SaaS Software, Hardware, and Professional Services Agreement
This SaaS Software, Hardware, and Professional Services Agreement (the “Agreement”) is entered into as of the last date of execution on the Order Form (the “Effective Date”) by and between Kami Vision Inc., a Delaware corporation with offices at 2033 Gateway Place, Suite 400 San Jose, CA 95110 (“Kami Vision”) and Customer identified on the Order Form (“Customer”). In consideration of the mutual promises set forth herein, the parties agree as follows:
1. Definitions.
“Applicable Laws” means all laws and regulations, including privacy and data security laws, regulatory guidance and industry-tested and accepted standards, that apply to the conduct of either Party under the Agreement.
“Customer Product” means any hardware product separately purchased by Customer to incorporate the SaaS Software and/or Professional Services.
“Documentation” means any user guides, manuals, and other written documentation, on any media, generally provided by Kami Vision to its customers for use with the SaaS Software and/or Professional Services.
“End User” shall mean any Customer’s end user(s) of Customer products or devices which include (i) Participants, and (ii) Customer’s employees, contractors, administrators, and agents that monitor the SaaS Software and/or Professional Services.
“Participant Consent” means any required permissions from a Participant for Customer to utilize the SaaS Software and/or Professional Services with respect to such Participant as determined in Customer’s sole discretion.
“End User Data” means information, data and other content, in any form or medium, including but not limited to video data that is collected, downloaded or otherwise received direct or indirectly from an End User via operation of the Customer Product.
“Fees” shall mean the subscription fees, royalty fees, implementation fees, and any other fees specified in the applicable Order Form.
“Hardware” means the cameras, sensors, and other related accessories, mounts, power supply, and viewing equipment as set forth in the Order Form(s).
“Intellectual Property Rights” shall mean all patents, patent rights, patent applications, source code, copyrights, mask work rights, moral rights, rights of publicity, trademark, trade dress and services mark rights, goodwill, trade secret rights and other intellectual property rights, as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Order Form” shall mean an order executed by Kami Vision and Customer pursuant to this Agreement that specifies the SaaS Software licensed and Professional Services to be provided under this Agreement. The initial Order is set forth in Order Form and subsequent Order will be substantially the same format as Order Form and signed by and between the parties.
“Participant” means the individuals who may be subject to the viewing, sensing, recording of Hardware or Customer Products in order to realize the benefits of the SaaS Software.
“Professional Services” shall mean any current or future Services made available as an offering that can be integrated as part of the Fees, or priced and sold separately, as part of the SaaS Software and/or Professional Services as described in a signed Order Form.
“SaaS Software” shall mean Kami Vision’s software as a service (SaaS) program(s) and Updates in object code format, and related Documentation, licensed to Customer under the terms of this Agreement and identified in the applicable Order Form.
“Updates” means a subsequent release or version of the SaaS Software that Kami Vision makes generally available to its customers at no additional license fee. Updates do not include releases or features which Kami Vision licenses separately or Professional Services.
2. SaaS Software and/or Professional Services.
2.1 License grant. Subject to and in accordance with the terms and conditions of this Agreement and each applicable Order Form, and in consideration of Customer’s timely payment of all applicable Fees, Kami Vision grants Customer a non-sub-licensable, non-exclusive, non-transferable right and license to access and/or use the SaaS Software solely during the Term for its internal business purposes subject to the restrictions in Section 2.2.
2.2 Restrictions. Customer shall not: (a) copy or otherwise reproduce, whether in whole or in part, the SaaS Software except as expressly set forth herein; (b) modify or create any derivative work of the SaaS Software; (c) sell, rent, loan, license, sublicense, distribute, assign or otherwise transfer the SaaS Software other than as provided in Section 2.1; (d) cause or permit the disassembly, decompilation or reverse engineering of the SaaS Software or otherwise attempt to gain access to the source code to the SaaS Software; or (e) cause or permit any third party to do any of the
2.3. End User Data. To the extent that Customer shares any End User Data with Kami Vision, Customer grants Kami Vision a perpetual, non-exclusive license in the End User Data.
