Terms of Service

1. Background and structure of the Agreement

These Terms of Service (the “ToS”) are entered into between Retorio GmbH, Landwehrstraße 63, 80336 Munich, Germany, registered with the Munich Local Court under HRB 243225, VAT DE320489362 (“Retorio”) and the CLIENT identified in the Order Form. Retorio and the CLIENT are each a “Party” and together the “Parties”.

1.1 The Agreement

The contractual relationship between Retorio and the CLIENT (the “Agreement”) consists of the following documents:

Order Form the signed commercial cover document executed by both Parties, setting out the package, fees, term, payment terms and reference rights.

Exhibit 1 — Statement of Work (SoW) describing the SaaS deliverables and project work packages.

Exhibit 2 — SaaS Terms of Service this document.

Exhibit 3 — Data Processing Agreement (DPA) Article 28 GDPR data processing terms.

Exhibit 4 — Service Level Agreement (SLA) uptime, support and maintenance commitments.

Exhibit 5 — Technical and Organisational Measures (TOMs) ISO 27001 aligned information security measures.

1.2 Order of precedence

If there is any conflict between the documents that make up the Agreement, the following order of precedence applies, from highest to lowest authority: (a) the Order Form, (b) the DPA (Exhibit 3) for any data protection matter, (c) this ToS (Exhibit 2), (d) the SLA (Exhibit 4), (e) the SoW (Exhibit 1), (f) the TOMs (Exhibit 5).

1.3 Effective date

The Agreement enters into force on the effective date set out in the Order Form (the “Effective Date”) and continues for the Subscription Term defined in Section 11.

2. Definitions

Capitalised terms used in this ToS have the meaning set out below. Capitalised terms not defined here have the meaning given in the Order Form, the DPA or the SoW.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means ownership of more than fifty percent (50%) of the voting interests or the right to direct management.

“Authorized User” means an employee, contractor or temporary worker of the CLIENT (or of a CLIENT Affiliate within the scope of the Order Form) who is authorised by the CLIENT to access the Service under the Agreement and to whom the CLIENT has issued user credentials. The Order Form sets out the maximum number of Authorized Users.

“Beta Service” means any feature, module or functionality of the Service that Retorio identifies as “Beta”, “Preview”, “Early Access”, “Experimental” or with any similar designation.

“CLIENT Data” means any data, content, information or material that the CLIENT, its Affiliates or its Authorized Users upload to, transmit through, generate within or otherwise provide to the Service, including learner video and audio recordings, training scenarios, scorecards, configuration data and any output specific to the CLIENT (the “Outputs”).

“Confidential Information” means any non-public information disclosed by one Party to the other in any form that is identified as confidential or that, given its nature and the circumstances of its disclosure, a reasonable person would understand to be confidential. Confidential Information of the CLIENT includes CLIENT Data, the CLIENT’s training content and scenarios, the CLIENT’s business context uploaded to the Service, and the CLIENT’s pricing under the Order Form. Confidential Information of Retorio includes the Service, the Documentation, Retorio’s pricing, models, algorithms, source code, security measures and product roadmap.

“Documentation” means the written user and technical documentation for the Service made available by Retorio via online access, including the SoW (Exhibit 1) and the technical documentation at help.retorio.com.

“Personal Data” means as defined in Article 4 No. 1 GDPR (Regulation (EU) 2016/679) or, where applicable, in equivalent local data protection law.

“Service” means Retorio’s AI Coaching Platform and any related services provided by Retorio under the Agreement, accessible at retorio.com and its subdomains, including all software, application programming interfaces, models, analytics and content delivered as Software-as-a-Service.

“Service Data” means aggregated, statistical, behavioural and technical signals derived from use of the Service, in each case with all direct and indirect identifiers, all Personal Data and all Confidential Information of the CLIENT removed or irreversibly de-identified through techniques recognised in industry practice (such as aggregation, generalisation, suppression of quasi-identifiers, or equivalent methods), such that the resulting data cannot reasonably be attributed to a specific individual or to the CLIENT.

“Sub-processor” means any third party engaged by Retorio that processes Personal Data on behalf of the CLIENT, as further described in the DPA.

“Subscription Term” means the term of the CLIENT’s subscription to the Service as set out in the Order Form, including any renewal terms in accordance with Section 11.

3. Provision of the Service

3.1 Right of access

Subject to the CLIENT’s compliance with the Agreement and payment of the Fees, Retorio will make the Service available to the CLIENT and its Authorized Users during the Subscription Term in accordance with the Documentation, the SoW and the SLA.

3.2 Software-as-a-Service

The Service is provided as Software-as-a-Service. No copy of the Service is delivered to or installed on the CLIENT’s systems. The Service is accessed through standard web browsers as listed in the SLA. The CLIENT is responsible for the internet connectivity, browsers, devices and any third-party services required on its side to access the Service.

3.3 Data residency

Primary data residency for the Service is defined in the DPA (Exhibit 3). By default, CLIENT Data is hosted and processed in the European Union on infrastructure operated by Retorio’s primary cloud Sub-processors. Certain Sub-processors listed in the DPA may process limited categories of CLIENT Data outside the European Union (for example, customer support tools or specific Speech-to-Text providers, or fallback server infrastructure). Any such processing complies with Chapter V GDPR, including the use of Standard Contractual Clauses or other appropriate transfer mechanisms where required. The current list of Sub-processors and their respective processing locations is maintained in the DPA.

