This Services Agreement (the “Agreement”) is entered into by and between Incognia US Inc. ("Incognia") and the counterparty (“Customer”) identified in an order form (“Order Form”) incorporating the terms of this Agreement (each a “Party” or together the “Parties”). Customer wishes to obtain, and Incognia wishes to provide, a subscription to Incognia’s location-based behavioral services described in this Agreement and the Order Form (the “Services”). This Agreement sets forth the terms and conditions under which Incognia will provide Customer with a subscription to the Services. Incognia reserves the right to make changes to the terms of this Agreement, with Incognia to provide Customer at least ten (10) days’ prior written notice before any such changes go into effect. In the event of any conflict between these terms and any other document applicable to the services, the order of prevalence will be the Order Form followed by these terms.
CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCOGNIA DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, RELATED DOCUMENTATION OR INFORMATION, AND OTHER MATERIALS AND SERVICES, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. INCOGNIA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES OR IN ANY UPDATE WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE FROM OTHER PROGRAM LIMITATIONS. INCOGNIA PROVIDES NO WARRANTY REGARDING ANY USE OF THE SERVICES NOT IN ACCORDANCE WITH THIS AGREEMENT OR FOR PURPOSES NOT INTENDED BY INCOGNIA AND NOT SPECIFICALLY PERMITTED BY THIS AGREEMENT. IN NO EVENT, SHALL INCOGNIA OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY PENALTIES, CLAIMS FOR LOST DATA, REVENUE, PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES OR BUSINESS OPPORTUNITIES, ARISING OUT OF THIS AGREEMENT OR ANY ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF INCOGNIA HAD BEEN ADVISED OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INCOGNIA’S MAXIMUM AND AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO INCOGNIA HEREUNDER DURING THE PRECEDING 6 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
12.1.Relationship. This Agreement is not intended to create, nor should it be construed as creating, an agency, joint venture, partnership or similar relationship between the Parties. Incognia will act solely as an independent contractor of Customer and neither Party shall have the right to act for or bind the other Party in any way or to represent that the other Party is in any way responsible for any acts or omissions of such Party.
12.2.Publicity. Each Party recognizes and concedes that all trademarks, service marks or other designations (“Proprietary Marks”) constitute such Party’s exclusive property. Each Party grants the other Party a nonexclusive, nontransferable, non-sublicensable, royalty-free license during the Term to use, solely to identify the other Party as a customer or supplier, as the case may be. Except as set forth herein, neither Party shall use the Proprietary Marks of the other Party without the prior written consent of the other Party. Any uses of the other Party’s Proprietary Marks shall be in accordance with the granting Party’s reasonable trademark usage policies. Each Party shall cease, or adjust the manner of, its use of any of the other Party’s Proprietary Marks at the request of the other Party in its sole discretion. The granting Party may withdraw any approval or license of any use of its Proprietary Marks at any time in its sole discretion.
12.3.Successors and Assigns. This Agreement shall bind and inure to the benefit of each Party’s permitted successors and assigns. Either Party may assign any of its rights or obligations without prior written consent of other Party only in the event of: (a) a sale or other transfer of all or substantially all of the assets of such Party, (b) a transfer to an entity controlled by, controlling, or under common control with such Party. Any attempt to assign this Agreement in any other event without prior written consent of the other Party will be null and void.
12.4.Law and Jurisdiction. This Agreement will be construed and governed by the laws of the State of California, without giving effect to its conflicts of law principles. The parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this Agreement will be brought solely in, the state courts of the State of California for the county of Santa Clara or the United States District Court for the Northern District of California, if such court has subject matter jurisdiction. Notwithstanding the foregoing, either party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief. If any legal action or proceeding is commenced in connection with any dispute arising under, relating to or otherwise concerning this Agreement, the prevailing party, as determined by the court, will be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding.
12.5.Force Majeure. With the exception of payment obligations, neither Party shall be liable hereunder by reason of any delay or failure in the performance of its obligations if such delay arises out of causes beyond its control including, without limitation, use of the internet and electronic communications, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, internet failures or malfunction, severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties (“Force Majeure Event”). The Party prevented from performing its obligations or duties because of a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and, if applicable, with notice of the termination thereof.
12.6.Severability and Waiver. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties and the remainder of this Agreement will remain in full force and effect. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
12.7.Construction; Integration; Counterparts. This Agreement will not be construed in favor of or against either Party by reason of authorship. This Agreement, including its exhibits, constitutes the entire agreement between the Parties, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. In the event of any conflict between this Agreement and any other document applicable to the services, the order of prevalence will be the Order Form followed by this Agreement.
12.8.Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if: (i) personally delivered to the address in the Order Form, upon receipt; (ii) sent by e-mail to the e-mail address indicated in the Order Form or otherwise provided by Incognia; or (iii) sent by registered mail upon delivery and only if sent to the address in the Order Form.12.9.Survival. All provisions of this Agreement that are by their nature intended to survive the expiration or termination of this Agreement or an Order Form, including without limitation, obligations with respect to indemnification, confidentiality, and proprietary rights, shall survive such expiration or termination.