SaaS 공급업체 계약 부속서

This SaaS Vendor Agreement Rider (“Rider”) is entered into by and between the vendor identified in the Vendor Terms that incorporate this Rider by reference (“Vendor”) and Twelve Labs, Inc., a Delaware corporation (“TL”), and is effective as of the effective date of the Agreement (the “Effective Date”).  This Rider amends and forms a part of Vendor’s agreement for the provision of Vendor’s platform-, and/or software-as-a-service product(s) to TL (the “Vendor Terms” and, together with this Rider, the “Agreement”).

Whereas, Vendor provides SaaS and/or PaaS products to Vendor’s customers under the Vendor Terms and the parties wish to supplement and amend, in part, the Vendor Terms;

Accordingly, the parties agree as follows:

Definitions.

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than 50% of the voting equity securities or other equivalent voting interests of an entity.

“TL Data” means any data or data files of any type that are uploaded by or on behalf of TL to the Service or otherwise made available to Vendor for processing or storage in the Service. 

“Documentation” means Vendor’s technical documentation and usage guides for the applicable Service, including those provided to TL or made available on Vendor’s website or through the Service (in the latter two cases, as updated by Vendor from time to time).

“Fees” means the fees due by TL for the applicable Service or Technical Services, as set forth in an Order Form or the Vendor Terms.

“Order Form” means the Vendor ordering document referencing this Agreement and specifying the Services to be provided hereunder that has been duly entered into between TL and Vendor or any of either party’s Affiliates. 

“Service” means a Vendor product or service ordered by TL in an Order Form.

“Service Data” means Vendor’s technical logs, data and learnings about Customer’s use of the Service, but excluding TL Data.

“Technical Services” means technical assistance related to the Service provided by Vendor to TL, as set forth in an Order Form or SOW.

“Transition Period” means the transition period following expiration or termination of all outstanding Order Forms, as further described in §9 of this Rider (Transition Period).

The following provisions are to be read in conjunction with the provisions of the Agreement, provided, however, that to the extent of any conflict between the following provisions and those of the Agreement, the following provisions will control to the extent of such conflict:

1. Affiliates.  TL may purchase Services from Vendor for the benefit and use of TL’s Affiliates; if TL has done so, TL is solely responsible for the acts and omissions of its Affiliates under the Agreement.

   
   

2. Rights in TL Data.  As between the parties, TL or its licensors shall retain all right, title and interest (including any and all intellectual property rights) in and to the TL Data and TL Confidential Information.  Subject to the terms of this Agreement, TL hereby grants to Vendor a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, and display the TL Data solely to the extent necessary to provide the Services to TL under this Agreement. 

   
   

3. Service Data.  Notwithstanding anything to the contrary herein, TL agrees that Vendor may collect Service Data, and Vendor may use Service Data solely to develop, improve, support, and operate the Services during and after the term of this Agreement.  Vendor acknowledges and agrees that this section does not give Vendor the right to identify TL as the source of any Service Data without written permission from TL. Vendor may not share any Service Data that includes TL’s Confidential Information with a third party except (i) in accordance with §17 (Confidential Information) of this Rider, or (ii) to the extent the Service Data is aggregated and anonymized such that TL and Users cannot be identified. 

   
   

4. Warranty; Representations; Covenants. Vendor hereby represents, warrants, covenants, acknowledges, and agrees as follows: (i) the Services and Vendor’s provision thereof does and Vendor shall comply with all applicable federal, state, and local laws and regulations; (ii) the Services will perform in conformance in all material respects to the Documentation relating thereto and the functionality of the Services will not materially decrease during the term (iii) Vendor has the facilities, experience and expertise necessary to perform all the Technical Services related to the Services, if any are provided for in this Agreement, and shall perform the Technical Services in accordance with the highest professional and industry standards in a timely manner using qualified personnel; and (iv) no click-through, browse-wrap, or click-wrap terms, nor any terms that may be present on invoices, software installation dialogues, Vendor’s website, or automatically appended to its employees’ emails will modify, supplement, or amend this Agreement, unless such terms explicitly and specifically manifest an intent to amend this specific, unique Agreement, evidenced, at least in part, by specific reference to the title and actual effective date of this Agreement.

