Torq Technologies Master Service Agreement
This Torq Technologies Master Service Agreement (“Agreement”) is between you (“Customer”, “you” or “your”) and Torq Technologies Ltd. (“Torq”, “us”, “we” or “our”). This Agreement governs your access and use of Torq’s Services and any additional Professional Services, as well as any future purchases made by you that reference this Agreement. This Agreement includes each Order Form and any other referenced terms, agreements and policies. Please note that your access to, and use of our website (https://torq.io/) is governed by our Website Terms of Use.
This Agreement does not have to be signed in order to be binding. You indicate your agreement to this Agreement by logging into our Services or executing an Order Form.
By accessing or using the Services on behalf of your employer or other organization on behalf of whom you are acting; (a) you declare that you are over the age of 18 years old; (b) you declare that you have the right to bind your employer or entity to the terms of this Agreement, and that you and your employer or organization agree to be bound by the terms of this Agreement; (d) all references to “Customer”, “you” or “your” in this Agreement refer to your employer or entity. IF YOU OR YOUR EMPLOYER OR ENTITY DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR OTHER ENTITY, PLEASE DO NOT ACCESS OR USE THE SERVICES.
1. DEFINITIONS. The following capitalized terms have the meanings set forth below:
“Acceptable Use Policy” means Torq’s Acceptable Use Policy.
“Affiliate” means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise.
“Channel Partner” means a Torq-authorized distributor, reseller or other channel partner for the Services.
“Customer Data” means any data or information submitted or uploaded to, or transmitted through, the Services, by or on behalf of Customer.
“Documentation” means operational guides or similar documentation provided in connection with the Services. Unless the context requires otherwise, references herein to Services shall be deemed to include its Documentation.
“Intellectual Property Rights” means all patent rights (including utility models), copyrights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing, and all goodwill associated with the foregoing.
“Order Form” means any order form issued by Torq and agreed to by Customer (by way of signature or issuance of a separate Customer purchase order), for the provision of Services and Professional Services (if applicable) based on the package selected by Customer, which Order Form shall hereby be incorporated into this Agreement by reference.
“Permitted User” means any employee, service provider or other representative of Customer who is authorized to access and use the Product.
“Product” means Torq’s security hyperautomation and management software-as-a-service product, including all improvements, updates, upgrades and additions to the foregoing.
“Professional Services” means professional services in connection with the Product, which may include implementation services and consulting and design services.
“Services” means the Product and Support Services.
“SLA” means Torq’s Support and Service Level Agreement available at Torq’s Trust Centre, as may be updated from time to time.
“Statement of Work” or “SOW” means any statement of work executed by Torq and Customer for the provision of Professional Services to Customer, which SOW shall be incorporated into this Agreement by reference.
“Subscription Plan” means the usage or consumption limitations and parameters in respect of the Services (for example, as to the Product’s modules, features and functionalities), as specified in the applicable Order Form.
“Subscription Term“, “Initial Subscription Term” and “Renewal Subscription Term” shall have the meanings set forth in Section 8.1.
“Support Services” means technical support services as specified in the SLA.
“Torq AI Terms” means Torq’s AI Terms.
2. USE RIGHTS AND INTELLECTUAL PROPERTY
2.1. Access and Use Rights. Subject to the terms and conditions of this Agreement, Torq grants Customer and its Affiliates (if applicable) during the Subscription Term, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to access and use the Product in accordance with the Documentation for its internal business purposes. For the avoidance of doubt, any rights not expressly granted herein are hereby reserved by Torq and its licensors, and, except for the rights granted herein, Customer is granted no other right or license to the Product, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
2.2. Use Restrictions. As a condition to (and except as expressly permitted by) the access and use rights granted hereunder, Customer shall not, and shall not allow any Permitted User or any third party to, directly or indirectly: (a) sell, license, sublicense, assign, transfer, lease, or otherwise distribute or make available the Product to any third party; (b) copy, modify, translate or create a derivative work of the Product; (c) decompile, disassemble, reverse engineer or otherwise attempt to discover the source code or non-literal aspects of the Product; (d) remove or alter any trademarks or other proprietary notices related to the Product; (e) circumvent, disable or otherwise interfere with security-related or technical features of the Product or features that enforce use restrictions; (f) upload or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Product; (g) access or use the Product in any manner in order to circumvent the Subscription Plan, or in any manner designed to circumvent the unique identity requirement of a Permitted User; (h) disclose the results of any testing or benchmark studies to any third party; (i) use the Product to develop any service or product that is the same as, substantially similar to or otherwise competitive with, the Product; (j) use the Product in a manner that violates or infringes any rights of any third party or any applicable laws, including but not limited to privacy rights, intellectual property rights, and export control laws; (k) use the Product, including transmitting or storing Customer Data, in a manner that violates Torq’s Acceptable Use Policy.
