THIS INCORTA MASTER END USER LICENSE AGREEMENT GOVERNS YOUR RIGHTS OF ACCESS AND USE OF THE SOFTWARE AND ANY SERVICES MADE AVAILABLE TO YOU BY INCORTA, INC., A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 2855 CAMPUS DRIVE SUITE 300, SAN MATEO, CA 94403 (“INCORTA”).
THIS AGREEMENT IS ENTERED INTO BETWEEN INCORTA AND THE CUSTOMER (DEFINED BELOW) AND IS EFFECTIVE ON THE DATE YOU ASSENT TO THESE TERMS BY EXECUTING AN ORDER REFERENCING THESE TERMS (“EFFECTIVE DATE”). THE “CUSTOMER” SHALL MEAN THE PERSON OR ENTITY LISTED ON ORDER REFERENCING THIS AGREEMENT. INCORTA AND CUSTOMER MAY BE REFERRED TO HEREIN AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR OF AN ENTITY NAMED ON THE ORDER, YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY. YOU AND THE ENTITY NAMED ON ORDER, REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
INCORTA IS ONLY WILLING TO LICENSE THE SOFTWARE AND DELIVER ANY SERVICES ORDERED UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL THE TERMS CONTAINED HEREIN. BY USING, DOWNLOADING, AND/OR ACCESS THE SOFTWARE, THE CUSTOMER INDICATES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND ACCEPTS ALL OF ITS TERMS.
IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE CUSTOMER WILL NOT BE AUTHORIZED TO USE OR ALLOW ANY USER TO ACCESS OR USE ANY PART OF THE SOFTWARE OR SCHEDULE OR ACCEPT ANY SERVICES. INCORTA’S LICENSES GRANTED HEREIN AND OBLIGATIONS TO DELIVER ANY SERVICES IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY THE CUSTOMER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
WHEREAS, Incorta is in the business of licensing data analysis software for on-prem use; and
WHEREAS, Customer desires to license certain Incorta software products (identified in the Order) for such use;
NOW, THEREFORE, for the mutual promises and consideration set forth below, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Certain Definitions.
1.1 “Affiliate” means any entity controlling, controlled by or under common control with a party, where “control” and its variants means (i) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (ii) the power to otherwise direct or cause the direction of the management and policies of the entity whether by contract or otherwise.
1.2 “Agreement” means this Incorta Master End User License Agreement including all its attachments and exhibits, referencing this Agreement, and any terms incorporated into this Agreement by reference.
1.3 “Authorized Reseller” means any authorized reseller of Software who validly sells Customer a license to the Software subject to the terms and conditions of this Agreement.
1.4 “Documentation” means any user instructions, manuals, on-line help files, or other materials regarding the use of the Software that are generally provided by Incorta to its customers whom have purchased a license to the Software.
1.5 “Expert Services” means any Expert Services to be delivered by Incorta personnel or Incorta subcontractors to Customer related to the Software which are outlined in an Exhibit or Order, such as training, configuration or implementation. For clarity, Expert Services do not include Support and Maintenance Services, Software customization or any other work for hire.
1.6 “Field of Use” means the field of use set forth in the applicable Order, if any.
1.7 “Internal Business Purposes” means use of the Software by Users on behalf of and for the benefit of Customer or Customer Affiliates, solely for the purposes of Customer’s or Customer Affiliates’ internal business projects and to deploy the projects in production mode for Customer’s or Customer Affiliates’ exclusive internal use and benefit.
1.8 “License Parameter(s)” means any factor that serves as a basis for calculating the amount of fees payable for the license to the Software as identified in the Order.
1.9 “Order” means an ordering document that identifies the commercial terms of the purchase, namely, for example, the Software licensed, the Expert Services (if any) purchased under this Agreement, the applicable License Parameters, the Subscription Term, and any pricing and payment terms relating to the same. Orders may be direct between Incorta and Customer or indirect via an Authorized Reseller. Multiple Orders may apply if additional licenses, products, or services are purchased, but unless expressly stated otherwise terms specified in an Order will apply only to that Order.
