1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, IncQuery will provide Client with access to the Services through the internet.The Services are subject to modification from time to time at IncQuery’s sole discretion, for any purpose deemed appropriate by IncQuery. IncQuery will use reasonable efforts to give Client prior written notice of any such modification. Additionally, Client may order survey programming and design services by submitting a Survey Work Order in substantially the form set forth in Exhibit A; all Survey Work Orders are subject to IncQuery’s written acceptance (which may be withheld in IncQuery’s sole discretion) in order to be valid.
1.2 IncQuery will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week and to deliver surveys no later than the target launch date specified in the applicable Survey Work Order. Notwithstanding the foregoing, IncQuery reserves the right to suspend Client’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Client is in breach of this Agreement, including failure to pay any amounts due to IncQuery.
1.3 Subject to the terms hereof, IncQuery will provide reasonable support to Client for the Services from Monday through Friday during IncQuery’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will access and use the Services solely for (i) its internal, evaluation purposes, and (ii) to collaborate with IncQuery on programming and design for surveys ordered through a mutually-accepted Survey Work Order. Client shall not use the Services to generate surveys for programming by third-parties or for any other use except evaluating the Services.
2.2 Client will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not illegal under applicable statutory law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations; (iv) send or store infringing, obscene, threatening, malicious (including, without limitation, malicious code) or otherwise unlawful or tortious material in connection with the Services; (v) damage or disable, overburden, impair, interfere with, or disrupt the Services; (vi) attempt to gain unauthorized access to any systems or networks that connect to or otherwise interfere with the operation ofthe Services; or (vii) allow more than one individual to use a user account.
2.3 Client will cooperate with IncQuery in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as IncQuery may reasonably request. Client will also cooperate with IncQuery in establishing a password or other procedures for verifying that only designated employees of Client have access to any administrative functions of the Services.
2.4 Client will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”).Client may change the individual designated as Primary Contact at any time by providing written notice to IncQuery.
2.5 Client hereby agrees to indemnify and hold harmless IncQuery 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 Client’s use of Services. Although IncQuery has no obligation to monitor the content provided by Client or Client’s use of the Services, IncQuery may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.6 Client will be responsible for maintaining the security of Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account with or without Client’s knowledge or consent.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) totake the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, IncQuery may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
3.3 Notwithstanding anything to the contrary in this Agreement, IncQuery shall not be prohibited or enjoined at any time from utilizing any "skills or knowledge of a general nature" acquired during the course of performing any services. For purposes of this Agreement, "skills or knowledge of a general nature" shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another client.
4. INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, IncQuery alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any third party relating to the Service and/or the Software, which are hereby assigned to IncQuery. Client will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service or Software, or any intellectual property rights.
IncQuery may obtain and process certain content and/or data provided by or on behalf of Client, such as survey questions and results (“Content”), and is authorized to use such Content to perform its obligations under this Agreement and, without identifying Client, to improve IncQuery’s products and services. Client and its licensors shall (and Client hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all such Content and the intellectual property rights with respect to that Content. If IncQuery receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), IncQuery may (but is not required to) suspend activity hereunder with respect to that Content and Client will indemnify IncQuery from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
IncQuery does not guarantee that any Content will continue to be made available through the Services, and routinely deletes Content from the Services after ninety (90) days (but reserves the right to do so at any time). Client agrees to maintain a separate backup of any Content provided to IncQuery and that it will download or otherwise save (if such functionality is enabled) any Content saved in Client’s account on a regular basis.
IncQuery shall defend Client against claims by and pay any settlements or judgments finally awarded to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided IncQuery 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; IncQuery will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by IncQuery, (ii) resulting in whole or in part in accordance from Client specifications, (iii) that are modified after delivery by IncQuery, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of is not strictly in accordance with this Agreement and all related documentation. Client will indemnify IncQuery from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from IncQuery's indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
5.1 Client will pay IncQuery the applicable fees as set forth on the Order Form (the “Fees”).If Client use of the Services exceeds the Service Capacity set forth on the Order Form, Client will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Client agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Client will pay IncQuery for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Client agrees to pay such taxes (excluding US taxes based on IncQuery's net income) unless Client has provided IncQuery with a valid exemption certificate. In the case of any withholding requirements, Client will pay any required withholding itself and will not reduce the amount paid to Client on account thereof.
5.3 IncQuery reserves the right to increase any Fees for Services not yet provided upon thirty (30) days’ prior written notice to Client.
6.1 This Agreement is effective as of the Effective Date and shall continue indefinitely until terminated in accordance with this section (the “Term”).
6.2 Either party may terminate this Agreement at any time upon thirty (30) days’ prior notice to the other. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving ten (10) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such ten-day period. Either party may terminate this Agreement immediately (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings that are not dismissed within one hundred twenty (120) days, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.
6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
IncQuery represents and warrants that it will not knowingly include, in any IncQuery software released to the public and provided to Client hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud,damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, IncQuery fails to comply with the warranty in this Section, Client may promptly notify IncQuery in writing of any such noncompliance. IncQuery will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Client with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Client may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. DATA PRIVACY.
Client and IncQuery are each acting, and shall act, independently of one another in their respective processing of any personal data (as defined in applicable data privacy laws) in connection with the Services (“Personal Data”). Each party agrees to comply with all applicable laws relating to its collection, storage, sharing, sale, or other processing of Personal Data. The parties shall perform their respective responsibilities for compliance at their own expense, and each party shall provide reasonable cooperation and assistance to the other party as necessary for the other party’s compliance with applicable laws (at the other party’s reasonable expense) with respect to such Personal Data.
9. WARRANTY DISCLAIMER
THE SERVICES AND INCQUERY PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. INCQUERY (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL INCQUERY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INCQUERY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.THE TOTAL LIABILITY OF INCQUERY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO INCQUERY HEREUNDER IN THE THREE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Client may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Client acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).The lists of Embargoed Countries and Designated Nationals are subject to change without notice.Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by IncQuery are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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. This Agreement is not assignable, transferable or sublicensable by Client except with IncQuery’s prior written consent. IncQuery may freely transfer and assign any of its rights and obligations under this Agreement with written notice to Client. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind IncQuery in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. IncQuery will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Client agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by IncQuery. IncQuery is permitted to disclose that Client is one of its customers to any third-party at its sole discretion.