Version: NOVEMBER 1, 2021
SOLACE CORPORATION
LICENCE AGREEMENT FOR SOLACE SOFTWARE
THIS LICENCE AGREEMENT and any documents expressly referred to in this agreement (the “Agreement”)
between SOLACE CORPORATION, a company incorporated under the laws of the Province of Ontario
(“Solace”) and licensee, the party identified in the Order (as defined below) or that otherwise accepts this
Agreement (the “Licensee”) (together the “Parties”, and each a “Party”), is made on the Effective Date
(as defined below).
BY ACCEPTING THE TERMS OF THIS AGREEMENT, EITHER BY: A) ACCEPTING THE AGREEMENT ONLINE,
B) SIGNING THE ORDER (AS DEFINED BELOW) WHICH REFERENCES THIS AGREEMENT, OR C) INSTALLING
OR USING THE SOFTWARE AFTER BEING MADE AWARE OF THIS AGREEMENT, THE LICENSEE
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE
AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE
BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH THE TERMS SET
FORTH IN ANY ORDER. IF, AFTER READING THIS AGREEMENT, THE LICENSEE DOES NOT ACCEPT OR
AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE LICENSEE SHALL NOT INSTALL OR
USE THE SOFTWARE.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY THEN YOU HEREBY REPRESENT AND
WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT
THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS
FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS
OBLIGATIONS HEREUNDER.
1

INTERPRETATION

1.1

Definitions. In this Agreement the following terms shall have the following meanings:
“Capacity Units” represent the units of capacity purchased by Licensee to Use Products during
the Subscription Term as specified in the applicable Order(s).
“Claim” has the meaning given to it in Section 9.1.
“Core” means (i) a single physical processor core or hyper-thread when the Software is deployed
on either a bare-metal server or a cloud or virtualization environment that presents physical cores
to the Software, and (ii) a single virtual core when deployed in a cloud or virtualization
environment that presents virtual cores to the Software.
“Documentation” means the documentation made accessible by Solace via a URL provided to
Licensee.
“Fees” mean the Subscription Fees, Usage Fees, fees for Professional Services and any other
fees agreed to by the Parties in an Order.

“Order” means (i) an electronic form provided by Solace on its website for ordering Software
Subscriptions, Professional Services, and/or Support Services, or (ii) a written document, including

a Licensee purchase order, pursuant to which Licensee purchases Software Subscriptions,
Professional Services, and/or Support Services from Solace.
“Products” means the Software, Documentation, Support Services, Professional Services and
other products and services that are ordered by Licensee from Solace.
“Software” means the Solace software product(s) described in an Order.
“Solace Quotation” means Solace’s sales quotation document provided by Solace to Licensee
which sets out the fees for Solace’s Products.
“Subscription” means the right granted by Solace to Licensee to install and Use the Software in
accordance with the terms of this Agreement and the applicable Order, for the Subscription Term
specified in the applicable Order.
“Subscription Fee” means the fee payable by Licensee for a Subscription in accordance with the
terms hereof and the applicable Order.
“Subscription Term” means the period of time that Licensee is authorized by Solace to install and
use the Software (including the Documentation).
“Support Services” means the support and maintenance services provided by Solace for the
Software in accordance with the Support Terms.
“Support Terms” means Solace’s terms and conditions for the provision of Support Services to its
licensees, a copy of which is available on the Solace website at https://Solace.com/support.
“Statement of Work” or “SOW” shall mean a statement of work pursuant to which the parties
agree upon the Professional Services to be provided by Solace to Licensee, the fees to be charged,
milestones, deliverables and such other terms and conditions as the parties may agree upon.
“Usage Fees” means the fees payable as defined in Section 5.2 of this Agreement.
“Use” means to load, execute, access, utilize, perform, display, and copy (as permitted by this
Agreement) a Product.
2

LICENSE GRANT

2.1

General License to Software.
(a)

Solace grants to Licensee a worldwide, non-exclusive, non-transferable, nonsublicensable (except as permitted in accordance with Section 2.6 below) license to Use
the Software in object code form on a subscription basis during the applicable
Subscription Term for the number of Cores and/or Capacity Units, as the case may be,
specified in the Order solely for the Licensee’s internal business purposes and in
accordance with the terms of this Agreement

(b)

During the Subscription Term of a Product licensed under this Agreement, the Product
may be exchanged for other Products, provided that (i) each of the Products has a number

of Capacity Units allocated to it by Solace; and (ii) Products purchased for non-production
may only be exchanged for other non-production Products. Upon request by Solace,
Customer shall, at the earlier of the renewal of the Subscription Term or the end of the
Subscription Term, report to Solace the Products currently in use by Customer and the
number of Capacity Units Used by Customer. If Customer has used more Capacity Units
than it has purchased, Solace will invoice Customer for such additional use in accordance
with Section 5 of this Agreement.
(c)

If Licensee requires a license from Solace to enable Licensee to bundle or otherwise make
available a Product with Licensee’s own software, such bundling will be pursuant to
separate terms to be agreed.

