelve (12) month rolling period, Solo shall provide written responses (which responses shall be deemed to be Solo’s Confidential Information) to reasonable requests for information made by Subscriber related to the Security Measures Solo has implemented in connection with Solo’s Processing of Subscriber Personal Data, including responses to information security and audit questionnaires that are necessary to confirm Solo’s compliance with this DPA. In addition, to the extent it is not possible to otherwise satisfy an audit right mandated by a relevant Applicable Data Protection Law, Subscriber may also conduct an audit of Solo’s data protection compliance program and compliance with this DPA if (i) Subscriber is expressly requested or required by a supervisory authority or government regulator to conduct such an audit; or (ii) Solo experienced a Security Incident. To the extent permissible under the relevant Applicable Data Protection Law, such audit shall be conducted on a confidential basis, subject to a mutually agreeable confidentiality agreement, and conducted in good faith, for a commercially reasonable duration during Solo’s regular business hours, and in a manner so as to minimize any adverse impact on Solo’s business, employees, and other customers. Further, Subscriber shall provide Solo with a copy of the audit results related to Solo or the Solo Offerings.
4.5 Data Protection Impact Assessments. Upon Subscriber’s written request, Solo shall provide Subscriber with reasonable cooperation and assistance needed to fulfill Subscriber’s obligation under Applicable Data Protection Laws to carry out data protection impact assessments related to Solo’s Processing of Subscriber Personal Data and prior consultations with supervisory authorities as required by Applicable Data Protection Laws, to the extent Subscriber does not otherwise have access to the relevant information and to the extent such information is available to Solo.
5. International Transfers
5.1 Processing locations. Subscriber acknowledges and agrees that Solo may transfer and Process Subscriber Personal Data to and in the United States and anywhere else in the world where Solo, its Affiliates, or its Sub-processors maintain data Processing operations, which Processing shall at all times comply with the relevant jurisdiction specific terms set forth in Section 8.
6.1 Upon termination or expiration of the Agreement, Solo shall delete all Subscriber Personal Data (including copies) in its possession or control in accordance with the Agreement, provided that if Solo retains any Subscriber Personal Data in accordance with the Agreement, then Solo shall continue to comply with the applicable terms of this DPA for so long as Solo retains such Subscriber Personal Data.
7. Rights of Individuals and Cooperation
7.1 Data Subject Requests. To the extent that Subscriber is unable to independently access the relevant Subscriber Personal Data and to the extent such information is available to Solo, Solo shall, taking into account the nature of the Processing, provide Subscriber with the reasonable cooperation and assistance necessary for Subscriber to respond to any requests from data subjects, consumers, or applicable supervisory authorities or government regulators relating to the Processing of Subscriber Personal Data under the Agreement. If Solo receives any such request directly, Solo shall not respond to such communication directly without Subscriber’s prior authorization, except to acknowledge receipt of the request and to attempt to redirect the requestor to contact Subscriber directly. If Solo’s attempt is unsuccessful or if Solo is otherwise required to provide a substantive response to such request, then, unless legally prohibited from doing so, Solo shall promptly notify Subscriber and provide Subscriber with a copy of the request and, to the extent permitted by Applicable Data Protection Laws, Subscriber shall assume responsibility for providing such substantive response to the requestor.
7.2 Subpoenas and Court Orders. Notwithstanding anything to the contrary in the Agreement, if a law enforcement agency sends Solo a demand for Subscriber Personal Data (for example, through a subpoena or court order), Solo shall attempt to redirect such agency to contact Subscriber directly and, if Solo’s attempt is unsuccessful, then, except as otherwise prohibited by law or such demand, Solo shall give Subscriber prompt written notice of the demand to allow Subscriber to seek a protective order or other appropriate remedy. If Solo is legally prohibited from providing Subscriber with such notice, then, if, after careful assessment, Solo’s concludes that there are reasonable grounds to consider the demand or prohibition to be unlawful, Solo shall take commercially reasonable steps to challenge such demand or prohibition. For the avoidance of doubt, nothing in this DPA shall be interpreted to require Solo to pursue action or inaction that could result in a civil or criminal penalty for Solo, Including without limitation a contempt of court.
8.1 Restricted Transfers.
8.1.1 GDPR. In connection with any transfer of Subscriber Personal Data by Subscriber to Solo that is an EEA Restricted Transfer, Solo agrees to abide by and Process Subscriber Personal Data in compliance with the Standard Contractual Clauses, which are hereby incorporated into this DPA by reference as follows:
8.1.1.1 Where Subscriber is a Controller of the Subscriber Personal Data, Module 2 (Controller to Processor Transfers) shall apply and where Subscriber is a Processor of the Subscriber Personal Data, Module 3 (Processor to Processor Transfers) shall apply;
8.1.1.2 For Clause 7, the optional docking clause shall apply only with respect to Authorized Affiliates; Authorized Affiliates may accede to this DPA and the SCCs under the same terms and conditions;
8.1.1.3 For Clause 9(a), Option 2 shall apply and the time period for prior notice of Sub-processor changes shall be as set out in Section 3.3 of this DPA;
8.1.1.4 For Clause 9(c), where confidentiality restrictions prohibit Solo from providing a copy of a Sub-processor agreement to Subscriber, Solo shall (on a confidential basis) provide all information that it reasonably can in connection with such Sub-processor Agreement to Subscriber;
8.1.1.5 For Clause 11(a), the optional language shall not apply;
8.1.1.6 For Clause 13 and Annex I.C of the SCCs, Subscriber shall maintain accurate records of the applicable Member State(s) and competent supervisory authority, which shall be made available to Solo on request.
8.1.1.7 For Clause 17, Option 1 shall apply, and the SCCs shall be governed by the law of The Netherlands;
8.1.1.8 For Clause 18(b), disputes shall be resolved before the courts of The Netherlands; and
8.1.1.9 For Annex I.A., the “data importer” shall be Solo and the “data exporter” shall be Subscriber and any Authorized Affiliates that have acceded to the SCCs pursuant to this DPA.
8.1.1.10 For Annex I.B., the description of the transfer is as described in Section 2.6 of this DPA.
8.1.1.11 For Annex II, the technical and organizational measures are: (i) with respect to Solo, those measures described in Section 4.1 of this DPA; and (ii) with respect to Subscriber, those measures described in Section 4.2 of this DPA.
8.1.1.12 For Annex III, the Sub-processors shall be as described in Section 3.1 of this DPA.
8.1.2 UK GDPR. In connection with any transfer of Subscriber Personal Data to Solo from Subscriber which is a UK Restricted Transfer to which the UK GDPR applies, the SCCs shall apply in accordance with Section 8.1.1 above, but as modified and interpreted by the Part 2: Mandatory Clauses of the UK Addendum, which are hereby incorporated into and form an integral part of this DPA but only for purposes of UK Restricted Transfers. Any conflict between the terms of the SCCs and the UK Addendum shall be resolved in accordance with Section 10 and Section 11 of the UK Addendum. In addition, tables 1 to 3 in Part 1 of the UK Addendum shall be completed respectively with the information set out in Section 2.6 of this DPA, and table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting “neither party”.
8.1.3 Swiss DPA. In connection with any transfer of Subscriber Personal Data to Solo which is a Swiss Restricted Transfer to which the Swiss DPA applies, the SCCs shall apply in accordance with Section 8.1.1 above, but with the following modifications:
8.1.3.1 any references in the SCCs to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss DPA and the equivalent articles or sections therein;
8.1.3.2 any references to “EU,” “Union,” “Member State,” and “Member State law” shall be interpreted as references to Switzerland and Swiss law, as the case may be;
8.1.3.3 any references to the “competent supervisory authority” and “competent courts” shall be interpreted as references to the relevant data protection authority and courts in Switzerland; and
8.1.3.4 the SCCs shall be governed by the laws of Switzerland and disputes shall be resolved before the competent Swiss courts.
8.2 Standard Contractual Clauses Precedence. It is not the intention of either party, nor the effect of this DPA, to contradict or restrict any of the provisions set forth in the SCCs. Accordingly, if any express term of this CPA conflicts with the SCCs, then the SCCs, if applicable, shall control as to that term, but only to the extent of an express ambiguity.
8.3 Alternative Transfer Mechanism. Solo and Subscriber agree that Sections 8.1.1 to 8.1.3 shall apply only to the extent that in the absence of their application either party would be in breach of European Data Protection Laws in connection with the transfer of Subscriber Personal Data from Subscriber to Solo. To the extent Solo adopts an alternative mechanism for the lawful transfer of Subscriber Personal Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall, upon notice to Subscriber, apply to the extent such Alternative Transfer Mechanism complies with European Data Protection Laws and extends to the territories to which Subscriber Personal Data is transferred. In addition, if and to the extent that a court of competent jurisdiction or a supervisory authority with binding authority orders or determines (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer Subscriber Personal Data to Solo, Subscriber acknowledges and agrees that Solo may, at Solo’s sole discretion, implement any additional measures or safeguards that may be required to enable the lawful transfer of such Subscriber Personal Data and if Solo chooses not to implement such additional measures or safeguards, then Solo shall provide prompt written notice to Subscriber and the parties shall reasonable cooperate to determine a mutually agreeable accommodation that permits each party to meet its respective obligations under the applicable European Data Protection Laws.
8.4 US Privacy Laws. To the extent that Solo’s Processing of Subscriber Personal Data under the Agreement is subject to US Privacy Laws and to the extent required under applicable US Privacy Laws, Subscriber and Solo agree that:
8.4.1 Without limiting the terms of Section 2.3 and Section 2.6, Solo shall Process the Subscriber Personal Data to communicate with Subscriber personnel about the Solo Offerings and the Products, perform the Solo Offerings, and otherwise meet Solo’s obligations under this DPA and the Agreement (collectively, the “Permitted Purposes”);
8.4.2 Solo shall not collect, retain, use, or disclose Subscriber Personal Data outside of the direct business relationship between Subscriber and Solo, or for any purpose other than for the Permitted Purposes, including retaining, using, or disclosing Subscriber Personal Data for a commercial purpose other than the Permitted Purposes, except as otherwise permitted by applicable US Privacy Laws;
8.4.3 Subscriber is not selling Subscriber Personal Data to Solo and Solo shall not sell Subscriber Personal Data;
8.4.4 Solo shall not share Subscriber Personal Data except as otherwise permitted by this DPA, the Agreement, or the applicable US Privacy Laws, including without limitation for a business purpose;
8.4.5 Solo shall not combine Subscriber Personal Data with Personal Data that Solo receives from or on behalf of another Solo customer, or that Solo may collect from its own interaction with the consumer unrelated to the Agreement, except as otherwise permitted by applicable US Privacy Laws;
8.4.6 Solo shall comply with the US Privacy Laws to the extent applicable to Solo’s performance of the Solo Offerings, including, without limitation, implement the Security Measures; and
8.4.7 Solo engages other Sub‑processors to assist in the Processing of Subscriber Personal Data for the Permitted Purposes, as further described in Section 3.
9. Miscellaneous
9.1 Any ambiguity in this DPA shall be resolved to permit the parties to comply with the Applicable Data Protection Laws. If any express term of this DPA conflicts with the Agreement, then this DPA, if applicable, shall control as to that term. The Agreement shall control in all other instances, including, without limitation, notice, assignment, severability, and relationship of the parties.
9.2 This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by the relevant Applicable Data Protection Law, and in such event, then only for purposes of this DPA and only for purposes of that specific jurisdiction.
ANNEX II to the SCCs
Description of the technical and organizational security measures implemented by the data processor/importer in accordance with the Standard Contractual Clauses
Solo shall maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Subscriber Personal Data provided by the data exporter in connection with the Solo Offerings, including the following:
1. Physical access control
Technical and organizational measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including databases, application servers, and related hardware), where Subscriber Personal Data is Processed. These measures include:
- Establishing access authorizations for employees and third parties;
- Access control system (ID reader, magnetic card, chip card);
- Key management and card-keys procedures; and
- Additional measures as necessary to ensure the physical security of locations where Subscriber Personal Data is Processed.
2. Virtual access control
Technical and organizational measures to prevent data processing systems from being used by unauthorized persons. These measures include:
- User identification and authentication procedures;
- ID/password security procedures (special characters, minimum length, and change of password requirements); and
- Single Sign On (SSO) for all customer-facing tools.
3. Data access control
Technical and organizational measures to ensure that persons entitled to use a data processing system gain access to the Subscriber Personal Data only in accordance with their access rights, and that the Subscriber Personal Data cannot be read, copied, modified, or deleted without authorization. These measures include:
- Internal policies and procedures;
- Control authorization schemes;
- Differentiated access rights (profiles, roles, transactions, and objects);
- Monitoring and logging of accesses;
- Reports showing access;
- Access procedures;
- Change procedures; and
- Deletion procedures.
4. Disclosure control
Technical and organizational measures to ensure that Subscriber Personal Data cannot be read, copied, modified, or deleted without authorization during electronic transmission, transport, or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Subscriber Personal Data is disclosed. These measures include:
- Encryption/tunneling;
- Logging; and
- Transport security.
5. Entry control
Technical and organizational measures to monitor whether Subscriber Personal Data have been entered, changed, or removed (deleted), and by whom and from which data processing systems. These measures include:
- Logging and reporting systems.
6. Control of instructions
Technical and organizational measures to ensure that Subscriber Personal Data is Processed solely in accordance with the documented instructions of Subscriber. These measures include:
- Unambiguous wording in the contract(s); and
- Use of written Order Forms.
