This Master Subscription Agreement (“Agreement”) is entered into by and between Redfish Labs dba Torch Leadership Labs and Everwise, a Delaware corporation having its principal place of business at 760 Seneca Street, Suite 250; Buffalo NY 14210 (“Redfish”) and the entity that has executed an Order Form that references this Agreement as of the date of execution of the first Order Form executed by such entity (“Effective Date”).

By executing an Order Form that references this Agreement, Customer agrees to the terms and conditions of this Agreement and that such terms and conditions shall govern the Services to be provided by Redfish under any Order Form submitted by Customer and accepted by Redfish, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Redfish regarding future functionality or features.

1. Definitions.

Capitalized terms not otherwise defined in this Agreement are set forth in this Section 1:

Affiliate” of a company means an entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such company.

Content” means the audio and visual information, documents, software, products and services contained in or made available via the Services, other than Customer Data.

Customer” means the specific entity stated above as the signatory to this Agreement and any additional Affiliates of such entity that are specifically listed in the applicable Order Form as being authorized to use or purchase Services under such Order Form.

Customer Data means any data, information or material that Customer or Customer’s Users disclose or submit to Redfish or the Services in the course of using the Services.

Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Redfish (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form, and provided to Customer hereunder.

Redfish Technology” means all of Redfish’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Redfish in providing the Services.

Order Form” means the Redfish Order Form, Statement of Work or Proposal under which Customer places orders for the Services under the terms of this Agreement.

Order Form Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective.

Service(s)” means Redfish’s services identified on an executed Order Form, as described in the relevant product information found at or, or ancillary online or offline products and services provided or licensed to Customer by Redfish, to which Customer is being granted access under this Agreement, including the Redfish Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form.

User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by Redfish at Customer’s request).

User Data” means all data associated with a User’s use of the Services, including all data a User submits through the Services as well as all metadata and paradata associated with such data.

2. License Grant.

Subject to the terms and conditions of this Agreement, Redfish hereby grants Customer a non-exclusive, non-transferable, non-assignable, license to use the Services provided hereunder solely for Customer’s own internal business purposes and only for the specific User subscriptions and time periods as set forth in each fully executed Order Form. All rights not expressly granted to Customer are reserved by Redfish and its licensors. Redfish reserves the right to make changes, modifications and enhancements to the Services from time to time, in its sole discretion.

3. Limitations on Use.

Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (b) modify or make derivative works based upon the Services or the Content; (c) reverse engineer the Services; or (d) access the Services in order to build a competitive product or service. For the avoidance of doubt, and subject to the license grant set forth in Section 2, nothing in this Section 3 shall be deemed to prohibit Customer from allowing Customer’s employees from accessing the functionality of the Services, via interfaces, portal applications and the like, for its internal business purposes. Additionally, Customer shall not use the Services to: (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (w) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (x) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (y) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (z) attempt to gain unauthorized access to the Services or its related systems or networks.

4. User Subscriptions.

Unless otherwise specified in the applicable Order Form, the Services are purchased as User subscriptions (“User Subscriptions”) and may be accessed by no more than the specified number of Users.  User Subscriptions are for designated Users only and cannot be shared or used by more than one User. 

5. Customer’s Responsibilities.

 Customer is responsible for all activity occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall: (a) notify Redfish immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; and (b) report to Redfish immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Redfish Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users. 

Customer hereby represents, warrants and covenants that: (i) during the Term, Customer shall use commercially reasonable efforts to provide Redfish the materials and resources described on and in accordance with the Order Form attached hereto or as otherwise set forth in an applicable SOW or Order Form; (ii) Customer will use the Services only in compliance with Redfish’s standard published policies then in effect and (iii) if the Services include Redfish’s access to, or analysis of, any data, information, network or other systems or equipment, Customer has, or will obtain prior to commencement of such Services, all rights, licenses or consents required to authorize Company to perform such Services, including any required licenses or consents from third-parties.

6. Account Information and Data.

Redfish does not own any Customer Data. Customer, not Redfish, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Redfish shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by Redfish. Redfish’s use of Customer Data shall be limited to the purpose of providing the Services to Customer and for Redfish to meet its obligations hereunder. Notwithstanding the foregoing, Redfish shall have the right to collect and analyze data and other information related to the provision, use, and performance of various aspects of the Services and related systems and technologies (including without limitation, information concerning Customer Data and data derived therefrom).

7. License to Customer Data.

Customer hereby grants Redfish a nonexclusive, worldwide, limited license to host, copy, transmit and display Customer Data as necessary for Redfish to provide the Services in accordance with this Agreement and for Redfish to otherwise meet its obligations under this Agreement. In addition, and notwithstanding the limitations set forth in Section 6, above, Customer hereby grants Redfish a nonexclusive, worldwide, transferable, royalty-free, perpetual, irrevocable right and license to use (i) Customer Data and User Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connect with the Services and other Redfish offerings and to develop new Services (ii) and disclose anonymized and aggregated User Data in connection with its business.  Subject to the limited licenses granted herein, Redfish acquires no right, title or interest under this Agreement in or to Customer Data.