2.2

Documentation. Provided Licensee complies with this Agreement, Licensee may reproduce the
Documentation, for use on an internal basis only, and solely in support of the Licensee’s licensed
Use of the Software. Distribution of the Documentation outside of Licensee is prohibited without
the express written permission of Solace. Licensee must reproduce all copyright and other
proprietary notices that are on the original copy of the Documentation.

2.3

Back-up Copy. In addition to the number of copies of the Software installed and Used pursuant
to Section 2.1 and paid for in accordance with Section 5, Licensee may make one copy of each
licensed Product per Subscription solely for back-up purposes, provided that Licensee reproduces
all copyright and other proprietary notices that are on the original copy of the Software and such
back-up copy is not installed or used other than for back-up and recovery purposes.

2.4

Use Restrictions. Licensee will not: (a) reverse engineer, disassemble, decompile, or translate the
Software (other than Sample Applications), or otherwise attempt to derive the source code
version of the Software, except if and only to the extent expressly permitted by applicable law,
and provided that Licensee first approaches Solace and seeks permission in writing; (b) except as
expressly permitted in this Agreement, rent, lease, loan or otherwise in any manner provide,
transfer or distribute the Products or any part thereof to any third party; (c) Use the Software in
violation of applicable laws; (d) circumvent any user limits or other license timing or use
restrictions that are built into the Software; and (e) except as expressly permitted in this
Agreement, reproduce, distribute, publicly perform, publicly display or create adaptations or
derivative works of or based on the Products.

2.5

Publicly Available Software. Portions of the Software include software programs that are
distributed by Solace pursuant to the terms and conditions of a license granted by the copyright
owner of such software programs and which governs Licensee’s Use of such software programs
(“Publicly Available Software”). The Licensee’s Use of Publicly Available Software in conjunction
with the Software in a manner consistent with the terms of this Agreement is permitted, however,
the Licensee may have broader rights under the applicable license for Publicly Available Software
and nothing contained herein is intended to impose restrictions or limitations on the Licensee’s
Use of the Publicly Available Software. The warranty, indemnity and limitation of liability
provisions in this Agreement will apply to all of the Software, including Publicly Available Software
included in the Software. Copies of such Publicly Available Software license agreements are
available by contacting Licensor at support@Solace.com. The source code for certain portions of
the Publicly Available Software included in the Software (as specified in the copyright notices) is
available by contacting Solace at support@Solace.com within a three (3) year period from the

original date of receipt of the applicable Software or Adapter and for a fee that shall not exceed
Licensor' costs associated with the shipping of such software source code.
2.6

Sub-licensing. Any sub-licensing of the Software under this Agreement must be expressly
authorized by Solace pursuant to an Order or otherwise in writing. Any attempt by Licensee to
sub-license or otherwise transfer the Products to a third party in breach of this restriction will be
void. Any sub-licensing that may be permitted under this Agreement by Solace will be subject to
such sub-licensee agreeing to substantially similar restrictions and obligations set out in this
Agreement. Licensee will be fully liable for any breach by a sub-licensee of any restriction or
obligation, and Solace may bring a Claim against Licensee if Solace suffers any Losses arising from
such breach.

2.7

Evaluation Licenses.
(a)

If the Software provided to Licensee under this Agreement is designated by Solace in an
Order or otherwise as an evaluation release (indicated by terms such as “precommercial”, “alpha,” “beta,” “trial,” “draft,” “early access,” “EA” or “evaluation”) (each
an “Evaluation Software Release”), Licensee will have the limited right under this
Agreement to download and install the Software on the number of Cores identified in the
Order or, if not identified, one Core, for the Licensee’s internal and non-commercial
evaluation of the Software.

(b)

Licensee acknowledges that the Evaluation Software Release may not meet performance
and compatibility standards of a production version. The Evaluation Software Release
may not operate correctly, may be substantially modified by Solace prior to first
commercial shipment, and may be withdrawn completely and never issued for
commercial use.

(c)

If Licensee desires other rights for the Evaluation Software Release, Licensee must
request from Solace a commercial release of the Software.

(d)

The limited use license granted in subsection (a) will automatically expire on the earlier
of: (i) the date when the Software is made available to Licensee as a commercially
available product, and (ii) the date specified in the Order or, if no such date is identified
in the Order, the date that is 30 days after the date of delivery or provision of the
Evaluation Software Release to Licensee. Following license expiry Licensee will
permanently delete or otherwise purge such Evaluation Software Release from Licensee’s
systems and, if requested by Solace, certify the same.