2.3. Customer Account; Permitted Users. When creating a Customer account for use of the Services (“Customer Account”), and when adding Permitted Users as authorized users of said Customer Account, Customer agrees that: (a) all registration information regarding Customer and each Permitted User, as required, shall be accurate and complete; (b) the Services may be accessed solely by Permitted Users, and Customer shall be responsible for the addition and deletion of Permitted Users from the Customer Account and for ensuring that each Permitted User’s login credentials and password remains confidential and secure; (c) Customer shall ensure that Permitted Users comply at all times with the terms of this Agreement, and shall remain fully responsible for all activities of each Permitted User and/or all activities that occur under the Customer Account; and (d) Customer shall promptly notify Torq in writing upon becoming aware of any unauthorized access or use of the Customer Account.
2.4. Intellectual Property Rights. Torq (and its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to:
2.4.1. the Product and all related intellectual property (such as content appearing therein);
2.4.2. Torq’s Confidential Information;
2.4.3. any feedback, suggestions, or ideas for or about the Services, provided by Customer;
2.4.4. any non-personally identifiable information, data, reporting, analyses, and/or intelligence relating to the operation, support and/or Customer’s use of the Services (such as metadata, aggregated data, analytics, security findings, discoveries, etc.); and
2.4.5. any and all improvements, derivative works, and/or modifications of or to any of the foregoing, regardless of inventorship or authorship.
Customer hereby irrevocably makes, and shall in the future make, all assignments and/or waivers necessary or reasonably requested by Torq to secure Torq’s (and/or its designee(s)) ownership rights set forth in this Section.
2.5 Third Party Components. Customer hereby acknowledges that the Product may use or include third party open source software, files, libraries or components which are subject to third-party open source license terms. A list of such components may be updated from time to time by Torq. Requests for receiving such open source list and their respective license terms may be forwarded to [email protected]. If there is a conflict between any open source license and the terms of this Agreement, the open source license terms shall prevail but solely in connection with the related third party open source software. Torq makes no warranty or indemnity hereunder with respect to any third party open source software.
3. CUSTOMER DATA
3.1. Ownership of Customer Data. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Data. Customer grants Torq and its Affiliates during the Subscription Term, a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable, non-transferable, royalty-free right and license, to access, use, and process any Customer Data for the following purposes: (a) to maintain and provide the Services and Professional Services to Customer; (b) to comply with applicable law and regulations; (c) to prevent or address technical or security issues and resolve support requests, as they relate to Customer; (d) to investigate any claim that the Customer Data violates any terms of this Agreement; and (e) as expressly permitted in writing by Customer.
3.2. Sensitive Personal Data. Customer shall not provide or make available to Torq any Customer Data that includes Sensitive Data. For the purposes herein, “Sensitive Data” means personal data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable data protection laws and regulations, which may include any of the following: (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) financial or credit information, or credit or debit card number; (c) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning a person’s health, sex life or sexual orientation, or data relating to criminal convictions and offences; (d) personal data relating to children; and/or (e) account passwords in unhashed form.
3.3. Compliance. Customer hereby represents and warrants that: (a) Customer has obtained and shall maintain all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights herein to any Customer Data; (b) Customer shall provide all appropriate notices (as required) and obtain and maintain any and all legal bases to allow Torq to process personal data; and (c) Customer Data complies and shall comply, and be subject to, Torq’s Acceptable Use Policy. Customer shall be solely responsible for Customer Data, and other than Torq’s security, data protection and confidentiality obligations expressly set forth in Sections 11.1, 11.2 and 12 respectively, Torq assumes no responsibility or liability for Customer Data.
