Master Subscription Agreement
Last Revised: December 16, 2020
Master Subscription Agreement
This Redfish Labs, Inc. dba Torch Leadership Labs (“Torch”) Master Subscription Agreement (the “MSA”) is provided to You by Our authorized reseller (“Reseller”). This MSA is binding on You and applies to and governs Your access to and use of the Licensed Services, as defined below. Reseller is not a party to or liable under this MSA, and Torch is solely responsible for all warranties, indemnities and other vendor obligations under this MSA. The Effective Date of this MSA is the date that Torch accepts in writing Customer’s order for Services as submitted to Reseller by Customer pursuant to an Order Form.
By executing an Order Form with Reseller, Customer agrees to the terms and conditions of this Agreement and that such terms and conditions shall govern the Services to be provided by Torch under any Order Form submitted by Customer to Reseller and by Torch. 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 Torch 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 that has executed an Order Form 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 Torch 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 Torch (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form, and provided to Customer hereunder.
“Torch Technology” means all of Torch’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 Torch in providing the Services.
“Order Form” means the Order Form, Statement of Work or Proposal under which Customer places orders with Reseller for the Services under the terms of this Agreement.
“Service(s)” means Torch’s services identified on an executed Order Form, as described in the relevant product information found at http://www.torch.io, or ancillary online or offline products and services provided or licensed to Customer by Torch, to which Customer is being granted access under this Agreement, including the Torch 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 Torch 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, Torch 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 Torch and its licensors. Torch 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 Torch 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 Torch immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Torch Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users.
6. Account Information and Data. Torch does not own any Customer Data. Customer, not Torch, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Torch shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by Torch. Torch’s use of Customer Data shall be limited to the purpose of providing the Services to Customer and for Torch to meet its obligations hereunder.
7. License to Customer Data. Customer hereby grants Torch a nonexclusive, worldwide, limited license to host, copy, transmit and display Customer Data as necessary for Torch to provide the Services in accordance with this Agreement and for Torch to otherwise meet its obligations under this Agreement. In addition, and notwithstanding the limitations set forth in Section 6, above, Customer hereby grants Torch 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 connection 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 Customer and either Reseller or Torch, as applicable. 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. Torch shall retain all intellectual property rights in and to Deliverables developed by Torch in connection with Professional Services, excluding any pre-existing technology or materials supplied by Customer for incorporation into such Deliverables. Torch 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 Torch from performing similar Professional Services for, or providing similar Deliverables to, any third party.
9. Ownership. As between Torch and Customer, Torch retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Services, Torch 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, Torch Technology, the Content and any Deliverables (or any portion thereof) and any updates thereto. Customer agrees to take any action reasonably requested by Torch to evidence, maintain, enforce or defend the foregoing. Customer shall not take any action to jeopardize, limit or interfere in any manner with Torch’s ownership of and rights with respect to the Services, Torch Technology, the Content, any Deliverable, or any derivative work thereof or update thereto. Customer shall have only those rights in or to the Services, Torch Technology, the Content and Deliverables, and any derivative work thereof or update thereto granted to it pursuant to this Agreement. The Torch name, the Torch logo, and the product names associated with the Services are trademarks of Torch or third parties, and, except as expressly set forth herein, no right or license is granted to use them.
10. Orders, Fees and Payment Terms. Orders for the Services shall be submitted to Reseller pursuant to Reseller’s product order procedures. All invoicing and payment for Services shall be via Reseller.
11. Agreement Term. The term of this Agreement shall begin on the Effective Date and shall continue in effect until all underlying Order Forms have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein (“Term”).
12. 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, Torch shall refund Customer any prepaid Fees on a pro-rata basis as of the effective date of such termination.
13. Effect of Termination. The provisions of Sections 3, 5-9, and 14-20 shall survive the expiration or any termination of this Agreement.
14. Support Services. Support for the Services shall be provided by Torch and/or Reseller in accordance with Torch’s standard Support Service Policies and Service Levels.
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. Torch further represents and warrants that the Services will perform substantially in accordance with the relevant product information as found at http://www.torch.io, under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and Torch’s sole obligation will be for Torch to make reasonable commercial efforts to correct the non-conformity or, if Torch is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable Order Form, in which case Torch shall refund to Reseller on a pro-rata basis any prepaid unused Fees paid to Torch by Reseller with respect to such Order Form.
16. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 15, TORCH AND ITS LICENSORS MAKE 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. TORCH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TORCH DOES NOT WARRANT THAT THE SERVICES (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF TORCH TO ANY THIRD PARTY.
17.1 Indemnification by Torch. Torch 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. Torch 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 Torch in writing of any such claim within thirty (30) days of learning of such claim; (b) Torch has sole control of the defense and all related settlement negotiations; and (c) Customer cooperates with Torch, at Torch’s expense, in defending or settling such claims (provided that Torch 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 Torch of any known or suspected infringement or misappropriation of Torch’s proprietary rights of which Customer becomes aware. Should the Services become, or be likely to become in Torch’s opinion, the subject of any claim of infringement, Torch 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 Reseller a pro-rated portion of any unused Fees paid to Torch by Reseller for such infringing materials hereunder.
17.2 Indemnification by Customer. Customer shall defend any action brought against Torch 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 Torch in such action that are attributable to such claim, provided: (a) Torch 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) Torch 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 Torch without Torch’s written approval, not to be unreasonably withheld, delayed, or conditioned).
18. Limitation of Liability
18.1 Limited Remedy. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
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 Torch or to Reseller (if payments are made via Reseller) 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.
19.1 Definition. “Confidential Information” means all confidential information disclosed by a party (“Discloser”) to the other party (“Recipient”) whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, which shall include, without limitation, information concerning the Services, the Discloser’s business and financial information, fees and charges, terms of Order Forms, business and marketing plans, technology and technical information, product plans and designs, and business processes. Notwithstanding the foregoing, Confidential Information shall not include information that (a) is or becomes generally known to the public without breach of the Recipient’s obligations hereunder, (b) is received from a third party without a duty of confidentiality, or (c) was independently developed by the Recipient.
19.2 Protection. Recipient shall hold all Confidential Information in confidence and shall not disclose any Confidential Information to any third party, other than to its employees, agents, and consultants who need to know such information and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any Confidential Information for the benefit of itself or any third party or for any purpose outside the scope of this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information.
19.3 Compelled Disclosure. Recipient may disclose Confidential Information only if it is compelled by law enforcement, judicial order or government subpoena to do so, provided that it gives the other party prior written notice of such compelled disclosure and an accurate copy of such written order to the extent permitted by law.
20.1 Notices. All notices shall be addressed to:
If to Torch:
Torch Leadership Labs
760 Seneca Street, Suite 250
Buffalo, NY 14210
Attn: Legal Department
With a copy to: email@example.com
If to Customer:
As set forth in each fully executed Order Form
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. 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 New York, 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 New York, New York, in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association (as amended herein), and applying New York 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. Torch’s services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Torch is not responsible for delays, delivery failures, or other damage resulting from such problems not caused by Torch. In addition, Torch shall be excused from performance under this Agreement or any Order Form for any period to the extent Torch 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 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, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions set forth in Customer’s purchase orders or other documentation 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.