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Particular Software Production Subscription License Agreement

Last updated: 28 November, 2024

PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX “I AGREE”, MAKING A PURCHASE OR INSTALLING OR USING ALL OR ANY PORTION OF THE PARTICULAR SOFTWARE (DEFINED BELOW), YOU, ON YOUR OWN BEHALF AS AN INDIVIDUAL, AND ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY WHICH HAS NOT YET DONE SO (COLLECTIVELY “YOU” OR “CUSTOMER”), ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW (“AGREEMENT”) WITH NSERVICEBUS LTD. (DOING BUSINESS AS PARTICULAR SOFTWARE). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT PURCHASE THIS SOFTWARE. YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH PARTICULAR SOFTWARE FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT. YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.

The parties hereby agree as follows:

  1. Definitions.

    1. “Business Day"

      – a day of the week between Monday and Friday, commencing at 08:00 GMT and ending at 17:00 GMT.

    2. “Customer Application”

      means a computer software, hardware, systems or other applications owned or licensed by the Customer (and not including any integrated Software or Derivative Works) to End Users.

    3. “Derivative Works”

      shall mean any software or work of authorship, whether in Source or Object form, that is based on or derived from the Software. For the purposes of this Agreement, Derivative Works shall not include works that merely link to the Software.

    4. “Developer”

      means a human user of the Software or a Derivative Work that writes code in a programming language for the purpose of creating an Integrated Product on behalf of the Customer.

    5. “Documentation”

      shall mean the standard written materials provided by Particular Software at https://docs.particular.net/ that describe the Software. Documentation does not include any written materials provided by third party licensors in connection with Third-Party Software.

    6. “Deploy”

      means the process of taking computer software in Source or Object form and transforming it into its final Executable Form for Production Use. “Deployment” shall mean the result of the Deploy process.

    7. “Endpoint”

      means a part of an Integrated Product that uses the Software to send and/or receive Messages. Each Endpoint is identified by a unique name, similar to an email address.

    8. “End Users”

      means those human users of an Integrated Product pursuant to a license agreement with Customer or by employees or contractors of Customer (for purposes other than Customer’s internal development and testing).

    9. “Executable Form”

      means computer software in a form that is actively running on a computer.

    10. “Integrated Product”

      means the product resulting from integrating a copy of the Software or a Derivative Work with one or more Customer Applications, by or on behalf of Customer. The Integrated Product must add meaningful value or functionality to the Software or Derivative Work.

    11. “License”

      means the subscription license granted to Customer in Section 2 (License) below.

    12. “License Effective Date”

      means the date Customer effectively approves a quote provided by Particular Software.

    13. “Message”

      means one unit of communication, including all the data and metadata relevant to that communication, similar to an email.

    14. “New Release”

      means a new generally-available release of the Software that typically includes significant new features, functionality and/or enhancements. This is typically indicated by a number to the left of the decimal point, such that, for example, Version 4.0 is a New Release from Version 3.3.

    15. “New Version”

      means a generally available minor functional and technical upgrade of the Software; for example purposes only, this may include some minor new features and/or bug fixes. This is typically indicated by a number to the right of the decimal point, such that, for example, Version 3.3 is a New Version of Version 3.2.

    16. “Object Form”

      shall mean computer software in the form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.

    17. “Production Use”

      shall mean the use of the Software or its Derivative Works as part of an Integrated Product by any End User of Customer. Production Use shall not include use of the software by Customer’s employees or Contractors (defined below) that are using the Software solely for the purposes of Customer's development and testing of an Integrated Product.

    18. “Quote”

      means the proposal and price quotation for the License granted herein provided by Particular Software to Customer.

    19. “Services”

      means the professional services, if any, to be provided by Particular Software to Customer as described in the Quote.