2.4 Compliance with Laws. Customer will comply with all Applicable Laws including but not limited to laws and regulations worldwide related to Customer’s Data, rights, obligations and activities under this Agreement. Without limiting the foregoing, Customer will obtain all necessary national, federal, state, municipal and regulatory agency approvals, licenses, consents, and registrations worldwide to perform its obligations and/or exercise its rights in connection with the SaaS Software and/or Professional Services. Customer hereby acknowledges that Customer is solely responsible for and solely liable for compliance with all Applicable Laws relating to the collection, storage, transmission, handling and utilization of End User Data including without limitation any biometric data laws.
2.5 Security. Kami Vision will use commercially reasonable technical and organizational measures to prevent unauthorized access, use, alteration, or disclosure of End User Data in accordance with the provisions of Kami Vision’s data and security policies, as may be further updated in the Kami Vision shall ensure that its personnel engaged in the Processing of End User Data are informed of the confidential nature of the End User Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Kami Vision shall ensure that such confidentiality obligations survive the termination of the personnel engagement. Kami Vision shall ensure that access to End User Data is limited to those personnel who require such access to perform the Agreement. Kami Vision shall maintain SOC-2 security and compliance standards during the Term.
2.6 Professional Services Agreement. If applicable, Kami Vision’s Professional Services Agreement will be attached as an Exhibit to the Order Form.
3. Fees.
3.1 In compensation for the provision of the SaaS Software and/or Professional Services, Customer shall pay Kami Vision the amounts set forth in the applicable Order Form, in accordance with the terms of this Agreement or such Order Form. Except as otherwise expressly provided in an applicable Order, all Fees shall be nonrefundable and noncancelable.
3.2 Payments. All payments by Customer hereunder shall be made in United States dollars net thirty (30) days from the date of invoice. Payments required to be paid in advance must be received on or before the date specified on the Order Form. A late payment fee equal to the lesser of 1% per month or the maximum legal interest rate shall be payable on any amounts for which payment remains outstanding after such payment is due by the terms of this Agreement until such amounts are In the event that any payment due hereunder is overdue by more than fifteen (15) days after such payment, Kami Vision reserves the right to suspend performance until such delinquency is corrected, modify the payment terms, if necessary, to require full payment before the provision of the SaaS Software and/or Professional Services, or require other assurances to secure Customer’s payment obligations hereunder. Customer may not offset or withhold Fees due under this Agreement for any reason, and Customer agrees to reimburse Kami Vision for all reasonable costs (including attorney fees) incurred in collecting past due Fees owed by Customer.
3.3 Taxes. Customer shall be responsible for and shall pay for any taxes including sales, use, personal property, value- added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to the SaaS Software and/or Professional Services, including penalties and interest but specifically excluding any income taxes payable by Kami Upon reasonable request of Kami Vision to assist Kami Vision in obtaining tax credits or deductions for the benefit of both parties, Customer shall use reasonable efforts to provide to Kami Vision original or certified copies of all relevant tax payments or other evidence of payment of taxes by Customer with respect to transactions or payments under this Agreement, provided, however, Customer is under no obligation to provide any such documentation subject to confidentiality (e.g., attorney-client privilege, confidential filings with a regulatory authority, containing trade secrets or other material non-public information, etc.).
4.0 Ownership.
4.1 Intellectual Property Rights. As between Kami Vision and Customer, Kami Vision shall own and retain all right, title and interest, including all Intellectual Property Rights, in and to the SaaS Software, Hardware, and Professional Services, successor products thereto, and any other technology and materials provided by Kami Vision to Customer (“Kami Vision IP”). Each party reserves all rights not expressly granted in this Agreement and no other licenses are granted by either party to the other party under this Agreement, whether by implication, estoppel or otherwise. Any third party component software embedded or otherwise made available by Kami Vision for use with the SaaS Software may only be used in conjunction with the SaaS Software and/or Professional Services ordered under an applicable Order Form, unless Customer has separately and independently obtained a third party license for such component software. Except as specifically authorized by Kami Vision in writing, Customer agrees not to alter, modify or remove from the SaaS Software any logo, brand name, or proprietary mark of Kami Vision, including any logo, brand name, trademark, patent, copyright or other intellectual property right notices. Kami Vision shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into its SaaS Software, Hardware, and Professional Services any Customer input or
4.2 Participant Consents. Customer shall be responsible for ensuring that each Participant executes a Participant Consent.
