SaaS Subscription Agreement

Last Update: September 14th, 2021

This Software as a Service (SaaS) Subscription Agreement is a binding agreement made between 3i Inc. (“3i”) and you, the Licensee (“You”, “Your”, “Licensee” or “Customer”), and governs Your use, under license, of certain 3i software and access to certain 3i services according to the terms and conditions set forth below. All components, or terms and conditions, contained in this Agreement are integral to the Agreement and Licensee consents to all of these terms and conditions. All components of this Agreement collectively are referred to herein as the “Agreement”. Licensee acknowledges it has had the opportunity both to review the Agreement and to consult with legal counsel prior to acceptance of this Agreement. By accessing or using the Software and Services, You acknowledge that You have read and understand this Agreement, that You accept all of the terms and conditions contained here in full, and that You agree that the terms and conditions shall be fully and legally binding upon the Parties, without the need for any further indication of acceptance on Your part (such as by signature, click through or other means of electronic acceptance). If You are acting on behalf of a Licensee, You represent that You have full legal authority to bind the Licensee. 3i recommends that Licensee print copies of the Agreement for Licensee’s own records and future reference.

If You choose not to agree to all of these terms and conditions, do not access and/or use the 3i Software or Services.Your access and/or use of the 3i Software or Services shall constitute Your acceptance of all of the terms and conditions set forth in this Agreement.

This Agreement is effective immediately upon Your completion of the Product Registration Form (“Effective Date”).

1. SaaS Service Scope

1.1. Subject to the terms of this Agreement, 3i, Inc. (“3i”) will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s 3i account. 3i reserves the right to refuse registration of, or cancel passwords it deems inappropriate. The SAAS Service Level Agreement (“SLA”) for the SaaS Services and reasonable technical support is set forth in Exhibit A hereto. The SLA sets forth Customer’s sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in the SLA.

1.2. During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for your internal business operations subject to the terms of this Agreement and up to the Service Capacity documented in the Order Form.

1.3. Customer acknowledges that this Agreement is a services agreement and 3i will not be delivering copies of the Software to Customer as part of the SaaS Services.

2. Restrictions and Responsabilities

2.1. Customer will not, directly or indirectly:

2.1.a. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”);

2.1.b. modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by 3i or authorized within the Services);

2.1.c. use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third;

2.1.d. or remove any proprietary notices or labels.

2.2. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, 3i hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with 3i’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless 3i against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although 3i has no obligation to monitor Customer’s use of the Services, 3i may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, mobile or other devices, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account or the Equipment with or without Customer’s knowledge or consent.

3. Confidentiality, Proprietary Rights, Data Privacy, Compliance

3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of 3i includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to 3i to enable the provision of the Services (“Customer Data”).

3.2. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law.

3.3. Customer shall own all rights, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. 3i shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with SOW services or support, and (c) all intellectual property rights related to any of the foregoing.

3.4. Notwithstanding anything to the contrary, 3i shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and 3i will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other 3i offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. For the avoidance of doubt, 3i may use, reproduce and disclose Software- and Services-related information, data and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by 3i. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through 3i or any Software following the expiration or termination of this Agreement.

3.5. No rights or licenses are granted except as expressly set forth herein.

3.5.a. On guidance from data privacy counsel, 3i has determined that it is required to comply on a limited and partial basis with Privacy Laws.

3.5.b. With respect to the California Consumer Protection Act (the “CCPA”), such compliance is described in 3i’s privacy policy (see paragraph (a) above). 3i’s communications between itself and its Customers fall under the “B2B Covered Information” exemption. The personal contact information of the Customers associated with “B2B Covered Information” would be exempt from the CCPA rights to know or delete personal information.