    20. “Software”

      shall mean the Particular Software computer software program(s) set forth in the Quote, attached hereto, including associated Documentation. To the extent that Customer is entitled to receive upgrades under this Agreement, then the term Software shall include all bug fixes, patches, New Versions and New Releases provided in connection thereto. Except as otherwise specified herein, the term Software does not include Third-Party Software.

    21. “Source Form”

      shall mean computer software in human readable source code form that is not suitable for machine execution without the intervening steps of interpretation or compilation.

    22. “Subscription License Term”

      shall mean the term of this Agreement as set forth in Section 7.1 below.

    23. “Successfully Processed Message”

      means a Message that was sent, delivered, received, and the code, which processed that Message completed without any errors. If there were errors in the sending, delivery, receipt, or processing of a Message yet, on subsequent attempts, all of those steps completed without error, then that Message is counted as a Successfully Processed Message.

    24. “Taxes”

      shall mean any form of taxation, levy, duty, customs fee, or charge of whatever nature and by whatever authority imposed (including without limitation sales, use, excise or value added taxes and withholding taxes and any fine, penalty, surcharge or interest).

    25. “Third-Party Software”

      shall mean software that Particular Software licenses from third parties and distributes or makes available as a part of, or together with, the Software. "Third-Party Software" does not include software labeled as "community" in the documentation (https://docs.particular.net/platform/third-party-licenses).

    26. “Throughput”

      means the rate of Successfully Processed Messages in Production Use by an Integrated Product.

    27. “Tier”

      means the subscription License plan sold to Customer under the designation of “Community,” “Basic,” “Professional,” “Premium,” “Ultimate,” and/or “Site,” or as otherwise set forth in the Quote. Each Tier includes different support commitments from Particular Software as specified in Exhibit A, attached hereto, and pricing as specified by Particular Software.

    28. “Usage Limitations”

      means usage restrictions/limitations on the Software or Derivative Works as specified in the Quote (including, but not limited to the maximum Message Throughput that is being processed in total by Customer via the Integrated Product and the maximum number of Endpoints that exist in the Integrated Product)

  2. License.

    1. Grant of License.

      Subject to Customer's compliance with the terms of this Agreement and the Usage Limitations, including without limitation payment of License Fees (defined below), Particular Software grants Customer a non-exclusive, non-transferable, non-sublicensable (except as permitted herein) license to do the following during the Subscription License Term (the "License"):
      1. permit its Developers to use (in Source Form or Object Form) the Software (or Derivative Works) in order to create, develop and test Integrated Products by integrating the Software (or Derivative Works) with the Customer Applications;
      2. solely during the Subscription License Term to market, distribute, and sub-license copies of the Software or Derivative Works (both in Object Form only) to End Users solely as part of an Integrated Product (and not as a stand-alone product) and solely for such End Users internal use (and not for resale or distribution) ; and
      3. permit its Developers to use the Software (or Derivative Work) to support and maintain distributed copies, or SaaS offerings, of an Integrated Product. Customer shall be fully responsible for the Developers compliance with the terms of this Agreement and shall be fully liable for any non-compliance of the Developers with the terms of this Agreement (including Usage Limitations and the restriction under Section 2.2 below).

    2. Restrictions.

      Software and the Derivative Work are licensed, not sold, and this Agreement grants only certain rights to use the Software and the Derivative Work. Customer must not, and shall not permit any third party (including the Developers) to, directly or indirectly: (i) use the Software, except as permitted under this Agreement; (ii) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Software for any purpose including timesharing or service bureau purposes; (iii) remove or alter any copyright, trademark or proprietary notice in the Software; (iv) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (v) reverse engineer, decompile or modify any encrypted or encoded portion of the Software without prior written authorization from Particular Software; or (vi) use any portion of the Software to create a competitive service, product or technology with that of Particular Software.

      The foregoing License is also subject to the Usage Limitations set forth in Quote, which for the avoidance of doubt is in addition to, and without derogating from, any other use restrictions set forth herein.

      All restrictions on the use of the Software set forth in this Section also apply to Derivative Works.