4. THIRD PARTY SERVICES
Customer may choose to use or procure third party products, services, applications and/or tools in connection with the Services, including third party applications which interoperate with the Services (“Third Party Services”). Customer’s use of any Third Party Service, including the collection, processing and use of Customer Data by such Third Party Service, shall be governed solely by the terms applicable to such Third Party Service as agreed between Customer and the third party provider. Customer acknowledges that an integration with a Third Party Service will require the transmission, transfer, storage, modification and/or deletion of Customer Data, between Torq and such Third Party Service. Customer shall be solely responsible for the use of any Third Party Service in connection with the Services, including allowing any Third Party Service and third party provider to use Customer Data and providing instructions to such third party provider with respect to the use of the Customer Data. Torq assumes no responsibility and disclaims all liability and warranties with respect to any Third Party Service and Customer’s use thereof (including without limitation, use by Third Party Service of Customer Data, and the privacy and security policies and practices related to such Third Party Service) and for the acts or omissions of any third party provider.
5. TORQ AI
Customer agrees that if it elects to use any artificial intelligence (AI) features or functionalities made available as part of the Services, the Torq AI Terms, in addition to the terms of this Agreement, shall govern use thereof.
6. SUPPORT SERVICES AND PROFESSIONAL SERVICES
6.1. Support Services. Subject to Customer remaining current on payment of all Subscription Fees hereunder, Customer shall be entitled to receive Support Services during the Subscription Term, as further specified in the SLA.
6.2. Professional Services. Customer may elect to purchase Professional Services in connection with the Services at an additional fee. The Parties may enter into an SOW detailing the Professional Services to be provided by Torq, including the services description, deliverables and project schedule.
7. PAYMENT
7.1. Subscription Fees. In consideration for provision of the Services, Customer shall pay Torq the fees as specified in the Order Form (“Subscription Fees“).
7.2. Expansions and Upgrades. Customer shall be entitled to expand or add to the Subscription Plan and/or to purchase additional Support Services and/or Professional Services. Any Order Form issued with respect thereto shall be incorporated into this Agreement by reference.
7.3. Subscription Fee Increases. Following the Initial Subscription Term, Torq reserves the right to increase the Subscription Fees by no more than eight percent (8%) annually for any and each subsequent Renewal Subscription Term. Torq shall notify Customer of such increase via email at least sixty (60) days prior to the end date of the Initial Subscription Term or Renewal Subscription Term, as applicable.
7.4. Fees for Professional Services. Customer shall pay Torq additional fees in respect of any Professional Services, as specified in the Order Form (fees for Professional Services, together with the Subscription Fees, the “Fees“).
7.5. Payment Terms. Unless expressly stated otherwise in an Order Form: (a) except as otherwise set forth in Section 8.2, all Fees paid or payable under this Agreement are non-refundable and are without any right of set-off or cancellation; and (b) all Subscription Fees are payable, and shall be invoiced, in advance; and (c) all Fees shall be paid within thirty (30) days of receipt of invoice. All payments shall be made in the currency set forth in the applicable Order Form. Any Fees not paid when due will accrue interest on a daily basis until paid in full, at a rate of one percent (1%) per month or the highest amount permitted by applicable law, whichever is less.
7.6. Taxes
7.6.1. Fees payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties, governmental charges, and/or penalties and late charges imposed by a taxing authority against Customer as a result of this Agreement (collectively, “Taxes”), except for taxes based upon Torq’s net income. Customer agrees to pay all Taxes imposed upon Customer as a result of this Agreement. Customer shall provide a valid tax exemption certificate if claiming a tax exemption.