3.5.c. With respect to General Data Protection Regulation (the “GDPR”), 3i is the data controller for the Customers’ representatives’ Personal Data. 3i relies on the lawful basis of providing Services pursuant to a contract with its Customers for collecting the personal information of Customers’ Personal Data. Article 35 of the GDPR requires a covered entity to carry out a formal Data Protection Impact Assessment (DPIA) where the entity’s processing “is likely to result in a high risk to individuals.” 3i’s services do not involve the activities covered by DPIA, therefore a DPIA is not required at this time. 3i acts as a data controller for the names and emails of its Customers. 3i is a data processor for Personal Data that its Customers collect as data controllers. 3i’s business does not involve any monitoring of data subjects. It also does not collect any data related to special categories or criminal backgrounds or convictions. Therefore, 3i is also not required to appoint a Data Protection Officer (DPO) under the GDPR.

3.5.d. 3i represents and warrants to Customer that it complies with its obligations described in this Exhibit B under relevant Privacy Laws. Customer represents and warrants to 3i that it complies with its obligations under relevant Privacy Laws. Customer further represents and warrants to 3i that it shall provide proper notices to, and obtain necessary consents from, its end-users, employees and other data subjects about how their Personal Information and Personal Data may be used, stored, and disclosed to service providers engaged by Customer, as well as how data subjects may opt-out.

Personal Information” or “Personal Data” means any information that may identify an individual, including without limitation names, addresses, telephone numbers, electronic addresses, passwords, credit card numbers or other account data, Customer proprietary network information, or any information regarding an individual that is protected under any Privacy Laws applicable to the Services.

Privacy Laws” means any applicable law, regulation or binding policy of any Governmental Authority that relates to the security and protection of personally identifiable information, data privacy, trans-border data flow or data protection. This includes the GDPR and the CCPA.

4. Payment of Fees and Taxes

4.1. Customer will pay 3i the then applicable fees described in the Order Form for the Services and SOW Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional Fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein. 3i reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that 3i has billed Customer incorrectly, Customer must contact 3i no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to 3i’s customer support department.

4.2. 3i may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by 3i thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

4.3. All fees are exclusive of taxes, which 3i will charge as applicable. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on 3i’s net income. All amounts payable to 3i must be paid free of and without any rights of counterclaim or set off, and without deduction or withholding for taxes or on any other ground whatsoever. If any such deduction or withholding is required by law or applicable taxing authority, Customer shall: (a) provide such evidence of the relevant deduction or withholding as 3i may reasonably require; and (b) pay to 3i an aggregate amount to ensure that, after the deduction or withholding has been made, 3i will have received a sum equal to the amount that 3i would otherwise have received in the absence of the deduction or withholding.

5. Customer Feedback

3i shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services. However, Customer’s name and the identity of any Customer Data will not be used.

6. Use of Name and Publicity

Subject to Customerʼs logo and trademark usage guide, Customer hereby permits 3i to identify Customer as a customer of 3i and to display Customerʼs logo in connection with identifying Customer as a customer of 3i. Subject to prior approval of both parties, within six (6) months of the date of this Agreement, Customer agrees to participate in a joint press release with 3i announcing Customerʼs use of 3is Services, subject to each partyʼs logo and trademark usage guide. Customer may enter into a separate agreement with 3i with respect to collaborating and engaging in mutually beneficial marketing activities, subject to the terms and conditions of a co-marketing agreement.

7. End of Life

It is understood that 3i may, in its discretion, at certain times elect to discontinue production, distribution and support of elements or versions of the 3i Services, and thereby designate such elements or versions as end of life (“EOL”). In the event that 3i elects to announce EOL for any such elements or versions, 3i will provide three (3) months prior written notice, which may be by direct notice or posting on 3is website. 3is resellers or other third party providers will have a period of three (3) months after receipt of such notice to upgrade Customers to the last commercially available (non-EOL) version of the Services. During the 3-month notice period (from either 3i or 3i partner) Customers may continue exercising all of the rights set forth in this Agreement with respect to such EOL Services. 3i (either directly or through a third party contractor selected by 3i) will continue providing support for the last commercially available version of such EOL Services in accordance with 3is applicable support terms for a period of one (1) year from the announced EOL date or upon termination of the related SOF (whichever is earlier), provided that Customers continue to pay applicable license and support fees, if any, during the wind down period for the support described above.

