TORII SaaS SUBSCRIPTION AGREEMENT

This Subscription Agreement (the “Agreement”) is entered into by and between Torii Software, Inc. (if Customer is located within the United States) or Torii Labs Ltd. (if Customer is located outside the United States), together with its affiliates (hereinafter “Torii”), and the entity accepting this Agreement, as listed in the applicable Order Form (the “Customer”) (each, a “Party” and collectively, the “Parties”). This Agreement shall be effective upon the start date designated on the Order Form (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.

1. Subscription. Subject to the terms and conditions of this Agreement and Customer's payment of applicable fees to Torii, Torii hereby grants Customer a limited, non-exclusive, non-perpetual, non-sublicensable, non-transferable, subscription-based and fully revocable right to access and use the Torii service (the “Service”) for its internal purposes. The term “Service” also includes any general availability release documentation (“Documentation”) provided to Customer in connection with its operation and any Additional Services, if applicable. Customer may only use the Service in accordance with the Documentation, subject to the use limitations indicated in the order form pursuant to which Customer subscribes to the Service (the “Order Form”), the terms of this Agreement, and applicable laws.
2. Additional Services. Torii may provide additional products or services in connection with the Service, including, but not limited to, support or professional services, all if and to the extent such services are specified in the Order Form or a separate Statement of Work duly executed between the Parties (the “Additional Services”).   
3. Customer Account. The Service may only be used through an account maintained by Customer (the “Account”). The Account may be accessed solely by Customer's or its Affiliates’ Account Users (defined below). In creating an Account, Customer acknowledges and agrees it will: (i) provide accurate and complete Account and login information and keep such information up to date; and (ii) remain solely responsible and liable for all activity in Customer’s Account. Customer will ensure that its Account Users keep the Account login details secure at all times and comply with the terms of this Agreement. Customer will be fully responsible for any breach of this Agreement by its Users. For the avoidance of doubt, Customer is solely responsible for maintaining the security of its Account and devices from unauthorized access. In the event of unauthorized access to Customer’s Account, Customer shall immediately notify Torii and take all reasonable steps to remediate such unauthorized access.
4. Users. In the context of Torii's Service, a “User” is any person or entity identified by the Service as a result of their use and interaction with Customer's business applications. “Users” include those persons expressly authorized by Customer to access Customer’s Account for the purpose of administering Customer’s Account, or who are otherwise granted access to the Account by Customer (for example, to access Customer’s application catalog) (the “Account Users”).
5. Fees and Payment. The provision of the Service is conditioned on Customer's payment as per the payment terms set forth in the Order Form. All fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder shall accrue interest on the rate of one and a half percent (1.5%) per month. All amounts payable under this Agreement are exclusive of sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties (collectively, “Taxes”), and Customer is solely responsible for the payment of all Taxes related to the Service. To the extent required by applicable law, Torii may make its own determination with respect to the assessment of any applicable Taxes, based on the advice of its accountant, and include such assessment in the invoice issued to the Customer. 
6. Prohibited Uses. Except as specifically permitted herein, without the prior written consent of Torii, Customer must not, and shall not allow any of its Users and/or any third party to, directly or indirectly: (i) copy, modify, translate, patch, improve, alter, change, or create derivative works of or distribute any part of the Service (including by incorporation into its products) or any part thereof; (ii) sell, license (or sub-license), give, rent, timeshare, disclose, publish, market, display, transmit, broadcast, transfer or distribute lease, assign, transfer, pledge, or share Customer's rights under this Agreement (including any portion of the Service) with any third party, or use the Service in any service bureau arrangement; (iii)  disclose the results of any testing or benchmarking of the Service to any third party; (iv) disassemble, decompile, reverse engineer, decrypt or, attempt to derive the source code of, the Service, or any components thereof, or otherwise attempt to discover the Service’s source code or underlying algorithms or interfere or attempt to interfere with security-related features of the Service; (v) use the Service in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vi) remove or alter any trademarks or other proprietary notices related to the Service, or use Torii’s trademarks, service marks and logos (collectively, “Marks”); (vii) export, make available or use the Service in any manner prohibited by applicable laws (including without limitation export control laws, restrictions, national security controls, economic sanction laws, or regulations of the United States or other applicable foreign agency or authority); and/or (viii) use any robot, spider, scraper, or other automated means to access or monitor the Service for any purpose, and/or transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with Torii’s Service; (ix) use the Service if Customer is a competitor of Torii, or to develop a competing service or product; and/or (x) use the Service in any unlawful manner, for any harmful, irresponsible, or inappropriate purpose, or in breach of this Agreement, any terms and conditions of any third-party product or service Customer uses, or agreement it has entered into with any third party. Without derogating from the above, Customer agrees it will remain liable to Torii for any and all acts or omissions of its Users that would constitute a breach of this Agreement if such acts or omissions were by Customer
7.

Customer Data.