5. Indemnification.
5.1 By Kami Vision. Kami Vision agrees to indemnify and hold harmless Customer, and defend and/or settle at its own expense any claim or action against Customer to the extent based on any claim that the SaaS Software and/or Professional Services infringes or misappropriates any third-party Intellectual Property Rights and to pay such damages, judgments, suits, expenses and other costs, including reasonable attorneys’ fees, resulting from such claim; provided that Customer: (a) notifies Kami Vision promptly in writing of any such claim or action; (b) gives Kami Vision sole control of the defense and settlement of such claim or action; and (c) gives Kami Vision all reasonable assistance and cooperation in such defense at Kami Vision’s If any such portion of the SaaS Software and/or Professional Services becomes, or in Kami Vision’s reasonable opinion is likely to become, the subject of any such claim or action, then Kami Vision, at its option and expense, may either: (i) procure for Customer the right to continue using same as contemplated hereunder; (ii) modify same to render same non-infringing; (iii) replace same with equally suitable, functionally equivalent, compatible, non-infringing products, materials or Professional Services; or (iv) if none of the foregoing are commercially reasonable, terminate this Agreement without further liability. Notwithstanding the foregoing, Kami Vision shall have no liability or obligation under this Section to the extent any such claim arises out of (i) Customer’s use of the SaaS Software and/or Professional Services in a manner not strictly in accordance with this Agreement or Documentation; (ii) any modification of the SaaS Software and/or Professional Services in compliance with Customer’s specifications; (iii) the combination, operation or use of the SaaS Software and/or Professional Services with any other product, Professional Services or technology not provided by Kami Vision, excluding the Customer Product, to the extent that such infringement would not have occurred but for such combination, operation or use, ((i) through (iii) collectively, the “Excluded Claims”); or (iv) any matter for which Customer is obligated to indemnify Kami Vision under Section 5.2. THIS SECTION 5.1 STATES THE ENTIRE LIABILITY AND OBLIGATION OF KAMI VISION AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT IN CONNECTION WITH THIS AGREEMENT.
Additionally, Kami Vision agrees to indemnify and hold harmless Customer, and defend and/or settle at its own expense any claim or action against Customer to the extent based on any claim of grossly negligent, reckless or intentional misconduct of Kami Vision or any of its affiliates, employees, directors, officers, agents, or subcontracts in performing its obligation under this Agreement.
5.2 By Customer. Customer agrees to defend and/or settle at its own expense any claim or action against Kami Vision to the extent based on any claim by any third party or an End User related to the Customer Product, End User Data or any claim arising out of the Agreement, and to pay such damages, judgments, suits, expenses, government or public authority fines or assessments, and other costs (including attorneys’ fees) resulting from such claim; provided that Kami Vision (a) notifies Customer promptly in writing of any such claim or action, (b) gives Customer sole control of the defense and settlement of such claim or action and (c) gives Customer all reasonable assistance requested by Customer at Customer’s expense.
6. Limitation of Liability.
6.1 Restrictions on Type of Liability. IN NO EVENT SHALL ANY PARTY HERETO (INCLUDING WITHOUT LIMITATION THE SUPPLIERS, AGENTS AND EMPLOYEES THEREOF) BE LIABLE TO THE OTHER PARTY (INCLUDING WITHOUT LIMITATION THE SUPPLIERS, AGENTS AND EMPLOYEES THEREOF) UNDER ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, INCLUDING DAMAGES RESULTING FROM INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA, LOSSES RESULTING FROM FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVIDING INCORRECT COMPATIBILITY INFORMATION, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
6.2 Maximum Liability. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.3, THE AGGREGATE LIABILITY OF EITHER PARTY HERETO TO THE OTHER PARTY (INCLUDING WITHOUT LIMITATION THE SUPPLIERS, AGENTS AND EMPLOYEES THEREOF) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL CLAIMS INCLUSIVE, SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER SECTION 3 OF THIS AGREEMENT DURING THE EIGHTEEN (18) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE).
6.3 THE LIMITATIONS SET FORTH IN SECTIONS 6.2 SHALL NOT APPLY TO A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTIONS 2, 2.3, 2.4, OR 4.1 HEREOF, AND SHALL NOT APPLY TO LIMIT: (i) KAMI VISION’S ABILITY TO COLLECT FEES DUE HEREUNDER OR (ii) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 5.