8. Secondary User

As may be further described in the Documentation, certain Software may be used as part of your support (or similar) resources related to your own products, e.g., use of Service Management as part of a helpdesk or use of Confluence to share your own documentation with your users. Subject to the terms and conditions of this Agreement, you may grant your own customers’ end users (“Secondary Users”) limited rights to use the Software solely so that they may view and interact with such resources. You may not permit Secondary Users to use the Software for purposes unrelated to supporting your own offerings or grant Secondary Users administrator, configuration or similar use of the Software. You may not charge Secondary Users a specific fee for use of the Software but you may charge an overall fee for your own offerings. You are responsible under Section 2.2 (Authorized Users) for all Secondary Users as “Authorized Users” and are otherwise solely responsible for your own products, support offerings and Secondary relationships. Notwithstanding anything to the contrary in this Agreement, 3i has no direct or indirect warranty, indemnity or other liability or obligations of any kind to Secondary Users.

9. Third-party Products

You (including your Authorized Users) may choose to use or procure other third-party products or services in connection with the Software, including Third Party Apps or implementation, customization, training or other services. Your receipt or use of any third-party products or services is subject to a separate agreement between you and the third-party provider. If you enable or use third-party products or services (including Third Party Apps with the Software, you acknowledge that the third-party providers may access or use your data as required for the interoperation of their products and services with the Software. This may include transmitting, transferring, modifying or deleting your data, or storing your data on systems belonging to the third-party providers or other third parties. Any third-party provider’s use of your data is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to or use of your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider.

3I DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

10. Resellers Orders

This Section 7.8 applies if you purchase the Software, Support and Maintenance or any Additional Services through an authorized partner or reseller of 3i (“Reseller”).

10.1. Instead of paying 3i, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. 3i may suspend or terminate your rights to use Software if 3i does not receive the corresponding payment from the Reseller.

10.2. Instead of an Order with 3i, your order details (e.g., Software, Scope of Use and License Term) will be as stated in the order placed with 3i by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to 3i.

10.3. If you are entitled to a refund under this Agreement, then unless otherwise specified by 3i, 3i will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the Appropriate amounts to you.

10.4. Resellers are not authorized to modify this Agreement or make any promises or commitments on 3i’s behalf, and 3i is not bound By any obligations to you other than as set forth in this Agreement.

10.5. The amount paid or payable by the Reseller to us for your use of the applicable Software under this Agreement will be deemed the amount actually paid or payable by you to us under this Agreement for purposes of calculating the liability.

11. License Certifications and Audits

At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Authorized Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to 3i at law or equity or under this Agreement.

12. Expended Data Privacy and Protection

12.1. Under the terms of this Agreement, and in the natural processing of Customer Data, where the Customer is processing data using 3i’s data management tools, and taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer’s data 3i will secure that data using reasonable technical solutions and according to the 3i Security Policy and 3i’s Privacy Policy.

12.2. The parties agree and intend that 3i is a “service provider” as defined under the California Consumer Privacy Act of 2018 (CCPA) and other relevant data protection laws. With regard to the data 3i may process in providing the service under this Agreement, 3i will not (i) sell — as defined by the CCPA — any processed Customer Personal Data, (ii) collect, use, maintain or disclose processed Customer Personal Data except as necessary to perform the Services, or retain processed Customer Personal Data beyond the expiration or termination of this agreement except to the extent required by applicable laws and in accordance with this Agreement. 3i certifies that it understands and will comply with the foregoing restrictions.

12.3. In the event of a Security Breach defined by applicable law as reportable to authorities or the Customer, or the owners of personal data the Customer has custody of, 3i agrees to notify the Customer pursuant to applicable law.

12.4. As applicable, for Personal Data that belongs to residents of the EU economic area that the Customer is the custodian of, as defined under the definitions of Personal Data per the EU General Data Protection Regulation 2016/679 (GDPR) Article 4, a separate Data Protection Agreement (DPA) shall be provided by 3i and executed between the parties.