    3. Derivative Works.

      All Derivative Works of the Software that Customer may create, or which a Contractor (defined below) may create on behalf of Customer, shall be solely owned by (and irrevocably and unconditionally assigned to, if necessary) Particular Software, and Particular Software shall license the same to Customer under the same terms and conditions set forth herein for the License.

    4. Reporting Obligation.

      Customer is required to notify Particular Software at least thirty (30) days in advance if Customer wishes to exceed the Usage Limitation set forth in the Quote. Without derogating from Particular Software’s rights and remedies under this Agreement or by applicable law, in any event in which the Customer exceeds the Usage Limitation set forth in the Quote, Customer will be moved to the appropriate Tier as set forth in the Quote, and charged accordingly. Particular Software may, at any time, request from Customer a report with respect to the use by Customer of the Software in order to verify Customer's usage of the Software according to the terms of this Agreement and the Usage Limitations. Such report will be submitted within thirty (30) days of the request.

    5. Third-Party Software.

      Customer acknowledges that portions of the Software include Third-Party Software (including open source software) that may be subject to the terms and conditions imposed by the licensors of the Third-Party Software ("Third-Party Terms"). In order to comply with the Third Party Terms a list of the Third Party-Software and related Third-Party Terms is available at https://docs.particular.net/platform/third-party-licenses. Customer agrees (i) that its use of the Third-Party Software is subject to and governed by the Third-Party Terms; (ii) to comply with all Third-Party Terms; and (iii) that this Section ‎2.5 ‎‎and Section ‎‎9 (Warranty and Warranty Disclaimer) ‎‎10 (Limitation of Liability) of this Agreement also apply to and govern Customer’s use of the Third-Party Software. To the extent of any conflict between any Third-Party Terms and the terms of this Agreement, the Third-Party Terms shall prevail in connection with the related Third-Party Software. Notwithstanding anything to the contrary in this Agreement, Particular Software makes no warranty or indemnity with respect to any Third-Party Software.

  3. Customer End Users.

    Customer agrees (i) to be solely responsible and liable to End Users for their use of any Customer Application or Integrated Product; and (ii) that, to the maximum extent permitted by applicable law, Particular Software will have no warranty or other obligation to End Users with respect to an Integrated Product, and any support therefor, as well as claims, losses, liability, damages, costs or expenses in connection thereto shall be Customer’s sole responsibility. Without limitation to the foregoing, Customer shall be liable for any act or omission of an End User or any other third party user of the Software, Derivative Work or Integrated Product, which, if such act or omission had been done by Customer would constitute a breach of this Agreement, as if such act or omission had been done by Customer itself. For clarity, the End Users shall not receive the license rights set forth in Section ‎‎2.1.

  4. Third Party Contractors.

    To the extent that Customer engages a third party service provider (“Contractor”) to provide any services in connection with this Agreement on its behalf, Customer shall (i) inform Contractor of the Usage Limitations (number of endpoints and message throughput) and of Customer’s obligations and restrictions under this Agreement and cause Contractor to be bound by corresponding obligations and restrictions at least as restrictive as those set forth herein; and (ii) remain liable for any breach of said obligations or restrictions by Contractor.

  5. Ownership.

    1. Particular Software.

      Except for the explicit License rights expressly provided herein, Particular Software and its licensors have and will exclusively retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all Derivative Works (which Customer hereby agrees to assign on creation to Particular Software without any additional compensation), including (without limitation) all copies and modifications of the foregoing.

    2. Customer.

      Customer retains all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secrets and other intellectual property rights) in the Customer Application and Integrated Products (but in all cases excluding any Software or Derivative Work integrated therein or any rights of Particular Software as set forth in this Agreement).