8. Professional Services.

Any Professional Services to be performed under this Agreement shall be set forth and described in an Order Form executed by the parties.  Such Order Form shall describe the services to be performed, the Deliverables to be developed, the prices to be paid for such services, applicable timelines for delivery, contact information for both parties and any required specifications or criteria applicable to such services.  Professional Services shall be performed in accordance with the professional standards that reasonably and ordinarily can be expected from skilled and experienced persons engaged in the same type of undertaking.  Redfish shall retain all intellectual property rights in and to Deliverables developed by Redfish in connection with Professional Services, excluding any pre-existing technology or materials supplied by Customer for incorporation into such Deliverables.  Redfish hereby grants Customer the right to access and use Deliverables in conjunction with Customer’s use of the Services during the term of any license right granted with respect to such Services.  Customer acknowledges that nothing in this Agreement shall restrict or limit Redfish from performing similar Professional Services for, or providing similar Deliverables to, any third party.

9. Ownership.

As between Redfish and Customer, Redfish retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Services, Redfish Technology, the Content and, subject to Section 8, above, any Deliverables, and any portion thereof, including, without limitation, any copy or derivative work of the Services, Redfish Technology, the Content and any Deliverables (or any portion thereof) and any updates thereto.  Customer agrees to take any action reasonably requested by Redfish to evidence, maintain, enforce or defend the foregoing.  Customer shall not take any action to jeopardize, limit or interfere in any manner with Redfish’s ownership of and rights with respect to the Services, Redfish Technology, the Content, any Deliverable, or any derivative work thereof or update thereto.  Customer shall have only those rights in or to the Services, Redfish Technology, the Content and Deliverables, and any derivative work thereof or update thereto granted to it pursuant to this Agreement.  The Redfish name, the Redfish logo, and the product names associated with the Services are trademarks of Redfish or third parties, and, except as expressly set forth herein, no right or license is granted to use them.

10. Fees, Payment Terms, Taxes, Billing Contact.

Customer shall pay all fees or charges as specified on each executed Order Form (“Fees”). All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as specifically provided in this Agreement or an applicable Order Form. Redfish charges and collects in advance and in full for Fees and for committed User Subscriptions and in arrears for usage that exceeds such committed amounts as defined on each Order Form.  Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of Redfish’s invoice, without offsets or deductions of any kind, and payment is due in US dollars. If payment under an applicable Order Form is to be made via credit card or electronic money transfer (e.g., ACH), such payment shall be chargeable upon invoice date. Redfish’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Redfish’s income.  In the event that any taxes, levies or duties are withheld by Customer as per applicable tax laws, the Fees payable to Redfish shall be grossed up to cover such withholding amounts, such that Customer shall pay to Redfish the full amount of all Fees, despite the withholding of such taxes, levies or duties. If Redfish has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Redfish with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer believes Customer’s bill is incorrect, Customer must contact Redfish in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide Redfish with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Redfish reserves the right to terminate Customer’s access to the Services in addition to any other legal remedies. Redfish reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon subsequent orders by Customer. In the event Customer fails to make payments per the payment terms set forth in this Agreement or in any applicable Order Form, and legal enforcement by Redfish is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by Redfish in connection with its collection of such payments. Redfish and Customer may mutually agree to increases in user subscriptions during the Term of this Agreement. Subscription changes will be captured in subsequent invoices. Customer must notify Redfish of any disputes with invoice amounts within 30 days of receipt of invoice.

11.Agreement Term.

The term of this Agreement shall begin on the Effective Date and shall continue in effect until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein (“Term”).

12. Non-Payment and Suspension.

In addition to any other rights granted to Redfish herein, Redfish reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to the Services if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. In addition, Redfish has the right to remove any credit terms provided in any Order Form in the event Customer’s account becomes delinquent (e.g., net 30 payment terms will be reduced to net 0). Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency. If Redfish initiates termination of this Agreement for cause, as further described in Section 13, below, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the applicable Order Form. Customer agrees that Redfish may charge such unpaid Fees to Customer’s credit card or via ACH payment, or otherwise bill Customer for such unpaid Fees.13. 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 thirty (30) days after delivery of notice of such breach. If Customer terminates this Agreement under this Section 13, Redfish shall refund Customer any prepaid Fees on a pro-rata basis as of the effective date of such termination.

13. 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 thirty (30) days after delivery of notice of such breach.  If Customer terminates this Agreement under this Section 13, Redfish shall refund Customer any prepaid Fees on a pro-rata basis as of the effective date of such termination.

14. Effect of Termination.

 The provisions of Sections 3, 5-10, 12, and 14-20 shall survive the expiration or any termination of this Agreement.