2.8

License of APIs. Provided Licensee complies with this Agreement and any terms that Solace
provides, Solace grants to Licensee a non-exclusive, royalty free license, during the term of this
Agreement, to download, install and Use, the applicable application programming interfaces that
may be made available by Solace with the Software (“APIs”) solely to create interfaces between
the Software and the Licensee’s software or third party software on Licensee’s systems.

2.9

License to Sample Applications.
(a)

Solace may, in its sole discretion, provide certain sample Software in source code or
object code form for the purposes of demonstrating certain features enabled by the

Software, including demonstrating to Licensees how to build applications using APIs, and
for use by Licensees with such APIs (each, a “Sample Application”).
(b)

Whether provided separately or together with other Software, if Solace provides such
Sample Application to Licensee, then Solace hereby grants to Licensee a nonsublicensable, non-transferable, non-exclusive, revocable license, to install such Sample
Application for Licensee’s evaluation for the same duration as the Software with which
the Sample Application is associated or such other duration as specified by Solace upon
delivery of the Sample Application.

3

OPTIONAL SERVICES AND SUPPORT

3.1

Optional Services. Licensee acknowledge that certain optional services, such as training,
integration and development services may be provided by Solace in association with the Products,
and access to such services will be provided only pursuant to a Statement of Work executed by
Solace and Licensee and may include separate and additional fees.

3.2

Support.
(a)

Provided Licensee complies with this Agreement, Solace will provide Support Services the
Software in accordance with Solace’s then standard Support Terms. The level of support
will be dependent on whether Licensee has procured either the ‘Premium Support Plan’
or ‘Standard Support Plan’ defined in the Support Terms and as specified in the applicable
Order.

(b)

Solace may enhance the Support Services from time to time in its discretion.

(c)

For greater clarity, the Support Terms do not apply to Evaluation Software Releases,
Sample Applications or any free versions of the Software that may be made available.
Solace may make available support related information on a free basis for such Software
on its publicly accessible website or otherwise, and such support related information will,
for greater clarity, be subject to the limitations and exclusions in this Agreement.

4

PROPRIETARY RIGHTS

4.1

Intellectual Property Rights. In this Agreement “Intellectual Property Rights” means: (a) any and
all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law
(including moral rights); (iii) trademark law; (iv) design patent or industrial design law; or (v) any
other statutory provision or common law principle applicable to this Agreement, including trade
secret law, that may provide a right in either hardware or information generally or the expression
or use of such hardware or information; (b) any and all applications, registrations, licenses, sublicenses, franchises, agreements or any other evidence of a right in any of the foregoing. Except
for the licenses expressly granted herein, nothing in this Agreement or the provision of the
Products conveys or otherwise provides to Licensee title, interest or any Intellectual Property
Rights in or to the Products or know-how, ideas, or any other subject matter protectable under
laws applicable to Intellectual Property Rights of any jurisdiction. As between Licensee and Solace,


Solace and its affiliates and licensors are the sole and exclusive owners of the Products, including
Intellectual Property Rights therein.
4.2

Feedback. Licensee is encouraged to provide to Solace suggestions, comments and feedback
related to the Products (including reporting bugs) (the “Feedback”). Licensee hereby grants to
Solace a license to Use, copy, distribute, modify or otherwise adapt, incorporate into any software
and documentation, including the Products, and sublicense, without attribution or compensation
to Licensee, all Feedback which Solace receives or otherwise obtains from Licensee, in any form,
to improve, enhance or modify the Products or otherwise. Licensee waives or will cause all moral
rights to be waived in any Feedback.

4.3

Third Party Licenses. The Software may contain or require third party software that is licensed
under third party terms. Solace may direct Licensee to such third party terms, and in some
instances the Software cannot be Used or further distributed without Licensee’s acceptance of
such terms. Any failure of Licensee to agree to the terms applicable to such third party software
may undermine certain functionality of or prevent Licensee from using the Software.

4.4

Open Source Software.

4.5

(a)

Licensee will not represent to third parties, or Use any third party software or code in
conjunction with: (i) the Software; or (ii) any software, products, documentation, content
or other materials developed using the Software, in such a way that: (A) creates, purports
to create or has the potential to create, obligations for Solace with respect to the
Software; or (B) grants, purports to grant, or has the potential to grant to any third party
any rights to or immunities under any Intellectual Property Rights of Solace, as such rights
exist in or relate to the Products.

(b)

Licensee will not Use any Software in any manner, including through incorporation,
linking, distribution or otherwise, that will cause any Products and any Intellectual
Property Rights therein to become subject to any encumbrance or terms and conditions
of any third party or open source license, including any open source license listed on
http://www.opensource.org/licenses/alphabetical (each an “Open Source License”).