7. Confidential Information.
Any information that the disclosing party disclosed to the receiving party under this Agreement is confidential information of the disclosing party and shall remain the sole property of the disclosing party. Each party agrees that it shall not disclose, use, modify, copy, reproduce or otherwise divulge such confidential information other than to fulfill its obligations under this Agreement. The prohibitions contained in this Section 7 shall not apply to information that: (a) is independently developed by the receiving party without violation of this Agreement; (b) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the disclosing party; (c) is or has become readily publicly available without restriction through no fault of the receiving party; (d) lawfully obtained from any third party lawfully in possession of such information and lawfully empowered to disclose such information; or, (e) which is disclosed by the receiving party as needed to comply with a court order, subpoena, or other government demand (provided that the receiving party first notifies the disclosing party and gives such party the opportunity to challenge such court order, subpoena, or government demand). Neither party shall disclose to third parties, other than its agents and representatives on a need-to- know basis, the terms of this Agreement or any addenda hereto without the prior written consent of the other party, except either party shall be entitled to disclose (i) such terms to the extent required by law; and (ii) the existence of this Agreement.
8. Representations, Warranties and Covenants.
8.1 Full Power and Authority. Each party represents and warrants that it has full power and authority to execute this Agreement and to take all actions required by, and to perform the agreements contained in, this Agreement, and that each party’s obligations under this Agreement do not conflict with its obligations under any other agreement to which it is a party or by which it is otherwise bound.
8.2 Hardware. Kami Vision warrants that the Hardware (i) is and will be during the Warranty Period free of all errors and defects in workmanship, material, and design; (ii) conforms to all applicable specifications; (iii) is fit for its intended purpose and operate as intended; (iv) is merchantable; (v) is free and clear of all liens, security interests, or other encumbrances; and (vi) does not infringe or misappropriate the Intellectual Property Rights of any third party. However, Kami Vision’s foregoing warranty does not cover, and Customer is responsible for, all errors, damage and loss with respect to the Hardware that are caused by: (a) Customer’s failure to follow the terms of the Agreement or the usage, maintenance or cleaning instructions set forth in the Documentation; (b) alterations or repairs made by anyone other than Kami Vision or its employees, agents, representatives, or contractors. In the event of a warranty claim with respect to the Hardware, Kami Vision shall, at its own cost and expense, promptly replace or repair the subject Hardware and pay for all related expenses, including, but not limited to, transportation charges for the return of the subject Hardware and the delivery of repaired or replacement Hardware to Customer.
8.3 SaaS Software. Kami Vision represents and warrants that the SaaS Software: (i) is and will function in accordance with the Agreement and the specifications set forth in the relevant Documentation; (ii) is and will be free of all errors and defects in workmanship, material, and design; and (iii) is and will be fit for its intended purpose and operate as intended.
8.4 No Malicious Code. Kami Vision represents and warrants that the Hardware, SaaS Software, Documentation, and Professional Services do not and will not contain any computer code (i) that permits or facilitates surreptitious access to the Hardware, SaaS Software, Professional Services, or Customer Data (sometimes referred to as a “back door”), or (ii) is designed to disrupt, disable, harm, or otherwise impede the operation thereof or of any associated software, firmware, hardware, computer system, or network (sometimes referred to as “viruses” or “worms”), and Kami Vision warrants that it will take commercially reasonable steps to protect against the foregoing.
8.5 Non-Infringement. Kami Vision represents and warrants that the Hardware, SaaS Software, Professional Services, Documentation, and Customer’s and the End Users’ use of the foregoing will not infringe or misappropriate any Intellectual Property Rights of any third party.
8.6 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KAMI VISION DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SAAS SOFTWARE AND/OR PROFESSIONAL SERVICES, OR ANY COMPONENTS THEREOF, AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. KAMI VISION DOES NOT WARRANT THAT THE SAAS SOFTWARE AND/OR PROFESSIONAL SERVICES, OR ANY PORTION THEREOF, ARE ERROR OR BUG FREE, OR THAT CUSTOMER’S USE OF THE SAAS SOFTWARE AND/OR PROFESSIONAL SERVICES, OR ANY PORTION THEREOF, WILL BE
9. Term and Termination.
9.1 Term. This Agreement shall take effect upon the Effective Date on the Order Form and continue (“Term”) until the latter expiration of the term of all Order Forms, unless earlier terminated in accordance with this Section 9 or as expressly provided in this Agreement.
