Distributed System Commercial Support Agreement

This Commercial Support Agreement ("Agreement") is entered between NServiceBus Ltd. (doing business as Particular Software), located at 45 Berl Katzenelson. Suite 73. Haifa, 3276606, Israel (“Particular”), and the Customer (individual or entity) that has procured the Support Plan (as defined below) on the date Particular receives payment of fees as set forth in section 6.1 (the “Effective Date”).

READ THIS AGREEMENT CAREFULLY. BY PURCHASING SUPPORT, EACH CUSTOMER CONSENTS TO BE BOUND BY THE TERMS OF THIS SUPPORT AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT PURCHASE SUPPORT. IF YOU WISH TO PURCHASE SUPPORT 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. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN SUPPORT AGREEMENT WITH NSERVICEBUS LTD. (DOING BUSINESS AS PARTICULAR SOFTWARE), THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.

1. Definitions.

   1. “New Version” means a generally available minor functional and technical upgrade of the Software; for illustrative 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.
   2. “Support Services” means the services to be provided by Particular to Customer as described herein and in Exhibit A.
   3. “Software” shall mean any one or more of the following .NET distributed system messaging frameworks or message queue libraries:
      1. Amazon SQS SDK
      2. Azure Service Bus SDK
      3. Brighter
      4. MassTransit
      5. RabbitMQ Client
      6. Rebus
   4. “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).

2. Scope.

   Subject to the terms and conditions of this Agreement, Particular agrees to provide Customer with the services set forth herein. By purchasing said services, Customer consents to be bound by the terms and conditions of this Agreement. Particular has no obligation to provide any services (including, without limitation, any support services or professional services) other than as set forth herein.

3. Support Plan.

   1. Particular offers Support Services under Gold or Platinum Plan (each a "Plan"), and Customer may choose to receive Support Services under any such Plan, subject to its payment of the applicable Support Services Fee (defined below). As of the Effective Date, Customer is electing to obtain Support Services under one of the agreed Plans.
   2. Customer may change to a different Plan at any time during the Term (defined below) by notifying Particular in writing, subject to its payment of the additional applicable Support Services Fee, if any, for the new Plan.
   3. Customer acknowledges that the features of a Plan may be varied by Particular from time to time. The then-current Plan features, as displayed at https://particular.net/support/message-driven-applications, as of the date of each Renewal Term (defined below) will apply for that Renewal Term.

4. Support Services.

   Support Services consist of the following:

   1. Support Incidents.

      1. General.

         During the Term, Customer shall be entitled to submit to Particular a specified number of support requests related to the Software (each a "Support Incident"), as set forth herein.

      2. Number of Support Incidents.

         Depending on the Plan selected, Customer is entitled to submit unlimited Critical Incidents during the Initial Term and/or each Renewal Term.

      3. Critical and Non-Critical Incidents.

         A “Critical Incident” is defined as a Support Incident suspected to be caused by a defect in the Software that causes the Customer’s system, network, server, or critical program to not function as intended, severely impacting Customer’s production or profitability. A “Non-Critical Incident” is defined as a Support Incident other than a Critical Incident., and is not covered by this Agreement. In the case of Critical Incidents, 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 a Non-Critical Support Incident.

      4. Response Times.

         Particular shall use commercially reasonable efforts to respond to each validly submitted Critical Incident in accordance with the following response times:

         	Response Time
         Gold	5 hours
         Platinum	1 hour

         1. The response time shall be deemed to commence from the time that Particular receives a Critical Incident request from the Customer's Support Email Account (defined below). or from the time that all information about the incident has been received by Particular. Notwithstanding the foregoing, if Particular notifies Customer that it requires additional information to address the Critical Support Incident, the response time shall be deemed to commence once Particular receives said information from Customer.
         2. Service Credits. Subject to Section 4.1.4 (A) above, for each occurrence where Particular has not responded to Critical Incidents according to the response time set forth herein, Particular will give Customer, as Particular's exclusive liability and Customer's sole remedy for such failure, a credit in an amount equal to one month of Support Services Fees (as defined below) for Support Services determined by dividing the annual Support Services Fees for Support Services by 12 for failure to respond to Critical Incidents (each a "Service Credit"). For clarity, respond to Critical Incidents means the time to respond to Customer's Critical Incident request and not the time taken by Particular to resolve such Critical Incident.
            
            To receive a Service Credit pursuant to Section 4.1.4 (B), Customer must submit a request to Particular by sending an e-mail message to support@particular.net within one month of the occurrence of the Service Credit event. If the Customer fails to do so, it will forfeit the right to receive the Service Credit.
            