3.4 Modifications to the Service

Retorio may update, improve, modify or replace features of the Service from time to time, provided that no such change materially diminishes the core functionality of the Service during the then-current Subscription Term. Retorio will give the CLIENT reasonable prior notice of changes that materially affect the use of the Service.

4. Right to use

4.1 Grant

Retorio grants the CLIENT, during the Subscription Term, a non-exclusive, non-transferable, non-sublicensable, worldwide right to access and use the Service through its Authorized Users for the CLIENT’s internal business purposes, in accordance with the Order Form, the Documentation and this ToS.

4.2 Affiliates

The CLIENT’s Affiliates listed in the Order Form (or otherwise approved by Retorio in writing) may use the Service under the Agreement, provided the CLIENT remains liable for their compliance with the Agreement. Where an Affiliate requires a separate contracting entity, the Parties may sign a separate Order Form referring to this ToS.

4.3 Reservation of rights

All rights not expressly granted to the CLIENT under the Agreement are reserved by Retorio. Retorio and its licensors retain all right, title and interest in and to the Service, the Documentation, all underlying technology, all AI models, algorithms and Service Data, and all intellectual property rights therein. The Agreement does not transfer to the CLIENT any ownership of the Service or any of the foregoing.

5. Authorized Users

5.1 Number and scope

The CLIENT may authorise Authorized Users up to the maximum number set out in the Order Form. An Authorized User account is personal and must not be shared. The CLIENT may reassign an Authorized User account to a different individual when an existing Authorized User no longer requires access (for example, on departure from the CLIENT).

5.2 CLIENT responsibility

The CLIENT is responsible for: (a) the acts and omissions of its Authorized Users in connection with the Service; (b) maintaining the confidentiality of user credentials; (c) notifying Retorio without undue delay of any actual or suspected unauthorised access; and (d) ensuring that its Authorized Users comply with this ToS, the Documentation and applicable law.

5.3 Suspension

Retorio may suspend access for an individual Authorized User where Retorio reasonably believes that the user’s activity (i) threatens the security, integrity or availability of the Service, (ii) violates Section 8 (CLIENT obligations and acceptable use), or (iii) infringes the rights of any third party. Retorio will, where reasonably practicable, give the CLIENT prior notice and an opportunity to remedy the issue. Suspension under this section does not relieve the CLIENT of any obligation to pay the Fees.

6. CLIENT Data and ownership

6.1 Ownership

As between the Parties, the CLIENT owns all right, title and interest in and to CLIENT Data and all Outputs generated for the CLIENT through the Service. Retorio acquires no right, title or interest in CLIENT Data or Outputs other than the limited rights granted under Section 6.2.

6.2 Licence to Retorio

The CLIENT grants Retorio, its Affiliates and its applicable Sub-processors a non-exclusive, worldwide, royalty-free licence to host, copy, transmit, process, display and otherwise use CLIENT Data solely as necessary to: (a) provide, operate, maintain, secure and support the Service; (b) generate Outputs for the CLIENT; (c) comply with applicable law; and (d) enforce the Agreement. This licence terminates on termination of the Agreement, subject to the deletion and return obligations in Section 11.5 and the DPA.

6.3 Service Data and learning from general patterns

Retorio may collect and process Service Data, and may use Service Data for any lawful business purpose, including to operate, secure, troubleshoot, analyse, benchmark, improve and develop the Service (including its underlying models). The Parties acknowledge that the value of the Service depends on Retorio’s ability to learn general patterns of communication behaviour and coaching effectiveness across its customer base. Accordingly, Retorio may derive, retain and use insights from such general patterns, including patterns observed across industries, roles and use cases, provided that any such use (a) is based exclusively on Service Data as defined in Section 2, (b) does not involve any Personal Data or Confidential Information of the CLIENT, and (c) cannot reasonably be used to re-identify any individual or to disclose CLIENT-specific information.

6.4 No training on Personal Data or Confidential Information

Retorio will not use Personal Data or Confidential Information of the CLIENT to train, fine-tune, retrain or otherwise improve any artificial intelligence or machine learning model — whether a Retorio model or a third-party model. This obligation applies to Retorio and is contractually flowed down to Retorio’s AI Sub-processors as described in Section 7. For the avoidance of doubt, Section 6.3 does not authorise any use of Personal Data or Confidential Information for model training; only Service Data as defined in Section 2 may be used for the purposes set out in Section 6.3.

6.5 Opt-out from Service Data use

The CLIENT may, by giving Retorio written notice, opt out of the use of Service Data derived from its instance for model-improvement purposes. Such opt-out applies prospectively from a reasonable implementation date and does not affect Retorio’s right to use Service Data for the operation, security and troubleshooting of the Service.

7. Artificial intelligence and EU AI Act

7.1 AI Sub-processors and zero retention

The Service relies on Retorio’s own proprietary models and on third-party foundation models accessed through enterprise-grade infrastructure (currently Microsoft Azure OpenAI Service and Google Cloud Vertex AI, as listed in the DPA). Retorio’s enterprise agreements with these AI Sub-processors include zero-retention commitments: CLIENT Data submitted to the foundation model is processed on a transient basis only, is not retained beyond the duration of the interaction, and is not used by the foundation model provider to train, retrain or otherwise improve any model.