(c)

The restrictions, limitations, exclusions and conditions referred to under subsection (b)
will apply even if Solace becomes aware of or fails to act in a manner to address any
violation or failure to comply therewith. No act by Solace that is undertaken under this
Agreement in respect to any Products will be construed as intending to cause any
Intellectual Property Rights that are owned or controlled by Solace or any of its affiliates
(or for which Solace or any of its affiliates has received license rights) to become subject
to any encumbrance or terms and conditions of any Open Source License.

Use of Name and Logo. Licensee will not display or make any use of Solace’s or its affiliates’
names, marks or logos without the prior written approval of Solace.


5

FEES AND TAXES

5.1

Fees. Licensee shall pay the applicable Fees specified in the applicable Order. Subscription Fees
paid are refundable if the number of Subscriptions purchased is decreased during the relevant
Subscription Term.

5.2

Additional Usage Fees. At the end of the Subscription Term, if applicable, Solace may issue an
invoice to Customer for the number of Capacity Units consumed in excess of those purchased by
Customer in the applicable Order (collectively, “Usage Fees”).

5.3

Invoices and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance
with the relevant Order. All invoices issued by Solace are due and payable within 30 days of the
invoice date unless otherwise agreed in an Order. Licensee will be responsible for any and all
sales, use, excise, import, value-added, services, consumption, and other taxes assessed on the
receipt of the Products, and any related services as a whole.

5.4

Overdue Charges. Any payment not received from Licensee by the due date may accrue (except
with respect to charges then subject to a reasonable and good faith dispute), at Licensor's
discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per
annum), or the maximum rate permitted by law, whichever is lower, from the date such payment
was due until the date paid.

6

CONFIDENTIALITY

6.1

Definition of Confidential Information.
In this Agreement “Confidential Information” of a Party means any information of a Party
(including in respect to Solace any of its affiliates, licensors, licensees, customers, employees or
subcontractors) (the “Disclosing Party”), whether oral, written or in electronic form, which has or
will come into the possession or knowledge of the other Party (the “Receiving Party”) in
connection with or as a result of entering into this Agreement that can reasonably be considered
to be confidential in the circumstances of disclosure or which is designated as confidential. The
Products, any performance information, service levels, support terms, and results of testing of
the Software, and the terms of this Agreement are Confidential Information of Solace.
Notwithstanding the foregoing, “Confidential Information” does not include information that is:


6.2

(a)

publicly available when it is received by or becomes known to the Receiving Party or that
subsequently becomes publicly available other than through a direct or indirect act or
omission of the Receiving Party (but only after it becomes publicly available);

(b)

established by evidence to have been already known to the Receiving Party at the time of
its disclosure to the Receiving Party and is not known by the Receiving Party to be the
subject of an obligation of confidence of any kind;

(c)

independently developed by the Receiving Party without any use of or reference to the
Confidential Information of the Disclosing Party as established by evidence that would be
acceptable to a court of competent jurisdiction;

(d)

received by the Receiving Party in good faith without an obligation of confidence of any
kind from a third party who the Receiving Party had no reason to believe was not lawfully
in possession of such information free of any obligation of confidence of any kind, but
only until the Receiving Party subsequently comes to have reason to believe that such
information was subject to an obligation of confidence of any kind when originally
received; or

(e)

Feedback provided by Licensee or a representative of Licensee.

Confidentiality Obligations.
(a)

Each Party will, in its capacity as a Receiving Party: (i) not use or reproduce Confidential
Information of the Disclosing Party for any purpose, other than as may be reasonably
necessary for the exercise of its rights or the performance of its obligations set out in this
Agreement; and (ii) not disclose, provide access to, transfer or otherwise make available
any Confidential Information of the Disclosing Party to any third party except as expressly
permitted in this Agreement.

(b)

Each Party may, in its capacity as a Receiving Party, disclose Confidential Information of
the Disclosing Party: (i) if and to the extent required by a governmental authority or
otherwise as required by applicable law, provided that the Receiving Party must first give
the Disclosing Party notice of such compelled disclosure (except where prohibited by
applicable law from doing so) and must use commercially reasonable efforts to provide
the Disclosing Party with an opportunity to take such steps as it desires to challenge or
contest such disclosure or seek a protective order. Thereafter, the Receiving Party may
disclose the Confidential Information of the Disclosing Party, but only to the extent
required by applicable law and subject to any protective order that applies to such
disclosure; and (ii) to: (A) its accountants, internal and external auditors and other
professional advisors if and to the extent that such persons need to know such
Confidential Information in order to provide the applicable professional advisory services
relating to the Receiving Party; and (B) employees of the Receiving Party and its
subcontractors if and to the extent that such persons need to know such Confidential
Information to perform their respective obligations under this Agreement;

provided that any such person is aware of the provisions of this Section 6.2 and has entered into
a written agreement with the Receiving Party that includes confidentiality obligations in respect


of such Confidential Information of the Disclosing Party that are no less stringent than those
contained in this Section 6.2.
6.3

Consent to Injunctive Relief. Any unauthorized use or disclosure of the Confidential Information
of Solace, its affiliates or licensors may cause irreparable harm and significant injury to Solace that
would be difficult to ascertain or quantify; accordingly Licensee agrees that Solace will have the
right to seek and obtain injunctive or other equitable relief to enforce the terms of this Agreement
and without limiting any other rights or remedies that Solace may have.