Technical Support Policy
Effective April 4th 2024
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Scope
The scope of the Support Services provided to Subscriber includes general instructive guidance and support regarding the installation of the Software and basic technical configuration of the Software, including how to use the Software. Such Support Services are provided in accordance with this policy. Subscriber acknowledges that the time required for resolution of issues may vary depending on the specific circumstances of each problem, including, without limitation, the nature of the incident/problem, the extent and accuracy of information available about the incident/problem and the level of Subscriber's cooperation and responsiveness in providing materials, information, access and support reasonably required by Solo to achieve problem resolution. For purposes of this policy, Software will include Solo images, but does not include any other third party materials utilized by Subscriber in operating the Software. Solo will provide reactive support for Istio (or Envoy) only. Any requests to directly assist Subscriber with installation or deployment in Subscriber's environment (i.e., by Solo accessing Subscriber's environment) are outside the scope of this policy and are not included with Support Services.
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM Business Hours in the time zone applicable for the location shown on the Order Form (or another designated ordering document) for the Ship-To entity.
- Priority Levels
Urgent: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
High: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Normal: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Low: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround.
- Targeted Times for Initial Response
Priority Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
Urgent* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
High | 4 Business Hours Local Time | 2 hours (24/7/365) |
Normal | 8 Business Hours Local Time | 4 Business Hours Local Time |
Low | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Urgent Priority issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Urgent Priority issues as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Urgent Priority issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues. Solo reserves the right to adjust the priority you select if it does not align with the priorities documented above.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are subject to Zendesk's User Content and Conduct Policy located at https://support.zendesk.com/hc/en-us/articles/4408821635610-Zendesk-User-Content-and-Conduct-Policy, as may be updated by Zendesk from time to time. Under no circumstance may Subscriber submit "protected health information," as defined by the US Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (HIPAA), to Solo or Solo's online ticketing system.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Dedicated Engineering Support Offering
Subscriber may purchase for an additional fee at any time during the Subscription Term of a Software Subscription access to a dedicated* Solo engineering resource (“Dedicated Engineering Support Subscription”). This must be purchased with (or during the term of an existing) Software Subscription to support the Software for the use case permitted on the Order Form for the business unit that purchased such Software Subscription (unless otherwise authorized by Solo in writing). The Dedicated Engineering Support Subscription grants Subscriber access during Local Time to a named engineering resource from Solo to perform platform architecture, design, troubleshooting and enablement on a remote basis without access to Subscriber’s environments, including (but not limited to):
- Leading virtual workshops for Subscriber’s teams throughout the year
- Developing instructional guides specific to Subscriber’s environment
- Over the shoulder guidance for platform enhancements and troubleshooting
- Providing configuration for installation of platform and specific integrations
- Providing production release support
- Develop GitOps and release management strategies for Gloo Platform
- Facilitating software enhancement and defect resolution requests with Solo engineering teams
Such named engineering resource should average approximately 8 hours per week for the duration of the Subscription. All other terms that apply to Support Services apply to the Dedicated Engineering Support Subscription. *Solo may replace or substitute such dedicated resource in its sole discretion on a permanent or temporary basis.
- Architecture and Design Support Hours
Architecture and Design Support Hours are hours purchased by Subscriber for collaboration with Solo’s Customer Success and/or Field Engineering Teams to brainstorm and discuss Subscriber’s architecture design for implementation of Solo Products. Architecture and Design Hours are additional support hours purchased to advise Subscriber about implementation at a deeper level than is offered by Support Services. Architecture and Design Support Hours are limited to the initial purchase of a Solo Product. To the extent, additional hours are needed or Subscriber requires more support throughout the implementation, Professional Services can be purchased.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective February 21st 2024 to April 4th 2024
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Scope
The scope of the Support Services provided to Subscriber includes general instructive guidance and support regarding the installation of the Software and basic technical configuration of the Software, including how to use the Software. Such Support Services are provided in accordance with this policy. Subscriber acknowledges that the time required for resolution of issues may vary depending on the specific circumstances of each problem, including, without limitation, the nature of the incident/problem, the extent and accuracy of information available about the incident/problem and the level of Subscriber's cooperation and responsiveness in providing materials, information, access and support reasonably required by Solo to achieve problem resolution. For purposes of this policy, Software will include Solo images of Istio. Solo will provide reactive support for Istio (or Envoy) only. Any requests to directly assist Subscriber with installation or deployment in Subscriber's environment (i.e., by Solo accessing Subscriber's environment) are outside the scope of this policy and are not included with Support Services.
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM Business Hours in the time zone applicable for the location shown on the Order Form (or another designated ordering document) for the Ship-To entity.
- Priority Levels
Urgent: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
High: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Normal: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Low: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround.
- Targeted Times for Initial Response
Priority Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
Urgent* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
High | 4 Business Hours Local Time | 2 hours (24/7/365) |
Normal | 8 Business Hours Local Time | 4 Business Hours Local Time |
Low | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Urgent Priority issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Urgent Priority issues as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Urgent Priority issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues. Solo reserves the right to adjust the priority you select if it does not align with the priorities documented above.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Dedicated Engineering Support Offering
Subscriber may purchase for an additional fee at any time during the Subscription Term of a Software Subscription access to a dedicated* Solo engineering resource (“Dedicated Engineering Support Subscription”). This must be purchased with (or during the term of an existing) Software Subscription to support the Software for the use case permitted on the Order Form for the business unit that purchased such Software Subscription (unless otherwise authorized by Solo in writing). The Dedicated Engineering Support Subscription grants Subscriber access during Local Time to a named engineering resource from Solo to perform platform architecture, design, troubleshooting and enablement on a remote basis without access to Subscriber’s environments, including (but not limited to):
- Leading virtual workshops for Subscriber’s teams throughout the year
- Developing instructional guides specific to Subscriber’s environment
- Over the shoulder guidance for platform enhancements and troubleshooting
- Providing configuration for installation of platform and specific integrations
- Providing production release support
- Develop GitOps and release management strategies for Gloo Platform
- Facilitating software enhancement and defect resolution requests with Solo engineering teams
Such named engineering resource should average approximately 8 hours per week for the duration of the Subscription. All other terms that apply to Support Services apply to the Dedicated Engineering Support Subscription. *Solo may replace or substitute such dedicated resource in its sole discretion on a permanent or temporary basis.
- Architecture and Design Support Hours
Architecture and Design Support Hours are hours purchased by Subscriber for collaboration with Solo’s Customer Success and/or Field Engineering Teams to brainstorm and discuss Subscriber’s architecture design for implementation of Solo Products. Architecture and Design Hours are additional support hours purchased to advise Subscriber about implementation at a deeper level than is offered by Support Services. Architecture and Design Support Hours are limited to the initial purchase of a Solo Product. To the extent, additional hours are needed or Subscriber requires more support throughout the implementation, Professional Services can be purchased.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective November 11th 2023 to February 21st 2024
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Scope
The scope of the Support Services provided to Subscriber includes general instructive assistance and support regarding the installation of the Software and basic technical configuration of the Software, including how to use the Software. Such Support Services are provided in accordance with this policy. Subscriber acknowledges that the time required for resolution of issues may vary depending on the specific circumstances of each problem, including, without limitation, the nature of the incident/problem, the extent and accuracy of information available about the incident/problem and the level of Subscriber's cooperation and responsiveness in providing materials, information, access and support reasonably required by Solo to achieve problem resolution. For purposes of this policy, Software will include Solo images of Istio. Solo will provide reactive support for Istio (or Envoy) only. Any requests to assist with installation or deployment are outside the scope of this policy and are not included with Support Services. - Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form (or another designated ordering document) for the Ship-To entity.
- Priority Levels
Urgent: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
High: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Normal: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Low: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround.
- Targeted Times for Initial Response
Priority Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
Urgent* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
High | 4 Business Hours Local Time | 2 hours (24/7/365) |
Normal | 8 Business Hours Local Time | 4 Business Hours Local Time |
Low | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Urgent Priority issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Urgent Priority issues as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Urgent Priority issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues. Solo reserves the right to adjust the priority you select if it does not align with the priorities documented above.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Dedicated Engineering Support Offering
Subscriber may purchase for an additional fee at any time during the Subscription Term of a Software Subscription access to a dedicated* Solo engineering resource (“Dedicated Engineering Support Subscription”). This must be purchased with (or during the term of an existing) Software Subscription to support the Software for the use case permitted on the Order Form for the business unit that purchased such Software Subscription (unless otherwise authorized by Solo in writing). The Dedicated Engineering Support Subscription grants Subscriber access during Local Time to a named engineering resource from Solo to perform platform architecture, design, troubleshooting and enablement on a remote basis without access to Subscriber’s environments, including (but not limited to):
- Leading virtual workshops for Subscriber’s teams throughout the year
- Developing instructional guides specific to Subscriber’s environment
- Over the shoulder guidance for platform enhancements and troubleshooting
- Providing configuration for installation of platform and specific integrations
- Providing production release support
- Develop GitOps and release management strategies for Gloo Platform
- Facilitating software enhancement and defect resolution requests with Solo engineering teams
Such named engineering resource should average approximately 8 hours per week for the duration of the Subscription. All other terms that apply to Support Services apply to the Dedicated Engineering Support Subscription. *Solo may replace or substitute such dedicated resource in its sole discretion on a permanent or temporary basis.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective June 26th 2023 to November 11th 2023
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form for the Ship-To entity.
- Severity Levels
Severity Level 1: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
Severity Level 2: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Severity Level 3: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Severity Level 4: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. This is the default severity level until otherwise indicated by Solo in writing.
- Targeted Response Times
Severity Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
1* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
2 | 4 Business Hours Local Time | 2 hours (24/7/365) |
3 | 8 Business Hours Local Time | 4 Business Hours Local Time |
4 | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Severity Level 1 issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Severity 1 as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Severity 1 issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Dedicated Engineering Support Offering
Subscriber may purchase for an additional fee at any time during the Subscription Term of a Software Subscription access to a dedicated* Solo engineering resource (“Dedicated Engineering Support Subscription”). This must be purchased with (or during the term of an existing) Software Subscription to support the Software for the use case permitted on the Order Form for the business unit that purchased such Software Subscription (unless otherwise authorized by Solo in writing). The Dedicated Engineering Support Subscription grants Subscriber access during Local Hours to a named engineering resource from Solo to perform platform architecture, design, troubleshooting and enablement on a remote basis without access to Subscriber’s environments, including (but not limited to):
- Leading virtual workshops for Subscriber’s teams throughout the year
- Developing instructional guides specific to Subscriber’s environment
- Over the shoulder guidance for platform enhancements and troubleshooting
- Providing configuration for installation of platform and specific integrations
- Providing production release support
- Develop GitOps and release management strategies for Gloo Platform
- Facilitating software enhancement and defect resolution requests with Solo engineering teams
Such names engineering resource should average approximately 8 hours per week for the duration of the Subscription. All other terms that apply to Support Services apply to the Dedicated Engineering Support Subscription. *Solo may replace or substitute such dedicated resource in its sole discretion on a permanent or temporary basis.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective April 18th 2023 to June 26th 2023
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form for the Ship-To entity.
- Severity Levels
Severity Level 1: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations, or your revenue or brand are impacted and no procedural workaround exists.
Severity Level 2: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations, or your revenue or brand are threatened and no procedural workaround exists.
Severity Level 3: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Severity Level 4: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. This is the default severity level until otherwise indicated by Solo in writing.
- Targeted Response Times
Severity Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
1* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
2 | 4 Business Hours Local Time | 2 hours (24/7/365) |
3 | 8 Business Hours Local Time | 4 Business Hours Local Time |
4 | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Severity Level 1 issues, Subscriber must contact Solo’s Product Support Hotline at +1-601-476-5646.
Solo will use best efforts to resolve any Severity 1 as soon as reasonably feasible under the circumstances. Solo will also use all reasonably available resources, including our office of the CTO, to assist in the resolution of Severity 1 issues. Subscriber agrees to promptly collaborate with Solo to aid in the resolution of such issues.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings. Solo may assist Subscriber with integration development work through Professional Services to create a holistic solution tailored to Subscriber’s environment using Solo’s Products and Subscriber’s existing software ecosystem (“Subscriber-Specific Integration Development”). Subscriber-Specific Integration Development may include configuring Subscriber’s deployment tools, creating adaptors to integrate third party products with Solo’s Products, shell scripting, amongst other Subscriber requirements. Subscriber-Specific Integration Development is not covered by Support Services, and Solo does not provide ongoing support to Subscriber-Specific Integration Development after the Professional Services engagement has ended.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Effective February 1st 2023 to April 18th 2023
DownloadTable of Contents
TECHNICAL SUPPORT POLICY
- Definitions
“Business Hours” means an hour during Monday through Friday other than a day designated from time to time as a national holiday in the place from which Support Services may be provided.
“Local Time” means 9AM – 6PM business hours in the time zone applicable for the location shown on the Order Form for the Ship-To entity.
- Severity Levels
Severity Level 1: A problem that severely impacts your use of the software in a production environment (such as loss of production data or in which your production systems are not functioning). The situation halts your business operations and no procedural workaround exists.
Severity Level 2: A problem where the production environment is operational but functionality is severely reduced. The situation is causing a high impact to portions of your business operations and no procedural workaround exists.
Severity Level 3: A problem that involves partial, non-critical loss of use of the software in a production environment or development environment. For production environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. For development environments, where the situation is causing your project to no longer continue or migrate into production.
Severity Level 4: A general usage question, reporting of a documentation error, or recommendation for a future product enhancement or modification. For production environments, there is low-to-no impact on your business or the performance or functionality of your system. For development environments, there is a medium-to-low impact on your business, but your business continues to function, including by using a procedural workaround. This is the default severity level until otherwise indicated by Solo in writing.