7.2 EU AI Act classification

As of the Effective Date, Retorio classifies the Service, when used as intended in accordance with the Documentation and the SoW, as not constituting a high-risk AI system within the meaning of Regulation (EU) 2024/1689 (the “EU AI Act”). This position is based on the following:

• The Service is a voluntary training and coaching tool; participation is voluntary for end users.
• The Service does not make automated personnel decisions and is not used as the sole or decisive basis for any decision affecting an individual’s employment, performance evaluation, promotion, compensation or termination.
• The Service analyses openly displayed communication behaviour (for example, facial expressions, speech, language) for training feedback purposes; Retorio considers this aligned with Recital 18 of the EU AI Act and not as biometric categorisation or emotion recognition in the regulated sense.

Note
The classification under this Section 7.2 is a statement of Retorio’s good-faith position and not a legal warranty. The CLIENT acknowledges that the regulatory landscape continues to evolve and remains responsible for its own assessment under Section 7.3.

7.3 Roles under the EU AI Act

For the purposes of the EU AI Act, Retorio acts as the provider of the AI system and the CLIENT acts as the deployer. The CLIENT is responsible for: (a) ensuring that the Service is used in accordance with the Documentation and intended purpose; (b) informing end users that they are interacting with an AI system; (c) where the CLIENT operates the Service in any context that would make it a high-risk AI system, complying with the deployer obligations of the EU AI Act. Retorio will provide reasonable assistance to the CLIENT to meet its deployer transparency, logging and human-oversight obligations, including by making available the information required under Article 13 of the EU AI Act.

7.4 Regulatory change

If, during the Subscription Term, a competent regulatory authority, court, official guidance or amendment to applicable law (including the EU AI Act and any delegated or implementing acts thereunder) results in the Service or any material part of it being reclassified as a high-risk AI system, a prohibited practice, or otherwise becoming subject to materially increased regulatory obligations, Retorio may, at its option and on reasonable prior written notice to the CLIENT: (a) modify the Service to bring it into compliance, including by removing, restricting or adjusting affected features, provided that Retorio uses commercially reasonable efforts to preserve the substance of the Service; (b) suspend the affected feature or use case until compliance is achieved; or (c) terminate the affected part of the Service or, if compliance cannot be achieved with reasonable effort, the Agreement, in each case without liability to the CLIENT other than a pro-rated refund of prepaid Fees for the affected portion of the Service for the unused remainder of the then-current Subscription Term. Each Party will cooperate with the other in good faith to adapt the use of the Service to any new regulatory requirements.

8. CLIENT obligations and acceptable use

8.1 General obligations

The CLIENT will: (a) use the Service in accordance with the Agreement, the Documentation and applicable law (including data protection law and the EU AI Act); (b) prevent unauthorised access to or use of the Service; (c) be solely responsible for CLIENT Data and for the legal basis on which CLIENT Data is processed through the Service; and (d) cooperate reasonably with Retorio on security and compliance matters.

8.2 Restrictions on use

The CLIENT will not, and will not permit any Authorized User or third party to:

1. sell, resell, license, sublicense, distribute, rent, lease or otherwise make the Service available to any third party, or include the Service in any service bureau or outsourcing offering;
2. reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, models, algorithms, training data or underlying ideas of the Service, except to the extent that such restriction is prohibited by mandatory applicable law;
3. copy, modify, create derivative works of or remove any proprietary notices from the Service or the Documentation, except for permitted Outputs;
4. use the Service to develop, train, improve or benchmark any artificial intelligence or machine-learning product, model or service that competes directly with the Service (a “Competing Service” means a commercially offered AI-driven sales, service, leadership or behavioural coaching platform that is functionally similar to the Service); this restriction does not prohibit the CLIENT’s good-faith internal evaluation of the Service against other tools the CLIENT is considering for procurement, or internal analytics on the CLIENT’s own learning programmes;
5. use any Output of the Service as training data, fine-tuning data or evaluation data for any third-party large language model, foundation model or other AI system that constitutes a Competing Service as defined in (4) above;
6. scrape, crawl, or use any automated means to extract data from the Service, other than through interfaces expressly made available by Retorio for that purpose;
7. upload or transmit through the Service any content that is unlawful, infringing, defamatory, obscene, harassing, harmful, malicious code, or that violates any third party’s privacy, intellectual property or other rights;
8. interfere with or disrupt the integrity, security or performance of the Service or attempt to gain unauthorised access to any part of the Service or its systems;
9. circumvent any usage limits, access controls, security measures or quotas; or
10. use the Service in any High-Risk Activity (see Section 12.4).

8.3 Consequences of breach

If the CLIENT breaches Section 8.2 in a manner that materially threatens the Service or third parties, Retorio may suspend the Service in whole or in part. Retorio will, where reasonably practicable, give the CLIENT prior notice and an opportunity to remedy the issue. Suspension under this section does not relieve the CLIENT of any obligation to pay the Fees and is without prejudice to Retorio’s termination rights under Section 11.

9. Third-party integrations

9.1 Available integrations

The Service supports integrations with third-party services chosen by the CLIENT and agreed in the SoW. The CLIENT enables and configures any such integration in accordance with the Documentation.