1.10 “Software” means the computer software program(s), in object code form, as specified in the applicable Order, together with any Upgrades and related Documentation, all to the extent provided or made available to Customer under this Agreement. “Software” does not include any Third Party Products or plug-ins to the Software identified as provided by or originating from third parties which may be delivered together with the Software.
1.11 “Subscription Term” means the term of the license granted with respect to the Software as identified on the relevant Order. For clarity, the Subscription Term will terminate upon any termination of the Agreement.
1.12 “Support and Maintenance Services” means the standard support and maintenance services delivered by Incorta to its customers under the Support Policy (defined below).
1.13 “Third Party Open Source” means any publicly available third party open source software which may be delivered to Customer as part of or as embedded within the Software delivered to Customer. Incorta to provide Customer a list (as updated) upon request.
1.14 “Third Party Products” means any third party proprietary programs, interfaces, firmware or services that interoperate or communicate with or are made available through or together with the Software.
1.15 “Update” means a release or version of the Software delivered by Incorta to Customer as part of Support and Maintenance Services (or otherwise), including bug fixes, patches, new features or functional enhancements to the Software that is generally made available free of charge to Incorta’s customers whom have purchased a subscription to Software.
1.16 “Users” means any individual authorized by Customer (or any Customer Affiliate or contractor) to access and/or use the Software, including contractors that use the Software for Customer Internal Business Purposes.
2. Ordering; Software Delivery; Subscription Start Date.
Customer may place Orders either with Incorta or an Authorized Reseller. All Orders placed by Customer are subject to written acceptance by Incorta or an Authorized Reseller and Incorta (as relevant). Software will be delivered to Customer electronically and promptly after the Order is executed and becomes effective. The start date of the Subscription Term shall be specified in the Order, or if no date is specified then the start date the effective date of the Order.
3. License Grant and Restrictions.
3.1 Software License. Subject to the terms and conditions of this Agreement, during the Subscription Term, Incorta grants to Customer (and any Users authorized by Customer to use the Software), a non-exclusive, non-transferable and non-sublicensable license to: (i) install instances of the Software on computers owned or controlled by Customer or its Affiliates or in cloud instances controlled by Customer or its Affiliates and hosted by third parties, and (ii) use the Software for Customer’s and/or Customer Affiliates’ Internal Business Purposes in accordance with the relevant Documentation and subject to the License Parameters set out in the applicable Order and the restrictions of this Agreement. Customer may maintain a reasonable number of copies of the Software on its systems for backup and recovery purposes, provided use of the copies is strictly limited to back up or disaster recovery purposes.
3.2 Evaluation Copies of Incorta Software. The following terms will apply to any pre-release versions, or beta, evaluation or proof of concept copies, periods or trials of Incorta proprietary Software provided to Customer (notwithstanding any contrary term specified in any other sections of this Agreement): (i) the proprietary software will be deemed “Software” under this Agreement and the license to use the Software will terminate at the end of the trial period identified by Incorta or Incorta’s Authorized Reseller (or if no period is identified then in thirty (30 days from delivery of access to the Software) and use of the Software by Customer or Customer’s Users will be for the limited purpose of evaluating the relevant Software and establishing Customer’s desire to purchase licenses to Software or providing any feedback desired; (ii) the Software is provided “As Is” without any warranty or liability by Incorta of any kind as further detailed in Section 8 of this Agreement; (iii) Customer will not be entitled to any Support and Maintenance Services or any Upgrades with respect to the Software unless a license is later purchased; (iv) Customer will not be entitled to Indemnification protection as further outlined in Section 9 of this Agreement; and (iv) Incorta and/or the Authorized Reseller may at any time terminate Customer’s license to the Software by written notice to Customer and require Customer to promptly return such pre-release, beta, evaluation or proof of concept copies of the Software and remove all copies of the Software from its systems.