- Targeted Response Times
Severity Level | Standard Support Policy | Enhanced Support Policy |
|---|---|---|
1* | 1 hour (24/7/365) | 15 minutes (24/7/365) |
2 | 4 Business Hours Local Time | 2 hours (24/7/365) |
3 | 8 Business Hours Local Time | 4 Business Hours Local Time |
4 | 24 Business Hours Local Time | 12 Business Hours Local Time |
*To report Severity Level 1 issues, Subscriber must contact Solo’s Product Support Hotline at 1-601-476-5646.
- Support Tickets
To initiate a support matter, please log a ticket via our online ticketing system (Zendesk), email or phone as documented at https://www.solo.io/company/get-support/. Subscriber’s access to, and use of, Zendesk are governed by the applicable terms and conditions located at https://www.zendesk.com/company/agreements-and-terms/master-subscription-agreement/ and their associated privacy policy found at https://www.zendesk.com/company/agreements-and-terms/privacy-notice/, as either may be updated by Zendesk from time to time.
- Slack
Subscriber may be provided the opportunity to use Slack to connect with support personnel. All use of Slack is subject to Solo’s Code of Conduct found here. Slack is provided to enable collaboration between Solo and its Subscribers. All issues should be logged as support tickets and not initiated via Slack.
- Support Restrictions
Subscriber agrees not to use the Support Services in connection with the development, deployment, enablement and/or maintenance of any non-Solo Technology that competes with Solo’s Product offerings.
Solo will have no obligation to provide Support Services to Subscriber in the event that (i) the Subscriber has violated any use restrictions found in Subscriber’s agreement with Solo; (ii) an issue is caused by the negligence, misconduct or misuse of the Product by Subscriber; or (iii) any issue that is caused by third party software (except Istio).
Please see Solo’s online Documentation located at https://docs.solo.io/ for more information about which versions of Solo’s Products are supported by these Support Services.
Product Descriptions
Effective October 16th 2023
DownloadTable of Contents
Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support. Istio Support includes access to Solo-provided images of Istio, which are considered Solo Software.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh Enterprise, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Mesh Core (formerly known as Gloo Production Istio Support or Gloo Core) includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh Enterprise.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/. Gloo Network is included in Gloo Mesh Enterprise as of October 16, 2023.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective September 15th 2023 to October 16th 2023
DownloadTable of Contents
Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support. Istio Support includes access to Solo-provided images of Istio, which are considered Solo Software.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Core (formerly known as Gloo Production Istio Support) includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective August 29th 2023 to September 15th 2023
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Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support. Istio Support includes access to Solo-provided images of Istio, which are considered Solo Software.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Production Istio Support includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective July 28th 2023 to August 29th 2023
DownloadTable of Contents
Product Descriptions
More information about Istio Support can be found at https://www.solo.io/istio-support.
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/. Gloo Production Istio Support includes Istio Support and the user interface, lifecycle management and customer-managed pipeline for metrics, tracing and logging features of Gloo Mesh.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Effective January 20th 2023 to July 28th 2023
DownloadTable of Contents
Product Descriptions
More information about Gloo Gateway, for scalable, extensible cloud-native API Gateway management, can be found at https://www.solo.io/products/gloo-gateway/.
More information about Gloo Mesh, a standards-based, scalable, secure Istio service mesh, can be found at https://www.solo.io/products/gloo-mesh/.
More information about Gloo Network, for powerful Cilium CNI pluggability for Kubernetes networking, can be found https://www.solo.io/products/gloo-network/.
More information about Gloo Edge, an Envoy-powered API gateway, can be found at https://docs.solo.io/gloo-edge/latest/.
Single Transaction Reseller Agreement
Effective August 15th 2023
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SINGLE TRANSACTION RESELLER AGREEMENT
This Single Transaction Reseller Agreement, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between the Solo entity (“Solo”), and the entity identified as “Reseller” (“Reseller”), each as set forth on the signature block of the Order Form, as of the date specified on uch Order Form (“Effective Date”). This agreement permits Reseller to resell certain Solo Offerings (as defined below) in a specified territory subject to the following terms and conditions.
1. DEFINITIONS
1.1“Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Agreement Term” means the term of this Agreement, including the initial term and subsequent renewal terms.
1.3 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Reseller (or its Affiliates) to resell Solo Offerings to the Subscriber listed on such Order Form, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.4 “Reseller Program Guide” means the documentation that contains specific details, requirements and discounts for participation as a reseller of Solo, which may be modified by Solo from time to time, in its reasonable discretion.
1.5 “Solo Offerings” means the products and/or services listed in the Reseller Program Guide.
1.6 "Subscriber” means an end user customer identified as the Ship-To entity in an Order Form.
1.7 “Subscriber Agreement” means the Subscriber terms set forth at https://legal.solo.io/#subscription-terms.
1.8 “Support Services” means the maintenance and support services purchased, if any, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
1.9 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Solo Offerings is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. RESELLER OBLIGATIONS.
2.1 Appointment. Subject to the terms and conditions of this Agreement, including the Reseller Program Guide, Solo appoints Reseller as an authorized, non-exclusive, reseller of Solo Offerings to distribute to Subscribers during the Agreement Term, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Solo Offerings directly to Subscribers and potential Subscribers in the Territory, but solely (i) for use by such Subscribers only and without any right of further resale and (ii) pursuant to the applicable Subscriber Agreement(s). Reseller shall not market or resell Solo Offerings outside the Territory, or to a party that Reseller knows or has reason to know will use the Solo Offerings outside the Territory.
2.2 Second Tier Reselling. If permitted on an Order Form, Solo agrees that Reseller may resell Solo Offerings to a third party reseller approved by Solo and identified in an applicable Order Form (“Second Tier Reseller”) provided that: (i) Reseller must cause the Second Tier Reseller to enter into a written executed agreement with the Reseller (“Second Tier Reseller Agreement”), binding such Second Tier Reseller to terms and conditions substantially similar to, and no less protective of Solo’s interests than, those in this Agreement, and (ii) the Second Tier Reseller must obtain consent from the Subscriber in a legally enforceable manner to a Subscriber Agreement for each Solo Offering. Reseller shall be free to determine the price at which it resells the Solo Offerings to such Second Tier Reseller. Any right of Second Tier Reseller to market or resell the Solo Offerings pursuant to the foregoing provision shall terminate immediately upon any termination or expiration of this Agreement, and Solo shall not be obligated to honor or fulfill any orders for Solo Offerings placed by any Second Tier Reseller which are not already the subject of an Order Form fully executed by Solo and Reseller prior to the date of termination.
2.3 Reserved.
2.4 Trademarks. Subject to Reseller’s compliance with this Agreement, Solo hereby grants to Reseller a non-exclusive, non-transferable, royalty-free right and license to use certain Solo.io trademarks made available to Reseller (the “Solo Trademarks”) in connection with the promotion and marketing of the Solo Offerings during the Agreement Term. All right, title and interest to the Solo Trademarks will remain with Solo and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to Reseller to use the Solo Trademarks will terminate. Prior to any use of the Solo Trademarks, Reseller will provide Solo with a sample of all promotional materials that make use of the Solo Trademarks for Solo to approve each such use; provided, that once particular promotional materials have been approved, Reseller may reuse them in a similar context (without modification) without obtaining separate approval from Solo. Reseller will not challenge, directly or indirectly, Solo.io rights in or with respect of the Solo Trademarks.
2.5 Subscriber Agreement. When executing an Order Form with Solo, Reseller represents and warrants that Reseller will obtain consent from Subscriber in a legally enforceable way to the applicable Subscriber Agreement. To the extent Subscriber and Solo have separate written terms governing the purchase of the Solo Offerings listed in an Order Form (“Negotiated Subscriber Agreement”), Reseller warrants and represents that Reseller will (i) verify that such Negotiated Subscriber Agreement governs the Solo Offerings under the Order Form prior to execution and (ii) reference that such Negotiated Subscriber Agreement governs on Reseller’s ordering document with Subscriber or, to the extent that such Negotiated Subscriber Agreement does not govern the Solo Offering, obtain consent from the Subscriber for the Subscriber Agreement (Subscriber Agreement and Negotiated Subscriber Agreement, collectively, the “Applicable Subscriber Agreement”).
2.6 No Unauthorized Representations and Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Solo Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the Applicable Subscriber Agreement. Reseller shall be solely responsible for, and Solo shall have no legal obligation to honor, any warranties that Reseller provides to Subscribers to the extent that such warranties are broader or greater in scope than those made by Solo to Reseller hereunder or by Solo to Subscriber under the Applicable Subscriber Agreement.
2.7 Insurance. Reseller shall at its own cost during the the Agreement Term maintain insurance with a reputable company that is customary for its business to cover the business activities contemplated by this Agreement.
2.8 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Reseller and its Affiliates, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
2.9 Records. During the Agreement Term and for at least five (5) years thereafter, Reseller will keep and maintain commercially reasonable written records regarding Reseller’s use and distribution of the Solo Offerings and related business activities ("Records"). No more than once per year, Solo may, at its own expense, verify the Records to verify Reseller’s compliance with this Agreement. This verification will take the form of requests for information, documents or Records (to which Reseller will respond promptly). The parties will act reasonably and cooperate with each other in respect of such verifications.
2.10 Reserved.
3. SUPPORT SERVICES
3.1 Support Services Delivered by Solo. If Solo provides Support Services to Subscriber, Solo will provide Support Services in accordance with the technical support policy more fully described on an Order Form (the “Technical Support Policy”). Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the term of the Order Form.
3.2 Support Services Managed by Reseller. If indicated in an Order Form, Reseller may manage Support Services on behalf of Subscriber. In such instance, Subscriber will not have access to the Support Services directly and the Technical Support Policy will apply to Reseller’s submission of support tickets to Solo. Reseller will have the discretion to define a support structure with the Subscriber directly.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under the Solo Offerings, all add-ons to any Solo Offerings or the like, any training and other educational materials, and any deliverables created or made available as part of the Solo Offerings and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Solo Offerings and/or Support Services. Reseller agrees not to infringe, misappropriate or violate any intellectual property rights of Solo.
4. CONFIDENTIAL INFORMATION
4.1. Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than to the extent required for Solo to provide the Solo Offerings to Subscriber and for Reseller to resell the Solo Offerings and, if applicable, provide Support Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Orders, Fees and Payment. Reseller shall place orders for Solo Offerings under this Agreement by executing an Order Form. Reseller agrees to pay for all fees due under each Order Form or otherwise incurred by Reseller or the applicable Subscriber under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without the right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Solo Offerings purchased, not actual usage.
5.2 Prices and Discounts. Prices for Solo Offerings are set at then-current prices, less any applicable discounts offered to Reseller. Reseller is solely responsible for establishing the prices at which it resells Solo Offerings. Solo may change prices or discounting offered at any time.
5.3 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Reseller will reimburse Solo for any costs to collect late payments.
5.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Solo Offerings purchased by Reseller under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Reseller provides evidence of an exemption from the relevant Taxes, Reseller will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Reseller is responsible for under this Agreement and which Reseller did not pay Solo, Solo may invoice Reseller and Reseller will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.5 Future Functionality. Reseller’s purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Solo regarding future functionality or features. Reseller is purchasing Solo Offerings based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated or has not expired.
6.2 Termination.
6.2.1 Reserved.
6.2.2 For Breach. If a party fails to a cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate any Order Form in effect.
6.2.3 Effect of Termination. Upon expiration or termination of this Agreement, Reseller shall cease to be an authorized reseller of Solo Offerings and will have no right to market, sell or distribute the Solo Offerings and will cease use of all Solo Confidential Information. Any Solo Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the Applicable Subscriber Agreement. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties. Any warranty for Solo Offerings will be provided directly from Solo to Subscriber under the applicable Subscriber Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
8. INDEMNIFICATION
8.1 Solo Indemnification.
8.1.1 IP Claims. Solo will, at Solo’s expense, either defend Reseller from or settle any claim, proceeding or suit brought by a third party against Reseller, alleging that Reseller’s marketing or resale of the Solo Offerings during the Agreement Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Reseller from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Reseller to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Reseller prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt of the IP Claim by Reseller will be at Reseller’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Reseller once the IP Claim is tendered to Solo.
8.1.2 Exclusions. Solo will have no obligation under Section 8.1.1 to the extent an IP Claim is based upon: (i) Reseller’s marketing or resale of a Solo Offering that has been that has been modified if such modification is not made by Solo or its authorized subcontractor, or (ii) use of a Solo Offering or Solo Technology other than in accordance with this Agreement.
8.1.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing marketing and reselling the Solo Offerings or Solo Technology; (ii) modify the infringing technology to avoid the infringement, or (iii) terminate Reseller’s right to market or resell the Solo Offerings or Solo Technology. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Reseller, for any actual or alleged infringement of any intellectual property right related to a Solo Offering and/or Solo Technology.
8.2 Reseller Indemnification. Reseller shall defend, indemnify and hold Solo harmless from any and all costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees and costs of litigation) resulting from (i) Reseller’s failure to comply with Sections 2.5 and/or 2.6, or (ii) a third-party claim resulting from Second Tier Reseller’s breach of the Second Tier Reseller Agreement (each, a “Solo Claim”).