   
   

5. Limitation of Liability.  THE PARTIES ACKNOWLEDGE AND AGREE THAT NOTHING IN THE AGREEMENT IN ANY WAY LIMITS EITHER PARTY’S LIABILITY FOR FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF §2 OF THIS RIDER (RIGHTS IN TL DATA), BREACH OF §13 OF THIS RIDER (CONFIDENTIAL INFORMATION), OR THE INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.  THE PARTIES AGREE THAT NOTHING IN THE AGREEMENT IN ANY WAY ABROGATES ANY INDEMNIFICATION OR DEFENSE OBLIGATIONS SET FORTH IN THE AGREEMENT. 

   
   

6. Termination for Cause.  Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days.  TL may terminate this Agreement upon 30 days’ written notice in the event of the Services’ unreasonable (i) repeated or (ii) prolonged inoperability that is not in conformance with the Documentation or SLA (if any).  In the event of TL’s termination under this Section, Vendor shall promptly return any prepaid fees prorated to correspond to unused portions of the term of the Agreement.

   
   

7. Effect of Termination.  Except to the extent expressly set forth in §8 of this Rider (Transition Period), upon any expiration or termination of this Agreement, TL shall immediately cease use of and access to the applicable Service. Following termination (or, if applicable, the Transition Period) Vendor may restrict further access to any TL Data resident within the Service.  Promptly following termination of this Agreement (or, if applicable, the Transition Period) Vendor shall delete and destroy all TL Data and Confidential Information.  Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, shall be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

   
   

8. Transition Period.  If this Agreement is not terminated by Vendor for TL’s breach in accordance with §7 of this Rider (Termination for Cause), then following the expiration or termination of the last outstanding Order Form, there will be a 30-day Transition Period during which this Agreement continues in full force and effect solely to the extent necessary to allow the retrieval of TL Data from the applicable Service.  During the Transition Period, Vendor shall, free-of-charge, facilitate (e.g., via the provision of .csv file or other data extract) the exportation of TL Data from the Service in a format specified by TL.

   
   

9. Survival.  The following Sections of this Rider survive any termination of this Rider: §2-§3 §5-§9, §13-§14.

   
   

10. Support and Availability.  Vendor shall provide TL the level of support and service levels for the applicable Service specified in the Service Level Agreement, if any (“SLA”).

    
    

11. Assignment.  This Agreement shall bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities (“Change in Control”); provided, however that if (i) either party makes an assignment in connection with a  Change in Control to a competitor of the other party or (ii) publicly announces its intention to do same, the other party may immediately terminate this agreement upon written notice.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section is null and void.

    
    

12. Insurance.  Vendor shall procure and maintain at its own expense insurance policies with the coverage and limits set forth below during the term of this Agreement:

    
    

    1. Commercial general liability insurance of not less than $2,000,000 USD per occurrence for bodily injury and property damage with an annual aggregate of not less than $4,000,000 USD.

    2. Worker’s compensation insurance affording statutory coverage, as required by the laws of the state where the services are being performed under this Agreement, and Employer's liability coverage of not less than $1,000,000 USD per employee, per accident or disease.

    3. Automobile liability insurance of not less than $1,000,000 USD per accident for any vehicle used by Vendor to provide services to TL under this Agreement.

    4. Cyber security liability insurance of not less than $5,000,000 USD per claim and in the aggregate.

All insurance policies will be written by an insurer with a minimum AM Best rating of A- and that is authorized to do business in the territory and jurisdiction where the Services are being provided.  All insurance will be primary and non-contributory naming TL Inc., its subsidiaries, officers, owners, and affiliates as additional insureds and shall include a waiver of subrogation, where required by contract.  Vendor shall require each of its subcontractors, if any, to comply with the provisions herein.  In no event will the coverage or limits of any insurance maintained by Vendor under this Section, or the lack or unavailability of any other insurance, limit or diminish in any way Vendor’s obligations or liability to TL under this Agreement.  Prior to commencement of the Agreement, Vendor shall furnish TL with a Certificate of Insurance, in a format acceptable to TL, evidencing the insurance coverage required in this Section and state that there will be no cancellation of or reduction or material change in coverage without at least thirty (30) days prior written notice to TL.  Any acceptance of insurance certificates by TL, or failure to request same, shall not limit or relieve Vendor of the duties and responsibilities assumed by it under this Agreement.

