Last updated: October 26, 2020
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.
- Use of Services. Subject to the terms of this Agreement, Incognia grants Customer the right to use the Services during the Term. The Services include a limited, revocable, non-exclusive, non-transferrable, royalty-free, right to use Incognia’s software development kit (“SDK”), which is Incognia’s proprietary set of software development tools, including but not limited to computer programs, sample code, documentation, application programming interfaces (APIs) or base codes, the use of which is authorized by Incognia to Customer to allow the collection and processing of data and for the provision of the Services. Customer will use the Services only for its own business purposes and, regarding the Services, will not (or permit any third party to): (a) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code or any component thereof; (b) circumvent, disable, or otherwise interfere with features, including those related to security or access; (c) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation thereof; (d) modify or prepare derivative works; (e) assign, copy, reproduce, modify, sell, lease, pledge, transfer, sublicense, market, commercially exploit, or otherwise dispose of in any way, on temporary or permanent basis or any component thereof other than as expressly provided in this Agreement; (f) use in any manner that infringes the intellectual property or other rights of Incognia or any other party; (g) store or transmit any defamatory, violent, obscene, pornographic, illegal or otherwise offensive content, (h) cause or permit any third party to do any of the foregoing; and/or (i) use in any way not specifically permitted under this Agreement. Customer recognizes that the Services are not provided by a “consumer reporting agency” and do not constitute a “consumer report” under the Fair Credit Reporting Act.
- Customer Responsibilities. Customer is responsible and liable for all uses of the Services resulting from access provided to Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer is responsible for maintaining the security of Equipment, Customer’s account information, passwords and files, and for all uses of Customer’s account or the Equipment. Customer will use the Services in compliance with applicable law including, without limitation, those laws related to privacy and data protection. Customer will be responsible for any notifications required to or approvals, consents, or authorizations required from individuals arising out of any use of the Services. Customer understands and agrees that, in order to ensure compliance with applicable law and Incognia’s internal policies, Incognia may conduct usage reviews of Customer’s use of the Services, and Customer agrees to cooperate fully with any such reviews. Furthermore, Customer is solely responsible for installing the SDK (and its updates)
- Ownership. Incognia or its licensors, as the case may be, shall retain and own all right, title and interest and all intellectual property rights (including but not limited to the SDK, source code, its modules, packages, operating structure, business model, algorithms, trade dress, look and feel, technical documentation and all information related to its usage and operation, material models, documentation, reports, tables, data compilations, manuals and other elements resulting directly from the delivery of the Services) in and to the Services, any software underlying the Services, any hosting environment made available to Subscriber, any data collected by the Services, any related documentation, modification, derivation, improvement or development thereof, and all copies thereof ("Incognia Intellectual Property"). Nothing in this Agreement shall be interpreted to provide Customer with any rights in the foregoing, except the limited right to use the Services subject to the terms of this Agreement. Incognia reserves the right to add, remove or update content, features or software utilized in the Services and will use commercially reasonable efforts to notify Customer of such changes. If Customer sends or transmits any communications or materials to Incognia suggesting or recommending changes to the Services or Incognia Intellectual Property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Incognia is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Incognia on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Incognia is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Incognia is not required to use any Feedback.
- Fees, Payment and Taxes. Customer shall pay Incognia the fees specified in an Order Form (“Fees”). Unless otherwise specified in an Order Form, payment for all Fees will be invoiced upon mutual execution of the Order Form and all Fees will be due monthly, payable in U.S. dollars within thirty (30) days from the date of the invoice. If Customer purchases professional services, Fees do not include travel, lodging, and other related expenses, which will be billed at actual cost. Fees are exclusive of all taxes; other than taxes on Incognia’s net income, Customer shall pay (and Incognia shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added, withholding, and personal property taxes on any payments due in connection with the Services provided hereunder. In the event that a payment by Customer is not received within five (5) business days of its due date, Incognia shall be entitled to interest on the amount owing at a rate of 2% per month, or the highest rate allowed by applicable law, whichever is more, from the due date of payment until the date of actual receipt by Incognia and, if necessary, Customer shall bear all reasonably attorneys’ fees actually incurred by Incognia in collecting any such overdue amounts.