8.3 Indemnification Conditions. The indemnified party must: (i) give the indemnifying party prompt notice of the IP Claim or Solo Claim (collectively, the “Claims”), provided that failure to do so will only relieve the indemnifying party of its obligation under this Section 8 to the extent the indemnifying party ability to defend the Claim is materially prejudiced, (ii) grant the indemnifying party the full and complete control over the defense and settlement over the Claim; provided that the indemnifying party will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of the indemnified party other than the obligation for Reseller or Subscriber to cease using the affected Solo Offering or Solo Technology unless the indemnified party consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the Claim. The indemnified party may participate in the defense of the Claim at the indemnified party’s own expense.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER UNDER THE ORDER FORM FOR THE AFFECTED SOLO OFFERINGS OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THIS ALLOCATION IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Solo may assign this Agreement to any Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of Solo’s assets or stock. Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns. Nothing will restrict Solo from subcontracting its obligations under this Agreement.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Solo Offerings without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Reseller may not access or use any Solo Offerings to compete with Solo.
10.4 Export Compliance. The Solo Offerings and Solo Technology are subject to the export laws and regulations of the United States. Reseller represents that, it is not located in, and will not export, re-export, access or use, or permit any person to export, re-export, access or use, any Solo Offering or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Reseller acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
10.7 Government Rights. If a software Solo Offering or Solo Technology is licensed under a U.S. government contract, Reseller acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Solo Offering, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Reseller acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Solo Offering under this Agreement and in any subcontract under which a software Solo Offering are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of this Agreement. Such notices will be deemed delivered if acknowledged received by return e-mail, or if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 Publicity. Reseller agrees that Solo may identify Reseller as a reseller of Solo Offerings on its website and other promotional materials.
10.10 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.11 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.12 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.13 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) this Agreement, and (iii) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase of Solo Offerings, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). The Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
Effective July 11th 2023 to August 15th 2023
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SINGLE TRANSACTION RESELLER AGREEMENT
This Single Transaction Reseller Agreement, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between the Solo entity (“Solo”), and the entity identified as “Reseller” (“Reseller”), each as set forth on the signature block of the Order Form, as of the date specified on uch Order Form (“Effective Date”). This agreement permits Reseller to resell certain Solo Offerings (as defined below) in a specified territory subject to the following terms and conditions.
1. DEFINITIONS
1.1“Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Agreement Term” means the term of this Agreement, including the initial term and subsequent renewal terms.
1.3 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Reseller (or its Affiliates) to resell Solo Offerings to the Subscriber listed on such Order Form, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.4 “Reseller Program Guide” means the documentation that contains specific details, requirements and discounts for participation as a reseller of Solo, which may be modified by Solo from time to time, in its reasonable discretion.
1.5 “Solo Offerings” means the products and/or services listed in the Reseller Program Guide.
1.6 "Subscriber” means an end user customer identified as the Ship-To entity in an Order Form.
1.7 “Subscriber Agreement” means the Subscriber terms set forth at https://legal.solo.io/#subscription-terms.
1.8 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
1.9 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Solo Offerings is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. RESELLER OBLIGATIONS.
2.1 Appointment. Subject to the terms and conditions of this Agreement, including the Reseller Program Guide, Solo appoints Reseller as an authorized, non-exclusive, reseller of Solo Offerings to distribute to Subscribers during the Agreement Term, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Solo Offerings directly to Subscribers and potential Subscribers in the Territory, but solely (i) for use by such Subscribers only and without any right of further resale and (ii) pursuant to the applicable Subscriber Agreement(s). Reseller shall not market or resell Solo Offerings outside the Territory, or to a party that Reseller knows or has reason to know will use the Solo Offerings outside the Territory.
2.2 Second Tier Reselling. If permitted on an Order Form, Solo agrees that Reseller may resell Solo Offerings to a third party reseller approved by Solo and identified in an applicable Order Form (“Second Tier Reseller”) provided that: (i) Reseller must cause the Second Tier Reseller to enter into a written executed agreement with the Reseller (“Second Tier Reseller Agreement”), binding such Second Tier Reseller to terms and conditions substantially similar to, and no less protective of Solo’s interests than, those in this Agreement, and (ii) the Second Tier Reseller must obtain consent from the Subscriber in a legally enforceable manner to a Subscriber Agreement for each Solo Offering. Reseller shall be free to determine the price at which it resells the Solo Offerings to such Second Tier Reseller. Any right of Second Tier Reseller to market or resell the Solo Offerings pursuant to the foregoing provision shall terminate immediately upon any termination or expiration of this Agreement, and Solo shall not be obligated to honor or fulfill any orders for Solo Offerings placed by any Second Tier Reseller which are not already the subject of an Order Form fully executed by Solo and Reseller prior to the date of termination.
2.3 Reserved.
2.4 Trademarks. Subject to Reseller’s compliance with this Agreement, Solo hereby grants to Reseller a non-exclusive, non-transferable, royalty-free right and license to use certain Solo.io trademarks made available to Reseller (the “Solo Trademarks”) in connection with the promotion and marketing of the Solo Offerings during the Agreement Term. All right, title and interest to the Solo Trademarks will remain with Solo and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to Reseller to use the Solo Trademarks will terminate. Prior to any use of the Solo Trademarks, Reseller will provide Solo with a sample of all promotional materials that make use of the Solo Trademarks for Solo to approve each such use; provided, that once particular promotional materials have been approved, Reseller may reuse them in a similar context (without modification) without obtaining separate approval from Solo. Reseller will not challenge, directly or indirectly, Solo.io rights in or with respect of the Solo Trademarks.
2.5 Subscriber Agreement. When executing an Order Form with Solo, Reseller represents and warrants that Reseller will obtain consent from Subscriber in a legally enforceable way to the applicable Subscriber Agreement. To the extent Subscriber and Solo have separate written terms governing the purchase of the Solo Offerings listed in an Order Form (“Negotiated Subscriber Agreement”), Reseller warrants and represents that Reseller will (i) verify that such Negotiated Subscriber Agreement governs the Solo Offerings under the Order Form prior to execution and (ii) reference that such Negotiated Subscriber Agreement governs on Reseller’s ordering document with Subscriber or, to the extent that such Negotiated Subscriber Agreement does not govern the Solo Offering, obtain consent from the Subscriber for the Subscriber Agreement (Subscriber Agreement and Negotiated Subscriber Agreement, collectively, the “Applicable Subscriber Agreement”).
2.6 No Unauthorized Representations and Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Solo Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the Applicable Subscriber Agreement. Reseller shall be solely responsible for, and Solo shall have no legal obligation to honor, any warranties that Reseller provides to Subscribers to the extent that such warranties are broader or greater in scope than those made by Solo to Reseller hereunder or by Solo to Subscriber under the Applicable Subscriber Agreement.
2.7 Insurance. Reseller shall at its own cost during the the Agreement Term maintain insurance with a reputable company that is customary for its business to cover the business activities contemplated by this Agreement.
2.8 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Reseller and its Affiliates, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
2.9 Records. During the Agreement Term and for at least five (5) years thereafter, Reseller will keep and maintain commercially reasonable written records regarding Reseller’s use and distribution of the Solo Offerings and related business activities ("Records"). No more than once per year, Solo may, at its own expense, verify the Records to verify Reseller’s compliance with this Agreement. This verification will take the form of requests for information, documents or Records (to which Reseller will respond promptly). The parties will act reasonably and cooperate with each other in respect of such verifications.
2.10 Reserved.
3. SUPPORT SERVICES
3.1 Support Services Delivered by Solo. If Solo provides Support Services to Subscriber, Solo will provide Support Services in accordance with the technical support policy more fully described on an Order Form (the “Technical Support Policy”). Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the term of the Order Form.
3.2 Support Services Managed by Reseller. If indicated in an Order Form, Reseller may manage Support Services on behalf of Subscriber. In such instance, Subscriber will not have access to the Support Services directly and the Technical Support Policy will apply to Reseller’s submission of support tickets to Solo. Reseller will have the discretion to define a support structure with the Subscriber directly.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under the Solo Offerings, all add-ons to any Solo Offerings or the like, any training and other educational materials, and any deliverables created or made available as part of the Solo Offerings and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Solo Offerings and/or Support Services. Reseller agrees not to infringe, misappropriate or violate any intellectual property rights of Solo.
4. CONFIDENTIAL INFORMATION
4.1. Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than to the extent required for Solo to provide the Solo Offerings to Subscriber and for Reseller to resell the Solo Offerings and, if applicable, provide Support Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Orders, Fees and Payment. Reseller shall place orders for Solo Offerings under this Agreement by executing an Order Form. Reseller agrees to pay for all fees due under each Order Form or otherwise incurred by Reseller or the applicable Subscriber under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Solo Offerings purchased, not actual usage.
5.2 Prices and Discounts. Prices for Solo Offerings are set at then-current prices, less any applicable discounts offered to Reseller. Reseller is solely responsible for establishing the prices at which it resells Solo Offerings. Solo may change prices or discounting offered at any time.
5.3 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Reseller will reimburse Solo for any costs to collect late payments.
5.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Solo Offerings purchased by Reseller under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Reseller provides evidence of an exemption from the relevant Taxes, Reseller will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Reseller is responsible for under this Agreement and which Reseller did not pay Solo, Solo may invoice Reseller and Reseller will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.5 Future Functionality. Reseller’s purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Solo regarding future functionality or features. Reseller is purchasing Solo Offerings based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated or has not expired.
6.2 Termination.
6.2.1 Reserved.
6.2.2 For Breach. If a party fails to a cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.2.3 Effect of Termination. Upon expiration or termination of this Agreement, Reseller shall cease to be an authorized reseller of Solo Offerings and will have no right to market, sell or distribute the Solo Offerings and will cease use of all Solo Confidential Information. Any Solo Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the Applicable Subscriber Agreement. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties. Any warranty for Solo Offerings will be provided directly from Solo to Subscriber under the applicable Subscriber Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
8. INDEMNIFICATION
8.1 Solo Indemnification.
8.1.1 IP Claims. Solo will, at Solo’s expense, either defend Reseller from or settle any claim, proceeding or suit brought by a third party against Reseller, alleging that Reseller’s marketing or resale of the Solo Offerings during the Agreement Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Reseller from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Reseller to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Reseller prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt of the IP Claim by Reseller will be at Reseller’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Reseller once the IP Claim is tendered to Solo.
8.1.2 Exclusions. Solo will have no obligation under Section 8.1.1 to the extent an IP Claim is based upon: (i) Reseller’s marketing or resale of a Solo Offering that has been that has been modified if such modification is not made by Solo or its authorized subcontractor, or (ii) use of a Solo Offering or Solo Technology other than in accordance with this Agreement.
8.1.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing marketing and reselling the Solo Offerings or Solo Technology; (ii) modify the infringing technology to avoid the infringement, or (iii) terminate Reseller’s right to market or resell the Solo Offerings or Solo Technology. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Reseller, for any actual or alleged infringement of any intellectual property right related to a Solo Offering and/or Solo Technology.
8.2 Reseller Indemnification. Reseller shall defend, indemnify and hold Solo harmless from any and all costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees and costs of litigation) resulting from (i) Reseller’s failure to comply with Sections 2.5 and/or 2.6, or (ii) a third-party claim resulting from Second Tier Reseller’s breach of the Second Tier Reseller Agreement (each, a “Solo Claim”).
8.3 Indemnification Conditions. The indemnified party must: (i) give the indemnifying party prompt notice of the IP Claim or Solo Claim (collectively, the “Claims”), provided that failure to do so will only relieve the indemnifying party of its obligation under this Section 8 to the extent the indemnifying party ability to defend the Claim is materially prejudiced, (ii) grant the indemnifying party the full and complete control over the defense and settlement over the Claim; provided that the indemnifying party will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of the indemnified party other than the obligation for Reseller or Subscriber to cease using the affected Solo Offering or Solo Technology unless the indemnified party consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the Claim. The indemnified party may participate in the defense of the Claim at the indemnified party’s own expense.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER UNDER THE ORDER FORM FOR THE AFFECTED SOLO OFFERINGS OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THIS ALLOCATION IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Solo may assign this Agreement to any Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of Solo’s assets or stock. Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns. Nothing will restrict Solo from subcontracting its obligations under this Agreement.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Solo Offerings without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Reseller may not access or use any Solo Offerings to compete with Solo.
10.4 Export Compliance. The Solo Offerings and Solo Technology are subject to the export laws and regulations of the United States. Reseller represents that, it is not located in, and will not export, re-export, access or use, or permit any person to export, re-export, access or use, any Solo Offering or Solo Technology in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Reseller acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
10.7 Government Rights. If a software Solo Offering or Solo Technology is licensed under a U.S. government contract, Reseller acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Solo Offering, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Reseller acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Solo Offering under this Agreement and in any subcontract under which a software Solo Offering are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of this Agreement. Such notices will be deemed delivered if acknowledged received by return e-mail, or if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 Publicity. Reseller agrees that Solo may identify Reseller as a reseller of Solo Offerings on its website and other promotional materials.
10.10 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.11 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.12 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.13 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) this Agreement, and (iii) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). The Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
Effective February 16th 2023 to July 11th 2023
DownloadTable of Contents
SINGLE TRANSACTION RESELLER AGREEMENT
This Single Transaction Reseller Agreement, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs, (collectively, the “Agreement”) is entered into by and between the Solo entity (“Solo”), and the entity identified as “Reseller” (“Reseller”), each as set forth on the signature block of the Order Form, as of the date specified on uch Order Form (“Effective Date”). This agreement permits Reseller to resell certain Solo Offerings (as defined below) in a specified territory subject to the following terms and conditions.
1. DEFINITIONS
1.1“Affiliate” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Agreement Term” means the term of this Agreement, including the initial term and subsequent renewal terms.