            If a Service Credit request is approved by Particular, then Particular will apply the Service Credit against future Support Services Fees to be paid by the Customer. If Support Services are not renewed for an additional term or if Agreement is terminated prior to the end of any term, Particular will give Customer a 50% refund of the Service Credit described above.
            
            Notwithstanding the above, in no event shall the total Service Credit in each 12-month period commencing on the Effective Date exceed the annual Support Services Fees paid by Customer during such 12-month period.
         3. Response Time does not include the time taken by Particular to resolve the Critical Incident.

      5. Technical Support Contact.

         Customer shall provide Particular with one email address that will be used by Customer for management of all support incidents ("Customer's Support Email Account"). Particular's receipt of an email from the Customer's Support Email Account will constitute the opening of one Critical Incident by Customer.

      6. Address and Support Incident Designation.

         Customers with a Gold or Platinum Plan must submit critical incidents online at http://www.particular.net/support using the “Request critical support” form. As a back-up, Critical Incidents may also be submitted by email to: critical@particular.net

      7. Escalation.

         Depending on the severity of the issue, Customer may be entitled to request that Particular respond to the Support Incident via web conference: Particular will use commercially reasonable efforts to respond in accordance with Customer's desired method.

5. Exclusions.

   1. General.

      Support Services do not include: (i) providing access to new software, programs, modules or features; (ii) support or fixes for errors that result from the unauthorized or improper use of any Software or that result from the failure to implement any relevant improvements, modifications or New Versions; (iii) support or fixes for errors that result from, or are in connection with, any breach of any relevant license agreement; (iv) support or fixes for errors that do not materially affect the operation of the Software; (v) providing custom enhancements, features or modifications; (vi) providing assistance for any of Customer's applications or other third-party applications; (vii) providing direct assistance to any Customer end user; (viii) on-site support; or (ix) any hardware or related equipment. In any event, the provision of Support Services is subject to Customer's compliance with this Agreement, including, without limitation, its payment in full of all applicable Fees.

   2. Covered Software Versions.

      Customer acknowledges and agrees that Particular shall only provide Support Services for the then-current release of any software.

6. Customer's Responsibilities and Undertakings.

   Customer is responsible for and undertakes to:
   1. Provide and maintain all hardware, operating systems, and third-party software required to operate the Software in compliance with the terms set forth herein and in any relevant license agreement;
   2. Ensure that the Software is only operated by qualified, properly trained and experienced Customer staff and/or permitted agents;
   3. Provide and maintain phone lines, internet access, and any other such infrastructure required to communicate with Particular;
   4. Incorporate the latest generally available update or New Version of the Software no later than six (6) months after that update or New Version has been made generally available;
   5. Undertake reasonable efforts to solve problems related to any software before contacting Particular;
   6. Provide Particular with all information, documentation and assistance as Particular might reasonably require in order to perform Support Services, including, without limitation, to provide Particular with the setup information, application knowledge, listing of any output, detailed steps required to enable Particular to replicate the problem, exact wording of error messages and any other data that Particular may reasonably request in order to reproduce operating conditions similar to those present when the error occurred;
   7. Act as the sole point-of-contact for Customer's end users and customers

7. Fees.

   1. Fees.

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

      1. Support Services Fee.

         The total fee for the Support Services is set forth in Exhibit A ("Support Services Fee") which will be provided after customer contacts sales@particular.net; and/or

      2. Professional Services Fee.

         The total fee for any Professional Services is set forth in Exhibit A ("Professional Services Fee") which will be provided after customer contacts sales@particular.net.

      3. Expenses.

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

   2. Payment Schedule.

      1. Support Services Fee.

         Support Services are purchased annually (or for such other period as the parties mutually agree in writing) by paying the applicable Support Services Fee. Payment of the Support Services Fee for the Initial Term is due and payable as per the schedule defined in Exhibit A which will be provided after customer contacts sales@particular.net

      2. Payment Terms.

         The Support Services Fee for each successive Renewal Term during which Support Services are purchased by Customer shall be due and payable per the Payment Terms defined in Exhibit A which will be provided after customer contacts sales@particular.net. If Customer allows Support Services to lapse through non-payment of the Support Services Fee, Customer shall be required to pay all Fees that would have been due for the period of such lapse, prior to Particular resuming its provision of Support Services.

      3. Professional Services Fee.

         All Professional Services Fees shall be paid prior to the provision of said Professional Services, unless otherwise mutually agreed by the parties in writing.

   3. Invoices.

      Customer must make payment of all Fees hereunder within thirty (30) days of the date of invoice. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Overdue payments may bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law.