9.2 Third-party responsibility

Retorio is not responsible for: (a) the operation, content, security or availability of any third-party service; (b) any inability to access or use the Service caused by a failure of a third-party service that the CLIENT has chosen to integrate; or (c) any sharing of CLIENT Data with a third-party service that the CLIENT has enabled. The CLIENT is solely responsible for its compliance with the terms of any third-party service it uses with the Service.

10. Fees, payment and price changes

10.1 Fees

The CLIENT will pay the Fees set out in the Order Form. Unless the Order Form states otherwise: (a) Fees are stated in Euros; (b) Fees are payable annually in advance; (c) invoices are payable net thirty (30) days from the invoice date; and (d) all Fees are exclusive of taxes.

10.2 Taxes

The CLIENT is responsible for all taxes, duties and similar governmental assessments arising in connection with the Agreement, including VAT, GST, sales, use and withholding taxes (excluding taxes assessable on Retorio’s net income). Where Retorio is legally required to collect such taxes, they will be invoiced to the CLIENT in addition to the Fees.

10.3 Late payment

If the CLIENT fails to pay an undisputed invoice by its due date, Retorio may: (a) charge interest at the rate of 9 percentage points above the base rate of the European Central Bank pursuant to § 288(2) of the German Civil Code (or, where the CLIENT is located in the United States, at the lesser of 1.5% per month or the maximum rate permitted by law); and (b) after a written notice of at least ten (10) business days, suspend the Service until payment is received in full. Late payment will not relieve the CLIENT of its payment obligations.

10.4 Disputed amounts

If the CLIENT disputes an invoice in good faith, the CLIENT will: (a) pay the undisputed portion by the due date; and (b) notify Retorio of the disputed amount and the reason in writing within ten (10) business days of receipt of the invoice. The Parties will work in good faith to resolve the dispute promptly.

10.5 Renewal price changes

Fees do not increase during the initial Subscription Term. For any renewal Subscription Term, Retorio may increase the Fees by no more than five percent (5%) compared to the Fees applicable in the immediately preceding Subscription Term, provided that Retorio gives the CLIENT written notice of the increase at least sixty (60) days before the start of the renewal term. Increases above 5% require the CLIENT’s written agreement.

10.6 Overage and additional users

If the CLIENT exceeds the number of Authorized Users or any other usage limit set out in the Order Form, Retorio may invoice the CLIENT for additional Fees at the per-user rates in the Order Form (or, if no rate is stated for the relevant overage, at Retorio’s then-current standard rates) on a pro-rated basis for the remainder of the Subscription Term.

11. Subscription Term, renewal and termination

11.1 Initial term

The initial Subscription Term is twelve (12) months from the Effective Date unless a different initial term is specified in the Order Form.

11.2 Auto-renewal

The Subscription Term will automatically renew for successive twelve (12) month terms unless either Party gives written notice of non-renewal at least sixty (60) days before the end of the then-current term. The Order Form may specify a different renewal cycle.

11.3 Termination for material breach

Either Party may terminate the Agreement for material breach by the other Party if the breaching Party fails to cure the breach within thirty (30) days after receipt of a written notice describing the breach in reasonable detail. A material breach includes (without limitation): (a) the CLIENT’s failure to pay any undisputed Fee that remains unpaid more than thirty (30) days after notice; (b) the CLIENT’s breach of Section 8.2 or Section 15; or (c) Retorio’s failure to provide the Service in material accordance with the Documentation for a continuous period exceeding the cure period.

11.4 Termination for insolvency

Either Party may terminate the Agreement immediately on written notice if the other Party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver, trustee or liquidator appointed over substantially all of its assets, or files or has filed against it any petition under any bankruptcy or insolvency law that is not dismissed within sixty (60) days.

11.5 Effect of termination

On expiry or termination of the Agreement: (a) the CLIENT’s right to access the Service ends; (b) the CLIENT may, for a period of thirty (30) days after the termination effective date (the “Export Period”), request a one-time export of CLIENT Data in the Standard Export Format defined below, free of additional charge; (c) after the Export Period, Retorio will return or delete CLIENT Data in accordance with the DPA; and (d) each Party will pay any amounts accrued up to the effective date of termination. Termination does not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination.

The “Standard Export Format” consists of: (i) session and learner metadata, scorecards and analytics in JSON format; (ii) video recordings in MP4 format; and (iii) audio recordings in WAV format, in each case as stored by the Service at the effective date of termination. Any export in a different format, with additional transformations, in physical media, or after the Export Period, qualifies as a “Custom Export” and will be performed by Retorio against a separate written quote at Retorio’s then-current professional services rates and subject to Retorio’s technical feasibility assessment.

11.6 Survival

Sections that by their nature should survive termination will do so, including Sections 2 (Definitions), 4.3 (Reservation of rights), 6 (CLIENT Data and ownership), 8.2 (Restrictions on use), 10 (in respect of accrued Fees), 11.5 (Effect of termination), 11.6 (Survival), 13 (Indemnification), 14 (Limitation of liability), 15 (Confidentiality), 16 (Data protection), 20 (References, publicity and feedback), 25 (Notices), 29 (Entire agreement), 30 (Additional services and travel expenses) and 31 (Governing law and dispute resolution).