7

WARRANTY AND DISCLAIMER OF WARRANTIES.

7.1

Warranty. Solace warrants that the Software will materially comply with the Documentation
during the Subscription Term. If the Software does not materially conform with the warranty in
the prior sentence, provided that Licensee is in compliance with the terms of this Agreement, and
all Subscription Fees are fully-paid up, Solace will provide the support to Licensee in respect to
the applicable Software to the extent set out in the Support Terms, and the provision of support
to correct the non-compliance with the warranty in this Section will be Licensee’s sole and
exclusive remedy in the event of non-compliance with the warranty in this Section by Solace. All
other support will be dependent on the plan procured by Licensee, as defined in the Support
Terms.

7.2

Disclaimers.
(a)

EXCEPT AS SET OUT IN SECTION 7.1, THE PRODUCTS AND SUPPORT THAT MAY BE
PROVIDED BY SOLACE UNDER THIS AGREEMENT, IS PROVIDED ‘AS-IS’ AND ‘AS
AVAILABLE’.

(b)

Except as set out in Section 7.1, the Products and support are without any additional
warranties of any kind, whether express, implied, collateral, statutory or otherwise.
Solace does not warrant or make any representations regarding the Use, or the results of
the Use, of the Products in terms of its correctness, accuracy, reliability, or otherwise.

(c)

Solace does not represent or warrant that the functionality of the Products will meet
Licensee requirements, or that the operation of the Products will be uninterrupted or
error-free, or that the Products or any service enabled by the Use of the Software will
always be available, or that defects in the Products will be corrected.

(d)

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOLACE ON ITS OWN
BEHALF AND ON BEHALF OF ITS AFFILIATES AND LICENSOR(S) EXPRESSLY DISCLAIMS ALL
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES, AND CONDITIONS OF


MERCHANTABLE QUALITY, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT.
(e)

Some jurisdictions do not allow the exclusion of implied warranties, so exclusions in this
Article 7 will apply only to the extent permitted by applicable law.

8

LICENSEE INDEMNITY AND EXCLUSION.

8.1

Licensee Indemnity.
(a)

(b)

8.2

Without limiting Solace’s rights and remedies under this Agreement, Licensee will
indemnify, defend and hold Solace, its licensors, affiliates or any of their respective
directors, officers, employees or agents (together, the “Solace Indemnitees”) harmless
from and against any and all third party Claims and Losses incurred or otherwise suffered
by each Solace Indemnitee arising out of, resulting from or related to:
(i)

any Use, reproduction or distribution of the Products (notwithstanding the
restrictions and obligations in this Agreement), as modified or integrated by
Licensee in Licensee application, which causes an infringement or
misappropriation of any Intellectual Property Right, publicity or privacy right of
any third parties arising in any jurisdiction anywhere in the world, except and
solely to the extent such infringement is caused by the unmodified Software, or
portions thereof, as supplied to Licensee by Solace under this Agreement; or

(ii)

any Use, downloading, distribution, installation, storage, execution, or transfer of
the Products in breach of this Agreement.

Solace may enforce the indemnity under this Article 8 on behalf of any or all of the Solace
Indemnitees. Licensee may only bring a Claim against Solace and not any Solace
Indemnitees under this Agreement.

Solace Indemnity.
(a)

Solace will defend Licensee from and against any and all Claims by a third party incurred
or otherwise suffered by Licensee arising out of, resulting from or related to a Claim that
the Products licensed pursuant to Section 2.1 infringe or misappropriate third party
copyright or patent rights in Canada or the United States of America, and indemnity
Licensee from any damages awarded by a court of final determination.

(b)

Without limitation, Section 8.2 will not be applicable and Solace will not be liable to
defend a Claim to the extent that such Claim is based on: (i) Licensee’s Use of the Products
after Solace notifies Licensee to discontinue using them; (ii) Licensee combining the
Products with non-Solace services, products, programs or data; or (iii) Licensee altering
or modifying the Products.