15. Representations & Warranties.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that it has validly done so. Redfish further represents and warrants that the Services will perform substantially in accordance with the relevant product information as found at or under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and Redfish’s sole obligation will be for Redfish to make reasonable commercial efforts to correct the non-conformity or, if Redfish is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable Order Form and receive a refund on a pro-rata basis of any prepaid unused Fees under such Order Form.

16. Disclaimer of Warranties.


17. Indemnification

17.1 Indemnification by Redfish.

Redfish shall defend any action brought against Customer to the extent it is based on a third party claim that use by Customer of the Services as furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes any valid United States patent, copyright, or trade secret.  Redfish shall pay any liabilities, costs, damages, and expenses (including reasonable attorney’s fees) finally awarded against Customer in such action that are attributable to such claim, provided: (a) Customer notifies Redfish in writing of any such claim within thirty (30) days of learning of such claim; (b) Redfish has sole control of the defense and all related settlement negotiations; and (c) Customer cooperates with Redfish, at Redfish’s expense, in defending or settling such claims (provided that Redfish shall not enter into any settlement or other compromise that materially adversely affects Customer without Customer’s written approval, not to be unreasonably withheld, delayed, or conditioned).  In addition to the foregoing, Customer agrees to promptly notify Redfish of any known or suspected infringement or misappropriation of Redfish’s proprietary rights of which Customer becomes aware.  Should the Services become, or be likely to become in Redfish’s opinion, the subject of any claim of infringement, Redfish may, at its option: (i) procure for Customer the right to continue using the potentially infringing materials; (ii) replace or modify the potentially infringing materials to make them non-infringing; or (iii) terminate this Agreement and refund to Customer a pro-rated portion of any unused Fees paid for such infringing materials hereunder.

17.2 Indemnification by Customer.

Customer shall defend any action brought against Redfish to the extent it is based on a third party claim that Customer Data as furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes any valid United States patent, copyright, or trade secret.  Customer shall pay any liabilities, costs, damages, and expenses (including reasonable attorney’s fees) finally awarded against Redfish in such action that are attributable to such claim, provided: (a) Redfish notifies Customer in writing of any such claim within thirty (30) days of learning of such claim; (b) Customer has sole control of the defense and all related settlement negotiations; and (c) Redfish cooperates with Customer, at Customer’s expense, in defending or settling such claims (provided that Customer shall not enter into any settlement or other compromise that materially adversely affects Redfish without Redfish’s written approval, not to be unreasonably withheld, delayed, or conditioned).

18. Limitation of Liability

18.1 Limited Remedy.


18.2 Maximum Liability.

Notwithstanding anything in this Agreement to the contrary or the failure of essential purpose of any limited remedy or limitation of liability, each party’s entire liability arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort, or otherwise), shall not exceed the amounts actually paid by Customer to Redfish during the twelve-month period immediately preceding the action that gave rise to the liability.  Notwithstanding the foregoing, the limitations set forth in this Section 18.2 shall not apply to either party’s liability arising under Section 19 (“Confidential Information”), either party’s liability as a result of fraud, gross negligence or willful misconduct, or Customer’s payment obligations under this Agreement.

19. Confidential Information.

Each Party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”).  Notwithstanding any failure to so designate them, the Services and the terms and conditions of this Agreement shall be Redfish’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each Party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either Party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing Party, as shown in records of the receiving Party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either Party hereto may disclose any Confidential Information hereunder to such Party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto. 


20.1 Notices.

All notices shall be addressed to:

Redfish Labs, Inc.

760 Seneca Street, Suite 250

Buffalo, NY 14210

Attn: Legal Department

With a copy to:
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall 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 shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer in the applicable Order Form or PO. All other notices to Customer shall be addressed to the person designated above.

20.2 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 shall 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.

20.3 Governing Law and Jurisdiction.

This Agreement shall 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.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

20.4 Arbitration.

Any controversy or claim arising out of or relating to this Agreement (other than actions for injunctive relief) shall 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 shall be conducted on an expedited basis and in confidence.  The arbitrator shall be well acquainted with the Internet and software industries, and shall not have the power to impose or award indirect, consequential, exemplary, or punitive damages.  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.

20.5 Force Majeure.

Redfish’s services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Redfish is not responsible for delays, delivery failures, or other damage resulting from such problems not caused by Redfish. In addition, Redfish shall be excused from performance under this Agreement or any Order Form for any period to the extent Redfish is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, or governmental acts, orders or regulations.

20.6 Severability.

If the application of any provision of this Agreement to any particular facts or circumstances shall 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 shall not in any way be affected or impaired thereby, and (b) such provision shall 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.

20.7 Relationship of the Parties.

Nothing contained in this Agreement shall 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 shall continue to be, that of independent contractors.  

20.8 Waiver.

The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

20.9 Captions and Section Headings.

The section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

20.10 Entire Agreement.

This Agreement, including all applicable Order Forms, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom.  However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions set forth in Customer’s purchase orders or other documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.

Each party has read, understands and agrees to the terms and conditions of this Agreement.