7.6.2. To the extent that Torq is required to collect and remit any Taxes owed by Customer, Torq shall invoice Customer, as a separate line item, the amount of any such tax. For tax calculation purposes, Torq shall use Customer’s address stated in the preamble of this Agreement as the address of the user of the Services. Customer shall be solely responsible for the collection of Taxes and remittance thereof to the relevant tax authorities arising from the extension of the use of such Services to Customer’s employees, third party contractors and consultants located in multiple states. In the event that Torq does not invoice Taxes and is then required to pay any Taxes owed by Customer, Customer agrees to reimburse Torq, within thirty (30) days’ of receipt of invoice from Torq, for such payment for any such payment as well as any fees, penalties or late charges related thereto as a result of any determination of the relevant taxing authorities. Neither Party shall have any responsibility or obligation to report or pay to any taxing authority any personal property or intangible taxes or any tax on income that may be imposed by a taxing authority against the other Party in connection with the Services.
7.6.3. In the event that Customer is required by any applicable law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Torq shall be increased by the amount necessary so that Torq receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
8. TERM AND TERMINATION
8.1. Term. This Agreement shall be in full force and effect while any Order Form is in effect, unless earlier terminated in accordance with the terms hereunder. Upon termination of this Agreement, all Order Forms and SOWs then in effect shall automatically terminate. The initial term of Customer’s subscription to the Services shall be twelve (12) months, commencing and terminating on the dates set forth in the Order Form, unless terminated earlier in accordance with the terms herein (“Initial Subscription Term”). The Initial Subscription Term may automatically renew for successive periods of twelve (12) months each (each, a “Renewal Subscription Term”; Renewal Subscription Term together with the Initial Subscription Term, “Subscription Term”), as agreed between the Parties at least thirty (30) days’ prior to the end of the Initial Subscription Term or Renewal Subscription Term (as applicable). Customer may provide renewal notice to Torq by emailing [email protected].
8.2. Termination for Breach. Each Party may immediately terminate this Agreement or any Order Form upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within fifteen (15) days after receipt of written notice specifying the material breach. In the event of termination by Customer for a material breach by Torq hereunder, Torq shall provide a prorated refund of any fees pre-paid by Customer for the remaining period of the Subscription Term or under the terminated Order Form, as applicable, subject to Torq’s right to set-off any outstanding payments owed by Customer.
8.3. Termination for Bankruptcy. Either Party may terminate this Agreement or any Order Form upon written notice to the other Party upon the occurrence of any of the following events: (a) a receiver is appointed for the non-terminating Party or its property, which appointment is not dismissed within sixty (60) days; (b) the non-terminating Party makes a general assignment for the benefit of its creditors; (c) the non-terminating Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the non-terminating Party is liquidating, dissolving or ceasing normal business operations.
8.4. Effect of Termination. Upon termination of this Agreement for any reason: (a) any and all rights granted hereunder shall automatically terminate; (b) Customer shall cease to access and use the Services and the Documentation in Customer’s or any of its representatives’ possession or control; (c) Customer shall pay to Torq any outstanding Fees that have accrued as of termination (whether billed for or yet to be billed in accordance with issued Order Forms); and (d) subject to the fulfilment of all of Customer’s payment obligations hereunder, Torq shall make available retained Customer Data to Customer for download or transfer, all in accordance with Customer’s Subscription Plan and Torq’s data retention policy available at Torq’s Trust Centre. Termination shall not affect any rights and obligations accrued as of the date of termination nor shall not limit either Party from pursuing any other remedies available to it under applicable law. For the sake of clarity, unless otherwise explicitly set forth in this Agreement, any and all Fees paid or payable by Customer to Torq as of the termination date shall be non-refundable and without any right of set-off or cancellation.
8.5. Survival. The provisions of this Agreement that, by their nature, are intended to survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including but not limited to provisions relating to “Use Rights Intellectual Property”, “Confidentiality”, “Disclaimer”, “Limitation of Liability”, and “Miscellaneous”), shall so survive.
9. PURCHASES VIA CHANNEL PARTNERS
If Customer is purchasing the Services and/or Professional Services through a Channel Partner, the following provisions shall apply:
9.1. The Subscription Plan shall be determined with reference to the ordering document entered into between Torq and Channel Partner (“Channel Partner Order Form“), and Torq shall have no responsibility or liability, and Channel Partner shall be solely responsible, for any discrepancy between the Subscription Plan under such Channel Partner Order Form on the one hand, and the order issued by Customer to Channel Partner on the other hand; in such a case, Customer shall seek redress or realization or enforcement of such rights solely with such Channel Partner and not Torq.