  6. Payment.

    1. Fees.

      Customer shall pay Particular Software the following fees (collectively "Fees"):

      1. Subscription Fee.

        The total fee for the License shall be as set forth in the Quote (“Subscription Fee”). Unless otherwise specified in the Quote, the Subscription Fee is calculated per the Usage Limitations and is based on the Integrated Product/Software usage of the Customer per subscription period. The fee per Usage Limitation is divided into Tiers with each Tier defining the amount of usage that it enables. The different Usage Limitations Tiers are specified in the Quote.

      2. Services Fee.

        The total fee for any Services to be performed by Particular Software hereunder is set forth in the Quote ("Services Fee").

      3. Additional Services.

        Other Services requested by Customer shall be provided subject to the parties’ written execution of a purchase order detailing the scope and fees payable in respect of such Services.

      4. Expenses.

        In addition to the fees set forth above, Customer shall reimburse Particular Software for out-of-pocket expenses (including travel, accommodation and living expenses) actually incurred by Particular Software in connection with its performance of Services, provided prior written approval is obtained from Customer ("Expenses").

      5. Subscription Fee Increases.

        Particular Software may, in its sole discretion, increase the Subscription Fees set forth in the Quote up to an amount equal to ten percent (10%) each year, upon the provision of thirty (30) days’ written notice thereof to Customer.

    2. Currency.

      All Fees are stated, and must be paid, in the quoted currency.

    3. Additional Software and Services.

      Unless otherwise agreed by the parties in writing, during the Subscription License Term, New or Additional Licenses to software (including any New Releases, not covered by the Subscription License Term ), and Services, may be licensed, purchased or renewed by contacting Particular Software at Particular Software’s standard then-current rates (subject to Particular Software's agreement). In addition, to the extent that during the Subscription License Term, Customer wishes to expand the License by increasing the Usage Limitation, Customer may do so by issuing a purchase order to Particular Software which shall be subject to Particular Software’s standard then-current rates. Purchase orders will only become binding upon Particular Software's acceptance. Upon Particular Software's acceptance, Customer may not cancel or change the purchase order without the prior written consent of Particular Software.

    4. Invoices.

      Particular Software will invoice Customer for the Fees upon execution of the Quote and upon the submission of any future purchase order for Licenses hereunder and in addition any applicable tax. Any and all payments made by Customer pursuant to this Agreement are due within thirty (30) days from the invoice date and are non-refundable. Overdue payments will bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law.

    5. Taxes.

      All Fees are exclusive of any Taxes, which shall be the sole responsibility of Customer. All payments and amounts due hereunder shall be paid without deduction, set-off, or counter claim and free and clear of any restrictions or conditions and without deduction for any Taxes, excluding taxes based on Particular Software’s net income. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due to Particular Software, then the sum payable to Particular Software will be increased by the amount necessary so that Particular Software receives an amount equal to the sum it would have received had Customer not made any withholding or deduction.

  7. Term and Termination.

    1. Term.

      This Agreement shall become effective on the Effective Date and shall continue to be in effect for the period specified in the Quote ("Subscription Initial Term"). Following the Subscription Initial Term, this Agreement shall automatically be renewed for successive periods equal to the Subscription Initial Term (each a "Subscription Renewal Term") unless Customer or Particular Software provides ten (10) days written notice prior to the end of the Subscription Initial Term or any Subscription Renewal Term of its intent not to renew (the Subscription Initial Term and all Subscription Renewal Terms shall collectively be referred to as the “Subscription License Term”). If Customer shall continue to use the Software licensed past any expiration or renewal date, Customer shall be deemed to have renewed the Subscription License Term at the rates applicable for said new term.

    2. Termination.

      Notwithstanding the above, this Agreement (‎together with all licenses granted herein) may be terminated by either party upon written notice if the other party:
      1. materially breaches any term of this Agreement, and such breach is not cured or remedied within thirty (30) days after written notice of the breach is given to the breaching party; provided, however, that no cure period will be required for a breach of Sections ‎2 (License) or ‎12 (Confidentiality) hereof.
      2. shall become insolvent, cease doing business as a going concern, make an assignment for the benefit of its creditors, or admit in writing its inability to pay debts, or if proceedings are instituted by or against it in bankruptcy, under the insolvency laws, or for receivership or dissolution, provided such proceedings are not dismissed within thirty (30) days of their commencement.