3.3 Restrictions. Except as otherwise expressly permitted under this Agreement or unless otherwise agreed upon in writing with Incorta, Customer will not, directly or indirectly, and will not authorize or permit any third party, to: (a) copy, use or distribute the Software or any portion of the Software beyond the License Parameters and other restrictions or limitations in this Agreement or the Order; (b) modify the Software or create derivative works based upon the Software or reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except and only to the extent any foregoing restriction is prohibited by applicable law; (c) create a program or a set of programs similar or identical to the Software, using any elements or functionalities of the Software to do so; (d) use the Software in any way that is unlawful or in violation of any applicable laws, including transmitting unlawful, infringing or harmful data or code to or from the Software; (e) remove or otherwise interfere with any part of the Software designed to monitor Customer’s compliance with this Agreement; (f) use the Software on behalf of, or to perform any services for, any third party or include any part of the Software in any services or products provided by Customer to any third party; (g) use any analytics, data, content, or other output created by or from the Software on behalf of, or to perform any services for, any third party or include such analytics, data, content or other output in any services or products provided by Customer to any third party; (h) provide, disclose, divulge or make available, in whole or in part; (i) make the Software, in whole or in part, available to third parties on a service bureau, rent, lease, software as a service or application service provider basis; (j) alter or remove any proprietary notices or labels on or in any of the Software; or (k) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Software without the prior written approval of Incorta. For the avoidance of doubt, all restrictions specified in this Agreement with respect to Software apply to all components (including Documentation). There are no implied licenses granted by Incorta under this Agreement. It is the responsibility of the Customer to ensure that all Users are aware of the terms and conditions (including the restrictions) of this Agreement. Customer agrees that all actions or inactions of Users will be deemed an action or inaction by Customer and that Customer will be liable and responsible for any action or inaction of the Users which is in violation of the terms of this Agreement.
4. Expert Services.
Incorta will provide Customer the Expert Services purchased under this Agreement, if any. The scope of Expert Services will be as set forth in an Exhibit referencing this Agreement. Expert Services will be delivered subject to the terms and conditions of this Agreement and the applicable Exhibit or Order. Customer may use anything delivered as part of the Expert Services in support of its use of the Software during a Subscription Term. modification thereof created by or on behalf of Incorta.
5. Support and Maintenance.
During a Subscription Term, Incorta will provide Customer the Support and Maintenance Services for the Software set out in the Support Policy. “Support Policy” as used herein means Incorta’s support and maintenance policy found at https://Incorta.com/supportandmaintenancepolicy/ (or such updated URL provided by Incorta from time to time), describing Incorta’s current maintenance, support and service level policies for Software. For clarity, the Support and Maintenance Services are included as part of the license fee specified in the applicable Order. The Support and Maintenance Services includes Updates to the Software as they become generally available to other Incorta customers for the applicable Software during the relevant Subscription Term. Incorta may make changes to the Support Policy with thirty (30) days’ notice to Customer (via the support portal or otherwise), provided there is no material degradation of the support offering. Notwithstanding the foregoing, if Customer has placed its Order through an Authorized Reseller who is obligated to provide support directly to Customer (as identified in the relevant Order), then the Support Policy will not apply to Customer, and Customer’s support and maintenance services will be provided by the Authorized Reseller.
6. Fees and Payment.
6.1 Fees; Taxes. Customer will make all payments identified on the Order in accordance with its terms. Orders are non-cancelable, and all payments are non-refundable, and payments are not subject to any deduction or set-off. If the Order is placed indirectly through an Authorized Reseller, then the Order entered into with the Authorized Reseller will identify the fees due and payment terms. If the Order is entered into directly with Incorta and not through an Authorized Reseller, then, unless otherwise agreed in the Order, the following terms will apply: (i) Customer will pay Incorta invoices within thirty (30) days after the effective date of the relevant invoice; (ii) all amounts are payable in U.S. Dollars; (iii) all fees outlined in the Orders are exclusive of all taxes, duties, shipping fees, and similar amounts, all of which are Customer’s responsibility (excluding taxes based on Incorta or its Authorized Reseller’s income); and (iv) if Customer is in default of making any payment due to Incorta, then Incorta may, without prejudice to other remedies available, assess a late payment charge, at the lower rate of 1.5% per month, or the maximum rate under applicable law, and/or suspend delivery of any Software or Services under this Agreement. Incorta’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales and use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If Incorta has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Customer will pay that amount when invoiced by Incorta unless Customer provides Incorta with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Incorta is solely responsible for taxes assessable against it based on its income, property and employees.