12.5. In addition to and without limitation on the foregoing, Customer hereby acknowledges and agrees that 3i’s performance of this Agreement may require 3i to process, transmit or store Customer personal data or the personal data of Customer employees and Affiliates. By submitting personal data to 3i, Customer agrees that 3i and its Affiliates may process, transmit or store personal data only to the extent necessary for, and for the sole purpose of, enabling 3i to perform its obligations to under this Agreement. In relation to all Personal Data provided by or through Customer to 3i, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU Directive 95/46/EC (GDPR) and laws implementing that Directive that regulate the processing of Personal Data and special categories of data as such terms are defined in that Directive. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in any of its content and using the Software and 3i SAAS. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Content, including any information which any 3i SAAS user shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing Customer Personal Data by 3i under this Agreement, including that such processing according to Customer’s instructions will not place 3i in breach of applicable data protection laws. Prior to processing, Customer will inform 3i about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions. Customer is responsible for ensuring that the 3i SAAS meets such restrictions or special requirements.

13. Terms and Termination

13.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

13.2. Early Termination. Customer may choose to cancel Services early at Customer’s convenience provided that 3i will not provide any refunds of prepaid fees or unused Services, and Customer will promptly pay all unpaid fees due through the end of the Service Term.

13.3. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party breaches any of the material terms or conditions of this Agreement where any such breach has not been cured within thirty (30) days after receipt of notice of such breach. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, 3i will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter 3i may, but is not obligated to, delete stored Customer Data.

13.4. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

14. Warranty and Disclaimer

3i shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the SOW Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by 3i or by third-party providers, or because of other causes beyond 3i’s reasonable control, but 3i shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

HOWEVER, 3i DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND SOW SERVICES ARE PROVIDED “AS IS” AND 3i DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

15. Indemnity

3i shall hold Customer harmless from liability to third parties awarded by a proper court or other tribunal and resulting from infringement by the Service of any United States or Canadian patent or any copyright or misappropriation of any trade secret, or from Customer’s gross negligence or willful misconduct that has caused bodily injury or death, provided 3i is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. 3i will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (a) not supplied by 3i, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by 3i, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Service is not in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by 3i to be infringing, 3i may, at its option and expense (i) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. This Section states Customer’s sole and exclusive remedies for claims of infringement.

16. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, 3i AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND 3i’S REASONABLE CONTROL; (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO 3i FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED USD$500,000 FOR DAMAGES AWARDED TO CUSTOMER PURSUANT TO SECTION 7 (INDEMNITY), IN EACH CASE, WHETHER OR NOT 3i HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17. General

  1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

  2. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s remedy for any purported assignment by the other party in breach of this subsection shall be, at the non-assigning party’s election, either to void this Agreement or termination of this Agreement immediately upon written notice to the assigning Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

  3. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire, final, complete and exclusive agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless included in the Order Form Additional Terms in writing and either signed or accepted electronically by both parties hereto.

  4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind 3i in any respect whatsoever.

  5. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

  6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

  7. This Agreement shall be governed by the laws of the Republic of Korea without regard to its conflict of laws provisions. and the parties agree to submit to the exclusive jurisdiction of the applicable courts in the Republic of Korea. The Parties expressly disclaim application of the UN Convention on the International Sale of Goods.

  8. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with 3i to serve as a reference account upon request.

  9. There are no third-party beneficiaries of this Agreement.

  10. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

  11. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.

  12. The Software includes code and libraries licensed to us by third parties, including open source software.

  13. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach resolution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 9(g) (governing law; jurisdiction). All negotiations pursuant to this Section 9(m) will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

  14. 3i may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS Service, provided that such information does not identify Customer’s data or include Customer’s name.

  15. During the term of this Agreement and for a period of twelve (12) months thereafter, Customer shall not directly or indirectly solicit any 3i personnel that have performed any Services under this Agreement to terminate their employment with 3i for any reason. The foregoing does not restrict any general solicitation for employment published on Customer’s or any third party’s website.