1.3 “Order Form” means an ordering document entered into between Solo (or its Affiliates) and Reseller (or its Affiliates) to resell Solo Offerings to the Subscriber listed on such Order Form, where the parties agree that where either party or one of their Affiliates enters an Order Form with an Affiliate of the other party, such Affiliate shall be solely responsible for performing all of its obligations under the Agreement in connection with such Order Form.
1.4 “Reseller Program Guide” means the documentation that contains specific details, requirements and discounts for participation as a reseller of Solo, which may be modified by Solo from time to time, in its reasonable discretion.
1.5 “Solo Offerings” means the products and/or services listed in the Reseller Program Guide.
1.6 "Subscriber” means an end user customer identified as the Ship-To entity in an Order Form.
1.7 “Subscriber Agreement” means the Subscriber terms set forth at https://legal.solo.io/#subscription-terms.
1.8 “Support Services” means the maintenance and support services purchased, if any, in a Subscription, as specified in an applicable Order Form, and more fully described at https://legal.solo.io/#technical-support-policy (the “Technical Support Policy”).
1.9 “Territory” means the world, except with respect to countries, territories or jurisdictions where the marketing, sale or distribution of the Software and/or Documentation and/or Support Services is prohibited by the applicable laws or regulations of the United States (including applicable export laws).
2. RESELLER OBLIGATIONS.
2.1 Appointment. Subject to the terms and conditions of this Agreement, including the Reseller Program Guide, Solo appoints Reseller as an authorized, non-exclusive, reseller of Solo Offerings to distribute to Subscribers during the Agreement Term, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Solo Offerings directly to Subscribers and potential Subscribers in the Territory, but solely (i) for use by such Subscribers only and without any right of further resale and (ii) pursuant to the applicable Subscriber Agreement(s). Reseller shall not market or resell Solo Offerings outside the Territory, or to a party that Reseller knows or has reason to know will use the Solo Offerings outside the Territory.
2.2 Second Tier Reselling. If permitted on an Order Form, Solo agrees that Reseller may resell Solo Offerings to a third party reseller approved by Solo and identified in an applicable Order Form (“Second Tier Reseller”) provided that: (i) Reseller must cause the Second Tier Reseller to enter into a written executed agreement with the Reseller (“Second Tier Reseller Agreement”), binding such Second Tier Reseller to terms and conditions substantially similar to, and no less protective of Solo’s interests than, those in this Agreement, (ii) the Second Tier Reseller must obtain consent from the Subscriber in a legally enforceable manner to a Subscriber Agreement for each Solo Offering. Reseller shall be free to determine the price at which it resells the Solo Offerings to such Second Tier Reseller. Any right of Second Tier Reseller to market or resell the Solo Offerings pursuant to the foregoing provision shall terminate immediately upon any termination or expiration of this Agreement, and Solo shall not be obligated to honor or fulfill any orders for Solo Offerings placed by any Second Tier Reseller which are not already the subject of an Order Form fully executed by Solo and Reseller prior to the date of termination.
2.3 Reserved.
2.4 Trademarks. Subject to Reseller’s compliance with this Agreement, Solo hereby grants to Reseller a nonexclusive, nontransferable, royalty-free right and license to use certain Solo.io trademarks made available to Reseller (the “Solo Trademarks”) in connection with the promotion and marketing of the Solo Offerings during the Agreement Term. All right, title and interest to the Solo Trademarks will remain with Solo and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to Reseller to use the Solo Trademarks will terminate. Prior to any use of the Solo Trademarks, Reseller will provide Solo with a sample of all promotional materials that make use of the Solo Trademarks for Solo to approve each such use; provided, that once particular promotional materials have been approved, Reseller may reuse them in a similar context (without modification) without obtaining separate approval from Solo. Reseller will not challenge, directly or indirectly, Solo.io rights in or with respect of the Solo Trademarks.
2.5 Subscriber Agreement. When executing an Order Form with Solo, Reseller represents and warrants that Reseller will obtain consent from Subscriber in a legally enforceable way to the applicable Subscriber Agreement. To the extent Subscriber and Solo have separate written terms governing the purchase of the Solo Offerings listed in an Order Form (“Negotiated Subscriber Agreement”), Reseller warrants and represents that Reseller will (i) verify that such Negotiated Subscriber Agreement governs the Solo Offerings under the Order Form prior to execution and (ii) reference that such Negotiated Subscriber Agreement governs on Reseller’s ordering document with Subscriber or, to the extent that such Negotiated Subscriber Agreement does not govern the Solo Offering, obtain consent from the Subscriber for the Subscriber Agreement (Subscriber Agreement and Negotiated Subscriber Agreement, collectively, the “Applicable Subscriber Agreement”).
2.6 No Unauthorized Representations and Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Solo Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the applicable Subscriber Agreement. Reseller shall be solely responsible for, and Solo shall have no legal obligation to honor, any warranties that Reseller provides to Subscribers to the extent that such warranties are broader or greater in scope than those made by Solo to Reseller hereunder or by Solo to Subscriber under the Applicable Subscriber Agreement.
2.7 Insurance. Reseller shall at its own cost during the the Agreement Term maintain insurance with a reputable company that is customary for its business to cover the business activities contemplated by this Agreement.
2.8 Feedback. Subject to Solo’s confidentiality obligations under Section 4 of this Agreement, Reseller and its Affiliates, and their respective employees, may, on an entirely voluntary basis, submit feedback or suggestions, and Solo and its Affiliates may use and modify such feedback or suggestions without any restriction or payment.
2.9 Records. During the Agreement Term and for at least five (5) years thereafter, Reseller will keep and maintain commercially reasonable written records regarding Reseller’s use and distribution of the Solo Offerings and related business activities ("Records"). No more than once per year, Solo may, at its own expense, verify the Records to verify Reseller’s compliance with this Agreement. This verification will take the form of requests for information, documents or Records (to which Reseller will respond promptly). The parties will act reasonably and cooperate with each other in respect of such verifications.
2.10 Reserved.
3. SUPPORT SERVICES
3.1 Support Services Delivered by Solo. If Solo provides Support Services to Subscriber, Solo will provide Support Services in accordance with the technical support policy more fully described on an Order Form (the “Technical Support Policy”). Solo may modify the Technical Support Policy but agrees not to materially diminish the level of Support Services during the term of the Order Form.
3.2 Support Services Managed by Reseller. If indicated in an Order Form, Reseller may manage Support Services on behalf of Subscriber. In such instance, Subscriber will not have access to the Support Services directly and the Technical Support Policy will apply to Reseller’s submission of support tickets to Solo. Reseller will have the discretion to define a support structure with the Subscriber directly.
3.3 Reservation of Rights. Solo and its licensors shall retain all rights, title and interest, including all intellectual property rights, in, to and under the Solo Offerings, all add-ons to any Solo Offerings or the like, any training and other educational materials, and any deliverables created or made available as part of the Solo Offerings and/or Support Services, together with all modifications, updates, enhancements, improvements and derivative works in any of the foregoing (collectively, the “Solo Technology”). Nothing in this Agreement shall be deemed to prohibit Solo from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Solo Offerings and/or Support Services. Reseller agrees not to infringe, misappropriate or violate any intellectual property rights of Solo.
4. CONFIDENTIAL INFORMATION
4.1. Definition. “Confidential Information” means any non-public information disclosed by either party or its Affiliates to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the Agreement Term and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information: (i) to any person or entity other than to the extent required for Solo to provide the Solo Offerings to Subscriber and for Reseller to resell the Solo Offerings and, if applicable, provide Support Services; (ii) to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4.3 Compelled Disclosure. If the receiving party is requested or legally compelled (by valid and effective subpoena or order issued by either a court of competent jurisdiction), or is required by a regulatory body, to disclose Confidential Information of the disclosing party, the receiving party shall, unless prohibited by force of law: (i) provide the disclosing party with prompt notice (so long as time permits) of any such request or requirement before disclosure so that the disclosing party may seek an appropriate protective order or other appropriate remedy; and (ii) provide reasonable assistance to the disclosing party in obtaining any such protective order. If the receiving party is nonetheless legally compelled or otherwise required to disclose, the receiving party will furnish only that portion of the Confidential Information that is legally required and shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed.
4.4 Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies in the possession of the other party, are and will remain the property of the disclosing party. At the disclosing party’s written request, the receiving party shall promptly return or destroy all of those documents or objects; provided that, the receiving party may retain copies of such Confidential Information (i) for archival purposes, (ii) as required by applicable law, and (iii) to the extent such copes are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures (including, without limitation, those regarding electronic communications), in each case, so long as such Confidential Information is kept confidential as required under this Agreement.
5. FEES, PAYMENT AND TAXES
5.1 Orders, Fees and Payment. Reseller shall place order for Solo Offerings under this Agreement by executing an Order Form. Reseller agrees to pay for all fees due under each Order Form or otherwise incurred by Reseller or the applicable Subscriber under this Agreement within thirty (30) days of receipt of an applicable invoice. Payments will be made without right of set-off or chargeback. All Order Forms are non-cancellable, and all fees are non-refundable and based on the Solo Offerings purchased, not actual usage.
5.2 Prices and Discounts. Prices for Solo Offerings are set at then-current prices, less any applicable discounts offered to Reseller. Reseller is solely responsible for establishing the prices at which it resells Solo Offerings. Solo may change prices or discounting offered at any time.
5.3 Late Payment and Interest. Any amount not paid when due will be subject to interest of 1.5% of the unpaid balance or the highest rate permitted by applicable law, whichever is less. Reseller will reimburse Solo for any costs to collect late payments.
5.4 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value-added, import or export and excise taxes levied upon the delivery or use of the taxable components if any of the Solo Offerings purchased by Reseller under this Agreement (collectively, “Taxes”). Taxes do not include taxes on the net income of Solo or any of its Affiliates. Unless Reseller provides evidence of an exemption from the relevant Taxes, Reseller will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes. If a taxing authority pursues Solo for unpaid Taxes for which Reseller is responsible for under this Agreement and which Reseller did not pay Solo, Solo may invoice Reseller and Reseller will pay such Taxes, including all applicable interest and penalties, to Solo or directly to the taxing authority with receipt of payment to Solo.
5.5 Future Functionality. Reseller’s purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Solo regarding future functionality or features. Reseller is purchasing Solo Offerings based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Solo’s sole discretion.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2 below. Notwithstanding the expiration of this Agreement, its terms will continue to apply to any Order Form that has not been terminated or has not expired.
6.2 Termination.
6.2.1 Reserved.
6.2.2 For Breach. If a party fails to a cure a material breach of this Agreement or an applicable Order Form within thirty (30) days after receipt of written notice of the breach, the other party may terminate this Agreement or the applicable Order Form, respectively. Termination of this Agreement will terminate all Order Forms in effect.
6.2.3 Effect of Termination. Upon expiration or termination of this Agreement, Reseller shall cease to be an authorized reseller of Solo Offerings and will have no right to market, sell or distribute the Solo Offerings and will cease use of all Solo Confidential Information. Any Solo Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the Applicable Subscriber Agreement. Any provisions intended by their nature to survive termination of this Agreement shall survive.
7. WARRANTIES
7.1 Solo Warranties. Any warranty for Solo Offerings will be provided directly from Solo to Subscriber under the applicable Subscriber Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SOLO MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOLO OFFERINGS AND SOLO TECHNOLOGY FURNISHED OR PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. SOLO DOES NOT WARRANT THAT THE SOLO OFFERINGS AND SOLO TECHNOLOGY ARE ERROR-FREE OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED.
8. INDEMNIFICATION
8.1 Solo Indemnification.
8.1.1 IP Claims. Solo will, at Solo’s expense, either defend Reseller from or settle any claim, proceeding or suit brought by a third party against Reseller, alleging that Reseller’s marketing or resale of the Solo Offerings during the Agreement Term infringes or misappropriates such third party’s intellectual property rights (“IP Claim”). Solo will indemnify Reseller from and pay: (i) all damages, costs and attorneys’ fees finally awarded against Reseller to such third party to the extent resulting from such IP Claim; (ii) any settlement amounts consented to by Solo in connection with such IP Claim; and (iii) all out-of-pocket costs incurred within five (5) days of receipt of such IP Claim by Reseller prior to tendering the defense of an IP Claim to Solo. For the avoidance of doubt, (1) any costs incurred beyond five (5) days after receipt will be at Reseller’s own cost and expense, and (2) Solo will not pay for any out-of-pocket costs incurred by Reseller once the IP Claim is tendered to Solo.
8.1.2 Exclusions. Solo will have no obligation under Section 8.1.1 to the extent an IP Claim is based upon: (i) Reseller’s marketing or resale of a Solo Offering that has been that has been modified if such modification is not made by Solo or its authorized subcontractor, or (ii) use of a Product or Solo Technology other than in accordance with this Agreement.
8.1.3 IP Claim Remedies. Solo may at its sole expense and option: (i) obtain the right to continuing marketing and reselling the Solo Offerings or Solo Technology; (ii) modify the infringing technology to avoid the infringement, or (iii) terminate Reseller’s right to market or resell the Solo Offerings or Solo Technology. This Section 8 states the entire liability and obligations of Solo, and exclusive remedy of Reseller, for any actual or alleged infringement of any intellectual property right related to a Solo Offering and/or Solo Technology.
8.2 Reseller Indemnification. Reseller shall defend, indemnify and hold Solo harmless from any and all costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees and costs of litigation) resulting from (i) Reseller’s failure to comply with Sections 2.5 and/or 2.6, or (ii) a third-party claim resulting from Second Tier Reseller’s breach of the Second Tier Reseller Agreement (each, a “Solo Claim”).