    3. Consequences of Termination.

      If this Agreement is terminated:
      1. the Licenses granted under this Agreement will be terminated;
      2. Customer shall cease to market, promote and sell the Integrated Product;
      3. Customer (and all respective Developers) shall cease all use of the Software and any Derivative Works (including as part of an Integrated Product);
      4. All licenses granted to End Users to the Software and any Derivative Works as part of the Integrated Product shall automatically expire; and
      5. within ten (10) business days of termination, Customer will destroy or deliver to Particular Software all copies of the Software or Derivative Works (including as part of an Integrated Product) or any portion thereof in Customer’s possession or control, and an officer of Customer will certify to Particular Software such destruction or delivery.

        6. This Section ‎7.3 and Sections ‎2.2, ‎2.3, ‎2.4, ‎3 to ‎5 (inclusive), ‎9, ‎10, ‎12, and ‎14 to ‎26 (inclusive), as well as any rights accrued or outstanding obligations of the parties and any provision so intended, shall survive termination of this Agreement.

  8. Support.

    1. Support and Upgrades.

      Except for the support specified in Exhibit A for the respective Tier that Customer has purchased, Particular Software is not required under this Agreement to provide any additional Software support or maintenance services to Customer. Such additional services, if available, must be purchased separately under a separate support agreement ("Support Agreement"). If, pursuant to a separate Support Agreement or otherwise, Particular Software provides Customer with a New Version, New Release, error correction, update, or some other modification to the Software (each, an "Upgrade"), it shall be deemed part of the Software, and subject to the terms of this Agreement, unless the Upgrade is expressly provided subject to a separate license agreement.

    2. General.

      Notwithstanding Section ‎8.1 (Support and Upgrades) herein, Particular Software reserves the right at any time not to release, or to discontinue release of, any Software and to alter features, specifications, functions, licensing terms or other characteristics of any future releases of the Software.

  9. Warranty and Warranty Disclaimer.

    1. Warranty

      . Particular Software warrants that the Software will substantially conform to the specifications set forth in the Documentation for a period of ninety (90) days from the License Effective Date. The foregoing warranty shall not apply in the event that the Software is used other than in accordance with the Documentation or as permitted in this Agreement, or if the Software is modified by any party other than Particular Software.

    2. Warranty Disclaimer

      . EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE (AND ANY THIRD-PARTY SOFTWARE AND DERIVATIVE WORKS) AND ALL SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

  10. Limitation of Liability.

    IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE TOTAL CUMULATIVE LIABILITY OF Particular Software FOR ANY AND ALL DAMAGES, LIABILITY, OR OBLIGATIONS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO Particular Software UNDER THIS AGREEMENT WITHIN ONE (1) YEAR PRECEDING THE DATE UPON WHICH THE CLAIM FOR SUCH LIABILITY IS BROUGHT.

  11. Indemnification.

    1. Defense.

      Particular Software will defend Customer against a third party claim that Customer’s use of the Software (excluding Third-Party Software) infringes its copyright ("Infringement Claim"), and will hold Customer harmless and pay any amounts (including reasonable attorney’s fees) finally awarded to that third party by a competent court or arbitration panel or paid in settlement to that third party in connection with the Infringement Claim, provided that Customer must (i) promptly notify Particular Software in writing of the Infringement Claim; (ii) reasonably cooperate with Particular Software (at Particular Software’s cost) in connection with the defense and settlement of the Infringement Claim; (iii) not make any admission of liability or fault without Particular Software’s prior written approval in connection with the Infringement Claim; and (iv) allow Particular Software to have sole control of the defense, including all related settlement negotiations, of the Infringement Claim.