9.2. Customer shall pay the applicable fees for the Services and/or Professional Services to the Channel Partner, as agreed between Customer and Channel Partner.
9.3. Torq may suspend or terminate Customer’s access and use of the Services and/or Professional Services if Customer fails to make timely payment of fees to Channel Partner.
9.4. If Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Torq specifies otherwise, Torq shall refund any applicable fees to Customer through the Channel Partner (and under no circumstances shall Torq be required to refund more than it received from Channel Partner).
9.5. Channel Partner shall not be authorized to make any promises or commitments on Torq’ behalf, and Torq shall not be bound by any obligations to Customer other than as set forth in this Agreement.
10. PRE-RELEASED SERVICE
10.1. Pre-Released Service. Torq may make available, at its sole discretion and from time to time, pre-released alpha or beta versions of certain services, all as agreed between the Parties (“Pre-Released Service”). Customer hereby acknowledges that the Pre-Released Service is under development, and may not be complete or operate as intended or may contain more errors and bugs than generally available software. Customer’s use of the Pre-Released Service may be subject to additional fees (based on scope, usage parameters, etc.) as shall be agreed between the Parties.
10.2. Applicable Terms for Pre-Released Service. Torq reserves the right to modify, cancel and/or limit the Pre-Released Service at any time, and provides no guarantee that the Pre-Released Services will be made available to Customer or generally available. Customer’s access to the Pre-Released Service shall be governed by the terms of this Agreement, provided however that notwithstanding anything to the contrary in the Agreement: (a) the Pre-Released Service is provided “as-is”, without any representations or warranties of any kind whatsoever, including without limitation, Torq’s performance warranty set forth in Section 13.2; (b) indemnification undertakings provided by Torq pursuant to Section 16 herein shall not apply with respect to any Pre-Released Service; (c) in no event shall the total aggregate liability of Torq and its Affiliates in connection with the Pre-Released Service exceed one hundred United States Dollars (US $100).
11. SECURITY AND PRIVACY
11.1. Data Processing Agreement. The Parties agree to be bound by the terms of Torq’s Data Processing Agreement (“DPA”).
11.2. Security. Torq implements appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data, as set forth in the DPA and in accordance with Torq’s security policies available at Torq’s Trust Centre, as may be updated from time to time.
11.3. Privacy Policy. As part of Customer’s engagement with Torq, Customer acknowledges and agrees that Torq may collect, access, use and share certain personal data relating to Customer’s employees and service providers, all in accordance with Torq’s Privacy Policy.
12. CONFIDENTIALITY
Each Party and/or its Affiliates (“Recipient“) may have access to certain non-public business and/or proprietary information and materials of the other Party and/or its Affiliates (“Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information includes, without limitation: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans and opportunities, marketing plans, financial and accounting information, forecasts and valuations, market share data, sales volumes, discounts, and budgets; (b) business information relating to actual or potential customers, suppliers, products and services; (c) technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, architectures, and other technology and intellectual property; and (d) any other information which would reasonably be deemed to be of a confidential or proprietary nature in light of the circumstances of its disclosure. Customer acknowledges that the Services embody Confidential Information of Torq, and Torq acknowledges that Customer Data is Confidential Information of Customer. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to Recipient by a third party having the lawful right to do so; or (e) independently developed by Recipient without use of, or reliance upon, Confidential Information received from Discloser. Recipient shall not disclose or make available Discloser’s Confidential Information to any third party, except to its employees, contractors, advisers, agents and investors, subject to substantially similar written confidentiality undertakings and provided that Recipient shall remain fully liable for such disclosures. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect Discloser’s Confidential Information within its possession or control, from disclosure to a third party. Recipient shall use Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of Discloser pursuant to any law, regulation, or governmental or judicial order, Recipient shall (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by Discloser, Recipient shall promptly return or destroy the Confidential Information (as directed by Discloser) and certify compliance therewith in writing. Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under this Agreement are confidential and Customer shall not disclose such Confidential Information to any third party (except to its accountants, lawyers, and potential investors) without Torq’s prior express written consent.