Exhibit A

Service, Support and Maintenance Terms

The provisions of this Exhibit A shall not modify or expand the representations and limited warranties set forth in the Agreement or the applicable Order Form.

  1. General.

    1. 3i support includes day-to-day end-user support, technical monitoring, and software updates. 3i shall provide support to Customer users, take reasonable steps to resolve issues that are within 3i’s power to resolve, and respond to support services questions and requests in a timely manner.

    2. Administrators will initiate support activities through 3i’s online support portal. The 3i support team will be accessible between the hours of 8:00 A.M. and 5:00 P.M. Korean Standard Time, Monday through Friday, excluding Korean National holidays.

  2. System Updates. System updates and releases are provided on a scheduled basis. 3i’s release process is designed to ensure that all of the proper testing, training, and approvals are in place prior to a production deployment. 3i shall determine in its sole discretion what system maintenance and upgrades will be provided to the 3i System and to the hosting environment. 3i reserves the right to modify, add, or subtract features or functionalities from the 3i System to provide a superior user experience.

  3. Uptime. The 3i system shall, subject to the exceptions listed below, be available 99.5% of the time each calendar month, measured according to the following formula: 100 x ((Total minutes in the month) – (Outage minutes))/(Total minutes in the month). Service availability shall be that for each period of downtime lasting longer than four hours, 3i will credit Customer as specified in Section 4 of these Service Level Terms for each period of 60 or more consecutive minutes of downtime, provided that no more than one such credit will accrue per day.

  4. Remedies. Customer’s sole remedy and 3i’s exclusive liability for any failure to conform with the service levels set forth in this Exhibit B shall be for Customer to request a credit against future hosting fees due hereunder equal to a pro rata monthly portion of the fees paid for the month being measured, based on the difference between the percentage availability listed above and the percentage of availability for the given calendar month being measured.

  5. Notwithstanding anything in this Exhibit B to the contrary, the maximum total credit for the relevant month, shall not exceed 100% of the fees due to 3i for that month.

  6. Monitoring. 3i will maintain an independent monitoring solution that monitors the 3i system’s uptime and overall performance. The monitoring solution will monitor via the Internet using equivalent connectivity to that which is available to the Customer.

  7. Support and Maintenance Services.

    1. Support and Maintenance Services are included in the SaaS Service subscription entitles Customer to the following:

      1. Electronic support in order to help Customer locate and correct problems with the Software.

      2. Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications.

      3. All extensions, enhancements and other changes that 3i, at its sole discretion, makes or adds to the Software and which 3i furnishes, without charge, to all other Subscribers of the SaaS Service.

  8. Response and Resolution Goals.

    1. “Business hours” 8:00 A.M. and 5:00 P.M. Korean Standard Time, Monday through Friday, except Korean national holidays.

    2. “Fix” means the repair or replacement of Software component to remedy Problem.

    3. “Problem” means a defect in Software as defined in 3i’s standard Software specification that significantly degrades such Software.

    4. “Respond” means acknowledgment of Problem received containing date and time assigned, and severity assignment.

    5. “Workaround” means a change in the procedures followed or data supplied by Customer to avoid a Problem without substantially impairing Customer’s use of the Software.

  9. Issue Triage. 3i will prioritize issues based on the severity of the issue and the completeness of information provided about the issue. The service request severity level is identified by the 3i Customer Success Manager based on the following severity definitions below.

    Problem Severity

    Exception: Problems resulting from third party connections or services beyond 3i’s control. 

    Response Goals

    Resolution Goals*

    Exception: Emergency or exigent circumstances or other reasons beyond 3i’s control.

    1. The production system is creating a significant impact to the Customer’s business function preventing that function from being executed.

    Reasonable efforts will be made to respond to Severity 1 issues within 2 business hours.

    3i will work continuously within reason from the time the Severity 1 issue is appropriately entered into the 3i System until the issue is resolved, or as long as useful progress can be made. 3i may incorporate Fix in future releases of software.