8.3 Indemnification Conditions. The indemnified party must: (i) give the indemnifying party prompt notice of the IP Claim or Solo Claim (collectively, the “Claims”), provided that failure to do so will only relieve the indemnifying party of its obligation under this Section 8 to the extent the indemnifying party ability to defend the Claim is materially prejudiced, (ii) grant the indemnifying party the full and complete control over the defense and settlement over the Claim; provided that the indemnifying party will not enter into any settlement agreement that requires any admission of liability or affirmative obligation on the part of the indemnified party other than the obligation for Reseller or Subscriber to cease using the affected Solo Offering or Solo Technology unless the indemnified Party consents otherwise in writing, and (iii) provide reasonable assistance in connection with the defense and settlement of the Claim. The indemnified party may participate in the defense of the Claim at the indemnified party’s own expense.
9. LIMITATION OF LIABILITY
9.1 Indirect Damages Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR COSTS FOR SUBSTITUTE GOODS, OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, ARISING OUT OF A PARTY’S PERFORMANCE WITH OR FAILURE TO PERFORM THIS AGREEMENT.
9.2 Direct Damages Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S (I) INDEMNIFICATION OBLIGATIONS OR (II) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDER FORM EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER UNDER THE ORDER FORM FOR THE AFFECTED SOLO OFFERINGS OR SOLO TECHNOLOGY UNDER SUCH ORDER FORM GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
9.3 Allocation of Risk. THE ALLOCATIONS OF RISK IN THIS SECTION 9 REPRESENT THE PARTIES AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THIS ALLOCATIONS IS REFLECTED IN THE PRICING OF SOLO IN AN ORDER FORM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS
10.1 Anti-Corruption. Each party represents that it has not received any improper gift, bribe, kickback or payment from the other party in connection with this Agreement. Each party further agrees to comply with all applicable U.S. and foreign anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws.
10.2 Assignment. Solo may assign tis Agreement to any Affiliate that is able to satisfy the obligations of this Agreement or in connection with a merger or sale of all or substantially all of Solo’s assets or stock. Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Solo’s prior written consent. Subject to this Section, this Agreement will be binding upon and inure to the benefit for each party’s respective permitted successors and assigns. Nothing will restrict Solo from subcontracting its obligations under this Agreement.
10.3 Competitor Access. Under no circumstance may a direct competitor of Solo access or use any Solo Offerings without Solo’s written consent, which may be withheld in Solo’s sole discretion. Further, Reseller may not access or use any Solo Offerings to compete with Solo.
10.4 Export Compliance. The Solo Offerings are subject to the export laws and regulations of the United States. Reseller represents that, it is not located in, and will not export, re-export, access or use, or permit any person to export, re-export, access or use, any Solo Offering in any U.S embargoed country or region, or export, re-export, access or use any of the foregoing contrary to any U.S. export laws or regulations. Reseller acknowledges that remote access may in certain circumstances be considered a re-export.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of, or in default, under this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
10.6 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
10.7 Government Rights. If a software Product or Solo Technology is licensed under a U.S. government contract, Reseller acknowledges that such is a “commercial item” as defined in 48 CFR 2.101 comprised of “commercial computer software” and “commercial computer software documentation.” If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires a software Product and/or the Documentation, the same shall be subject to this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. Reseller acknowledges that this U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation or technical data related to any software Product under this Agreement and in any subcontract under which a software Product and Documentation are acquired or licensed.
10.8 Notices. Any notice shall be in writing unless required or permitted otherwise elsewhere in this Agreement. It is the desire of the parties to receive all notices via e-mail to the e-mail address set forth in the signature block of this Agreement. Such notices will be deemed delivered if acknowledged received by return e-mail, or if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form. Either party may from time to time change its address for notices by giving the other party notice of the change in accordance with this Section.
10.9 Publicity. Reseller agrees that Solo may identify Reseller as a reseller of Solo Offerings on its website and other promotional materials.
10.10 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties.
10.11 Severability. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intention and the remaining provisions will remain in full force and effect.
10.12 Non-waiver. Failure, neglect or delay by any party to enforce the provisions of this Agreement or it’s rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement, and no waiver will be binding unless mage in an express writing signed by the waiving party.
10.13 Entire Agreement. This Agreement, together with any Order Forms executed by the parties, and the Technical Support Policy, each of which is incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior proposals, understanding, agreements and communications between the parties, whether oral or written, regarding such subject matter, including any non-disclosure agreements. In the event of any conflicts between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form (but only for the transaction thereunder), (ii) this Agreement, and (iii) Technical Support Policy. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase of Subscriptions or Professional Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. The parties may amend this Agreement only by a written amendment signed by both parties. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). The Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations, and, therefore, the rule of construction that any ambiguity shall be applied against the drafter is not applicable and will not apply to this Agreement.
Partner Portal Terms: Gloo Partner Network
Effective August 1st 2023
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Partner Portal Terms for Gloo Partner Network
This agreement (“Agreement”) is between you (as “Partner,” “you,” or “your”) and Solo.io, Inc. (“Solo,” “our,” “we,” or “us”) concerning your access to and use of this Partner Portal. By using the Partner Portal, you affirm that you are of legal age to enter this Agreement. If you are an individual accessing or using the Partner Portal on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Partner Portal and to any such Organization.
BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PARTNER PORTAL.
1. Marketing; Your Responsibilities
1.1 Compliance with Laws. You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your access to the Partner Portal, including those related to data privacy, international communications, the transmission of technical or personal data, and export control laws and regulations.
1.2 Marketing. Solo and Partner shall use commercially reasonable efforts to identify potential leads and to market and promote any product and/or service provided by Solo (each, a “Solo Offering” and, collectively, the “Solo Offerings”). The parties shall cooperate in marketing the Solo Offerings and shall mutually agree upon a marketing plan. Partner shall use only materials provided by or otherwise approved by Solo to market the Solo Offerings.
1.3 Prospects. From time to time during the term of the Agreement, Solo may refer potential business inquiries it receives from individuals and organizations (“Prospects”) to you solely for the purpose (“Purpose”) of facilitating the completion of transactions the Solo Single Transaction Reseller Agreement located at https://legal.solo.io/#stra in connection with such Prospects. Any information relating to such Prospects, including their business contact information, shall be deemed Confidential Information of Solo (unless deemed otherwise in accordance with Section 3.1 above), and you agree not to disclose such information to any party other than the Prospect about whom the information concerns or use it for any purpose other than the Purpose. You agree not to directly or indirectly diminish or solicit termination of any relationship or associated goodwill between Solo and any Prospect or disparage Solo or the Solo Offerings. You will not without Solo’s prior written consent share, sell, transfer, or distribute the personal information of any Prospect, or use the personal information of any Prospect for any purpose other than the Purpose. You have implemented and will maintain a comprehensive written information security program that complies with the data protection and privacy laws applicable to your processing of such personal data, including, without limitation, appropriate technical and organizational measures, to ensure a level of security with respect to the privacy and security of information regarding the Prospects appropriate to the risk associated with processing such information.
1.4 Referrals. From time to time, Partner may refer potential customers to Solo for Solo to sell the Solo Offerings to directly (each, a “Referral”). Solo may, in its sole discretion, accept each Referral and pay Partner for the Referral based on a rate detailed in the Partner Portal after the Referral has executed an order document with Solo. For the avoidance of doubt, current customers and/or leads of Solo will not constitute Referrals. Partner will register all Referrals through the Partner Portal.
1.5 No Unauthorized Representations and Warranties. You shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning Solo Offering.
2. Access to Solo Offerings
Unless otherwise agreed to in writing and to the extent you are provided licenses permitting your access and use of any Solo Offering, you will (1) only access and use for non-production purposes, such are marketing and enablement, and (2) agree to be bound by the Solo’s Subscription Terms located at https://legal.solo.io/#subscription-terms. To the extent of a conflict with this Agreement and the Subscription Terms, the Subscription Terms will take precedent as it relates to your use of any Solo Offering.
3. Confidentiality
3.1 Definition. “Confidential Information” means any non-public information disclosed by either party to the other party that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself. Confidential Information includes Solo Offerings, all materials and communications concerning either party’s business, including, without limitation, pricing, reports, security information and assessments, technical information and the terms of this Agreement, and all notes, summaries and analyses of the foregoing prepared by the receiving party. Confidential Information excludes information: (i) was or becomes generally known to the public other than as a result of a disclosure by the receiving party in violation of this Agreement; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
3.2 Use of Confidential Information. The receiving party shall keep the Confidential Information in strict confidence during the term of the Agreement and thereafter. Except as otherwise required by law or approved in writing by the disclosing party, the receiving party may not disclose any Confidential Information to a third party without the disclosing party’s prior written authorization (except in connection with (a) the enforcement of a party’s rights under this Agreement or (b) a potential merger, acquisition or sales of all or substantially all of a party’s assets).
4. Disclaimer of Warranties; Limitation of Liability
SOLO AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PARTNER PORTAL. SOLO AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE USE OF THE PARTNER PORTAL WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE PARTNER PORTAL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PARTNER PORTAL AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SOLO AND ITS LICENSORS. IN NO EVENT SHALL SOLO BE LIABLE TO ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Miscellaneous
5.1 Changes. We have the right, in our sole discretion, to update this Agreement from time to time. All modifications are effective immediately when we notify you thereof. Your continued use of the Partner Portal following the effective date of any modifications to this Agreement will be deemed an acceptance of the modified Agreement. You are expected to check this page frequently so you are aware of any modifications, as they are binding on you.
5.2 Competitor Access. You will not access the Partner Portal if you compete with Solo without Solo’s written consent, which may be withheld in Solo’s sole discretion.
5.3 Export Control. You acknowledge that the Partner Portal is subject to U.S export control laws and regulations and represent and warrant that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists.
5.4 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Southern District of New York, or if that court lacks subject matter jurisdiction, in any New York State Court in New York, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
5.5 Logo Usage. You hereby grant to Solo a non-exclusive, non-transferable, royalty-free right and license to use certain trademarks (the “Trademarks”) in connection with the Partner Portal and Solo Offerings. All right, title and interest to your Trademarks will remain with you and no other license relating thereto is granted hereunder. Upon any expiration or termination of this Agreement, the license to use to use your Trademarks will terminate. Solo will not challenge, directly or indirectly, your rights in or with respect of your Trademarks.
5.6 Terms of Use; Conflict. Your access to the Partner Portal is subject to Solo’s Website Terms of Use located at https://legal.solo.io/#website-terms-of-use and Privacy Policy located at https://legal.solo.io/#privacy-policy. In the event of any conflicts between the terms and conditions of this Agreement and the foregoing, the conflict shall be resolved based on the following order of precedence: (1) this Agreement, (2) the Website Terms of Use, and (3) the Privacy Policy.
5.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and us with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision in this Agreement does not affect any other provision in this Agreement or the validity, legality, or enforceability of such provision in any other jurisdiction. Our failure to act by with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason without our prior written consent, and any action or conduct in violation the foregoing will be void and without effect. We may assign, transfer, or sublicense any or all of our rights or obligations under this Agreement without restriction.
Subprocessors
Effective December 1st 2023
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Subprocessors
| Name of Third Party Subprocessor | Description | Location |
| Slack Technologies, LLC, a Salesforce company | Slack is a virtual messaging and communication tool, which customers may opt to use to communicate about support requests after logging the initial request through ZenDesk. | United States of America |
| Thena.ai (Pivoting Owl, Inc.) | Thena.ai is an internal helpdesk automation tool to assign, manage and track support requests across ZenDesk and Slack. | United States of America |
| Zendesk, Inc. | Zendesk is a cloud helpdesk software provider. It is compliant with SOC 2/3, ISO 27001. Solo uses Zendesk to accept customer support tickets, manage and automate the technical support services. | United States of America |
Electronic Signature Terms
Effective September 1st 2023
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The Electronic Signature Terms ("ESign Terms") apply to the extent referenced in another agreement ("Other Agreement") and a party (or multiple parties) is using an Electronic Signature, as such terms is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). To facilitate execution, the Other Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the ESIGN Act. The Other Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document. These ESign Terms, together with the Other Agreement, constitute the entire agreement of the parties with respect to the subject matter of the Other Agreement.
Subcontractor Data Processing Addendum
Effective February 22nd 2024
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Subcontractor Data Processing Addendum
This Data Processing Addendum (“DPA”) forms part of the agreement (“Agreement”) between “Solo” (as defined in the signature block of the Agreement) and “Subcontractor” (as defined in the signature block of the Agreement) for the services performed pursuant to the Agreement.
This DPA describes the commitments of Solo and Subcontractor concerning the Processing of Personal Data in connection with the performance of Professional Services by Subcontractor for or on behalf of Solo contemplated by the Agreement.
The capitalized terms used in this DPA have the meaning set forth in this DPA. Capitalized terms not otherwise defined herein have the meaning given to them in the Agreement.
Solo and Subcontractor agree as follows:
1. Definitions
1.1 “Applicable Data Protection Laws” means, to the extent applicable to a party’s Processing of Solo Personal Data under the Agreement, (i) European Data Protection Laws; (ii) Canadian Privacy Laws; and (iii) US Privacy Laws; in each case as may be amended, superseded, or replaced.
1.2 “Authorized Affiliate” means an Affiliate of Solo who has not signed an Order Form but acts as a Controller or Processor for the Solo Personal Data Processed by Subcontractor pursuant to the Agreement, for so long as such entity remains a Solo Affiliate.