13. WARRANTIES
13.1. Mutual. Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, and has the full power and authority to enter into this Agreement, and grant the rights hereunder and assume the obligations set forth herein; (b) the execution and performance of this Agreement will not conflict with other agreements to which it is bound, nor violate applicable law; (c) it has obtained, and shall maintain and comply with, all necessary consents, approval, or authorization of any governmental or regulatory authority or other third party for execution and performance of this Agreement; and (d) it complies and shall comply at all times with any and all applicable laws and regulations (including, without limitation, all applicable privacy, data protection and export laws).
13.2. Torq Performance Warranty. Torq represents and warrants that, under normal authorized use as permitted under this Agreement, the Product shall materially perform in conformance with the Documentation. As Customer’s sole and exclusive remedy and Torq’s sole liability for breach of this warranty, Torq shall use commercially reasonable efforts to repair the Product in accordance with the SLA. The warranty set forth shall not apply if the failure of the Product results from or is otherwise attributable to: (a) modification of the Product by any persons other than Torq or its authorized contractors; (b) use of the Product other than in accordance with the Documentation or this Agreement; (c) any fault in any Customer or third party software, systems, services, hardware or other equipment used in conjunction with the Product.
14. DISCLAIMER
OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND PROFESSIONAL SERVICES AND THE RESULTS THEREOF, AND ANY DATA PROVIDED BY TORQ, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TORQ DOES NOT WARRANT THAT THE SERVICES AND PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, NOR THAT THE PRODUCT WILL OPERATE ERROR-FREE OR BE ACCURATE AT ALL TIMES. EXCEPT AS EXPLICITLY SET FORTH HEREIN, TORQ EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND/OR FITNESS FOR A PARTICULAR PURPOSE. TORQ SHALL NOT BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY CHANNEL PARTNER TO CUSTOMER, AND SUCH WARRANTIES AND REPRESENTATIONS ARE THE SOLE RESPONSIBILITY OF SUCH PARTNER.
15. LIMITATION OF LIABILITY
15.1. Exclusions. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 12 (CONFIDENTIALITY), A BREACH BY CUSTOMER OF THE USE RESTRICTIONS AND/OR INFRINGEMENT OF TORQ’S INTELLECTUAL PROPERTY RIGHTS, AND/OR LIABILITY ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
15.2. Liability Cap. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 12, CUSTOMER’S BREACH OF THE USE RESTRICTIONS AND/OR INFRINGEMENT OF TORQ’S INTELLECTUAL PROPERTY RIGHTS, TORQ’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16 AND/OR LIABILITY ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE COMBINED AGGREGATE LIABILITY OF EACH PARTY UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO TORQ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING, THE COMBINED AGGREGATE LIABILITY OF EACH PARTY AS A RESULT OF OR IN CONNECTION WITH A BREACH BY SUCH PARTY OF ANY OF ITS OBLIGATIONS UNDER THE DPA SHALL NOT EXCEED FIVE TIMES (5X) THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO TORQ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
15.3. Conditions. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, MISREPRESENTATION, RESTITUTION OR OTHERWISE).
16. INDEMNIFICATION
16.1. IP Infringement Claims. Torq agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Product, when used as permitted under this Agreement, infringes the intellectual property rights of a third party (“IP Infringement Claim”), and Torq will pay any damages awarded in a final court judgment against Customer that are attributable to any such claim, provided that: (a) Customer promptly notifies Torq in writing of such claim; and (b) Customer grants Torq the sole authority to handle the defense or settlement of any such claim and provides Torq with all reasonable information and assistance, at Torq’s expense. Torq shall not be bound by any settlement entered into by Customer without Torq’s prior written consent.