    2. The production system or application is moderately affected. There is no workaround currently available or the workaround is cumbersome to use.

    Reasonable efforts will be made to respond to Severity 2 issues within 24 business hours.

    3i will provide reasonable effort for Workaround or Fix within 7 business days, once the Problem is reproducible. 3i may incorporate Fix in future releases of software.

    3. The production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround.

    Reasonable efforts will be made to respond to Severity 3 issues within 4 business days.

    Customer Support will provide reasonable effort for Workaround or Fix within 14 business days, once the Problem is reproducible, which will determine the approach to the issue including (i) a 3i system configuration change; (ii) resolve through end-user training; (iii) data problem to be resolved through hotfix; or (iv) resolve in a future 3i system release.

    3i may incorporate Fix in future releases of software.

    4. Non-critical issues, general questions, enhancement requests, or the functionality does not match documented specifications.

    As needed.

    Once the approach to the issue has been identified, the 3i Customer Success Manager will update the 3i system subject to the mutually agreed change control process and payment of applicable costs, if any. The 3i Customer Success Manager will coordinate the development and delivery of 3i system updates with the Administrator.

    *The Resolution Timelines for Corrections or Workarounds that require a mobile app update represent the time from defect identification to submission to Apple’s app store. The Resolution Time does not include the time needed to pass through Apple’s App Store validation requirements.

  10. Service Level Credits.

    1. Process for Reporting an Outage. Provided that the relevant Administrator notifies 3i’s support services help desk within 24 hours after failure to access the 3i system, or otherwise becoming aware of an outage or perceived outage, and 3i determines in its reasonable commercial judgment that the application or service was unavailable due to an outage caused solely by the items of service managed exclusively by 3i, the number of minutes in that outage (“Outage Minutes”) will be applicable for that calendar month, subject to the exceptions listed below.

    2. Redemption of SLA Credits. Customer must notify 3i in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.

    3. Application of SLA Credits. 3i will only apply a credit to the next subsequent month in which the incident occurred. 3i’s blocking of data communications or other Service in accordance with its policies or applicable law, rules or regulations shall not be deemed to be a failure of 3i to provide adequate service levels under this Agreement.

    4. Definition of Outage. The 3i system shall only be deemed to be unavailable, and such outage will only count towards the Outage Minutes for the applicable calendar month, if none of the web servers respond to service requests issued by 3i’s monitoring software as described in Section 3 of these Service Level Terms and none of the exceptions listed below apply. 3i’s records and data shall be the basis for all Service Level Agreement calculations and determinations.

    5. Customer agrees that this shall be the sole and exclusive remedy in which to claim damages in relation to Embedded Technology Bundle downtime or unavailability. Credits will not be carried forward to future billing periods.

  11. Exceptions.
Unavailability of the Customer system shall not be considered an outage, and shall not count towards the Outage Minutes for the applicable calendar month, in the following circumstances, where unavailability is due to:

    1. Scheduled maintenance. If Customer or 3i needs a special exception to the performance of maintenance, it will be handled on a case-by-case basis. Scheduled maintenance means maintenance for which Customer is notified at least 24 hours in advance or occurring weekly at a predefined time for a predefined window. 3i schedules regular maintenance to occur sometime within 8 P.M. to 6 A.M. Korean Standard Time, typically on Friday’s or Saturday’s. 3i’s scheduled maintenance will not exceed 12 hours in a given month;

    2. Maintenance being performed at Customer’s request outside of the normally scheduled maintenance;

    3. Customer’s information content or application programming, acts of Customer, or Administrators.

    4. Downtime resulting from outages of third party connections or utilities or emergency or exigent circumstances or other reasons beyond 3i’s control.

    5. In the case of infrastructure migrations, we may take up to 48 hours over a weekend for the migration.
CONTACT US

If you have any questions, comments or suggestions of if you find any errors in our information about you, please contact us at:

  • Mailing Address: 13F, R&D Tower, Nuritkum Square, 396 World cup buk-ro, Mapo-gu, Seoul

  • Email Address: questions@3i.ai