Terms of Service

These Terms of Service (“Terms”) describe the terms under which Togai Inc. (“We”, “Our” “Us”) provides an entity, who purchases our Service(s) and/or creates an Account with Us and their Users, access to and use of Our Service(s) (“You”, “Your”, “Yourself ”). By accessing and/or using Our Service(s), a) You agree to be bound by these Terms and acknowledge having read the privacy notice located at https://togai.com/privacy/ (“Privacy Notice”). b) You warrant to us that You are legally competent to enter into this agreement c) That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company or its groups to these Terms. If You do not agree to these Terms, You should immediately cease using our Service(s).

You and Us will be individually referred to as “Party” and collectively as “Parties”.

1. Your Account: Each User shall be identified using unique login information (“User Login”) and such User Login shall be used only by one individual.
2. Acceptable Use: You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare disassemble, reverse engineer, decompile or make the Service(s) available to any third party, other than Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (c) use the Service(s) to store or transmit Sensitive Personal Information; (d) use the Service(s) to store or transmit Service Data in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations; (e) access it for purposes of creating derivative works based on, or developing or operating products or services for third-parties in competition with the Service(s); (f) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (g) use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; (h) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service(s) (through use of manual or automated means);
3. If We inform You that a specified activity or purpose is prohibited with respect to the Service(s), You will ensure that You immediately cease use of the Service(s) for such prohibited activity or purpose.
4. You represent and warrant that You have obtained and maintained necessary authorizations, approvals and permissions from Users and individuals with whom Users interact when using Third-party Service(s), for Us to Process such Service Data for the purpose of providing the Service(s).
5. You represent and warrant that you are free to enter into these Terms and perform the obligations hereunder and doing so will not violate any other agreement to which it is a party, including any agreements with Third-party Service(s).

1. You may request a demo of Our Service(s) or a trial of the Service(s) by creation of accounts for trial use for a limited period of time (“Trial Period”). The Trial Period shall be subject to these Terms and any additional terms that We specify. We, in our sole discretion, shall have the right to terminate the Service(s) and Your right to use the Service(s) at any time during the Trial Period and for any reason, without being liable to You.
2. Any enhancements, new features or updates (“Updates”) to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.
3. The Service(s) may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case We shall use commercially reasonable endeavours to notify You in advance.

1. Except for the rights granted to You under clause 1, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Service(s), including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us.
2. You own the rights to the Service Data that You provide to Us. We do not claim ownership over such Service Data. You grant to Us a royalty-free license and right to use Service Data solely to provide, support, maintain and improve the Service(s).
3. We shall have a right and license to incorporate into the Service(s) or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from You.
4. All rights not expressly provided to You herein are reserved.

1. The Service(s) enables integration with a wide range of Third-party Service(s). You acknowledge and agree that Your use of Third-party Service(s) will be subject to the terms and conditions and privacy policies of such third-party and that We shall not be liable for Your enablement, access or use of such Third-party Service(s), including Your data processed by such third party. We shall only be liable for Your data when it is being transmitted through the Service(s). You should contact that Third- party service provider for any issues arising in connection with use of such Third-party Service(s).
2. When You authorise integration with Third-party Service(s), You authorise Us to access and store the certain data provided by the Third-party Service(s) and any other information that the Third-party Service(s) makes available to Us, and to Process it in accordance with these Terms.
3. You are responsible for authorizing the integration of the Third-party Service(s) and ensuring Our access to and the transmission of Service Data through the Service(s). We will not be liable for ensuring the accuracy and sufficiency of Service Data submitted to and transmitted through the Service(s). You acknowledge and agree that We shall have no liability for claims arising due to your violation of this clause.

1. Fees: All charges associated with Your Account shall be based on the Service(s) You have subscribed at the prices and payment schedule mentioned in an Order Form (“Fees”) and any other details regarding such Fees shall be mentioned in an Order Form. The Subscription Charges are due in full and payable in advance in accordance with clause 6.3, when You subscribe to the Service(s).
2. Renewal: Unless Your Account and subscription to the Service(s) is terminated, Your subscription to the Service(s) will auto-renew for a Subscription Term equivalent in length to the then expiring Subscription Term at the then prevailing Subscription Charges.
3. Payment: You hereby authorize Us or Our authorized agents, as applicable, to bill You upon Your subscription to the Service(s) (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within thirty (30) days of our invoice date.
4. Refunds: Unless otherwise specified in these Terms, all Fees are non-refundable. No refunds shall be issued for partial use or non-use of the Service(s).
   Late Payments/Non-payment of Fees: We will notify You in the event We do not receive payment towards the Fees within the due date. We must receive payments within a maximum of ten (10) days from the date of Our notice. If We do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Service(s) until We receive Your payment towards the Fees as specified herein and/or; (iii) terminate Your Account.
5. Applicable Taxes: Unless otherwise stated, the Fees is inclusive of any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).