(c)

If Solace receives information concerning an infringement or misappropriation Claim
related to the Products, Solace may, at its expense and without obligation to do so, either:
(i) procure the Intellectual Property Rights or other right(s) to continue to Use the
Product; or (ii) replace or modify the Product to make it non-infringing; or (iii) immediately

terminate this Agreement on written notice to Licensee, in which case Solace will refund
to Licensee, on a pro-rata basis, any pre-paid fees in respect to such Product from the
date of such termination to the end of the then current Subscription Term for such
Product; and this Section 8.2(c) states the sole and exclusive remedy of Licensee and the
entire liability of Solace for third party infringement claims and actions.
8.3

Indemnification Procedures. Each Party’s obligations under this Article 8 are contingent on all of
the following: (i) the Party seeking the indemnity (the “Indemnified Party”) must notify the other
Party (the “Indemnifying Party”), in a timely manner and in writing of the Claim; (ii) the
Indemnified Party must give the Indemnifying Party sole control over defense and settlement of
the Claim; (iii) the Indemnified Party must provide the Indemnifying Party with reasonable
information and assistance, at the Indemnifying Party’s request, as needed in defending the Claim
(the Indemnifying Party will reimburse the Indemnified Party for reasonable expenses that the
Indemnified Party incurs in providing that assistance). The Indemnified Party may choose to have
its counsel, monitor or participate in the defense of such a Claim provided that the Indemnified
Party will be responsible for the cost of its own counsel and the Indemnifying Party’s obligations
in this Article 8 do not extend to the Indemnified Party’s legal costs should it wish to exercise such
right. The Indemnifying Party will not be responsible for any settlement made by the Indemnified
Party without its prior written consent. The Indemnifying Party may not settle or publicize any
Claim without the Indemnified Party’s prior written consent.

9

LIMITATIONS OF LIABILITY.

9.1

Definition and Limitations of Liability.
(a)

In this Agreement: “Claim” means any actual, threatened or potential civil, criminal,
administrative, regulatory, arbitral or investigative demand, allegation, action, suit,
investigation or proceeding or any other claim or demand; and “Losses” means any and
all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and
judgments), costs and expenses (including interest, court costs, reasonable fees and
expenses of lawyers, accountants and other experts and professionals or other
reasonable fees and expenses of litigation or other proceedings or of any Claim, default
or assessment).

(b)

SUBJECT TO SECTION 9.1(d), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
UNDER NO CIRCUMSTANCES WILL SOLACE INDEMNITEES BE LIABLE FOR (A) ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES;
OR (B) ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR
LOSS OF BUSINESS INFORMATION, IN EACH CASE, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, INCLUDING ANY DOWNLOAD, INSTALLATION OR USE OF, OR
INABILITY TO USE, THE PRODUCTS; EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND
REGARDLESS OF WHETHER THE SOLACE INDEMNITIEES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.

(c)

SUBJECT TO SECTION 9.1(d), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT WILL SOLACE INDEMNITEES’ TOTAL AGGREGATE LIABILITY IN RESPECT OF
THIS AGREEMENT, INCLUDING THE PRODUCTS AND ANY SERVICES THAT MAY BE
PROVIDED HEREUNDER, FOR ANY AND ALL LOSSES AND CLAIMS EXCEED THE AMOUNTS
- 11 -

PAID TO SOLACE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE
TO THE CLAIM.
(d)

Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING,
SECTIONS 9.1 (b) AND (c) DO NOT APPLY TO (I) DAMAGES ARISING FROM A PARTY’S
BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION
CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL
PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL
MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

(e)

This Article 9 will apply irrespective of the nature of the cause of action, demand or Claim,
including, breach of contract (including fundamental breach), negligence (including gross
negligence), tort or any other legal theory, and will survive a fundamental breach or
breaches of this Agreement or of any remedy contained herein.

10

TERM AND TERMINATION.

10.1

Term and Renewal. This Agreement will be effective from the Effective Date and will continue
until the expiry of the Subscription Term set out in the Order or the Agreement terminates in
accordance with its terms. Subject to payment of the applicable Software Fees, Software
Subscriptions shall automatically renew for additional periods equal to the expiring Subscription
Term or one (1) year (whichever is shorter), unless either party gives the other notice of nonrenewal at least thirty (30) days prior to the end of the then-current Subscription Term. The
Subscription Fees during any automatic renewal term will be as set forth in the applicable Order.

10.2

Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days’ written
notice to the other party of a material breach if such breach remains uncured at the expiration of
such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other
proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of
creditors.

10.3

Termination by Solace. Solace may terminate this Agreement for cause with immediate effect on
written notice if Licensee commits a breach of Articles 4 or 5 by Licensee.

10.4

Termination of Sample Application and Evaluation Software Release Licenses for Convenience
by Solace. Solace may terminate the licenses in respect to the Sample Applications, Evaluation
Software Releases, and any other Products that may be licensed by Solace on a trial basis, at any
time for convenience, upon written notice to Lice nsee.