- Term and Termination. This Agreement is effective on the start date of the first Order Form processed under this Agreement or the effective date specified in this Agreement (if any), whichever occurs first (“Effective Date), and will continue until terminated (the “Term”). If the Services continue to be provided under an Order Form after termination of this Agreement, then this Agreement will continue to be in effect until the Order Form is terminated or the obligations under the Order Form are completed. Unless otherwise expressly provided on an Order Form, either Party may terminate this Agreement for convenience without any penalty or charge upon thirty (30) days’ prior written notice to the other Party. In addition, this Agreement may be terminated by either Party on delivery of written notice of termination to the other Party, as follows: (1) if the other Party materially breaches this Agreement and such breach is not capable of being cured; (2) if the other Party materially breaches this Agreement, such breach is capable of being cured and the breaching Party fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the nonbreaching Party; or (3) if the other Party: (a) makes a general assignment for the benefit of creditors, (b) admits in writing its inability to pay debts as they come due, (c) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, (d) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing, (e) fails to pay due invoices for a period longer than five (5) days. Termination of the Agreement shall terminate all rights granted in this Agreement. Upon termination of the Agreement (i) Customer will cease all use of the Services, uninstall the SDK, and if applicable, will pay Incognia any remaining fees and (ii) Customer will not be entitled to any refunds or credits for unused Services.
- Temporary Suspension. Notwithstanding anything to the contrary in this Agreement, Incognia may temporarily suspend Customer’s access to any portion or all of the Services if: (i) Incognia reasonably determines that (A) there is a threat or attack on any of the Services; (B) Customer’s use of the Services disrupts or poses a security risk to Incognia or any of its other customers; (C) Customer is using the Services for fraudulent or illegal activities; or (D) Incognia’s provision of the Services to Customer is prohibited by applicable law; or (ii) Customer fails to pay applicable fees in accordance with Section 5 (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Incognia shall provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Incognia shall resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Incognia will have no liability for any damage, liabilities, losses, or any other consequences that Customer may incur as a result of a Service Suspension.
- Confidentiality. In connection with this Agreement, each Party (a “Disclosing Party”) has provided or may provide Confidential Information to the other Party (a “Receiving Party”). Except as set forth below, “Confidential Information” means all non-public, confidential or proprietary information of or about Disclosing Party that is received by Receiving Party which relates to Disclosing Party’s business (including without limitation, business plans, financial data, pricing information, marketing, customer information, personal information), technology (including without limitation, source code, algorithms, processes, technical data, product plans, research, software, and other confidential intellectual property), products, services, trade secrets, know-how, formulae, processes, ideas, and inventions, or other information which should be reasonably understood by Receiving Party as the confidential or proprietary information of Disclosing Party. Confidential Information includes any documents or reports created by the Receiving Party that include, summarize, or refer to Confidential Information. The terms of this Agreement are the Confidential Information of Incognia. Confidential Information will not include any information that Receiving Party can document: (i) is or becomes generally known to the public without fault of Receiving Party; (ii) was in its possession or known by it without any obligation of confidentiality prior to receipt pursuant to this Agreement; (iii) is independently developed by Receiving Party without use of or reference to the Confidential Information; or (iv) is rightfully obtained by Receiving Party from a third party without any obligation of confidentiality to Disclosing Party.
8.1.Receiving Party’s Obligations. Confidential Information of Disclosing Party may be used by Receiving Party solely for the purposes anticipated in this Agreement and may not be used for any other purpose. Receiving Party will hold Disclosing Party’s Confidential Information in strictest confidence and may not use or disclose Disclosing Party’s Confidential Information, except as expressly permitted herein, without the prior written consent of Disclosing Party, which consent may be granted or refused in Disclosing Party’s sole discretion. Receiving Party will take all reasonable measures to protect the Confidential Information of Disclosing Party from becoming known to the public or falling into the possession of persons other than those persons authorized to have any such Confidential Information, which measures shall include the highest degree of care that Receiving Party uses to protect its own information of a similar nature, but in no event less than a reasonable degree of care. Receiving Party may disclose Disclosing Party’s Confidential Information only to its Representatives who have a legitimate “need to know,” have been advised of the obligations of confidentiality under this Agreement and are bound in writing to obligations of confidentiality no less strict than those set out in this Agreement. “Representatives” include any person acting on behalf of either Party as individual contractors, directors, legal and accounting advisors, employees, and Affiliates. An “Affiliate” is a business entity controlling, controlled by or under common control, directly or indirectly, with a Party. For purposes of defining Affiliate only, “control” means ownership of more than fifty percent (50%) of the voting stock or other voting ownership interest in an entity. Receiving Party will be liable for any breach of this Agreement by its Representatives. Nothing in this Agreement will prohibit Receiving Party from disclosing Confidential Information of Disclosing Party if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (“Required Disclosure”); provided that Receiving Party shall: (i) where permitted, give Disclosing Party reasonable notice of such Required Disclosure prior to disclosure; (ii) cooperate with Disclosing Party in the event that it elects to contest such disclosure or seek a protective order with respect thereto; and (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure
8.2.Confidentiality Period; Return of Confidential Information; Remedies. The confidentiality obligations with respect to any disclosure made on or after the Effective Date will survive and continue for a period of three (3) years after the Agreement terminates, except that the obligations with respect to Confidential Information constituting a trade secret shall survive for so long as such information remains a trade secret under applicable law. Immediately upon either the written request by Disclosing Party at any time or the termination of this Agreement, Receiving Party shall cease all use of and return to Disclosing Party all copies or extracts of Disclosing Party’s Confidential Information, in any medium, or certify, in writing by an authorized officer of Receiving Party, the destruction of the same. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its confidentiality obligations, that any such breach may allow Receiving Party or third parties to compete unfairly with Disclosing Party resulting in irreparable harm to Disclosing Party and, therefore, that upon any such breach or any threat of breach of confidentiality, Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. Each Party agrees that monetary damages would be inadequate to compensate the other Party for any breach of confidentiality. Receiving Party will notify Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware.
9.1.Incognia will defend, indemnify, and hold harmless, Customer or its officers, directors, employees or agents from any and all losses, damages, costs and expenses including reasonable attorneys’ fees to the extent that based on a claim that the Services when used in accordance with the terms of this Agreement, infringes any patent, copyright, or trademark of a third party (a “Claim”). Incognia shall have no obligation to indemnify, defend or hold harmless hereunder to the extent that a Claim is caused by or results from any: (i) use of the Services not in accordance with this Agreement or for purposes not intended by Incognia and not specifically permitted pursuant to this Agreement; or (ii) use of the Services other than the most updated, unaltered and unmodified version of the Services as made available by Incognia to Customer as an update or upgrade. Following notice of a Claim or upon facts which in Incognia’s sole opinion are likely to give rise to such Claim, Incognia shall in its sole discretion and at its sole option, elect to (A) procure for Customer the right to continue to use the Services, at no additional cost to Customer, (B) replace the Services so that they become non-infringing, but functionally equivalent, (C) modify the Services to avoid the alleged infringement in a manner so that it remains functionally equivalent, or (D) terminate this Agreement.
9.2.Customer will defend, indemnify, and hold harmless Incognia, its affiliates and their respective officers, directors, agents and employees from any and all losses, damages, costs and expenses including reasonable attorneys’ fees relating to or arising out of (i) a breach of this Agreement by the Customer or anyone on its behalf, including, without limitation, breach of its representations and warranties under this Agreement or misuse of the Services or (ii) the lawful collection and transmission of data that Customer provides to Incognia in order to provide the Services.
9.3.A Party's (“Indemnifying Party”) indemnification obligations are subject to the other Party (“Indemnified Party”): (a) notifying the Indemnifying Party of any Claim promptly after it obtains knowledge of such Claim; (b) providing the Indemnifying Party with reasonable assistance, information and cooperation in defending the lawsuit or proceeding; and (c) giving the Indemnifying Party full control and sole authority over the defense and settlement of such Claim, provided any such settlement is solely for monetary damages and does not admit any liability on behalf of the Indemnified Party. The Indemnified Party may be represented in any such suit by counsel of its own choosing at its own expense.
- Representations and Warranties. Each Party represents and warrants that: (i) the execution and performance of this Agreement does not conflict with any contractual or legal obligations it has; and (ii) it shall comply with applicable law. Incognia further represents and warrants that the Services will materially function in accordance with its specifications in the Order Form. Customer further represents and warrants that it has and shall during the Term have all right, license and consent required under applicable law to provide Incognia with (and access to) any data (including but not limited to personal data) collected or processed by the Services in accordance with the terms of this Agreement. Customer represents and warrants that neither it nor its owners have been designated by or are otherwise subject to restriction in accordance with export controls or economic sanctions laws and regulations administered by the United States Department of Commerce, United States Department of State, United States Department of Treasury or other applicable export controls or sanctions laws and regulations. Customer covenants that it shall not—directly or indirectly—sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Incognia to any restricted destination, entity, person or end-use requiring an export license.
- Disclaimers; Limitation of Liability.
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.