12. Warranties and disclaimers

12.1 Mutual warranties

Each Party warrants that: (a) it has full corporate power and authority to enter into the Agreement; (b) the Agreement is signed by an authorised representative; and (c) entering into the Agreement does not breach any other contract by which the Party is bound.

12.2 Retorio service warranty

Retorio warrants that, during the Subscription Term, the Service will perform in all material respects in accordance with the Documentation. As the CLIENT’s exclusive remedy and Retorio’s entire liability for breach of this warranty, Retorio will, at its option and at no additional cost to the CLIENT: (a) use commercially reasonable efforts to correct the non-conformity; (b) provide a reasonable workaround; or (c) if (a) and (b) are not reasonably achievable within thirty (30) days of the CLIENT’s written notice of the non-conformity, terminate only the affected feature, module or use case of the Service and refund to the CLIENT the pro-rated portion of Fees paid that is reasonably attributable to that affected feature, module or use case for the unused remainder of the then-current Subscription Term. For the avoidance of doubt, Retorio is not required to terminate the entire Service or refund Fees attributable to portions of the Service that continue to operate in material accordance with the Documentation.

12.3 Disclaimer of other warranties

Except as expressly set out in Section 12.2 and to the fullest extent permitted by applicable law, the Service is provided “as is” and Retorio disclaims all other warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy of data, absence of errors, and uninterrupted operation. Retorio does not warrant that the Outputs produced by the Service will achieve any particular result for the CLIENT.

12.4 High-Risk Activities

The Service is not designed for use in any environment that requires fail-safe performance and in which a failure of the Service could lead directly to death, personal injury or severe physical or environmental damage, including the operation of nuclear facilities, aviation, life-support systems and weapons systems (“High-Risk Activities”). Retorio expressly disclaims any express or implied warranty of fitness for High-Risk Activities.

12.5 Not a substitute for professional judgement

The Outputs of the Service are provided as training and coaching feedback to support the development of communication and other professional skills. The Outputs are not, and must not be used by the CLIENT as, the sole or decisive basis for any decision concerning an individual’s employment, performance evaluation, compensation, promotion or termination.

13. Indemnification

13.1 Indemnification by Retorio

Retorio will defend the CLIENT, its Affiliates and their respective directors, officers and employees (the “CLIENT Indemnitees”) against any third-party claim alleging that the Service, as provided by Retorio and used by the CLIENT in accordance with the Agreement, infringes any third party’s patent, copyright, trademark or trade secret rights (a “Claim Against the CLIENT”), and will indemnify the CLIENT Indemnitees against any damages, attorneys’ fees and costs finally awarded against the CLIENT Indemnitees by a court of competent jurisdiction or agreed in a settlement signed by Retorio.

If a Claim Against the CLIENT arises or in Retorio’s reasonable opinion is likely to arise, Retorio may, at its option and at no additional cost to the CLIENT: (a) procure the right for the CLIENT to continue using the Service; (b) modify or replace the Service to make it non-infringing while substantially preserving its functionality; or (c) if (a) and (b) are not commercially reasonable, terminate the affected portion of the Service and refund the pro-rated portion of Fees paid for the remaining Subscription Term. Sections 13.1 (a) to (c) state Retorio’s entire obligation and the CLIENT’s exclusive remedy for any Claim Against the CLIENT.

Cap on IP indemnity
Notwithstanding Section 14.3, Retorio’s total aggregate liability under this Section 13.1, including all defence costs, damages, attorneys’ fees, costs and settlement amounts in respect of all Claims Against the CLIENT, is limited to an amount equal to three (3) times the Fees paid or payable by the CLIENT under the Order Form in the twelve (12) months immediately preceding the event first giving rise to the Claim Against the CLIENT.

13.2 Indemnification by the CLIENT

The CLIENT will defend Retorio, its Affiliates and their respective directors, officers and employees (the “Retorio Indemnitees”) against any third-party claim arising from or relating to: (a) CLIENT Data or any content provided by the CLIENT, including any allegation that such data or content infringes any third party’s rights, violates applicable law (including data protection law and the EU AI Act) or constitutes unlawful processing; (b) the CLIENT’s breach of Section 8.2 (Restrictions on use); or (c) the CLIENT’s use of the Service in any manner not permitted by the Agreement (a “Claim Against Retorio”), and will indemnify the Retorio Indemnitees against any damages, attorneys’ fees and costs finally awarded against the Retorio Indemnitees by a court of competent jurisdiction or agreed in a settlement signed by the CLIENT.

13.3 Indemnification carve-outs

Retorio has no obligation under Section 13.1 for any Claim Against the CLIENT arising from or relating to: (a) modifications to the Service not made by Retorio; (b) the combination, operation or use of the Service with any product, service, hardware, software or data not provided by Retorio, where the Service alone would not have caused the infringement; (c) use of the Service in breach of the Agreement; or (d) any CLIENT Data.

13.4 Indemnification procedure

The indemnification obligations in this Section 13 are conditional on: (a) the indemnified Party giving the indemnifying Party prompt written notice of the claim; (b) the indemnifying Party having sole control of the defence and settlement of the claim (provided that any settlement that imposes a non-monetary obligation on the indemnified Party requires the indemnified Party’s prior written consent, not to be unreasonably withheld); and (c) the indemnified Party providing reasonable cooperation to the indemnifying Party, at the indemnifying Party’s expense.