1.3 “Canadian Privacy Laws” means, as applicable, (i) the federal Personal Information Protection and Electronic Documents Act (PIPEDA), the provincial Personal Information Protection Act in place in each of Alberta and British Columbia, and an Act Respecting The Protection of Personal Information In The Private Sector (Québec) as amended by An Act to modernize legislative provisions as regards the protection of personal information (Law 25), and each of their implementing regulations; (ii) the Canada Anti-Spam Act Legislation (CASL) and its implementing regulations; and (iii) other Canadian data privacy and security laws and regulations to the extent applicable to the Processing of Personal Data under the Agreement; in each case as may be amended, superseded, or replaced.
1.4“Controller” has the meaning attributed to the term in the relevant Applicable Data Protection Law or, if not defined, then means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of Processing Personal Data. If the CCPA applies to Subcontractor hereunder, then a reference to Controller when the context indicates use in connection with the CCPA means “business,” as such term is defined in the CCPA.
1.5 “EEA” means the countries that are parties to the agreement on the European Economic Area.
1.6 “European Data Protection Laws” means, as applicable, (i) Regulation 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) (“GDPR”); (ii) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC (e-Privacy Directive); (iii) any applicable national implementations of (i) and (ii); (iv) the Switzerland Federal Act on Data Protection, as amended by the Federal Act of 25 September 2020 on Data Protection (nFADP), and its ordinances (“Swiss DPA”); and (v) the United Kingdom (“UK”) Data Protection Act 2018 and the GDPR as saved into UK law by virtue of Section 3 of the UK’s European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as they continue to have effect by virtue of Section 2 of the UK’s European Union (Withdrawal) Act 2018; in each case as may be amended, superseded, or replaced.
1.7 “Personal Data” means any information that relates to an identified or identifiable natural person and that is protected as “personal data,” “personal information,” “personally identifiable information,” or a like defined term under the relevant Applicable Data Protection Law.
1.8 “Process,” “Processes,” “Processed,” and “Processing” has the meaning attributed to the term in the relevant Applicable Data Protection Law or, if not defined, then means any operation or set of operations performed on Personal Data, including access, storage, and use.
1.9 “Processor” has the meaning attributed to the term in the relevant Applicable Data Protection Law or, if not defined, then means a natural or legal person that Processes Solo Personal Data. If the CCPA applies to Subcontractor hereunder, then a reference to Processor when the context indicates use in connection with the CCPA means “service provider,” as such term is defined in the CCPA.
1.10 “Restricted Transfers” means (i) where the GDPR applies, a transfer of Solo Personal Data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission (an “EEA Restricted Transfer”); (ii) where the UK GDPR applies, a transfer of Solo Personal Data from the UK to any other country which is not subject to adequacy regulations pursuant to Section 17A of the UK Data Protection Act 2018 (a “UK Restricted Transfer”); and (iii) where the Swiss DPA applies, a transfer of Solo Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner (a “Swiss Restricted Transfer”).
1.11 “Security Incident” means the accidental or unlawful destruction, loss, or alteration or unauthorized disclosure of or unauthorized access to Solo Personal Data transmitted, stored, or otherwise Processed by Subcontractor or its Sub‑processors in connection with the Agreement that is known by or reasonably suspected by Subcontractor or would be reasonably suspected by a commercially reasonable person exercising a commercially reasonable level of care and diligence.
1.12 “Standard Contractual Clauses” or “SCCs” means the standard contractual clauses as adopted by the EU Commission by means of the Implementing Decision EU 2021/914 of June 4, 2021 found at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc/standard-contractual-clauses-international-transfers_en.
1.13 “Sub-processor” means any Processor that Processes Solo Personal Data on behalf of Subcontractor.
1.14 “Solo Personal Data” means the Personal Data that Subcontractor has access to or receives from or on behalf of Solo or a Subscriber in connection with the Agreement, and includes the Personal Data described in Section 2.6.6 of this DPA.
1.15 “UK Addendum” means that certain international data transfer addendum to the SCCs issued by the UK Information Commissioner for Parties making transfers of Personal Data from the UK to any other country which is not deemed adequate under Article 46 of the UK GDPR.
1.16 “US Privacy Laws” means all United States federal and state data privacy, information security, and data breach notification laws and implementing regulations to the extent applicable to the Processing of Solo Personal Data by Subcontractor in connection with the Agreement, including but not limited to the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (CPRA) (together the “CCPA”), the Virginia Consumer Data Protection Act (VCDPA), the Connecticut Data Privacy Act (CTDPA), the Colorado Privacy Act (CPA), and the Utah Consumer Privacy Act (UCPA), and each of their implementing regulations.
1.17 The terms “data subject” and “supervisory authority” shall have the meanings given to them in the applicable European Data Protection Laws; and the terms “business purpose”, “consumer”, and “sell” shall have the meanings given to them in the CCPA or, to the extent applicable, another US Privacy Law. Sell includes “sale of personal data” as such term is defined by an applicable US Privacy Law.
2. Roles and Scope of Processing
2.1 Scope. This DPA applies to the extent that Subcontractor Processes in its capacity as a Processor any Solo Personal Data in connection with the Agreement.
2.2 Roles of the Parties. The parties acknowledge and agree that (i) Solo is a Processor acting on behalf of its own customers, who may be Controllers or Processors, with respect to the Processing of Solo Personal Data received from such customers; and (ii) Subcontractor shall Process Solo Personal Data (a) only as a Processor on behalf of Solo, as further described in this DPA, including in Sections 2.3 and 2.6; and (b) in accordance with the Applicable Data Protection Laws.
2.3 Subcontractor Processing of Personal Data. Subcontractor agrees that it shall Process Solo Personal Data only for the purposes described in the Agreement and in accordance with Solo’s documented instructions. The parties agree that the Agreement and this DPA set out Solo’s instructions to Subcontractor in relation to the Processing of Solo Personal Data. Solo understands that additional instructions outside the scope of the Agreement or this DPA shall be agreed to in writing between Subcontractor and Solo. Subcontractor shall notify Solo in writing, unless prohibited from doing so under Applicable Data Protection Laws, (i) if Subcontractor becomes aware or believes that any Processing instructions from Solo violates Applicable Data Protection Laws and, in such event, Subcontractor may suspend performance of such instruction until Solo modifies the instruction in writing, provides written confirmation that the instruction is lawful, or withdraws the instruction; or (ii) if Subcontractor is unable to follow Solo’s Processing instructions.
2.4 Solo Affiliates. Subcontractor’s obligations set forth in this DPA shall also extend to Authorized Affiliates.
2.5 Details of Processing. Details of Processing by Subcontractor are set forth below:
2.5.1 Subject Matter of Processing. Solo Personal Data that Solo or Subscriber elects to transfer to Subcontractor in connection with Subcontractor’s performance of the Agreement.
2.5.2 Frequency and Duration of Processing. The frequency of the Processing is continuous during the performance of an applicable SOW under the Agreement. Subcontractor shall Process Solo Personal Data for the duration of an SOW until disposal of the Solo Personal Data at the conclusion of an SOW, and Section 6 of this DPA.
2.5.3 Nature of Processing. The nature of the Processing is to perform the Professional Services under the Agreement.
2.5.4 Purpose of Processing. The purpose of the Processing is as necessary to perform the Professional Services under the Agreement.
2.5.5 Categories of Data Subjects. Categories of data subjects is as determined by Solo and includes natural persons whose Personal Data Solo or Subscriber elects to transfer to Subcontractor for the performance of the Professional Services set forth in an applicable SOW under the Agreement. This may include but is not limited to: (i) prospects, customers, business partners and vendors of Solo or Subscriber (who are natural persons); (ii) employees or contacts persons of Customer’s prospects, customers, business partners and vendors; and/or (iii) employees, agents, and advisors of Solo or Subscriber (who are natural persons).
2.5.6 Type of Personal Data. Includes Personal Data types that are included in data that Solo or Subscriber elects to transfer to Subcontractor for the performance of the Professional Services. The may include but are not limited: (i) first name and last name, name of individual’s employer, business mailing address, job title, business email address, business telephone number, the individual’s area of responsibility, and the information automatically collected by commercially available email and network systems such as Microsoft’s Outlook or Google’s Gmail product (such as the sender’s IP address); (ii) IP addresses, usage data, cookie data, location data, and (iii) any non-production data that includes Personal Data.
3. Sub-Processing
3.1 Authorized Sub-processors. Solo acknowledges and agrees that Subcontractor may engage third‑party Sub-processors to Process Solo Personal Data on Solo’s behalf. The list of such Sub-processors is set forth in an applicable SOW. Solo hereby consents to the Sub-processors listed in an SOW for performing the Professional Services under such SOW.
3.2 Sub-processor Obligations. Subcontractor, as applicable, shall enter into a written agreement with each Sub-processor containing, in substance, data protection obligations no less protective than those set forth in this DPA with respect to the protection of Solo Personal Data to the extent applicable to the nature of the services provided by such Sub‑processor. Subcontractor shall remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Subcontractor to breach any of Subcontractor’s obligations under this DPA.
3.3 Changes to Sub-processors. Subcontractor shall notify Solo in writing before Subcontractor adds to or replaces its Sub‑processors under an SOW. Solo may object in writing to Subcontractor’s appointment of a new Sub-processor by notifying Subcontractor promptly in writing within thirty (30) calendar days of the date Subcontractor issues such notice. If Solo objects to the appointment to a Sub-Processor, then Subcontractor shall not appoint the objected to Sub-processor.
4. Security and Audits
4.1 Subcontractor Security Measures. Subcontractor shall implement and maintain appropriate technical and organizational security measures designed to protect Solo Personal Data from Security Incidents and to preserve the security and confidentiality of the Solo Personal Data (“Security Measures”). Such measures will include, at a minimum: (i) measures for certification or similar assurance of data protection in processes and products; (ii) measures for ensuring data minimization; (iii) measures for ensuring data quality; (iv) measures for ensuring limited data retention; (v) measures for ensuring accountability; (vi) measures for allowing data portability where required by Applicable Data Protection Law; and (vii) measures for ensuring erasure, and such measures are further described in Annex II of this DPA. Subcontractor shall ensure that any person who is authorized by Subcontractor to process Solo Personal Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.2 Security Incident Response. Upon becoming aware of a Security Incident, Subcontractor shall notify Solo within 48 hours of becoming aware of such Security Incident and shall: (i) provide timely information relating to the Security Incident, including a summary of the known circumstances of the Security Incident and the corrective actions taken or to be taken by Subcontractor, as such incident becomes known or as is reasonably requested by Solo; (ii) promptly take steps, necessary to contain, investigate, and remediate any Security Incident; and (iii) communicate and cooperate with Solo concerning its responses to the Security Incident.
4.3 Security Audits. Subcontractor shall maintain an audit program to help ensure compliance with the obligations set out in this DPA, and shall provide Solo with information demonstrating its compliance with the obligations set out in this DPA, including but not limited to: (i) any audit reports as stated in Section 4.3.1; and (ii) any other written responses (on a confidential basis) to all reasonable requests made by Solo related to Subcontractor’s processing of Solo Personal Data, including responses to information security and audit questionnaires that are necessary to confirm Subcontractor’s compliance with this DPA. The exercise of any audit rights under the SCCs are set forth below:
4.3.1 Third-Party Certifications and Audits. Upon Solo's request, at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Subcontractor shall make available to Solo or Solo's Third-Party Auditor (as defined in Section 4.3.4) information regarding Subcontractor’s compliance with the obligations set forth in this DPA in the form of a copy of Subcontractor’s then most recent third-party audits or certifications, such as a Service Organization Control (SOC) 2 or a comparable report (“Subcontractor Audit Reports”). Such third-party audits or certifications may also be disclosed to Solo's competent supervisory authority on its request. Upon request, Subcontractor shall also provide Solo with a report and/or confirmation of a report of any Third-Party Auditors' audits of Sub-processors that have been made available by those external Sub-processors to Subcontractor, but solely to the extent that the external Sub-processor allows Subcontractor to disclose such reports or evidence to Solo (“Sub-processor Audit Reports”). Solo acknowledges that (i) Subcontractor Audit Reports shall be the Confidential Information of Subcontractor; and (ii) Sub-processor Audit Reports shall be the Confidential Information of Subcontractor as well as the confidential information of the Sub-processor.
4.3.2 Solo (On-Site) Audit. Solo may request an (on-site) audit of Subcontractor’s applicable controls related to the processing activities under this DPA when: (i) the information provided under Section 4.3.1 is not sufficient to demonstrate Subcontractor’s compliance with the obligations set out in this DPA; (ii) required by Applicable Data Protection Laws or Solo's competent supervisory authority; or (iii) Subcontractor has experienced a Security Incident.
4.3.3. Conduct of On-Site Audit. Any on-site audit described in Section 4.3.2 above will (i) be limited to processing facilities operated by Subcontractor; (ii) be conducted reasonably, in good faith, and in a proportional manner, taking into account the nature and complexity of the Professional Services; (iii) conducted no more than one (1) time per twelve (12) months with at least two (2) weeks' notice unless an emergency justifies less notice, in which case, the parties will use good faith efforts to accommodate the shorter notice period; and (iv) conducted during Subcontractor’s normal business hours and shall not unreasonably interfere with Subcontractor’s day-to-day operations. Before any on-site audit, Solo and Subcontractor shall agree upon the scope, timing, and duration of the audit. Solo will promptly provide Subcontractor with information regarding any non-compliance discovered during the course of an On-Site Audit. The results of any On-Site Audit shall be considered Subcontractor’s Confidential Information and may be disclosed to a third party (other than a Third-Party Auditor, where applicable) only with Subcontractor’s prior written consent.