    2. Injunctive Relief.

      If an injunction is sought or obtained against Customer’s use of the Software, or if Particular Software believes a claim of intellectual property infringement is reasonably foreseeable, Particular Software may, at its sole option and expense: (i) procure for Customer the right to continue using the affected Software; (ii) replace or modify the infringing Software so that it becomes non-infringing while giving equivalent performance; or, if Particular Software determines, at its sole discretion, that either (i) or (ii) is not commercially feasible, (iii) notwithstanding any other term herein, terminate this Agreement and the License (in which event Customer agrees to immediately refrain from all use of the Software).

    3. Disclaimer of Liability.

      Particular Software shall have no defense or indemnity obligation under Section 11.1 herein (i) unless Customer is up-to-date with payment of the License Fee and the support fees then due; or (ii) to the extent the Infringement Claim is based upon (a) use of the Software other than in accordance with the Documentation or as permitted in this Agreement; (b) a modification of the Software by anyone other than Particular Software; (c) use of any version or release of the Software other than the then-current version or release of the Software, unless the infringing portion is also in the then-current version or release; or (d) use, operation, or combination of the Software with non-Particular Software programs, data, equipment or documentation, products or services (all of the foregoing, "Non-Particular Software Products") if such infringement would have been avoided but for such use, operation or combination. This Section ‎11 states the entire liability of Particular Software, and Customer’s sole and exclusive remedy, with respect to any Infringement Claim and Particular Software shall have no additional liability hereunder or otherwise with respect to any alleged or proven infringement.

    4. Particular Software Claim.

      Customer will defend Particular Software against a third party claim (i) that an Integrated Product, or any portion of a Derivative Work authored by Customer, infringes its copyright; or (ii) in connection with a third party’s use of an Integrated Product (each a "Particular Software Claim"), and will hold Particular Software harmless and pay any amounts (including reasonable attorney’s fees) finally awarded to that third party by a competent court or arbitration panel or paid in settlement to that third party in connection with the Particular Software Claim, provided that Particular Software must promptly (a) notify Customer in writing of the Particular Software Claim; (b) reasonably cooperate with Customer (at Customer’s cost); (c) not make any admission of liability or fault without Customer’s prior written approval; and (d) and allow Customer to control the defense, including all related settlement negotiations, of the Particular Software Claim. Notwithstanding the foregoing, Customer shall not be responsible for a Particular Software Claim to the extent such claim relates to unaltered Software, used in accordance with this Agreement, and does not arise from the combination of the Software with the other portions of the Integrated Product or any other non-Particular Software Products.

  12. Confidentiality.

    1. Each party ("Recipient") may have access to certain non-public and/or proprietary information of the other party ("Discloser"), including (without limitation) confidential trade secrets and other information related to the products, software, pricing, product roadmaps, technology, data, know-how, inventions, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive ("Confidential Information").
    2. The Recipient shall (i) keep confidential, not disclose or otherwise make available to any third party, and not use for purposes beyond the scope of this Agreement, any Confidential Information of the Discloser, without the prior written consent of the Discloser; and (ii) use at least the same degree of care that it uses to protect its own confidential information (but in no event less than reasonable care), implement appropriate measures to ensure the security, integrity, and confidentiality of the Discloser’s Confidential Information, and protect it from unauthorized access or use. Notwithstanding the foregoing, the Recipient may disclose Discloser’s Confidential Information to its employees and agents that need to know such information solely to permit Recipient to exercise its rights and obligations hereunder, but only if each such employee and/or agent is aware of Recipient’s confidentiality obligations hereunder, is bound by confidentiality obligations at least as restrictive as the terms of this Agreement, and provided that Recipient shall be liable to Discloser for any breach of said confidentiality obligations by an employee or agent.
    3. The Recipient’s confidentiality obligations with respect to the Discloser’s Confidential Information shall continue for a period of three (3) years after the termination of this Agreement (but in any event, for not less than five (5) years from the Effective Date) provided however that Customer's confidentiality obligation with regard to Source Form and Object Form of the Software and the Derivative Work shall survive termination without any time limitation.
    4. The confidentiality obligations under this Section ‎12 shall not apply to any Confidential Information that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Recipient or its representatives, (ii) is or has been independently acquired or developed by the Recipient without violating any of the Recipient’s obligations under this Agreement, (iii) was within the Recipient’s possession prior to it being furnished to the Recipient by the Discloser, or (iv) is received from a source other than the Discloser; provided that, in the case of (iv) above, the source of such information was not known by the Recipient to be bound by a confidentiality obligation to the Discloser or any other party with respect to such information. If the Recipient is requested or required by any legal or investigative process to disclose any Confidential Information of the Discloser, the Recipient shall (to the extent legally permitted) provide the Discloser with prompt notice of each such request, as well as reasonably requested information and assistance (at Discloser’s cost), so that the Discloser may seek to prevent the disclosure of its Confidential Information. If disclosure is required and a protective order is not obtained, the Recipient may disclose that portion of the Confidential Material that its legal counsel advises it is compelled to disclose.
    5. Upon termination of this Agreement, or upon the other party’s request, each party undertakes to return to the other party, or destroy, any Confidential Information belonging to the other party.

