Master Subscription Agreement

Last Revised: May 2, 2024

This Master Subscription Agreement (“Agreement”) is entered into by and between Redfish Labs dba Torch Leadership Labs, a Delaware corporation having its principal place of business at 575 Market Street, 4th Floor, San Francisco, CA 94104 (“Redfish”) and the entity that has executed an order form that references this Agreement (the “Customer”) as of the date of execution of the first order form executed by such entity (“Effective Date”).

The Service. Redfish provides an Enterprise SaaS service that enables individuals to participate in coaching and mentoring programs, as further described at https://torch.io (the “Service”).
License Grant. Redfish grants the Customer a non-exclusive, non-transferable, non-assignable, limited license to use the Services, within the scope limitations established on an order form and subject to the terms of this Agreement.
Limitations on Use. The Customer will only access the Service through its documented access points and will only use the Service for its documented purpose and subject to the limits established in the orders (such as limits on Service scope, user counts, duration, or volume).
Future Functionality. Redfish may make future improvements to the Service, which may include creating new features that are outside of the scope of the Customer’s orders or sunsetting features that are within the scope of the Customer’s orders. The Customer will receive, at no additional charge, all future features and functionality that are sold to new Customers as an element of the SKU purchased by the Customer. If Redfish sunsets material features within the scope of the Customer’s orders, it will provide any successor features at no additional charge or, if no such successor features are available, then the Customer may terminate the orders using the termination for breach procedure. The Customer’s orders are not contingent on the delivery of future features.
Service Warranty. Redfish warrants that the Service will perform substantially in accordance with its documentation. In the event of a breach of this warranty, the Customer’s sole remedy and Redfish’s sole obligation will be for Redfish to correct the non-conformity or, if Redfish is unable to correct the non-conformity within 60 days after the Customer’s written notice, for the Customer to terminate the applicable order form and receive a refund on a pro-rata basis of any prepaid unused fees as of the date of the warranty breach notice.
Leadership Development Services. The Customer’s authorized users may use the Service to access leadership development services provided by coaches operating under a service provider agreement with Redfish Labs. Redfish will ensure that all coaches providing leadership development services to the Customer’s authorized users (i) will provide the services according to industry standards and (ii) are bound to agreements that require the coach to maintain the confidentiality of information conveyed to them about the Customer and its authorized users.
Data and Intellectual Property

Customer Data. All information that is provided to Redfish by or on behalf of the Customer (“Customer Data”) is and will remain the property of the Customer and will be returned to the Customer (or, at the Customer’s election, deleted by Redfish) upon the Customer’s request during the term of the Agreement and immediately upon the expiration or termination of the Agreement. Redfish will use the Customer Data solely for the purpose of providing the Service (including the improvement of the Service provided).
Usage Data. All information that is generated by the Service as a record of its own use (such as server logs) as well as aggregated and anonymized datasets derived in part from the Customer Data (collectively, “Usage Data”) is and will remain the property of Redfish.
Redfish Intellectual Property. All intellectual property embodied in, practiced by, or accessed through the Service or generated through the delivery of Redfish professional services (collectively, the “Redfish IP”) is and will remain the sole property of Redfish. Redfish grants the Customer a non-exclusive, limited license to use, copy, prepare derivative works of, display, transmit, perform, and distribute the Redfish IP as may be necessary for the Customer to use the Service. This license grant includes a non-exclusive, limited, perpetual license to (with regard to copyrights embodied by any reports provided to the Customer) copy, prepare derivative works of, display, transmit, perform, and distribute the report and (with regard to patents practiced through use of the report) to use the report, in all instances only as may be necessary for the Customer to utilize the report.
Customer Intellectual Property. All intellectual property embodied in or practiced by the Customer’s products and services or embodied by content conveyed to the Service by the Customer or an authorized user (collectively, the “Customer IP”) is and will remain the sole property of the Customer. The Customer grants Redfish non-exclusive, limited license to use, copy, prepare derivative works of, display, transmit, perform, and distribute the Customer IP (in each instance, subject to Redfish’s obligations regarding the Customer’s Confidential Information) as may be necessary to provide the Service.
Reservation of Rights. Each party reserves all intellectual property rights not expressly granted in this Agreement.