The Subscription Term shall be set forth in a relevant Order Form.

1. Termination by You: You may terminate one or more of your Account(s) in the event We materially breach these Terms, provided that You shall provide an advance notice of such breach and afford us not less than sixty (60) days to cure such breach. In case of such termination, We shall, pro-rata, refund the Fees for the remainder of the Subscription Term.
2. Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of these Terms. We will notify You if Your activities violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account/ Service(s) shall be terminated. We may also terminate a Trial Period in accordance with clause 3.1. Further, We also reserve the right to terminate Your Account/ Service(s) at any time by written notice due to business reasons which shall include discontinuation of the Service(s).
3. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
4. Effect of Terminating Your Account: Following the termination of Your Account/ Service(s) either by Yourself or by Us, Your access and use of the Service(s) shall cease. We retain all Service Data in our possession for ninety (90) days from the date of effective termination (“Data Retention Period”). Beyond the Data Retention Period, We reserve the right to delete all the Service Data in our possession.

1. If You choose, or are provided with, a user identification code, login, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We shall have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms. We will not be responsible for any activities, including any attempted or actual access or loss of data occurring in Your Account as a result of your non-compliance of obligations under this clause.
2. Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of Service Data and such agreement shall have no further force or effect with respect to Service Data.
3. We shall Process any Personal Data forming part of the Service Data only on Your behalf as your data processor. We shall Process such Personal Data in accordance with these Terms and applicable data privacy laws and as part of the direct relationship between Us and You.
4. You acknowledge and agree that You shall be responsible for providing the required notice to Consumers with respect to sharing their Personal Information with Us.
5. We shall provide reasonable cooperation to assist You to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Information under these Terms/ Data Processing Addendum when You are required to respond to such requests under applicable data protection laws. In the event that any such request is made directly to Us, We shall not respond to such communication directly without Your prior authorization, unless legally compelled to do so.
6. In addition to the above, if We are Processing any Personal Data forming part of the Service Data originating from EEA/ UK/ Switzerland, the Data Processing Addendum accessible at togai.com/terms herein shall automatically apply to You.
7. You acknowledge and agree that We and Our group companies may access or disclose information about You, Your Account, Users, including Service Data, in order to (a) comply with the law or respond to lawful requests or legal process; or (b) prevent any infringement of group companies’ or Our customers’ proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.

1. WE WARRANT THAT THE SERVICE(S) WILL PERFORM IN ALL MATERIAL ASPECTS IN ACCORDANCE WITH THE DOCUMENTATION.
2. THE SERVICE(S), INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
3. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE OR THAT IT WILL BE SUITABLE FOR OR MEET YOUR REQUIREMENTS.

1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID BY YOU FOR THE SERVICE(S) PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
2. IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
3. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, WE DISCLAIM ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES OFFERED DURING THE TRIAL PERIOD.

1. Indemnification by You: You will indemnify and hold Us harmless against any claim brought by a third party against Us, Our respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 2 of these Terms provided that (a) We promptly notify You of the threat or notice of such a claim, (b) You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) We shall fully cooperate with You in connection therewith.
2. Indemnification by Us: We will defend You, from any third-party claim alleging that Your use of the Service(s) as contemplated hereunder infringes any third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold You harmless from and against any damages and costs awarded against You, or agreed in settlement by Us (including reasonable attorneys’ fees) resulting from such IP Claim. We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Service(s) by You, or Your Users; (ii) modification of the Service(s) by anyone other than Us; or (iii) the combination, operation or use of the Service(s) with other data, hardware or software not provided by Us. If Your use of the Service(s) results or in Our opinion is likely to result in an IP Claim, We may at its own option and expense (a) procure for You the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by Us, then either You or We may terminate Yours subscription to the Service(s), and We shall refund You, on a pro-rated basis, any Fees that You have previously paid for the corresponding unused portion. This sections above state Our entire liability and Your exclusive remedy with respect to an IP Claim.