7.1 As Torii operates the Services, Torii may process data provided by or on behalf of Customer or Users for processing by the Service, including, but not limited to, names and email addresses of Users and data relating to their interactions with Customer’s business application and with the Service (collectively, the “Customer Data”). As between Customer and Torii, such Customer Data shall be owned by Customer. Customer hereby undertakes that to the extent the Customer Data includes any personal data as defined under applicable law, Customer has and will: i) provide all appropriate notices to individuals, ii) have any and all necessary ongoing legal bases and permits to share such personal data with Torii, and iii) act in compliance with applicable privacy laws and data regulations. Torii will use the Customer Data solely to provide the Service (including, without limitation, the provision of such personal data to Torii (or access thereto) and the transfer of such Customer Data by Torii to its affiliates, subsidiaries and subcontractors). Torii will implement and maintain appropriate administrative, physical, and technical safeguards to protect the confidentiality and integrity of Customer Data from unauthorized access or use. Notwithstanding the foregoing, Torii may use any personal data of Account Users that it collects or obtains in connection with the Service in accordance with its privacy notice which is available at https://toriihq.com/privacy, or such successor website as Torii may designate ("Privacy Notice”).   

7.2 Each party shall comply with the obligations in the Data Processing Addendum, if applicable. 

7.3 Any aggregated, anonymized, and/or analytics data deriving from Customer’s or a User’s interaction with the Service (“Analytics Information”) shall not be Customer Data and shall be owned by Torii and may be used by Torii for any purpose, including to provide the Services, for development, and/or for statistical, research, publication, and benchmarking purposes. For clarity, Analytics Information will not contain identifiable personal data nor reveal Customer’s identity.

8.

Intellectual Property Rights

8.1 The Service is not for sale and is Torii’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Service, and any and all improvements and derivative works thereof are and shall remain owned solely by Torii or its licensors. This Agreement does not convey to Customer any interest in or to the Service other than a limited right to use the Service in accordance with Section 1. Nothing herein constitutes a waiver of the Torii’s intellectual property rights under any law. 

8.2 If prior or during the Term, Torii receives any feedback (e.g., questions, comments, suggestions or the like) regarding the Service (“Feedback”) from Customer or a User, all rights, including intellectual property rights, in such Feedback shall belong exclusively to Torii. Torii may use such Feedback in order to develop and improve its service, and for any other purpose. Customer hereby irrevocably transfers and assigns to Torii all intellectual property rights it has in Feedback and waives any and all moral rights Customer may have in respect thereto. 

8.3 Unless otherwise requested by Customer in writing, Torii may reference Customer’s name and use its logo and trademarks as well as indicate that Customer is a Torii customer in Torii’s business development and marketing efforts and materials (both printed and online), including, without limitation, its website.  

9. Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, or other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). The terms of this Agreement, Documentation, and Feedback shall be considered Torii's Confidential Information hereunder. Customer Data shall be considered Customer’s Confidential Information. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law, except that Torii may use or disclose Customer’s Confidential Information under the following circumstances: a) to its employees, contractors, or agents to the extent necessary for them to perform Torii’s obligations hereunder; b) in confidence, to legal counsel, accountants, banks, and financing sources in connection with an actual or proposed merger, acquisition, or similar transaction; c) in connection with the enforcement of this Agreement; and d) as required to comply with a valid legal demand (it being understood such demand may include Customer Data); provided, that in any event, to the extent legally permissible, each Party subject to the demand gives the other Party notice and reasonable cooperation in contesting the demand. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. 
10.

Warranties.

10.1 Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law. 

10.2 Torii represents and warrants that, under authorized use, the Service shall substantially perform in conformance with the Documentation. As Customer's sole and exclusive remedy and Torii's sole liability for breach of this warranty, Torii shall use commercially reasonable efforts to repair the Service without undue delay. The warranty set forth shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than Torii or its authorized contractors; (ii) accident, negligence, or misuse of the Service by Customer; or (iii) use of the Service other than in accordance with the Documentation or this Agreement. 

10.3 OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, INCLUDING ANY REPORTS AND OUTPUT GENERATED BY THE SERVICE (“REPORTS”) ARE PROVIDED ON AN “AS IS” BASIS. TORII DOES NOT WARRANT THAT THE SERVICE or the reports WILL MEET CUSTOMER'S REQUIREMENTS AND DOES NOT WARRANT THAT THE SERVICE AND SERVICES WILL BE ACCURATE, UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. EXCEPT AS STATED IN SECTION 10.1 AND 10.2, TORII EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, NON-INTERFERENCE, AND/OR FITNESS FOR A PARTICULAR PURPOSE. TORII FURTHER DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THIRD-PARTY APPLICATIONS CUSTOMER MAY USE WITH THE SERVICES AND WHICH SHALL BE GOVERNED BY A SEPARATE CONTRACT BETWEEN CUSTOMER AND THE THIRD-PARTY APPLICATION PROVIDER.

11.

Limitations of Liability

11.1. EXCEPT FOR CUSTOMER’S BREACH OF ITS OBLIGATIONS IN SECTION 6 (PROHIBITED USES) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, DATA LOSS, OR DATA USE.