10.5

Termination of Licenses of Trial Software. Subject to Section 10.4, if any Software is licensed for
Use by a Licensee on a trial basis, the license to Use such Software during a trial period will
continue for such duration set out in an Order.

10.6

Effects of Termination. Upon termination or expiry of this Agreement or specific licenses granted
hereunder for any reason, and without limiting Solace’s other rights or remedies under this
Agreement: (a) Licensee must permanently delete or destroy, or otherwise purge, all copies
(electronic or otherwise) of the applicable Products from Licensee’s systems, and any other
Confidential Information of Solace, in Licensee’s possession or control, and, if requested by

Solace, certify the same, and the license and other rights granted to Licensee in this Agreement
will terminate; (b) termination or expiration of this Agreement or an individual Subscription will
result in termination of any applicable Support Services; and (c) Licensee will not receive a return
of any pre-paid fees in respect to the applicable Products, on a pro-rata basis or otherwise, except
where expressly stated in this Agreement.
10.7

Survival. Neither the expiration nor the earlier termination of this Agreement will release either
of the Parties from any obligation or liability that accrued prior to such expiration or termination.
The provisions of this Agreement requiring performance or fulfilment after the expiration or
earlier termination of this Agreement, including Articles 4, 5, 7, 8, 9, 10, 11, 12, and 13, and such
other provisions as are necessary for the interpretation thereof and any other provisions hereof,
the nature and intent of which is to survive termination or expiration of this Agreement, will
survive the expiration or earlier termination of this Agreement.

11

AUDIT AND REMEDIATION

11.1

Audit. During the term of this Agreement and for two years thereafter, Solace or any internal or
external audit representative acting on behalf of Solace (the “Solace Audit Representatives”) will
have the right, and Licensee will provide access to Solace Audit Representatives during regular
business hours and upon reasonable prior written notice to Licensee, to audit and inspect on a
mutually agreed upon date and location any system or facility or part of a system or facility to
which Licensee has downloaded the Software or is receiving any services (or both) in order to
verify the performance by Licensee of its obligations under this Agreement, including the
Licensee’s usage of the Products in accordance with the restrictions and terms in this Agreement.

11.2

Remediation. Without limiting Solace’s rights and remedies under this Agreement, if an audit
conducted pursuant to this Agreement reveals any error, deficiency or other failure to perform
on the part of Licensee including Use of the Software contrary to the licenses in this Agreement
or installed on systems, computers or processors for which the Licensee has not paid applicable
Subscription Fees: (a) Licensee will immediately pay to Solace any fees due and payable for
Software Used in breach of the restrictions in this Agreement, plus interest at the lesser of: (i) the
rate of 1.5 percent per month compounded monthly; or (ii) the maximum rate allowed by
applicable law, in each case, on the amount outstanding from the date when payment is due until
the date payment in full is received by Solace; and (b) pursue any other right or remedy Solace
may have under this Agreement.

12

EXPORT COMPLIANCE ASSURANCES
(a)

All Products obtained from Solace are subject to the export control and economic
sanctions laws and regulations of Canada, including the Exports and Import Permits Act,
R.S.C. 1985, c. E-19, Area Control List, Export Control List, and the United States, including
the Export Administration Regulations (“EAR”, 15 CFR 730 et seq.,
http://www.bis.doc.gov/) administered by the Department of Commerce, Bureau of
Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.,
http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of
Treasury, Office of Foreign Assets Control (“OFAC”), each as may be amended and
updated from time to time.


(b)

Licensee will not, and will ensure that Licensee will not directly or indirectly export, reexport, transfer or release (collectively, “export”) any Products to any destination,
person, entity or end use prohibited or restricted under Canadian or US law, or the laws
of the jurisdiction in which Licensee is resident or in which Licensee Uses the Products,
without prior government or regulatory authorization to the extent required by
applicable laws and regulations.

(c)

The US government maintains embargoes and sanctions against the countries listed in
Country Groups E:1/2 of the EAR (Supplement 1 to part 740), including, as at the Effective
Date, Cuba, Iran, North Korea, Sudan and Syria, as amended from time to time. Licensee
will not directly or indirectly employ any Product received from Solace in missile
technology, sensitive nuclear or chemical biological weapons activities, or in any manner
knowingly transfer any Product to any party for any such end use. Licensee will not export
Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined
in part 744.21, to the People’s Republic of China. Licensee will not transfer any Product
to any party listed on any of the denied parties lists or specially designated nationals lists
maintained under said regulations without appropriate US government authorization to
the extent required by regulation. Licensee acknowledge that other countries may have
trade laws pertaining to import, use, export or distribution of Products, and that
compliance with same is Licensee responsibility.