1. Entire Agreement and Revisions: These Terms, including all schedules and online policies incorporated herein by reference, contains the entire agreement and understanding of the Parties and supersedes all prior communications, discussions, negotiations, proposed agreements, and all other agreements between them, whether written or oral, concerning the subject matter herein. We may amend or change these Terms at any time. We will give You a notice of material changes in these Terms not less than 10 (ten) days prior to the date such revised Terms will take effect. Your continued use of the Service(s) after any such amendment signifies Your acceptance of such amendment.
2. Relationship of the Parties: The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship among the Parties.
3. Assignment: Except to Your affiliates/within Your group companies, You may not, directly or indirectly, assign all or any part of these Terms or Your respective rights under these Terms or delegate performance of its respective duties under these Terms without the prior consent, which consent shall not be unreasonably withheld, of Us. In the event of assignment to an affiliate, the party assigning its performance shall promptly intimate the other party of such assignment and shall not default in any of its payment obligations under these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
4. Force Majeure: Notwithstanding anything to the contrary contained elsewhere, We shall not be liable for unavailability of the Service(s) caused by circumstances beyond Our reasonable control, such as but not limited to, acts of God, acts of government, pandemic, epidemic acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet, unauthorized loss, distribution or dissemination of Service Data), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
5. Governing Law and Dispute Resolution: These Terms shall be governed by the laws of the State of Delaware. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts in Delaware. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be first settled by arbitration administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the award may be entered in any court having jurisdiction. This clause will not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The language of the arbitration shall be English, and the seat shall be the State of Deleware.
6. Export Compliance: The Service(s) and Documentation, thereof may be subject to export laws and regulations of the U.S. and other applicable jurisdictions. You represent and warrant that You are not on any U.S. government prohibited list. You will not permit any User to access or use the Services or Documentation in a country or region that is embargoed by the U.S. or other applicable jurisdictions or in violation of any export law or regulation of the U.S. or other applicable jurisdictions.
7. Publicity Rights: You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our websites and/or marketing collateral.
8. Notices and Consent to Electronic Communications: All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery Service(s) (“Courier”) or to the contact mailing address provided by You in the relevant Order Form; or (ii) electronic mail to the e-mail address provided by You. Our address for a notice to Us: (i)in writing by Courier is 1007, N Orange Street, 4th Floor, 1285 Wilmington 19801 Delaware USA or (ii) by electronic mail is aravind@togai.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
9. Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 4 (Intellectual Property Rights), 6 (Charges and Payment), 7 (Term and Termination), 8 (Confidentiality; Security and Data Privacy;), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Miscellaneous) and 13 (Definitions) shall survive any termination of these Terms with respect to use of the Service(s) by You. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

Account: means any accounts or instances created by You or on Your behalf for access and use of the Service(s).

API: means the application programming interfaces developed, enabled by or licensed to Us that permits access to certain functionality provided by the Service(s).

Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of These Terms, Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by Us to You or Your Users through the Service(s) or otherwise.

Order Form: means any service order form or statement of work specifying the Service(s) subscribed to, particular features and functionalities in the Service(s) that You wish to avail and the Subscription Term.

Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller.

Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Sensitive Personal Information means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.

Service(s): means the Company’s cloud-based metering and billing services offered to the Customer and any new services that the Company may introduce as a service to which the Customer may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, Software, API and any Documentation.

Service Data: means all electronic data, text, messages, emails, personal data or other materials, including without limitation Personal Data of Users and end users, submitted to the Service(s) by You through Your Account or through integration with Third-party Service(s) in connection with Your use of the Service(s).

Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s).

Subscription Term: means the period during which You have agreed to subscribe to the Service(s) specified in the subscription plan or in a relevant Order Form

Third-party Service(s) shall mean third party application(s) or service(s) integrating with the Service(s) through APIs or otherwise enabled through the Service(s) which require You to have Your own accounts with such third-party application(s) or service(s) in order to utilize them.

User: means those who are designated users within the Service(s), including an Account administrator, agents and other designated users.

Website(s) shall mean the websites owned and operated by Us including togai.com.

This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between You and Us. You are required to read this DPA carefully as this DPA forms an integral part of the terms of use available at togai.com/terms (the “Terms'') and is applicable where We are the Processors of Your Personal Data.

Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms.

In this DPA, the following terms shall have the following meanings:

“CCPA” shall mean the California Consumer Privacy Act of 2018.

“Data Protection Laws” shall mean the data protection laws of the country in which You are established and any data protection laws applicable to You in connection with the Terms, including but not limited to (a) laws and regulations applicable to the GDPR, (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act, 2019 (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”) in each case, as may be amended, superseded or replaced.

“GDPR” shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data” shall mean any information relating to an identified or identifiable natural person processed by Us as part of providing the Service(s) to You as described in an Appendix.

“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.

“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EU SCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner, Version B1.0, in force from 21 March 2022 set forth as Appendix IV (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).

“Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws

“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.

Scope and Responsibilities

1. This DPA applies to Processing of Personal Data forming a part of the Service Data.
2. We shall Process Personal Data only on Your behalf and at all times only in accordance with this DPA, especially the respective Appendix. For the avoidance of doubt, We shall be the Processor and You shall be the Controller of the Personal Data.
3. Within the scope of the Terms, each party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.

Term and Termination

1. This DPA becomes effective upon You subscribing to the Service(s) by agreeing to the Terms. It shall continue to be in full force and effect as long as We are Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.
2. Where amendments are required to ensure compliance of this DPA or an Appendix with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Your request. Where the Parties are unable to agree upon such amendments, either Party may terminate the Terms in accordance with the termination procedure contained therein.

Processing Instructions

1. We will Process Personal Data in accordance with Your instructions. This DPA contains Your initial instructions to Us. The Parties agree that You may communicate any change in Your initial instructions to Us by way of amendment to this DPA, which shall be signed by the Parties.
2. For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g. because a new Processing purpose is introduced) will require a prior agreement between the Parties.
3. We shall without undue delay inform You in writing if, in Our opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.

Processor Personnel

We will restrict Our personnel from Processing Personal Data without authorization. We will impose appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.

Disclosure to Third Parties; Data Subjects Rights

1. We will not disclose Personal Data to any government agency, court, or law enforcement except with Your written consent or as necessary to comply with applicable mandatory laws. If We are obliged to disclose Personal Data to a law enforcement agency, then We agree to give You reasonable notice of the access request prior to granting such access, to allow You to seek a protective order or other appropriate remedy. If such notice is legally prohibited, We will take reasonable measures to protect the Personal Data from undue disclosure as if it were Our own confidential information being requested and shall inform You promptly as soon as possible if and when such legal prohibition ceases to apply.
2. In case You receive any request or communication from Data Subjects which relate to the Processing of Personal Data ("Request"), We shall reasonably provide You with full cooperation, information and assistance ("Assistance") in relation to any such Request where instructed by You.
3. Where We receive a Request, We shall (i) not directly respond to such Request, (ii) forward the Request to You within five (5) business days of identifying the Request as being related to You and (iii) provide Assistance according to further instructions from You.

Technical and Organizational Measures

1. We shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs") as specified in Appendix II hereto.

Assistance with Data Protection Impact Assessment

1. Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws for the Processing of Personal Data, We shall provide upon request to You any information and assistance reasonably required for the DPIA including assistance for any communication with data protection authorities, where required, unless the requested information or assistance is not pertaining to Our obligations under this DPA.
2. You shall pay Us reasonable charges for providing the assistance in clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the Service(s).

Information Rights and Audit

1. We shall, in accordance with Data Protection Laws, make available to You on request in a timely manner such information as is necessary to demonstrate compliance by Us with Our obligations under the Data Protection Laws.
2. We shall, upon reasonable notice, allow for and contribute to audits of Our Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures and records), during regular business hours and with minimal interruption to Our business operations. Such audits shall be conducted by You, Your affiliates or an independent third party on Your behalf (which will not be a competitor of Us) that is subject to reasonable confidentiality obligations.
3. You shall pay Us reasonable costs of allowing or contributing to audits or inspections in accordance with clause 9.2 where You wish to conduct more than one audit or inspection every twelve (12) months. We will immediately refer to You any requests received from national data protection authorities that relate to Our Processing of Personal Data.
4. We undertake to reasonably cooperate with You in Your dealings with national data protection authorities and with any audit requests received from national data protection authorities.