Fees and Payments. The Customer will pay fees as specified on each executed order form. Ordering documents do not list applicable taxes. Taxes owed by the Customer on the order will be stated on invoices delivered to the Customer. The Customer will convey such amounts to Redfish, and Redfish will remit taxes paid by the Customer to the taxing authority. The Customer’s purchase orders do not list applicable withholding taxes. Withholding taxes owed by Redfish on the order will be stated on payment notices delivered to Redfish, and the Customer will withhold and remit such amounts to the taxing authority. If the Customer fails to pay undisputed amounts within the payment term established on an order form, Redfish may, on 5 business days notice, suspend services until payment has been made.
Agreement Term. The term of this Agreement will begin on the Effective Date and will continue in effect until all underlying Order Forms with the Customer have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein.
Termination for Cause. Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days after delivery of notice of such breach. If the Customer terminates this Agreement under this Section 10, Redfish will refund the Customer any prepaid Fees on a pro-rata basis as of the effective date of such termination.
Survival. Rights and obligations established under this Agreement that must survive termination in order to have their customarily intended effect (such as rights and obligations related to fees and payments, confidentiality, indemnification, limitation of liability and damages, and data and intellectual property) will so survive.
Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, REDFISH MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.
Indemnification by Redfish
1. Definition of Indemnification. To “Indemnify” is defined to mean (i) to defend against all third-party claims (construed broadly, so as to include, for example, complaints and causes of action both when filed and when threatened) and regulatory actions (construed broadly, so as to include investigations and disciplinary actions by any government entity with the power to investigate or impose a penalty of any kind) and (ii) to pay all amounts (construed broadly, so as to include, for example settlements, judgments, fines, attorneys’ fees awarded under all available theories of liability and damages) owed to such third-party claimants or regulators.
2. Procedure. The Customer will provide timely notice of an Indemnification claim, although untimely notice will relieve Redfish of its obligations only to the extent that the delay has prejudiced its ability to defend the claim. Redfish will have the right to control the defense, including the right to reach a settlement with the claimant; however, the Customer will have a right to participate through its own counsel at its own expense and Redfish will not enter into a settlement that requires the Customer to pay any amount or admit to any liability without the Customer’s written consent.
3. Indemnifiable Claims. Redfish will Indemnify the Customer for infringement of a patent or copyright, provided that the infringement arises through the Customer’s licensed use of the Service, either alone or (when Redfish would be liable for indirect or contributory infringement) in combination with other technology or processes.
Limitation of Liability
1. LIMITATION ON TYPES OF DAMAGES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, and excluding amounts owed under an obligation to indemnify or for claims for willful misconduct, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY FORMS OF DAMAGES OTHER THAN DIRECT DAMAGES. As such, the following types of damages will be excluded, regardless of the underlying theory of recovery: indirect damages, consequential damages, special damages, punitive damages, lost profits, lost reputation, and the cost of replacement services.
2. LIMITATION ON AMOUNT OF DAMAGES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, and excluding amounts owed under an obligation to indemnify or for claims for willful misconduct, neither party’s total liability to the other (aggregated across all claims and causes of action under all theories of liability) will exceed the fees paid or payable by the Customer in the subscription year in which transpired the events on which the claim is based.
Confidential Information
1. Relationship to NDA. If the Parties have previously executed a nondisclosure agreement, then the terms related to confidential information established in this Agreement will supersede that nondisclosure agreement as of the Effective Date.
2. General Definition of Confidential Information. “Confidential Information” is defined to include all information, regardless of the medium through which it is conveyed, that is provided by one party to the other in relation to this Agreement and that a reasonable industry participant would deem likely to be confidential.
3. Exclusions from Confidential Information. Confidential Information is defined to exclude information that the receiving party acquired through means other than a disclosure by the disclosing party, unless the receiving party knew or should have known that the availability of such information was due to misappropriation or misuse.
4. Use and Protection of Confidential Information. A receiving party will use the Confidential Information of the disclosing party only as necessary to perform its obligations and exercise its rights under this Agreement and will use reasonable care to protect such Confidential Information. At the termination of this Agreement, or upon the disclosing party’s request, the receiving party will destroy the disclosing party’s Confidential Information that is then in its possession.
5. Legally Compelled Disclosure. If the receiving party reasonably anticipates that it will be legally required to disclose Confidential Information, it will use its best efforts: (i) to timely notify the disclosing party; (ii) to limit the disclosure, such as by seeking a protective order in relation to the Confidential Information disclosed.
6. Trade Secrets. The receiving party’s obligation to maintain the confidentiality of the disclosing party’s trade secrets, when such trade secrets are identified as such to the receiving party, will survive the termination of this Agreement, enduring until such time as the information no longer satisfies the requirements of a trade secret.
7. Stipulation Regarding Preliminary Injunctions and Temporary Restraining Orders. The parties stipulate that the unauthorized use or disclosure of Confidential Information would result in immediate and irreparable injury, loss, or damage to the disclosing party.
General
1. Notices. All notices will be addressed to:
  Redfish Corporation
  548 Market St PMB 24776
  San Francisco, CA 94104-5401
  Attn: Finance Department
  With a copy to:
  [email protected]
  
  Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Customer will be addressed to the relevant billing contact designated by the Customer in the applicable Order Form or PO. All other notices to the Customer will be addressed to the person designated above.
2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the proper written consent of the other party (not to be unreasonably withheld). Any purported assignment in violation of this Section will be void. Notwithstanding the foregoing, each party may assign this Agreement and its obligations hereunder without the other’s consent in connection with a merger, acquisition, corporate reorganization, succession in interest or sale of all or substantially all of such party’s assets.
3. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to its conflicts of law provisions.
4. Arbitration. Any controversy or claim arising out of or relating to this Agreement (other than actions for injunctive relief) will be settled by arbitration before a single arbitrator in San Francisco, CA, in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association (as amended herein), and applying California state law, or if applicable, U.S. federal law. Such arbitration will be conducted on an expedited basis and in confidence. The arbitrator will be well acquainted with the market for Enterprise SaaS and will not have the power to impose or award indirect, consequential, exemplary, or punitive damages but will have the power to award reasonable attorneys’ fees to the prevailing party. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in a court of competent jurisdiction pending the outcome of such arbitration. Judgment upon the award rendered by such arbitration may be entered in any court having jurisdiction.
5. Force Majeure. A party will be excused from its performance obligations for up to 30 days when performance
  is prevented by causes beyond its reasonable control.
6. Severability. If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
7. Relationship of the Parties. Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
8. Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
9. Entire Agreement. This Agreement, including all applicable order forms, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements, whether oral or written, between the parties. No terms automatically presented to the Customer or Redfish as part of a vendor onboarding or order processing workflow (such as terms attached to a purchase order or presented by a vendor management platform) will bind the parties, notwithstanding any action undertaken to proceed through such workflow (such as accepting a purchase order or clicking a checkbox to accept terms). Neither party enters into this Agreement or any order form on the basis of any representations not stated within such documents.
10. Order of Precedence. In a conflict between this Agreement and any addendum thereto, the addendum will prevail. In a conflict between an order form and any addendum thereto, the addendum will prevail. And in a conflict between this Agreement (including any addendum thereto) and an order form (including any addendum thereto) the order form will prevail.