11.2 EXCEPT FOR CUSTOMER’S BREACH OF ITS OBLIGATIONS IN SECTION 6 (PROHIBITED USES) EITHER PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO TORII BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

11.3 FOR CLARITY, THE LIMITATIONS IN THIS SECTION 11 DO NOT APPLY TO PAYMENTS DUE TO TORII UNDER THIS AGREEMENT OR ANY LIABILITY FOR WHICH THE GOVERNING LAW PROHIBITS THE EXCLUSION OR LIMITATION OF LIABILITY. IN ANY JURISDICTION THAT DISALLOWS ANY EXCLUSIONS OF WARRANTIES OR LIMITATION OF LIABILITY, TORII’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT ALLOWED BY LAW.

12.

Indemnification.

12.1   Torii acknowledges and agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Service, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”), and Torii will pay any damages awarded in a final judgment against Customer that are directly attributable to any such claim, provided that (i) Customer promptly notifies Torii in writing of such claim; and (ii) Customer grants Torii the authority to handle the defense or settlement of any such claim and provides Torii with all reasonable information and assistance, at Torii’s expense. Torii will not be bound by any settlement that the Customer enters into without Torii's prior written consent, which will not be unreasonably withheld. 

12.2   If the Service becomes, or in Torii's opinion is likely to become, the subject of an IP Infringement Claim, Torii may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Torii's reasonable efforts, Torii may terminate this Agreement and in such event provide Customer a refund for any amount pre-paid by Customer for the remaining unused period of the then-current Term. Notwithstanding the foregoing, Torii shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Service made by a party other than Torii or its designee; (ii) Customer's failure to implement Service updates provided by Torii specifically to avoid infringement; or (iii) combination or use of the Service with equipment, devices or services not supplied or authorized by Torii or not in accordance with the Documentation. 

12.3 This Section 12 states Torii's entire liability, and Customer's exclusive remedy, for claims or alleged or actual infringement.

12.4. Customer acknowledges and agrees to defend, at its expense, any third party action or suit brought against Torii alleging that: (a) Customer Data violates applicable law or the rights of any third party, including intellectual property rights, or (b) Customer does not have the legal right to possess Customer Data or transfer it to Torii, and Customer will pay any damages awarded in a final judgment against Torii that are directly attributable to any such claim, provided that (i) Torii promptly notifies Customer in writing of such claim; and (ii) Torii grants Customer the authority to handle the defense or settlement of any such claim and provides Customer with all reasonable information and assistance, at Customer’s expense. Customer will not be bound by any settlement that Torii enters into without Customer's prior written consent, which will not be unreasonably withheld.

13.

Term and Termination

13.1. This Agreement shall become effective on the Effective Date and shall remain in full force and effect until the expiration or termination of all Order Forms governed by this Agreement. The Term of each Order Form is specified in that Order Form. 

13.2. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured twenty-one (21) days after having received written notice thereof. In addition, either Party may terminate this Agreement if the other Party files a voluntary petition in bankruptcy or has an involuntary petition filed against it, or is declared insolvent, makes an assignment for the benefit of creditors, appoints or has appointed a receiver, conservator, or trustee to operate its business, or liquidates all or substantially all of its business assets.

13.3. Upon termination or expiration of this Agreement: (i) the rights granted to Customer to use the Service under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation; and (iii) within 30 days from the termination date, Torii shall permanently delete all Customer Data from the Service. The provisions of this Agreement that, by their nature and content, are intended to survive the termination of this Agreement to achieve the fundamental purposes of this Agreement shall so survive. The termination of this Agreement shall not limit either party from pursuing any other remedies available to it under applicable law. 

13.4. Torii may, at its option, suspend Customer’s or a User’s access to the Service if: (a) Customer is in breach of the Agreement (including failure to make timely payment); (b) Torii reasonably believes that such use or access poses a security risk to the Service or other customers of the Service; (c) it is necessary to prevent damage to, or degradation of, the Service or Torii’s systems.

14. Miscellaneous. This Agreement, including Order Forms, addendums, and any exhibits attached hereto or incorporated herein, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. Notices required to be sent hereunder shall be sent in writing and delivered to a party at the address set forth in the Order Form. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. The provisions of this Agreement are only for reliance upon and the benefit of Customer and Torii and its licensors, and confer no rights or remedies on any other person or entity. Any purchase order or other document issued or delivered to Torii for Customer’s administrative convenience and will have no binding effect on Torii. Neither Party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, except that either Party may transfer or assign this Agreement to an affiliate or successor in the event of a merger or sale of all or substantially all of a party's assets, other than by Customer to a direct competitor of Torii. This Agreement shall be governed by and construed under the laws of the State of New York, without reference to principles and laws relating to the conflict of laws. The competent courts of the state of New York shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Torii will not be liable for any delay or failure to provide the Service resulting from circumstances or causes beyond the reasonable control of Torii (a “Force Majeure Event”), including, but not limited to, widespread internet outage, denial of service attack, war, act of terrorism, insurrection, acts of God, or acts of civil or military authority. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.