   4. Currency.

      All Fees are stated, and must be paid, in United States Dollars.

   5. Price Increases.

      Particular may increase prices for Support Services from time to time upon notice to Customer, but never by more than 5% per year. Prices for Professional Services shall be at Particular's then current-rates.

   6. Taxes.

      Payment of all Fees is net of any taxes, deductions, withholdings or setoff. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Particular, then the sum payable to Particular will be increased by the amount necessary so that Particular receives an amount equal to the sum it would have received had Customer made no withholding or deductions.

   7. Additional Support Services

      If Customer purchases additional products during the Term, Customer shall be required to pay additional Support Services Fees at the prices set forth in Exhibit A which will be provided after customer contacts sales@particular.net; or, in the absence of such pricing, at Particular's then-current rates prior to receiving Support Services for any of the foregoing.

8. Term.

   1. Term.

      This Agreement shall be effective upon the Effective Date and shall continue for a period of one (1) year (the "Initial Term"). Thereafter, this Agreement will be automatically renewed for successive one (1) year terms (each a "Renewal Term" and together with the Initial Term, the "Term") unless Particular or Customer provides sixty (60) days written notice prior to the end of the Initial Term or any Renewal Term of its intent not to renew. Notwithstanding the foregoing, this Agreement may be terminated as specified in Section 9 herein.

   2. Payment of Support Services Fee.

      Notwithstanding Section 8.1, Particular shall be under no obligation to provide Support Services for a Term until such time as it has received the corresponding Support Services Fee for that Term.

9. Termination.

   This Agreement will automatically terminate if Customer fails to pay the then-current Support Services Fee when due or otherwise breaches the terms of this Agreement. Particular has no obligation to provide Support Services following termination of this Agreement.

10. Professional Services.

    If specific Professional Services are requested, Particular will provide Customer with the Services described in Exhibit B, attached hereto, as well as any other additional Professional Services that Customer may request from time to time (subject to Particular's approval). The provision of any Professional Services is subject to Customer's payment of the related Professional Services Fees, as set forth in Exhibit A which will be provided after customer contacts sales@particular.net.

11. 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).
    4. The confidentiality obligations under this Section 11 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. 11.5. 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.

12. Customer Warranty.

    Customer represents and warrants to Particular that (a) Customer has, and will continue to have during the term of the Services, all necessary rights, licenses, consents, and permissions (a) to use the Software and any related intellectual property; and (b) to allow Particular to provide the Services in connection with the Software and any related intellectual property. Customer shall indemnify, defend, and hold harmless Particular and its officers, directors, employees, agents, successors, and assigns from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorneys' fees) arising out of or resulting from any breach or alleged breach of the foregoing warranties and representations.

13. Limited Warranty.

    PARTICULAR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORT SERVICES, PROFESSIONAL SERVICES OR SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTY OF ANY KIND.

14. Limited Liability.

    PARTICULAR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR FOR LOST PROFITS, DATA, CONVENIENCE, REVENUE OR BUSINESS, EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF Particular TO CUSTOMER FOR ANY AND ALL LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID TO Particular BY THE CUSTOMER UNDER THIS AGREEMENT FOR THE SPECIFIC SUPPORT SERVICES OR PROFESSIONAL SERVICES THAT ARE THE SUBJECT OF THE CLAIM WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE UPON WHICH THE CLAIM FOR SUCH LIABILITY IS BROUGHT.

15. Assignment.

    Customer may not assign this Agreement without the prior written consent of Particular, provided that such consent shall not be required for assignment to a purchaser of all or substantially all of the assets or equity securities of Customer that undertakes in writing to be bound by all the terms and conditions of this Agreement. Any prohibited assignment shall be null and void.

16. General Provisions.

    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 Israel. 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 Tel Aviv-Yaffo, Israel, and each party irrevocably consents to such personal jurisdiction and waives all objections to such venue. Except for Customer's obligation to pay Particular, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. This Agreement (i) is the complete and exclusive statement of the agreement between Particular and Customer regarding the subject matter of this Agreement and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement; (ii) shall inure only to the benefit of Particular, Customer, and their valid successors and assigns; (iii) shall not be modified except by a subsequently dated written amendment or exhibit signed by the duly authorized representatives of both parties; and (iv) may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same instrument. The parties may exchange signature pages by facsimile and such signatures will be effective to bind the parties. The parties may also sign this Agreement using DocuSign (www.docusign.com) and such electronic signatures will be effective to bind the parties, and each party agrees that it shall not deny the legal validity of the foregoing.