  13. Publicity.

    Each party agrees that it will not use the name of the other party or its affiliates in any publicity or advertising (other than to refer to the other as a customer, as applicable) and will not publicize or disclose to any third party the terms of this Agreement without the prior written consent of the other party. Without limiting the foregoing, Customer agrees to permit Particular Software to publish Customer’s name and logo on Particular Software’s website and state that it is a licensee of the Software, and the parties agree to use reasonable efforts to issue one or more mutually agreed press releases disclosing the relationship entered into hereby.

  14. Continuing Business.

    Nothing in this Agreement shall preclude or limit Particular Software from providing to, or obtaining from, a third party any software, materials or services that are the same as or substantially similar to the software, materials or services offered to, or delivered by, Customer.

  15. Disputes, Governing Law and Jurisdiction.

    1. Dispute Resolution.

      If Customer is not satisfied with the Software, or any Services provided by Particular Software, Customer agrees to provide Particular Software with a written description of its grievance and to make a good faith effort to amicably resolve said grievance with Particular Software before commencing any legal proceedings. Particular Software also agrees to make a good faith effort to amicably resolve any grievance with Customer before commencing legal proceedings.

    2. Governing Law / Jurisdiction.

      This Agreement is made in, and the validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of, the State of New York, NY, excluding its conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement shall be submitted to the exclusive jurisdiction of the courts of competent jurisdiction located in the state of New York, NY, and each party irrevocably consents to such personal jurisdiction and waives all objections to such venue.

  16. Notices.

    All notices hereunder must be in writing and in English, and will be deemed given: (i) when delivered by hand or five (5) days after being sent to the respective addresses indicated on the Quote; (ii) if sent via email (to the email address specified below), upon an email reply confirmation of receipt by the receiving party which should be sent within 2 (two) business days’ receipt of the originating email; or (iii) to the facsimile numbers set forth below, using a method that provides for positive confirmation of delivery; provided all of the above that any notice from Customer to Particular Software includes a copy sent to:

    NServiceBus Limited, Attention: General Counsel, 45 Berl Katzenelson, Suite 73, Haifa, 3276606, Israel;

    Fax number: +972 4 814 6227;

    E-mail: legal@particular.net .

  17. Audit.

    Customer agrees to cooperate with Particular Software's license compliance verification process once in a calendar year and subject to customary confidentiality obligations.

  18. Export Responsibilities.

    Customer agrees to comply with, and be solely responsible and liable for, all applicable export control restrictions in connection with its use of the Software and any technical data that Particular Software may provide. In the event that Customer breaches this Section 18, Particular Software may terminate this Agreement for material breach.