6.2 Updating License Parameters; Reporting. In connection with the use of the Software, Customer will not exceed the License Parameters agreed to as part of the Order(s) placed by Customer. At any time during the Subscription Term, if Customer desires to increase the relevant License Parameters, or if Customer or Incorta learns that Customer’s actual usage (“Actual Usage”) exceeds the relevant License Parameters paid for by Customer (“Purchased Usage”), then Customer will as applicable notify Incorta (or the Authorized Reseller) and pay the incremental fees due, and after the relevant Order is placed, the relevant License Parameters will be deemed amended to reflect this purchase. Within thirty (30) days of Incorta’s or its Authorized Reseller’s written request, Customer will provide Incorta or its Authorized Reseller (as relevant) a report, which report will identify usage required to show compliance with the License Parameters and compliance with licensing restrictions identified in this Agreement and in the Order. In order to verify compliance with this Agreement or to verify the report provided under this Agreement, within thirty (30) days’ of Incorta’s written request to Customer, which request will not be made more than once per calendar quarter, Customer will provide Incorta access to the relevant systems, records and/or product usage logs generated by the Software in order to show compliance with License Parameters and other license restrictions if specified in an Order. Incorta and/or its Authorized Resellers may invoice Customer if it learns that the Actual Usage is above the Purchased Usage. Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional usage during the Subscription Term will be based on the then-current pricing charged to the Customer in the relevant Order and, unless otherwise agreed, the fees will be charged for the balance of the Subscription Term so that the licenses may be coterminous with the existing licenses.
The Software is licensed and not sold. Incorta and its licensors will own and retain all right, title, and (except as expressly licensed under this Agreement) interest in and to the Software and all copies or portions thereof, and any derivative works thereof (by whomever created). Customer is not required to provide any feedback or suggestions for improvement to or updates to the Software; however, to the extent provided, all such suggestions or feedback relating to the Software provided by Customer (or its Users) to Incorta will be Incorta’s property, and Customer hereby agrees to assign the same to Incorta.
8. Warranties and Limitation of Liability.
8.1 Mutual Warranties. Each party represents and warrants to the other that (i) it has the full power to enter into this Agreement and that this Agreement constitutes a legal, valid and binding obligation of the party, enforceable against it, and (ii) this Agreement does not contravene, violate or conflict with any other agreement of the party with any third party.
8.2 Software Warranty. For a period of ninety (90) days from the effective date of the relevant Order for the Software, Incorta warrants that the Software materially conforms to its published specifications described in the Documentation supplied by Incorta. Customer’s sole and exclusive remedy and the entire liability of Incorta and its suppliers and licensors under this limited warranty will be, at Incorta’s option, repair or replacement of the Software, or if repair or replacement is not possible, to terminate the license and refund the license fee paid by Customer for the affected Software, provided Customer removes all copies of the relevant Software from its systems and ceases any further use of the Software.
8.3 Malicious Code. Incorta will use standard industry practices to test and/or review the Software delivered or transmitted to Customer under this Agreement prior to its delivery or transmission for Malicious Code and Incorta will remove any Malicious Code it discovers prior to delivery of Software to Customer. “Malicious Code” means any code which is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of computer programs or computer systems or destroy or damage data in an unauthorized manner. For clarity, Malicious Code will not include standard routines in the Software which are intended to delete data and are implicit in the standard functionality of the Software, or any standard software bugs or errors handled through Support and Maintenance Services, or any license key or other equivalent code which may limit the functionality or scope of the use of the Software to the scope of the license purchased by Customer under this Agreement.
8.4 Expert Services Warranty. For a period of thirty (30) days from the date of delivery of any Expert Services by Incorta to Customer, Incorta represents and warrants to Customer that the services provided will be professional, workmanlike and performed in a manner conforming to any requirements stated in this Agreement or in the relevant Exhibit or Order. Incorta’s entire liability and Customer’s sole and exclusive remedy for any breach of this warranty will be for Incorta to re-perform the nonconforming Expert Services, or if Incorta is unable to deliver conforming Expert Services within a reasonable time, then refund any fees paid to Incorta for the relevant non-conforming Expert Services.