16.2. Additional Remedies. Should the Product (in whole or in part) become, or in Torq’s opinion is likely to become, the subject of an IP Infringement Claim, then Customer permits Torq, at Torq’s option and expense, to: (a) obtain for Customer the right to continue accessing and using the Product (or part thereof); (b) replace or modify the Product (or part thereof) to avoid the IP Infringement Claim; or (c) if options (a) and (b) are not in Torq’s opinion commercially feasible, terminate this Agreement upon written notice to Customer, and provide a prorated refund for any fees pre-paid by Customer.
16.3. Exceptions. Torq shall have no liability under this Section to the extent that the IP Infringement Claim is based on or results from: (a) any modification to the Product not made by Torq or its authorized contractors; (b) use of the Product not in accordance with the Documentation or this Agreement; (c) Customer Data; and/or (d) the combination of the Product with any third party product or service not accordance with the Documentation.
16.4. Sole Remedy. This Section represents Torq’s sole obligation and liability, and Customer’s sole remedy, for claims of actual or alleged infringement.
17. MISCELLANEOUS
17.1. Amendments to this Agreement. Torq reserves the right to make changes to this Agreement for valid reasons, such as due to the addition of new functions or features to the Services, technical adjustments, fixing typos or errors, for legal or regulatory reasons or for any other reasons as Torq deems necessary, at Torq’s sole discretion. In the event of any material change to this Agreement, Torq shall notify Customer with notice as appropriate under the circumstances. Customer’s usage of the Services after the implementation of said change will be deemed as acceptance by Customer of said change.
17.2. Entire Agreement. This Agreement (and all other referenced agreements, terms and policies herein) represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Except as otherwise explicitly stated in an Order Form, this Agreement supersedes the following, each of which shall be deemed void and of no effect: (a) any shrink-wrap, click-wrap, or similar non-negotiated terms and conditions that accompany, or are included within, the Services, even if use of the Services requires an affirmative “acceptance” thereof; and (b) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede or modify this Agreement or an Order Form. In the event of any discrepancy or ambiguity between this Agreement and the Order Form, the terms of the Order shall prevail.
17.3. Performance by Affiliates. The Parties hereby agree that: (a) Torq’s obligations hereunder may be performed by any of Torq’s Affiliates, including certain support services, as applicable; and (b) a Customer Affiliate may execute an Order Form and access and use Services hereunder, provided that such Affiliate is not a direct competitor of Torq, and further provided that Customer shall remain fully liable for each Customer Affiliate’s compliance with the terms of this Agreement. In such event, any reference to “Customer” in this Agreement shall refer to such Customer Affiliate, as applicable.
17.4. Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party, except however that either Party may assign this Agreement in whole to: (a) an Affiliate; or (b) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Any assignment in contravention of this Section will be null and void. Subject to the provisions of this Section, this Agreement will bind and benefit each Party and its respective successors and assigns.
17.5. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv-Jaffa, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction.
17.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
17.7. Waiver; Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
17.8. Relationship. The relationship of the Parties is solely that of independent contractors, and nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
17.9. Publicity. Torq may use Customer’s name and logo on Torq’s website and in its promotional materials to state that Customer is a customer of Torq.
17.10. No Third Party Beneficiaries. Except as expressly stated otherwise herein, there shall be no third party beneficiaries of or under this Agreement.
17.11. Export Compliance. Each Party shall be responsible for complying with Export Control Laws, in connection with the Services. Customer represents and warrants that: (a) it is not a resident of (or will use the Services in) a country that the U.S. government has embargoed for use of the Services, nor is an entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Torq. Customer shall not transfer, export, re-export, import, re-import or divert the Services in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert any the Services to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Torq from time to time). For the purposes herein, “Export Control Laws” means all applicable export and re-export control laws applicable to Customer and/or Torq or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
17.12. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations, other than payment obligations, due to any event beyond the reasonable control of the affected party, including but not limited to interruption or failure of the Internet or any utility service, failures of third party hosting services, strikes, shortages, riots, fires, acts of God, pandemic or epidemics, war, terrorism, or governmental action.
17.13. Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, registered mail, or by email. All notices and other communications shall be deemed delivered as follows: (a) if delivered by courier service, one (1) business day after sending; (b) if sent by registered mail, three (3) days after sending; (c) if sent by email, upon receipt of delivery confirmation.
Last update: July 18, 2024