  19. U.S. Government End Users.

    If the Software, or any Derivative Work, is acquired by or on behalf of a unit or agency of the U.S. Government (the "Government"), the Government agrees that such the Software or Derivative Work is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the Government’s rights with respect to such Software or Derivate Work is limited by the terms of this Agreement, pursuant to applicable FAR and/or DFARS and successor regulations.

  20. Hazardous Uses.

    The Software, including Derivative Works, is not intended for use in connection with any application requiring fail-safe performance, such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction. Customer agrees that Particular Software will have no liability of any nature, and Customer is solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Software or a Derivative Work.

  21. Assignment.

    This Agreement and any rights or obligations hereunder: (i) may not be transferred or assigned by Customer without the prior written consent of Particular Software which shall not be unreasonably withheld; but (ii) may be transferred or assigned by Particular Software. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective assigns. Any prohibited assignment shall be null and void.

  22. Subcontracting.

    Particular Software may subcontract services under this Agreement to third parties or affiliates without Customer’s prior approval; provided, however, that (i) subcontractors must agree to keep any Customer Confidential Information confidential; and (ii) Particular Software remains responsible to Customer for the performance of its obligations hereunder. Customer acknowledges and agrees that to provide certain services, it may be necessary for Customer information, including Confidential Information, to be transferred between Particular Software, its affiliates, and/or subcontractors, which may be located worldwide.

  23. Independent Contractor.

    Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties. Each party shall be solely responsible for payment of its personnel including applicable taxes, deductions, other payments and benefits.

  24. Non-solicitation.

    Customer agrees not to solicit or hire any personnel of Particular Software with whom Customer has had contact in connection with this Agreement. Customer may hire an individual employed by Particular Software who, without other solicitation, responds to advertisements or solicitations aimed at the general public.

  25. Force Majeure.

    Except with respect to the payment of Fees owing under this Agreement, neither party will be liable for non-performance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, volcanic activity, government restrictions, terrorist acts or other causes beyond its reasonable control.

  26. General.

    1. Headings and Capitalized Terms.

      All headings contained in this Agreement are inserted for identification and convenience, and will not be deemed part of this Agreement for purposes of interpretation. Any capitalized terms not separately defined in the exhibits to this Agreement shall have the meaning ascribed to them herein.

    2. Severability

      . If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.

    3. Waiver

      . The delay or failure of either party to exercise any rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.

    4. Complete Agreement.

      This Agreement, including all exhibits hereto, constitutes the exclusive terms and conditions with respect to the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions hereunder. This Agreement represents the final, complete and exclusive statement of the agreement between the parties with respect to subject matter hereof and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof are merged therein.

    5. Amendment.

      This Agreement may not be amended except by a written instrument signed by both parties.

Exhibit A

Customer shall be entitled to receive Support as set forth below only for the then-current release of the Software and the immediately previous release, or for older Software releases under an "Extended Support Package" plan (which may be separately purchased).

Non-critical support:

Critical support: Critical support is not included in any Tier and can be purchased separately.

  1. The response time shall be deemed to commence from the time that Particular Software receives a Support Incident from the Customer’s Support Email Account (defined below) or from the time that all information about the incident has been received by Particular Software. Notwithstanding the foregoing, if Particular Software notifies Customer that it requires additional information to address the Incident, the response time shall be deemed to commence once Particular Software receives said information from Customer.
  2. Response Time does not include the time taken by Particular Software to resolve the Support Incident.
  3. Critical Incidents. A "Critical Incident" is defined as a Support Incident that concerns a situation where a system, network, server, or critical program is not functioning that severely affects Customer production or profitability. Customer must allocate appropriate resources to sustain a continuous effort 24 hours a day to resolve Critical Incidents and Customer’s management must be notified. If Customer does not perform these actions, the incident will be reclassified as regular Support Incident. Particular Software will provide continuous effort to resolve Critical Incidents 24 hours a day and senior managers at Particular Software are notified.