8.5 Warranty Limitations. The express warranties in this Agreement do not apply if the applicable Software, or any portion of the Software: (i) has been altered, except by Incorta or its authorized representatives or its contractors; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation; or (iii) is licensed, for beta, evaluation, or testing purposes. Additionally, the warranties set forth in this Agreement only apply to a warranty claim made within the warranty period specified in this Agreement and do not apply to any bug, defect or error caused by or attributable to software or products or services not supplied by Incorta.
8.6 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOFTWARE, EXPERT SERVICES, ANY DELIVERABLES, AND SUPPORT AND MAINTENANCE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND INCORTA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SAME. INCORTA HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. INCORTA DOES NOT WARRANT OR SUPPORT ANY THIRD-PARTY WEBSITE, SERVICE, SOFTWARE, CONTENT OR FUNCTIONALITY. INCORTA DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO DATA.
8.7 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY LIABILITY ARISING OUT OF ANY VIOLATION OF A PARTY’S PROPRIETARY RIGHTS (INCLUDING A VIOLATION OF ANY LICENSE OR LICENSE RESTRICTIONS SET OUT IN THIS AGREEMENT), OR ANY VIOLATION OF SECTION 9 (CONFIDENTIALITY) OR ANY INDEMNITY OBLIGATION:
(A) IN NO EVENT WILL CUSTOMER, INCORTA, OR INCORTA’S LICENSORS OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL DAMAGES, OR FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF BUSINESS, LOSS OF USE, LOSS OF CONTRACTS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF ANY OTHER ECONOMIC ADVANTAGE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY LOSS OR DAMAGE TO DATA, OR ANY BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING FROM SOFTWARE OR ANY SERVICES DELIVERED UNDER OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH; AND
(B) IN NO EVENT WILL THE AGGREGATE LIABILITY OF CUSTOMER, INCORTA, INCORTA’S LICENSORS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE SOFTWARE, ASSOCIATED SERVICES, EXPERT SERVICES OR OTHERWISE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE) EXCEED THE FEES RECEIVED BY INCORTA UNDER THE RELEVANT ORDER (OR IN THE CASE OF CUSTOMER’S LIABILITY EXCEED THE FEES PAID OR DUE TO INCORTA OR ITS AUTHORIZED RESELLER UNDER THE RELEVANT ORDER), WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
9.1 By Incorta. Incorta will defend Customer and its Affiliates, and their respective officers and employees (“Customer Indemnitees”) from and against any claim by a third party brought against Customer Indemnitees alleging that the Software infringes or violates third party intellectual property rights, and will indemnify and hold harmless Customer Indemnitees from and against any damages and costs finally awarded against Customer Indemnitees or agreed to by Incorta in a monetary settlement (including reasonable attorneys’ fees) resulting from such claim. In the event any such claim is brought or threatened, Incorta may, at its sole option and expense: (i) procure for Customer the right to continue use of the Software or infringing part thereof; (ii) modify or amend the Software or infringing part thereof to make it non-infringing; (iii) replace the Software or infringing part thereof with non-infringing software or technology having substantially similar capabilities; or (iv) terminate any applicable Orders and/or this Agreement and repay to Customer a pro-rata portion of any prepaid and unused license fees for the balance of the Subscription Term . Notwithstanding the foregoing, Incorta will have no liability to Customer for any claim of infringement to the extent such claim arises out of or is based upon (1) use of the Software in combination with software, products or services not provided by Incorta; (2) any modification of the Software, in whole or in part, not made or authorized by Incorta; (3) failure to use the Software in accordance with this Agreement, or Documentation, or otherwise using the Software for purposes for which it was not designed or intended; (4) use of any specified release of the Software after Incorta notifies Customer that continued use of such release may subject Customer to a claim of infringement, if Incorta provides Customer with a replacement release, or (5) any content or materials provided by Customer or third parties, including Third Party Open Source. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF INCORTA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE OR ANY PART THEREOF.