14. Limitation of liability

14.1 Liability cap

Subject to Section 14.3 and to the fullest extent permitted by applicable law, each Party’s total aggregate liability arising out of or in connection with the Agreement is limited to an amount equal to the Fees paid or payable by the CLIENT under the Order Form in the twelve (12) months immediately preceding the event first giving rise to the claim.

14.2 Excluded damages

Subject to Section 14.3 and to the fullest extent permitted by applicable law, neither Party will be liable for any indirect, incidental, consequential, special, exemplary or punitive damages, including lost profits, lost revenue, loss of goodwill, loss of data, loss of business or costs of substitute goods or services, even if the Party has been advised of the possibility of such damages.

14.3 Carve-outs from the liability cap and excluded damages

The limitations in Sections 14.1 and 14.2 do not apply to:

1. liability that cannot be limited or excluded under applicable law, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation;
2. a Party’s liability for gross negligence or wilful misconduct;
3. the CLIENT’s payment obligations under Section 10 and Section 30;
4. each Party’s indemnification obligations under Section 13 (subject to the specific cap in Section 13.1);
5. each Party’s breach of Section 15 (Confidentiality);
6. liability of Retorio under the German Product Liability Act (Produkthaftungsgesetz) or any equivalent statutory liability that cannot be excluded;
7. the CLIENT’s breach of Section 8.2 (Restrictions on use) or any infringement of Retorio’s intellectual property rights.

14.4 Interaction with German law

Where this Agreement is governed by German law, the limitations in Sections 14.1 and 14.2 will be interpreted to give full effect to the Parties’ intent while remaining consistent with mandatory provisions of German law (including §§ 309 No. 7, 309 No. 8 BGB). For the avoidance of doubt, Retorio remains liable in accordance with German law for damages resulting from intent or gross negligence, for breach of material contractual obligations (Kardinalpflichten) limited to foreseeable damages typical for this type of contract, and for damages covered by the carve-outs in Section 14.3.

15. Confidentiality

15.1 Obligations

Each Party (the “Receiving Party”) will: (a) hold the other Party’s (the “Disclosing Party”) Confidential Information in strict confidence and use no less than the same degree of care it uses to protect its own confidential information (and in no event less than a reasonable degree of care); (b) use Confidential Information only as necessary to exercise its rights and perform its obligations under the Agreement; and (c) limit access to Confidential Information to its employees, contractors, advisers and Affiliates who have a need to know and who are bound by confidentiality obligations at least as protective as this Section 15.

15.2 Exceptions

This Section 15 does not apply to information that: (a) was rightfully known to the Receiving Party without restriction before disclosure by the Disclosing Party; (b) is or becomes publicly known without breach of the Agreement by the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without confidentiality obligations; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

15.3 Required disclosure

If the Receiving Party is required by law, regulation or court order to disclose Confidential Information of the Disclosing Party, it will, to the extent legally permitted, give the Disclosing Party prompt written notice and reasonable cooperation so that the Disclosing Party may seek a protective order or other remedy.

15.4 Term of confidentiality

The obligations in this Section 15 continue during the Subscription Term and for five (5) years thereafter. Trade secrets remain protected for as long as they qualify as trade secrets under applicable law.

16. Data protection

16.1 DPA prevails

The processing of Personal Data under the Agreement is governed by the DPA (Exhibit 3). In the event of any conflict between this ToS and the DPA in respect of Personal Data, the DPA prevails.

16.2 Roles

For all Personal Data processed in connection with the Service, the CLIENT acts as the controller within the meaning of Article 4 No. 7 GDPR and Retorio acts as the processor within the meaning of Article 4 No. 8 GDPR. The specific instructions, scope, duration, nature and purpose of the processing are set out in the DPA.

16.3 Sub-processors

The DPA lists the current Sub-processors engaged by Retorio. Retorio will give the CLIENT prior notice of any changes to its Sub-processors and the CLIENT may object on reasonable data-protection grounds as provided in the DPA.

17. Information security

17.1 Security measures

Retorio implements and maintains appropriate technical and organisational measures to protect the Service and CLIENT Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access, as described in the TOMs (Exhibit 5).

17.2 ISO 27001 certification

Retorio is certified to ISO/IEC 27001:2022 by an accredited certification body. The current ISO 27001 certificate and the corresponding Statement of Applicability are available to the CLIENT on request.

17.3 Encryption and testing

CLIENT Data is encrypted in transit using TLS 1.3 or higher and at rest using AES-256 or equivalent. Retorio runs continuous vulnerability scanning and performs periodic penetration testing of the Service. A summary of the most recent penetration test is available to the CLIENT on request, subject to confidentiality.

17.4 Incident notification

Personal Data Breaches will be notified in accordance with the DPA. Security incidents that do not involve Personal Data but materially affect the security or availability of the Service will be notified to the CLIENT in accordance with the notification procedures and timelines set out in the SLA.

18. Beta Services

18.1 Beta features

From time to time, Retorio may make Beta Services available to the CLIENT. Beta Services are made available for evaluation purposes, are not generally available, and may be modified, suspended or withdrawn by Retorio at any time without liability to the CLIENT.