9.1.1 Renewal. This Agreement will automatically renew at the expiration of the Term for a renewal term equal to the previous Term. Thirty (30) days prior written notice will be provided if either party intends to not renew the
9.2 Termination.
9.2.1 For Breach. Either party may terminate this Agreement by notice to the other party in the event that the other party materially breaches any provision of this Agreement and such breach is not cured within ten (10) days of written notice
9.2.2 For Insolvency. Either party may terminate this Agreement by written notice in the event: (i) the other party voluntarily enters into proceedings in bankruptcy or insolvency; (ii) the other party makes an assignment for the benefit of creditors; (iii) a petition is filed against the other party under a bankruptcy law, a corporate reorganization law, or any other law for relief of debtors or similar law analogous in purpose or effect, which petition is not dismissed within ninety (90) days of filing thereof; (iv) the other party enters into liquidation or dissolution proceedings or a receiver is appointed with respect to any assets of the other party, which appointment is not vacated within one hundred and twenty (120) days; or (v) the other party ceases to do business as a going concern.
9.3 Survival. The provisions of Sections 1, 2, 2.3, 2.4, 4, 5, 6, 7, 9 and 10, and all payment obligations of Customer under Section 3, shall survive any termination or expiration of this Agreement. All other rights and obligations of the parties shall cease upon termination or expiration of this Agreement, other than liabilities that have accrued prior to such termination or expiration.
10. Miscellaneous.
10.1 Headings. Headings stated in this Agreement are for convenience of reference only and are not intended as a summary of such sections and do not affect, limit, modify, or construe the contents thereof.
10.2 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but all of which together shall constitute one instrument notwithstanding that all parties are not signatories to the same
10.3 Governing Law; Jurisdiction. This Agreement shall be governed by and in accordance with the laws of the State of California, without reference to its conflict of laws principles. The parties consent to exclusive jurisdiction and venue of the state and federal courts sitting in and for Santa Clara County, California.
10.4 Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations (other than a payment obligation) under this Agreement (including any delay in developing or delivering the SaaS Software and/or Professional Services) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, riot, insurrection, unavailability or performance degradation of the Internet or any other cause beyond the reasonable control of the party invoking this section (a “Force Majeure”), such party shall give prompt written notice to the other party, its nonperformance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Notwithstanding the foregoing, if such party is not able to perform within ninety (90) days after the event giving rise to the excuse of Force Majeure, the other party may terminate this Agreement.
10.5 Independent Contractor Status and Authority. Each party agrees and acknowledges that in its performance of its obligations under this Agreement, it is an independent contractor of the other party, and is solely responsible for its own Neither party shall have any authority to make commitments or enter into contracts on behalf of, bind or otherwise obligate the other party in any manner whatsoever except as expressly stated in this Agreement. No joint venture or partnership is intended to be formed by this Agreement.
10.6 Non-Waiver; Cumulative Rights. No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
10.7 Severability. If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, legality, or unenforceability shall not affect the remaining provisions and portions of this Agreement.
10.8 Precedence. In the event of any conflict or inconsistency among the terms and conditions set forth herein and any applicable Order Form, the terms and conditions set forth in such Order Form shall govern solely to the extent the Order Form’s terms do not directly conflict with this Agreement; otherwise the terms of this Agreement will govern.
10.9 Publicity. The parties agree that either party can disclose the existence of this In addition to the specific agreements regarding publicity as noted in any Order Form and/or Exhibit, Kami Vision may use Customer’s name in its business development, marketing and trade show materials.
10.10 Assignment. Neither party shall transfer, assign or delegate this Agreement or any rights or obligations hereunder, in whole or in part, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party which shall not be unreasonably withheld or delayed. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or Notwithstanding the foregoing, either party shall have the right to assign this Agreement to any (i) successor to substantially all of its business or assets or (ii) affiliate, subsidiary, or parent to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding on the respective successors and assigns of the parties.