9.2 By Customer. Customer will defend Incorta and its Affiliates, and their respective officers and employees (“Incorta Indemnitees”) from and against any claim by a third party brought against Incorta Indemnitees relating to or arising from (i) any data or content imported or uploaded to the Software, (ii) use of Software in violation of this Agreement or applicable law or any third party rights, or (iii) content or materials developed by the User as a result of its usage of Software.
9.3 Indemnity Procedures. In the event of a potential indemnity obligation under this Section, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of the claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section; however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnified party may participate in the defense of the claim with its own counsel at its own expense. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
10. Confidential Information.
10.1 Definition. “Confidential Information” means (i) any information disclosed (directly or indirectly) by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement this is marked as “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Notwithstanding the foregoing, the Software and the Documentation is the Confidential Information of Incorta.
10.2 Exceptions. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
10.3 Duties. Except as expressly authorized in this Agreement, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform under this Agreement (including providing the features and services associated with the normal use of the Software) or exercise rights granted to it under this Agreement; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to its Affiliates, and those employees, agents and contractors of the Receiving Party and those of its Affiliates who have a need to know the information for the purposes of this Agreement, provided that any such employee, agent or contractor must be subject to obligations of non-use and confidentiality with respect to the Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party will remain liable for any non-compliance of such Affiliates, and its or their employees, agents or contractors with the terms of this Agreement.
10.4 Compelled Disclosure. If a Receiving Party is compelled by law, regulation or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will promptly notify, if permitted by applicable law, the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this Section.
11. Term and Termination.
The Order and the Software license granted as part of any Order will remain effective until terminated or until the Subscription Term expires, whichever is earlier. This Agreement will be effective as of the Effective Date and will remain in effect until terminated or until the Subscription Term for all Software licensed pursuant to any Order expires, whichever is earlier. This Agreement may be terminated by a party: (i) upon thirty (30) days’ written notice, if the other party materially breaches any provision of this Agreement and the breach remains uncured after the thirty (30) day notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days. As of the termination date Customer will cease all use of the Software. Further, Customer agrees to contact Incorta on such termination date for assistance in the removal of all Software. Immediately thereafter Customer will provide written confirmation signed by an officer of Customer’s company certifying that all such Software in its possession or control has been purged and either destroyed or returned. Sections 1 (Certain Definitions), 3.3 (Restrictions), 6 (Fees and Payment), 7 (Ownership), 8 (Warranties and Limitation on Liabilities), 9 (Indemnity), 10 (Confidential Information), 11 (Term and Termination), 12 (Miscellaneous) will survive any termination or expiration of this Agreement.
12.2 Third Party Open Source. Notwithstanding anything else herein, Third Party Open Source is subject to the relevant third-party license, including the relevant proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the Third Party Open Source. For a list of Third Party Open Source, please request from Incorta. Incorta represents that Software delivered under this Agreement will not contain Third Party Open Source subject to any terms or conditions which when used as contemplated in this Agreement necessarily require that Customer grant to any third party any rights to, or immunities under any intellectual property rights of Customer, or that Customer disclose or make available to third parties any of its own proprietary source code or intellectual property (or any part or derivative work thereof) under any circumstances.
12.3 Language. This Agreement, any disputes under this Agreement, and any services to be provided under this Agreement by Incorta to Customer will be conducted and provided in the English language.
12.4 Usage and Performance Data. Customer acknowledges that the Software may collect statistical, analytical, non-personally identifiable data about Software performance and Customer’s use of the Software (collectively “Usage and Performance Data”). Customer agrees that Incorta (and its Affiliates, contractors, successors, and assigns) can collect, maintain, process, use and otherwise fully exploit the Usage and Performance Data in any way now or in the future for its legitimate business purposes, including to corrects errors in Software, to maintain and improve its products and services, to deliver support services, and to monitor license compliance.