The following sections replace the analogous sections in the Agreement in their entirety; any defined terms removed by such replacement will be deemed replaced by the analogous defined terms in the following sections wherever same appear in the agreement, mutatis mutandis; to the extent other provisions in the Agreement found outside the analogous sections relate directly to the subject matter of the analogous sections, such provisions will be deemed removed from the Agreement:

13. CONFIDENTIAL INFORMATION.

13.1. Definition.  “Confidential Information” means (A) all information relating in any manner to a party or its business (including, but not limited to, financial statements, budgets and projections, customer identities, potential customers, employees, suppliers, servicing methods, equipment, programs, strategies, analyses, profit margins, and other proprietary information), however documented, that has been or may later be (1) provided or shown to the a party or any of its Representatives (“Recipient”) by or on behalf of the other party or any of its Representatives (“Discloser”); or (2) obtained from review of documents or property of, or communications with, the Discloser or its Representatives by the Recipient or its Representatives; and (B) any and all notes, analyses, compilations, studies, summaries, and other material, however documented, containing or based, in whole or in part, on any information included in subsection (A).  “Representatives” means, with respect to any entity, its and its Affiliates’ directors, officers, employees, agents, consultants, or advisors.  Despite the definition of “Confidential Information” set forth above, “Confidential Information” excludes information that the Recipient can demonstrate (A) was or became generally publicly available, other than as a result of a disclosure by Recipient or any of its Representatives in violation of this Agreement; (B) is in the lawful possession of the Recipient or any of its Representatives prior to its disclosure by or on behalf of the Discloser or any of its Representatives; or (C) was or became available to the Recipient or any of its Representatives on a nonconfidential basis from a third party that to the Recipient’s knowledge after due inquiry is not bound by a similar duty of confidentiality (contractual, legal, fiduciary or other).

13.2. Obligation to Maintain Confidentiality.  During and after the term of this Agreement, the Recipient shall and shall cause each of its Representatives to keep the Confidential Information confidential. Without limiting the effect of the previous sentence, the Recipient shall not and shall cause its Representatives not to (i) disclose any of the Confidential Information to any third party who is not its Representative, or (ii) use or copy any Confidential Information for any purpose except as required to perform its obligations or exercise its rights under this Agreement (“Permitted Use”).

13.3. Notice of Unauthorized Use.  The Recipient shall give prompt written notice to the Discloser of any unauthorized use or disclosure of the Confidential Information and shall assist the Discloser in remedying each unauthorized use or disclosure.  Any assistance does not waive any breach of this Section by the Recipient, nor does acceptance of the assistance constitute a waiver of any breach of this Section.

13.4. Permitted Disclosees.  The Recipient may disclose Confidential Information to only those of its Representatives who (a) require the Confidential Information for the Permitted Use (but to the extent practicable, only the part that is required); (b) are informed in writing by the Recipient of the confidential nature of the Confidential Material; and (c) have agreed in writing to be bound by the obligations of this Section (“Permitted Disclosees”).

13.5. Compelled Disclosure.  If the Recipient or any of its Representatives becomes legally compelled or is required, in any case by a court or governmental body, to make any disclosure of Confidential Information (a “Compelled Representative”), the Recipient shall, to the extent legally permissible, (x) promptly notify the Discloser in writing; (y) consult with and assist the Discloser at the Discloser’s expense in obtaining an injunction or other appropriate remedy to prevent such disclosure; and (z) reasonably cooperate with Discloser, at the Discloser’s expense, to attempt to obtain a protective order or other reliable assurance that confidential treatment will be accorded to any Confidential Information that is so disclosed.  Subject to the foregoing, the Recipient or the Compelled Representative may furnish only that portion of the Confidential Information that in the written opinion of its counsel the Recipient or the Compelled Representative is legally compelled or otherwise required to disclose.

14. IP INDEMNITY.  Vendor shall defend TL and its Affiliates and its and their respective employees, officers, directors, managers, members, shareholders, consultants, contractors, and agents (“TL-Indemnified Parties”) from and against any claim by a third party alleging that any Service, Technical Service, or other product, service, or property of Vendor infringes a patent, copyright, trademark, or trade secret and shall indemnify and hold harmless the TL-Indemnified Parties from and against any damages and costs, whether direct or indirect, awarded against TL or agreed in settlement by Vendor (including reasonable attorneys’ fees and general and administrative costs) relating to such claim.  TL shall provide Vendor: (i) written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation of TL at Vendor’s sole expense.  If TL’s use of the Service is or is likely to be enjoined or if required by settlement, Vendor may: (a) substitute substantially functionally similar products or services; (b) procure for TL the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to TL the Fees paid by TL for the Service and Technical Services that were prepaid but not used by TL.