4.3.4 Third-Party Auditor. A “Third-Party Auditor” means a third-party independent contractor that is not a competitor of Subcontractor. An On-Site Audit can be conducted through a Third-Party Auditor if: (i) prior to the On-Site Audit, the Third-Party Auditor enters into a non-disclosure agreement containing confidentiality provisions no less protective than those set forth in the Agreement to protect Subcontractor’s and its customers' proprietary and confidential information.
4.4 Data Protection Impact Assessments. To the extent required under Applicable Data Protection Laws, Subcontractor shall provide reasonably requested information regarding Subcontractor’s processing of Solo Personal Data under the Agreement to assist Solo to carry out data protection impact assessments or prior consultations with supervisory authorities as required by law.
5 International Transfers
5.1 Processing locations. Solo acknowledges and agrees that Subcontractor may transfer and Process Solo Personal Data to and in the United States unless expressly stated otherwise in an SOW or as reasonably necessary to provide the Professionals Services or as necessary to comply with the law or binding order of a governmental body. Vendor shall at all times ensure such transfers are made in compliance with the requirements of Applicable Data Protection Laws and this DPA, which Processing shall at all times comply with the relevant jurisdiction specific terms set forth in Section 8.
6. Deletion of Solo Personal Data
6.1 Upon termination or expiration of the Agreement, Subcontractor shall delete all Solo Personal Data (including copies) in its possession or control in accordance with the Agreement, save that this requirement shall not apply to the extent Vendor is required by applicable law to retain some or all of the Solo Personal Data, in which case Vendor shall retain such Solo Personal Data in compliance with all Applicable Data Protection Laws.
7. Rights of Individuals and Cooperation
7.1 Data Subject Requests. To the extent that Subscriber is unable to independently access the relevant Solo Personal Data and to the extent such information is available to Subcontractor, Subcontractor shall, taking into account the nature of the Processing, provide Solo with the reasonable cooperation and assistance necessary for Solo to respond to any requests from data subjects, consumers, or applicable supervisory authorities or government regulators relating to the Processing of Solo Personal Data under the Agreement. If Subcontractor receives any such request directly, Subcontractor shall not respond to such communication directly without Solo’s prior authorization, except to acknowledge receipt of the request and to attempt to redirect the requestor to contact Solo directly. If Subcontractor’s attempt is unsuccessful or if Subcontractor is otherwise required to provide a substantive response to such request, then, unless legally prohibited from doing so, Subcontractor shall promptly notify Solo and provide Solo with a copy of the request and, to the extent permitted by Applicable Data Protection Laws, Solo shall assume responsibility for providing such substantive response to the requestor.
7.2 Subpoenas and Court Orders. Notwithstanding anything to the contrary in the Agreement, if a law enforcement agency sends Subcontractor a demand for Solo Personal Data (for example, through a subpoena or court order), Subcontractor shall attempt to redirect such agency to contact Solo directly and, if Subcontractor’s attempt is unsuccessful, then, except as otherwise prohibited by law or such demand, Subcontractor shall give Solo prompt written notice of the demand to allow Solo to seek a protective order or other appropriate remedy. If Subcontractor is legally prohibited from providing Solo with such notice, then, if, after careful assessment, Subcontractor’s concludes that there are reasonable grounds to consider the demand or prohibition to be unlawful, Subcontractor shall take commercially reasonable steps to challenge such demand or prohibition. For the avoidance of doubt, nothing in this DPA shall be interpreted to require Subcontractor to pursue action or inaction that could result in a civil or criminal penalty for Subcontractor, Including without limitation a contempt of court.
8. Jurisdiction Specific Terms
8.1 Restricted Transfers.
8.1.1 GDPR. In connection with any transfer of Solo Personal Data by Solo to Subcontractor that is an EEA Restricted Transfer, Subcontractor agrees to abide by and Process Solo Personal Data in compliance with the Standard Contractual Clauses, which are hereby incorporated into this DPA by reference as follows:
8.1.1.1 Module 3 (Processor to Processor Transfers) shall apply;
8.1.1.2 For Clause 7, the optional docking clause shall apply;
8.1.1.3 For Clause 9(a), Option 1 shall apply and the time period for prior notice of Sub-processor changes shall be as set out in Section 3.3 of this DPA;
8.1.1.4 For Clause 9(c), where confidentiality restrictions prohibit Subcontractor from providing a copy of a Sub-processor agreement to Subscriber, Subcontractor shall (on a confidential basis) provide all information that it reasonably can in connection with such Sub-processor Agreement to Solo;
8.1.1.5 For Clause 11(a), the optional language shall not apply;
8.1.1.6 For Clause 13 and Annex I.C of the SCCs, Solo shall maintain accurate records of the applicable Member State(s) and competent supervisory authority, which shall be made available to Subcontractor on request.
8.1.1.7 For Clause 17, Option 1 shall apply, and the SCCs shall be governed by the law of The Netherlands;
8.1.1.8 For Clause 18(b), disputes shall be resolved before the courts of The Netherlands; and
8.1.1.9 For Annex I.A., the “data importer” shall be Subcontractor and the “data exporter” shall be Solo and any Authorized Affiliates that have acceded to the SCCs pursuant to this DPA.
8.1.1.10 For Annex I.B., the description of the transfer is as described in Section 2.6 of this DPA.
8.1.1.11 For Annex II, the technical and organizational measures are: (i) with respect to Subcontractor, those measures described in Section 4.1 of this DPA; and (ii) with respect to Solo, those measures described in Section 4.2 of this DPA.
8.1.1.12For Annex III, the Sub-processors shall be as described in Section 3.1 of this DPA.
8.1.2 UK GDPR. In connection with any transfer of Solo Personal Data to Subcontractor from Solo which is a UK Restricted Transfer to which the UK GDPR applies, the SCCs shall apply in accordance with Section 8.1.1 above, but as modified and interpreted by the Part 2: Mandatory Clauses of the UK Addendum, which are hereby incorporated into and form an integral part of this DPA but only for purposes of UK Restricted Transfers. Any conflict between the terms of the SCCs and the UK Addendum shall be resolved in accordance with Section 10 and Section 11 of the UK Addendum. In addition, tables 1 to 3 in Part 1 of the UK Addendum shall be completed respectively with the information set out in Section 2.6 of this DPA, and table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting “neither party”.
8.1.3 Swiss DPA. In connection with any transfer of Solo Personal Data to Subcontractor which is a Swiss Restricted Transfer to which the Swiss DPA applies, the SCCs shall apply in accordance with Section 8.1.1 above, but with the following modifications:
8.1.3.1 any references in the SCCs to “Regulation (EU) 2016/679” shall be interpreted as references to the Swiss DPA and the equivalent articles or sections therein;
8.1.3.2 any references to “EU,” “Union,” “Member State,” and “Member State law” shall be interpreted as references to Switzerland and Swiss law, as the case may be;
8.1.3.3 any references to the “competent supervisory authority” and “competent courts” shall be interpreted as references to the relevant data protection authority and courts in Switzerland; and
8.1.3.4 the SCCs shall be governed by the laws of Switzerland and disputes shall be resolved before the competent Swiss courts.
8.2 Standard Contractual Clauses Precedence. It is not the intention of either party, nor the effect of this DPA, to contradict or restrict any of the provisions set forth in the SCCs. Accordingly, if any express term of this CPA conflicts with the SCCs, then the SCCs, if applicable, shall control as to that term, but only to the extent of an express ambiguity.
8.3 Alternative Transfer Mechanism. Subcontractor and Solo agree that Sections 8.1.1 to 8.1.3 shall apply only to the extent that in the absence of their application either party would be in breach of European Data Protection Laws in connection with the transfer of Solo Personal Data from Solo to Subcontractor. To the extent Subcontractor adopts an alternative mechanism for the lawful transfer of Solo Personal Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall, upon notice to Solo, apply to the extent such Alternative Transfer Mechanism complies with European Data Protection Laws and extends to the territories to which Solo Personal Data is transferred. In addition, if and to the extent that a court of competent jurisdiction or a supervisory authority with binding authority orders or determines (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer Solo Personal Data to Subcontractor, Solo acknowledges and agrees that Subcontractor may, at Subcontractor’s sole discretion, implement any additional measures or safeguards that may be required to enable the lawful transfer of such Solo Personal Data and if Subcontractor chooses not to implement such additional measures or safeguards, then Subcontractor shall provide prompt written notice to Solo and the parties shall reasonable cooperate to determine a mutually agreeable accommodation that permits each party to meet its respective obligations under the applicable European Data Protection Laws.
8.4 US Privacy Laws. To the extent that Subcontractor’s Processing of Solo Personal Data under the Agreement is subject to US Privacy Laws and to the extent required under applicable US Privacy Laws, Solo and Subcontractor agree that:
8.4.1 Without limiting the terms of Section 2.3 and Section 2.6, Subcontractor shall Process the Solo Personal Data to communicate with Solo personnel about the Solo Offerings and the Products, perform the Solo Offerings, and otherwise meet Subcontractor’s obligations under this DPA and the Agreement (collectively, the “Permitted Purposes”);
8.4.2 Subcontractor shall not collect, retain, use, or disclose Solo Personal Data outside of the direct business relationship between Solo and Subcontractor, or for any purpose other than for the Permitted Purposes, including retaining, using, or disclosing Solo Personal Data for a commercial purpose other than the Permitted Purposes, except as otherwise permitted by applicable US Privacy Laws;
8.4.3 Solo is not selling Solo Personal Data to Subcontractor and Subcontractor shall not sell Solo Personal Data;
8.4.4 Subcontractor shall not share Solo Personal Data except as otherwise permitted by this DPA, the Agreement, or the applicable US Privacy Laws, including without limitation for a business purpose;
8.4.5 Subcontractor shall not combine Solo Personal Data with Personal Data that Subcontractor receives from or on behalf of another Subcontractor customer, or that Subcontractor may collect from its own interaction with the consumer unrelated to the Agreement, except as otherwise permitted by applicable US Privacy Laws;
8.4.6 Subcontractor shall comply with the US Privacy Laws to the extent applicable to Subcontractor’s performance of the Solo Offerings, including, without limitation, implement the Security Measures; and
8.4.7 Subcontractor engages other Sub‑processors to assist in the Processing of Solo Personal Data for the Permitted Purposes, as further described in Section 3.
9. Miscellaneous
9.1 Any ambiguity in this DPA shall be resolved to permit the parties to comply with the Applicable Data Protection Laws. If any express term of this DPA conflicts with the Agreement, then this DPA, if applicable, shall control as to that term. The Agreement shall control in all other instances, including, without limitation, notice, assignment, severability, and relationship of the parties.
9.2 This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by the relevant Applicable Data Protection Law, and in such event, then only for purposes of this DPA and only for purposes of that specific jurisdiction.
ANNEX II to the SCCs
Description of the technical and organizational security measures implemented by the data processor/importer in accordance with the Standard Contractual Clauses
Subcontractor shall maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Solo Personal Data provided by the data exporter in connection with the Solo Offerings, including the following:
1.Physical access control
Technical and organizational measures to prevent unauthorized persons from gaining access to the data processing systems available in premises and facilities (including databases, application servers and related hardware), where Personal Data are processed. These measures include:
- Establishing access authorizations for employees and third parties
- Access control system (ID reader, magnetic card, chip card)
- Key management, card-keys procedures
- Door locking (electric door openers etc.)
- Security staff, janitors
- Surveillance facilities, video/CCTV monitor, alarm system
- Securing decentralized data processing equipment and personal computers
- Additional measures as necessary to ensure the physical security of locations where personal data is processed
2.Virtual access control
- Technical and organizational measures to prevent data processing systems from being used by unauthorized persons. These measures include:
- User identification and authentication procedures
- ID/password security procedures (special characters, minimum length, change of password)
- Automatic blocking (e.g. password or timeout)
- Monitoring of break-in-attempts and automatic turn-off of the user ID upon several erroneous passwords attempt
- Creation of one master record per user, user master data procedures, per data processing environment
- Encryption of archived data media
- Endpoint protection on workstations
3.Data access control
Technical and organizational measures to ensure that persons entitled to use a data processing system gain access only to such Personal Data in accordance with their access rights, and that Personal Data cannot be read, copied, modified or deleted without authorization. These measures include:
- Internal policies and procedures
- Control authorization schemes
- Differentiated access rights (profiles, roles, transactions and objects)
- Monitoring and logging of accesses
- Disciplinary action against employees who access Personal Data without authorization
- Reports of access
- Access procedure
- Change procedure
- Deletion procedure
- Encryption
4.Disclosure control
Technical and organizational measures to ensure that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Personal Data are disclosed. These measures include:
- Encryption/tunneling
- Logging
- Transport security
5.Entry control
Technical and organizational measures to monitor whether data have been entered, changed or removed (deleted), and by whom, from data processing systems. These measures include:
- Logging and reporting systems
- Audit trails and documentation
6. Control of instructions
Technical and organizational measures ensuring Personal Data are processed solely in accordance with the Instructions of the Controller. These measures include:
- Unambiguous wording of the contract
- Formal commissioning (request form)
7.Availability control
Technical and organizational measures ensuring Personal Data are protected against accidental destruction or loss (physical/logical). These measures include:
- Backup procedures
- Mirroring of hard disks (e.g. RAID technology)
- Uninterruptible power supply (UPS)
- Remote storage of backups
- Anti-virus/firewall systems
- Disaster recovery plan
8.Separation control
Technical and organizational measures to ensure that Personal Data collected for different purposes can be processed separately. These measures include:
- Separation of databases
- “Internal client” concept / limitation of use
- Segregation of functions (production/testing)
- Procedures for storage, amendment, deletion, transmission of data for different purposes