12.5 Assignment. This Agreement may not be assigned or transferred without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement to a successor in interest of all or substantially all of its business or assets to which this Agreement relates, provided the assigning party notifies the other party of such assignment within thirty (30) days of the assignment. Any action or conduct in violation of the foregoing will be void and without effect. All validly assigned rights and obligations of the parties under this Agreement will be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
12.6 Relationship of Parties. Nothing contained in this Agreement will be construed as creating any agency, partnership or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party will have the authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either Party except those expressly granted herein.
12.7 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address first set forth above. Either Party may change its address for notice by providing notice to the other Party in accordance with this Section. Notices will be deemed to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above or one (1) day after delivery to an overnight courier service.
12.8 Federal Government End Users. Any Software provided for ultimate federal government end use is provided solely in accordance with the following: Government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Incorta to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
12.9 Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, act of God, earthquake, flood, act of terrorism, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed Party: (a) gives the other Party notice of such cause and (b) uses its reasonable commercial efforts to correct such failure or delay in performance.
12.10 Export Control. Customer understands that the Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws. None of the Software or any underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that customer is not located in, under control of, or a national or resident of any such country or on any such list.
12.11 Anti-Bribery or Anti-Corruption Laws. In carrying out activities pursuant to this Agreement, each party agrees that it will comply with and will not commit, authorize, or permit any action by its personnel which would violate any anti-bribery or anti-corruption laws, such as the United States Foreign Corrupt Practices Act or the UK Bribery Act or any similar relevant law or regulation.
12.12 Publicity. Each Party agrees that Incorta may publish and use Customer’s name and logo in order to identify Customer as a licensee, customer or client of Incorta in its promotional and marketing materials, including on its website. Any other use of a party’s logo shall be upon prior written approval only; however, Incorta and Customer agree to discuss Customer’s participation in the Incorta Customer Reference Program which may include: (i) Incorta Customer Advisory Board, (ii) reference calls with other companies that are evaluating Incorta, (iii) print and/or video testimonials, (iv) speaking sessions, and (v) press releases.
12.13 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.
12.14 Entire Agreement.This Agreement constitutes the entire agreement between the parties with respect to the license of the Software, delivery of Support and Maintenance Services, and delivery of any Expert Services outlined in an Exhibit or Order referencing this (where relevant). Except as expressly provided in this Agreement, this Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained in this Agreement. This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, ordering document, acknowledgement, click through agreement or terms, or confirmation or other document issued or made available by Customer, even if signed and returned or otherwise accepted. Additionally, with respect to any Software licensed under this Agreement, this Agreement supersedes and cancels any “click wrap” or “click accept” or any web-based agreement incorporated into the Software or accepted by User in connection with access to the license keys or otherwise.
12.15 Severability. If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
12.16 Integration. This Agreement (including the Exhibits and any addenda hereto signed by both Parties) contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter. In the event of a conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement will take precedence unless expressly set forth in the applicable Order. This Agreement may not be amended, except by a writing signed by both Parties.
12.17 Counterparts. This Agreement may be executed in one or more counterparts and each of such counterparts shall be deemed to be an original for all purposes, and all of such counterparts shall together constitute one and the same document. Any signature required for the execution of this Agreement may be in the form of either an original signature, a facsimile transmission bearing the signature of any party to this Agreement or an electronic representation of the signed signature page in portable document format (“PDF”). No objection shall be raised as to the authenticity of any signature due solely to the fact that said signature was transmitted via facsimile or is represented in PDF.
12.18 Headings; Construction. The headings to the clauses, sub-clauses and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement will be interpreted equitably without regard to which Party drafted the Agreement or any provision thereof. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or portion hereof. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.”
12.19 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods will not apply with respect to any subject matter of this Agreement. Any judicial action or proceeding arising hereunder or relating hereto will be brought in, and the Parties hereby consent to the exclusive, personal jurisdiction of, the state and federal courts located in San Francisco County, California.
12.20 Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting Incorta’s or its licensors’ intellectual property rights in Software or the Confidential Information of either party may cause irreparable injury to the party for which monetary damages would not be an adequate remedy and the non-breaching party will be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
12.21 Basis of the Bargain. Customer acknowledges and agrees that Incorta has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth in this Agreement, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.