Personal Data Breach Notification

In respect of any Personal Data Breach (actual or reasonably suspected), We shall:

1. notify You of a Personal Data Breach involving Us or a subcontractor without undue delay and it shall be Your responsibility to inform the supervisory authority of such breach within seventy-two (72) hours of notice by Us;
2. provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.

1. You consent to Us engaging third party sub-processors as indicated in Appendix 1 to Process Personal Data to fulfil Our obligations under the Terms provided that, We will provide at least fifteen (15) days’ notice to Your account administrator prior to the appointment or replacement of any sub-processor. You may object to Our appointment or replacement of a sub-processor prior to their appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, We will either not appoint or replace the sub-processor or, if this is not possible, You or Us may suspend or terminate the Service(s) (without prejudice to any fees incurred by You prior to such suspension or termination).
2. Where We, with Your consent, subcontracts its obligations and rights under this DPA We shall do so only by way of a binding written contract with the sub-processor which imposes essentially the same obligations according to Art. 28 GDPR especially with regard to instructions and TOMs on the sub-processor as are imposed on Us under this DPA.
3. Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, We shall remain fully liable to You for the fulfilment of Our obligations under this DPA and for the performance of the sub-processor 's obligations.

The Parties agree that when the transfer of Personal Data from You to Us is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this DPA as follows:

In relation to transfers of Personal Data originating from the EEA and subject to the GDPR, the EU SCCs shall apply, completed as follows:

1. Module 2 (Controller to Processor) shall apply where You are a Controller and We are a Processor;
2. in Clause 7, the optional docking clause will apply;
3. in Clause 11, the optional language will not apply;
4. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
5. in Clause 18(b), disputes shall be resolved before the courts of Ireland;
6. Annex I of the EU SCCs shall be deemed completed with the information set out in Appendix I to this DPA;
7. Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix II to this DPA; and
8. Annex III of the EU SCCs shall be deemed completed with the information set out in Appendix III to this DPA

In relation to transfers of Personal Data originating in Switzerland and subject to the Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications and constitute the Swiss SCCs:

1. references to Regulation (EU) 2016/679; shall be interpreted as references to the Swiss DPA;
2. references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent section of the Swiss DPA;
3. references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “Switzerland” or “Swiss law”;
4. the term “member state” shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland);
5. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the Swiss Federal Data Protection Information Commissioner;
6. references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland”;
7. in Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland; and
8. Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
9. Annex I of the Swiss SCCs shall be deemed completed with the information set out in Appendix I to this DPA;
10. Annex II of the Swiss SCCs shall be deemed completed with the information set out in Appendix II to this DPA; and
11. Annex III of the Swiss SCCs shall be deemed completed with the information set out in Appendix III to this DPA

In relation to transfers of Personal Data originating from the UK and subject to the UK GDPR, the UK SCCs shall apply.

1. For the purposes of descriptions in the SCCs, You agree that You are the “data exporter” and We are the “data importer”.
2. The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Laws requires the adoption of an alternative transfer solution, the data exporter and data importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the data exporter’s option, delete or return the Personal Data to the data exporter.

Deletion or Return of Personal Data

Upon termination of Your Account, We may delete all Service Data, including Personal Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that We are permitted by applicable law to retain some or all of the Personal Data, in which event We shall isolate and protect the Personal Data from any further processing except to the extent as required by such law.

CCPA Undertaking

Notwithstanding anything to the contrary in the DPA, this section will apply to the Personal Information of the residents of the State of California, USA. In this section the terms “Business”, “Business Purpose”, “Consumer” “Personal Information”, “Sale/Sell”, “Service Provider” and “Sensitive Personal Information” and “Share” shall have the meaning given to them under the CCPA.

