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.
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.
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.
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.
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.
12.1 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.
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.