18.2 No warranty, no SLA

Beta Services are provided “as is”. The warranties in Section 12.2 and the service-level commitments in the SLA do not apply to Beta Services. The CLIENT’s use of any Beta Service is voluntary, at the CLIENT’s sole risk, and may be discontinued by the CLIENT at any time.

18.3 Feedback on Beta Services

The CLIENT may provide Retorio with feedback on Beta Services. Feedback is governed by Section 20.3.

19. Service Levels

The service-level commitments for the Service (including uptime targets, support response times, maintenance windows and release management) are set out in the SLA (Exhibit 4). If Retorio fails to meet an agreed service level, the CLIENT’s exclusive remedy is the service credit or other remedy expressly provided in the SLA.

20. References, publicity and feedback

20.1 Identification as a customer

Retorio may identify the CLIENT as a customer of Retorio, including by using the CLIENT’s name and logo on Retorio’s website, in customer lists, in investor materials and in customer communications, in each case in a manner consistent with the CLIENT’s brand guidelines where these have been provided to Retorio. The CLIENT may opt out of this Section 20.1 at any time by giving Retorio written notice; the opt-out applies prospectively from a reasonable implementation date.

20.2 Additional reference rights

Any additional reference commitments by the CLIENT, including participation in case studies, joint press releases, public testimonials, webinar participation and reference calls, are as set out in the Order Form.

20.3 Feedback

If the CLIENT or its Authorized Users provide Retorio with any suggestions, ideas, enhancement requests or other feedback about the Service (collectively, “Feedback”), the CLIENT grants Retorio a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable, sublicensable licence to use the Feedback for any purpose, including to develop and improve the Service, with no obligation of compensation or attribution. Feedback does not include CLIENT Data, Personal Data or Confidential Information of the CLIENT.

21. Compliance with law

21.1 General

Each Party will comply with all laws and regulations applicable to its performance under the Agreement, including data protection law (in particular the GDPR), AI law (in particular the EU AI Act), competition law, and applicable employment law.

21.2 Anti-bribery and anti-corruption

Each Party will comply with all applicable anti-bribery and anti-corruption laws, including the German Criminal Code (StGB), the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. Retorio maintains an Anti-Corruption Policy that is made available to the CLIENT on request.

21.3 Export controls and sanctions

Neither Party will use the Service or permit the Service to be used in violation of any applicable export control, sanctions or anti-money-laundering laws, including the export control laws of the European Union, Germany and the United States.

22. Insurance

Retorio maintains, at its expense, insurance coverage commensurate with industry standards for an enterprise SaaS provider, including: (a) commercial general liability insurance; (b) professional indemnity / errors-and-omissions insurance covering technology services; and (c) cyber liability insurance. Certificates of insurance and a summary of cover amounts are available to the CLIENT on request, subject to confidentiality.

23. Force majeure

Neither Party will be liable for any failure or delay in performance of the Agreement (other than payment obligations) caused by circumstances beyond its reasonable control, including acts of God, acts of government, war, terrorism, civil unrest, pandemic, fire, flood, earthquake, labour disputes (other than those involving a Party’s own employees), failures or delays of internet service providers, hosting providers, telecommunications networks or upstream Sub-processors, or denial-of-service attacks (“Force Majeure”). The affected Party will notify the other Party promptly and use reasonable efforts to mitigate the effect of the Force Majeure event. If a Force Majeure event continues for more than sixty (60) consecutive days, either Party may terminate the Agreement on written notice.

24. Assignment

Neither Party may assign, novate or otherwise transfer the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other Party. As an exception, either Party may assign the Agreement, on written notice and without consent, to (a) an Affiliate of the assigning Party or (b) a successor in connection with a merger, acquisition, reorganisation or sale of all or substantially all of its assets to which the Agreement relates, provided that the assignee assumes all of the assigning Party’s obligations under the Agreement. Any purported assignment in breach of this Section 24 is void.

25. Notices

Notices under the Agreement must be in writing and sent to the addresses set out in the Order Form (or, in the absence of a specified address, to the Party’s registered office). Notices are deemed given: (a) on delivery, if delivered personally or by reputable courier; (b) three (3) business days after posting, if sent by registered mail; and (c) on the date of transmission, if sent by email to the contact addresses specified in the Order Form, with confirmation of receipt or successful transmission. Routine operational notices may be given through the Service or by email.

26. Amendments

26.1 Amendments require writing

No amendment of, or supplement to, the Agreement is valid unless made in writing and signed by an authorised representative of each Party. This requirement applies equally to any waiver of the requirement of written form itself.

26.2 Standard policies

Retorio may, on reasonable prior notice, update: (a) the list of Sub-processors in accordance with the DPA; (b) support hours and contact details in the SLA, provided that the substance of the support commitments is not materially diminished; and (c) the Documentation. Any such update will not change the commercial or legal terms of the Agreement.

27. Independent contractors, no third-party beneficiaries

The Parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, agency or employment relationship between the Parties. Neither Party has authority to bind the other or to incur any liability on behalf of the other. Except for the indemnified parties identified in Section 13, the Agreement does not confer any rights or remedies on any person other than the Parties.