10.11 Notice. Any notice shall be in writing and delivered by hand, by overnight express with charges prepaid, or by certified mail with return receipt requested, to the respective contacts for notices specified in the applicable Order Form. All notices sent to Kami Vision must be copied to its Chief Executive Officer at Kami Vision’s then current corporate headquarters address as found at kamivision.com.
10.12 Sanctions and Trade Controls. Customer certifies that it is not: (i) resident or domiciled in Cuba, Iran, North Korea, Syria, Belarus, Crimea or other covered regions of Ukraine (such as Crimea and the Donetsk and Luhansk People’s Republics), or (ii) listed on the list of Specially Designated Nationals or other prohibited party lists promulgated by the U.S. Government. Customer hereby represents and warrants that it will, and will cause its End Users, to comply with all applicable export control and sanctions laws and requirements of the United States, including, but not limited to, the U.S. Export Administration Regulations (EAR), 15 CFR Parts 730-774 and the Office of Foreign Assets Control (OFAC) regulations, 31 CFR Parts 501-599, with respect to its and its End Users’ receipt and use of the SaaS Software and/or Professional Services. Without limiting the foregoing, Customer represents and warrants that it is in full compliance with the terms of any applicable licenses, license exceptions, and/or other consents or approvals that may be required for the export, re-export, transfer or re-transfer of the SaaS Software and/or Professional Services.
10.13 Insurance. During the Term and for a period of 3 years thereafter, Kami Vision shall, at its own expense, maintain and carry in full force and effect at least the following types and amounts of insurance coverage: (i) a policy or policies of commercial general liability insurance, or a combination of commercial general liability and excess/umbrella insurance, including at a minimum coverage for broad form property damage, third party property damage, product and completed operations liability, premises operations, personal and advertising injury, and contractual liability, on an occurrence basis, with a limit of $1,000,000 per occurrence and $3,000,000 in the aggregate; (ii) a policy or policies of worker’s compensation insurance in accordance with the laws of the state having jurisdiction over the employee and in not less than the statutory limits requirements; (iv) a policy or policies of employer’s liability insurance, including coverage for occupational injury, illness and disease, and other similar social insurance in no case less than $1,000,000 for each accident for bodily injury by accident and $1,000,000 for each employee for bodily injury by disease; (v) a policy or policies of errors and omissions (professional liability) insurance with limits of not less than $1,000,000 aggregate covering liabilities resulting or arising from the acts, errors, or omissions of Kami Vision in its performance of services under this Agreement; (vi) a policy or policies of cyber insurance having the limit of liability not less than $3,000,000 as an annual aggregate covering the unauthorized acquisition, access, use, physical taking, release, distribution, or disclosure of personal information and identity theft, by a third party or an employee), including the costs and expenses of investigating and managing a security breach (including for consultants, forensic investigation, and legal expenses), notifying affected persons thereof, fraud alert and credit monitoring for such affected persons, and regulatory fines and penalties related thereto. Kami Vision shall maintain such insurance coverages from insurance companies having an A.M. Best rating of “A-” or better and with a financial size category of at least Class VII or, if such ratings are no longer available, with comparable ratings from a generally recognized insurance rating agency. If any such insurance policy is a “claims made” policy, Kami Vision (i) shall obtain continuing like coverage for claims that arise out of this Agreement and provide to Customer evidence thereof for one year after the expiration or any termination of this Agreement or (ii) shall purchase an extended reporting endorsement (“tail coverage”) if the “claims made” policy is terminated at any time during such period. Kami Vision shall give Customer at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage. Each policy shall (i) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Customer shall be excess and non-contributory; (ii) name Customer as an additional insured; and (iii) waive any right of subrogation of the insurers against Customer. Upon the written request of Customer, Kami Vision shall provide Customer with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this section, and shall not do anything to invalidate such insurance.
10.14 Entire Agreement. This Agreement, including all exhibits or addenda hereto such as Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous representations, proposals, discussions, communications, understandings or agreements among the parties which relate to the subject matter hereof, whether oral or in No modification or amendment of this Agreement or any of its provisions shall be binding upon any party unless made in writing and duly executed by authorized representatives of the party to be bound.
Updated: June 6th, 2024