1. You acknowledge and agree that You are the Business and the We are the Service Provider with respect to the Personal Information of Consumers (as those terms are understood under the CCPA) disclosed by You to Us forming part of Service Data.
2. We will not Sell, or Share the Personal Information of Consumers that We process on the Your behalf for providing the Service(s) under these Terms.
3. We will not retain, use, or disclose Personal Information of Consumers that You process on Your behalf when providing the Service(s) under these Terms for any purpose other than for the specific purpose of providing the Service(s) in accordance with the Terms and as part of the direct relationship between the You and Us.
4. We will not combine the Personal Information that is received from or on Your behalf with Personal Information that is received from or on behalf of any other person or persons or from Our direct interaction with the Consumers except as permitted under the CCPA.
5. We will delete the Personal Information at Your direction as per a Consumer request for deletion of the Personal Information and will also direct any of the sub-processor engaged to delete such Personal Information. We shall not directly respond to a Consumer’s deletion request without the Your prior authorization unless legally compelled to do so.
6. You acknowledge and agree that You shall be responsible for providing the required notice to Consumers with respect to sharing their Personal Information with Us.
7. We acknowledge that You have the right upon notice to take reasonable and appropriate steps to stop and remediate the unauthorized use of the Personal Information.
8. We shall provide reasonable cooperation to assist You to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Information under the Terms and/or this DPA when You are required to respond to such requests under applicable Data Protection Laws. In the event that any such request is made directly to Us, We shall not respond to such communication directly without Your prior authorization, unless legally compelled to do so.
9. We shall notify You immediately if We determine that We can no longer comply with the obligations under CCPA.
10. We certify that We understand the restrictions in this Section and will comply with such restrictions.

Miscellaneous

1. In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with Us. In case of any conflict between the DPA and the SCCs, the SCCs shall take precedence over the provisions of the rest of the DPA.
2. No Party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.
3. Where this DPA requires a “written notice” such notice can also be communicated per email to the other Party. Notices shall be sent to the contact persons set out in Appendix 1.
4. Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.
5. Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.

The following Appendices form an integral part of this DPA:

Data exporter(s): The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.

Signature & Date: By entering into the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.

Role: Controller

Data importer(s):

Categories of data subjects whose personal data is transferred
Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners or other individuals having Personal Data stored, transmitted to, made available to, accessed or otherwise processed by the data importer.

Categories of personal data transferred
The transferred Personal Data concerns the following categories of data:
Customer determines the categories of data and/or data fields which could be transferred per Our Service(s) as stated in the relevant Agreement. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data transferred by authorised personnel.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

No Sensitive Personal Information transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Data to the data importer for processing.

The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)\
Data is transferred on a continuous basis

Nature of the processing
Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means).

Purpose(s) of the data transfer and further processing
Personal Data is transferred in the course of access and use of the data exporter’s Service(s) so that the data importer may provide, support, maintain and improve the Service(s).

The data importer may further transfer personal data to third-party service providers that host and maintain the data importer’s applications, backup, storage, payment processing, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or process personal data for the purpose of providing these services to the data importer.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Upon termination or expiry of the Terms, We shall delete all Customer Data including Personal Data in accordance with the procedure contained in the Terms. This requirement shall not apply to the extent that We are required by applicable law to retain some or all of the Personal Data, in which event We shall isolate and protect the Personal Data from any further processing except to the extent required by such law.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

In respect of the SCCs:
Module 2: Transfer Controller to Processor
Where Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over the Customer in accordance with Clause 13 of the SCCs.

We have implemented and shall maintain a security program in accordance with industry standards. We have implemented and will maintain appropriate TOMS to protect Service Data from a Personal Data Breach. Reach out to us at privacy@togai.com for our security policy document.

As set out in Part B to Appendix I.

This UK SCCs shall stand included as an addendum to the EU SCCs set implemented under Clause 12.1 (a) of this DPA.

Part 1: Tables

For data transfers from the United Kingdom that are subject to the UK SCCs, the UK SCCs will be deemed entered into (and incorporated into this Data Processing Addendum by this reference) and completed as follows:

1. In Table 1 of the UK SCCs, the Parties’ details and key contact information shall be as set forth in Schedule A.A.
2. In Table 2 of the UK SCCs, information about the version of the Approved EU SCCs, modules and selected clauses which this UK SCC is appended to shall be as set forth in Clauses 11.1 and 12.1(a)(i), (ii), (iii), (iv) of this DPA.
3. In Table 3 of the UK SCCs:
   i Annex 1A: List of Parties: Parties are as set forth in Appendix I.A.
   ii Annex 1B: Description of Transfer: Description of Transfer is as set forth in Appendix I.B.
   iii Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: TOMs are as set forth in Appendix II.
   iv Annex III: List of Sub processors: Sub processors are as set forth in Appendix I.B.
4. In Table 4 of the UK SCCs, both the data importer and the data exporter may end the UK SCCs in accordance with the terms of the UK SCCs.

Part 2: Mandatory Clauses

Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎‎18 of those Mandatory Clauses.