28. Severability and waiver

28.1 Severability

If any provision of the Agreement is held to be invalid, illegal or unenforceable, the remaining provisions will continue in full force and effect. The Parties will negotiate in good faith to replace the invalid provision with a valid and enforceable provision that comes as close as possible to the economic intent of the original provision.

28.2 Waiver

No failure or delay by a Party in exercising any right under the Agreement is a waiver of that right. A waiver is effective only if made in writing and signed by the waiving Party, and applies only to the specific instance and purpose for which it is given.

29. Entire agreement

The Agreement constitutes the entire agreement between the Parties in respect of its subject matter and supersedes all prior or contemporaneous communications, proposals, representations and agreements, whether oral or written, in respect of that subject matter. The CLIENT acknowledges that it has not relied on any statement, representation or assurance made or given by Retorio that is not set out in the Agreement.

Any terms or conditions contained in a CLIENT purchase order, vendor portal, procurement form, click-through interface or other CLIENT document are expressly rejected and have no effect on the Agreement, unless such terms have been signed in writing by an authorised representative of Retorio.

30. Additional services and travel expenses

30.1 Scope of customer success and professional services

The scope of customer success services, onboarding, training, configuration support and other professional services included in the Fees is defined in the Order Form and the SoW. Any services requested by the CLIENT that fall outside this defined scope (“Additional Services”) are not included in the Fees and require a separate written work order or change request, agreed in writing (including by email) between the Parties before the work is performed.

30.2 Daily rate for Additional Services

Unless the Order Form or a written change request agrees a different rate, Additional Services are charged at a flat daily rate of two thousand Euros (EUR 2,000) net of VAT per consultant-day, irrespective of the seniority or function of the assigned Retorio personnel. A consultant-day is based on an eight (8) hour working day; partial days are billed in half-day increments rounded up to the next half-day. Time spent on preparation, follow-up, internal coordination and reasonable travel time directly related to the Additional Services is included in the daily rate.

30.3 Travel expenses

Where Additional Services or any other work agreed between the Parties require Retorio personnel to travel to a location not covered by the Order Form or the SoW, the CLIENT will reimburse Retorio for all reasonable and documented travel and accommodation expenses incurred. Such reimbursement is in addition to the Fees and the daily rate set out in Section 30.2.

Travel expenses will be incurred and reimbursed in accordance with the following principles, reflecting common practice in enterprise SaaS and professional services engagements:

1. Air travel: economy class for flights with a scheduled flight time of up to four (4) hours; business class for flights with a scheduled flight time exceeding four (4) hours, and for all intercontinental flights;
2. Rail travel: first class (1st class / Business / equivalent);
3. Ground transport: standard taxi, ride-hailing or public transport, or, where reasonable, a rental car in the mid-size category; mileage for use of a personal vehicle is reimbursed at the applicable German statutory rate;
4. Accommodation: a four-star (4*) business-class hotel at a reasonable rate for the destination, including breakfast where customary;
5. Meals and incidentals: reimbursed at actual cost on receipt, or, at Retorio’s option, at the applicable German statutory per-diem rates (Verpflegungsmehraufwand);
6. Visa, vaccination, travel insurance and similar costs reasonably required for the trip.

Retorio will book travel in good faith with a view to keeping costs reasonable and will provide the CLIENT with copies of supporting receipts or a summary expense report on request. Travel expenses are invoiced together with the next applicable invoice for Additional Services or, where no Additional Services invoice is pending, separately.

30.4 Cancellation and rescheduling

If the CLIENT cancels or reschedules a confirmed on-site engagement less than five (5) business days before the agreed start date, the CLIENT will reimburse Retorio for any non-refundable travel and accommodation costs already incurred. Cancellations or reschedules made less than two (2) business days before the agreed start date will additionally be charged at fifty percent (50%) of the daily rate set out in Section 30.2 for the scheduled consultant-days.

30.5 Order of precedence

This Section 30 applies unless and to the extent the Order Form or a written change request expressly states a different rate, scope or travel policy, in which case the more specific document prevails for the matters it addresses.

31. Governing law and dispute resolution

31.1 Governing law

The Agreement is governed by and construed in accordance with the laws of the Federal Republic of Germany, excluding (a) its conflict-of-laws rules and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG).

31.2 Good-faith resolution

The Parties will use commercially reasonable efforts to resolve any dispute arising out of or in connection with the Agreement amicably and in good faith, through discussions between senior representatives, before initiating formal proceedings. Either Party may initiate formal proceedings if the dispute is not resolved within thirty (30) days of the first written notice of dispute.

31.3 Jurisdiction

Subject to Section 31.4, the courts of Munich, Germany have exclusive jurisdiction over any dispute arising out of or in connection with the Agreement.

31.4 Equitable relief

Notwithstanding Section 31.3, either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights, Confidential Information or trade secrets, or to prevent unauthorised use of the Service, without first having to comply with Section 31.2.

32. Statutory consumer rights

Nothing in the Agreement limits any statutory rights that the CLIENT may have under mandatory applicable consumer protection law. Where the CLIENT is an enterprise within the meaning of § 14 of the German Civil Code (BGB), no consumer protection provisions apply.

33. Language

This ToS is executed in English. A German translation may be made available for convenience. In case of any inconsistency or conflict between the English version and any translation, the English version prevails.