TORII SAAS LICENSE AGREEMENT

This SaaS License Agreement (the “Agreement”) is entered into by and between Torii Labs Ltd., together with its affiliates (hereinafter “Torii”) and you (the “Customer”) (each, a “Party” and collectively, the “Parties”). This Agreement shall be effective upon start date as signed 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 bind that organization to this Agreement.

1. Subject to the terms and conditions of this Agreement, and Customer’s payment of applicable fees to Torii and/or Partners, as applicable, Torii hereby grants Customer a limited, non-exclusive, non-perpetual, non-sublicensable, non-transferable, subscription based and fully revocable license to: (a) remotely access (i.e. on a SaaS basis) the Torii SaaS Management Software (the “Software”) and use it for its internal purposes. The term “Software” also includes any documentation (“Documentation”) provided to Customer in connection with their operation. Customer may only use the Software in accordance with the Documentation, subject to the use limitations indicated in Customer’s Order Form (“Order Form”), the terms of this Agreement and applicable laws.
2. In addition to the abovementioned licenses, Torii may provide additional products, services, made available or provided to Customer by Torii in connection with the Software as well as support and implementation services, all to the extent such services are specified in the Purchase Order (the “Additional Services”) (collectively, the Additional Services and the Software, the “Services”). In the context of Torii’s Services, a user that is mapped by the Services as a result of such user’s use and interaction with Customer’s organization’s apps, is deemed a mapped user (“Mapped User”). Mapped Users may include but are not limited to Customer employees, consultants, contractors and agents, and third parties with which Customer transacts business (at Customers’ discretion).
3. Payment. The provision of the Services are 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 all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties.
4. Customer Account. The Software may only be used through a Customer account (the “Account”). Such Account may be accessed solely by Customer’s employees or service providers who are explicitly authorized by Customer to use the Software . In creating an Account, Customer acknowledges and agrees: (i) to provide accurate and complete Account and login information; and (ii) to remain solely responsible and liable for the activity arising out of any failure to keep Customer’s Account details confidential. Customer will ensure that its permitted users keep the Account login details secure at all times and comply with the terms of this Agreement; and will be fully responsible for any breach of this Agreement by its permitted users.
5. 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 Software (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, including, but not limited to Customer affiliates, or use the Service in any service bureau arrangement; (iii)  disclose the results of any testing or benchmarking of the Software to any third party; (iv) disassemble, decompile, reverse engineer, decrypt or, attempt to derive the source code of, the Software, or any components thereof, or otherwise attempt to discover the Software’s source code or underlying algorithms or interfere or attempt to interfere with security-related features of the Software; (v) use the Software 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 Software, or use Torii’s trademarks, service marks and logos (“Marks”) without Torii’s prior written consent; (vii) export, make available or use the Software in any manner prohibited by applicable laws (including without limitation export control laws); and/or (viii) use any robot, spider, scraper, or other automated means to access or monitor the Software for any purpose, and/or transmit any malicious code (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 Product.; (ix) use the Services 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 to remain liable to Torii for any act or omission of its user that would constitute a breach of this Agreement if such acts or omissions were by Customer.
6. Customer Data and Analytics Information. As Torii operates the Services, Torii may monitor and process data regarding the use of the Services (including that of each Mapped User and any permitted users) (the “Customer Data”). 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, ii) have any and all ongoing legal bases and permits, and iii) act in compliance with applicable privacy laws and data regulations, in order to allow Torii to use the Customer Data solely in order to perform the Services (including, without limitation, the provision of such data to Torii (or access thereto) and the transfer of such data by Torii to its affiliates, subsidiaries and subcontractors). Without limiting the generality of the foregoing, Torii may be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; and/or (b) to collect, hold and/or manage the Customer Data through Torii’s authorized third party service providers as reasonable for business purposes. It is further agreed that any anonymous information deriving from the use of the Software (i.e., metadata, aggregated and/or analytics information which is not personally identifiable information) (“Analytics Information”) shall be owned by Torii and may be used by Torii for any purpose, including for providing the Service, for development and/or for statistical purposes.
7. Warranties. 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.
8. Intellectual Property Rights. The Software is not for sale and is the Company’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 Services, 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 Services other than a limited right to use the Services in accordance with Section 1. Nothing herein constitutes a waiver of the Torii’s intellectual property rights under any law.
   If prior or during the Term, Torii receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Torii, which may use such Feedback in order to develop and improve its products and services, and for any other purpose, and that such shall be considered Torii ‘s Confidential Information; and Customer hereby irrevocably transfers and assigns to Torii all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto.
   Unless otherwise requested by Customer in writing, Torii may reference Customer 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, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). The Documentation shall be considered as Torii’s Confidential Information hereunder. 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. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
10. LIMITED WARRANTIES. Torii represents and warrants that, under normal authorized use, the Software shall substantially perform in conformance with its Documentation. As the Customer’s sole and exclusive remedy and Torii’s sole liability for breach of this warranty, Torii shall use commercially reasonable efforts repair the Software in accordance with Torii’s SLA. The warranty set forth shall not apply if the failure of the Software results from or is otherwise attributable to: (i) repair, maintenance or modification of the Software by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Software by Customer; or (iii) use of the Software other than in accordance with the Documentation. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, INCLUDING ANY REPORTS AND OUTPUT GENERATED BY THE SOFTWARE AND SERVICES (THE “REPORTS”) ARE PROVIDED ON AN “AS IS” BASIS. TORII DOES NOT WARRANT THAT THE SOFTWARE, THE REPORTS AND/OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS AND DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES WILL BE ACCURATE, UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. TORII EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, NON-INTERFERENCE, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY. EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR CUSTOMER’S MISAPPROPRIATION OR OTHERWISE VIOLATION OF TORII’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER PURSUANT TO SECTION 1);   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.
    EXCEPT FOR TORII’S INDEMNIFICATION OBLIGATION UNDER SECTION ‎14, ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR DAMAGES RESULTING FROM CUSTOMER’S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER PURSUANT TO SECTION 1); EITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES 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 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. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO TORII UNDER THIS AGREEMENT.

12. Indemnification. Torii acknowledges and agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Software, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and the Torii will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim, provided that (i) the Customer promptly notifies Torii in writing of such claim; and (ii) the 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.
    If the Software becomes, or in Torii ‘s opinion is likely to become, the subject of an IP Infringement Claim, then Torii may, at its sole discretion: (a) procure for the Customer the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Torii’s reasonable efforts, then 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 license. Notwithstanding the foregoing, Torii shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Software made by a party other than Torii or its designee; (ii) the Customer’s failure to implement software updates provided by Torii specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied or authorized by Torii or not in accordance with the Documentation.
    This Section states Torii’s entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement.

13. Term and Termination. This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the duration of the term stated in the Order Form, (the “Term”) after which the Term shall automatically renew for additional one-year terms, unless otherwise agreed by the Parties in an Order Form (all of which together shall be deemed the “Term”). Torii reserve the right to update its prices and any applicable fees prior to any auto-renewal term. 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. Upon termination or expiration of this Agreement: (i) the license granted to Customer 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; (iii) within 30 days from the termination date, Torii shall permanently delete all Customer Data. The provisions of this Agreement that, by their nature and content, are intended to survive the termination of this Agreement in order 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.
14. Miscellanous. This Agreement, including the Order Forms, and any exhibits attached or referred hereto – represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. 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 Software by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, provided that Torii may assign this Agreement except to the successor of all or substantially all of such Party’s assets or business (including a merger or acquisition). 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 Services resulting from circumstances or causes beyond the reasonable control of Torii. 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.