(d)

Licensee may not Use the Products if Licensee is barred from receiving the Products under
the laws of Canada, the United States or any other country including the country in which
Licensee is resident or in which Licensee Uses the Products.

13

GENERAL

13.1

Logo Use. Solace may include Licensee’s logo on its website and in Solace’s customer lists and
promotional materials, unless instructed not to do so by Licensee.

13.2

U.S. Government Users. If Licensee are acting on behalf of an agency or instrumentality of the
U.S. federal government, the Product, as applicable, are “commercial computer software” and
“commercial computer software documentation” developed exclusively at private expense by
Solace. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use,
reproduction and disclosure of the Products is governed by the terms of this Agreement.

13.3

Entire Agreement. This Agreement, and the agreements and other documents required to be
delivered pursuant to this Agreement, constitute the entire and exclusive agreement between
Solace and Licensee, and sets out all the covenants, promises, warranties, representations,
conditions and agreements between the Parties in connection with the subject matter of this
Agreement, and supersedes all prior agreements (whether written or oral, pre-contractual or
otherwise) and other communications between Solace and Licensee. There are no covenants,
promises, warranties, representations, conditions or other agreements, whether oral or written,
pre-contractual or otherwise, express, implied or collateral, whether statutory or otherwise,
between the Parties in connection with the subject matter of this Agreement except as specifically

set forth in this Agreement and any document required to be delivered pursuant to this
Agreement.
13.4

Amendments. This Agreement may be modified only by a written amendment agreed to by both
Licensee and Solace, except that Solace may modify the Documentation from time to time,
provided that Solace does not materially lessen the description of the functionality of the Products
as a result of such modification.

13.5

English Language. This Agreement is entered into solely in the English language, and if for any
reason any other language version is prepared by any Party, it will be solely for convenience and
the English version will govern and control in all respects.

13.6

Waiver. To be effective, any waiver by a Party of any of its rights or any other Party’s obligations
under this Agreement must be made in a writing signed by the Party to be charged with the
waiver. No failure or forbearance by any Party to insist upon or enforce performance by any other
Party of any of the provisions of this Agreement or to exercise any rights or remedies under this
Agreement or otherwise at law or in equity will be construed as a waiver or relinquishment to any
extent of such Party’s right to assert or rely upon any such provision, right, or remedy in that or
any other instance; rather, the same will be and remain in full force and effect. A Party’s waiver
of a breach of any term will not be a waiver of any subsequent breach of the same or another
term.

13.7

Cumulative Rights. The rights of each Party hereunder are cumulative and no exercise or
enforcement by a Party of any right or remedy hereunder will preclude the exercise or
enforcement by such Party of any other right or remedy hereunder or which such Party is
otherwise entitled by law to enforce.

13.8

Severability. If, in any jurisdiction, any provision of this Agreement or its application to any Party
or circumstance is restricted, prohibited or unenforceable, the provision will, as to that
jurisdiction, be ineffective only to the extent of the restriction, prohibition or unenforceability
without invalidating the remaining provisions of this Agreement and without affecting the validity
or enforceability of such provision in any other jurisdiction, or without affecting its application to
other Parties or circumstances.

13.9

Assignment. Solace may assign this Agreement or any of the benefits, rights or obligations under
this Agreement without the prior written consent of the Licensee. Licensee may not assign this
Agreement or any of the benefits, rights or obligations under this Agreement without the prior
written consent of Solace. Any attempt by Licensee to so assign or transfer is null and void. If
Solace does consent to an assignment of this Agreement, the transferee/assignee must be
acceptable to Solace and agree to the terms and conditions of this Agreement.

13.10 Further Assurances. The Parties will, with reasonable diligence, do all things and provide all such
reasonable assurances as may be required to consummate the transactions contemplated by this
Agreement, and each Party will provide such further documents or instruments required by any
other Party as may be reasonably necessary or desirable to effect the purpose of this Agreement
and carry out its provisions.
13.11 Governing Law and Jurisdiction. This Agreement is governed and interpreted in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein, without giving

effect to its conflict of laws provisions. Any Claim arising out of or related to this Agreement must
be brought exclusively in a federal or provincial court located in Ottawa, Canada, and Licensee
hereby consents to the jurisdiction and venue of such courts. Each of the Parties irrevocably
waives, to the fullest extent it may effectively do so, the defence of an inconvenient forum to the
maintenance of such action, application or proceeding. The Parties will not raise any objection to
the venue of any action, application, reference or other proceeding arising out of or related to
this Agreement in the federal or provincial courts sitting in Ottawa, including the objection that
the proceedings have been brought in an inconvenient forum. A final judgment in any such action,
application or proceeding is conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner specified by law. The United Nations Convention on Contracts
for the International Sale of Goods is expressly disclaimed and will not apply.


