This Terms of Service Agreement (“ToS”) is a legal agreement between InCountry Inc. a Delaware corporation (“InCountry”, “Provider”, “we”, “us” or “our”) and the user who has been registered to use the InCountry Platform and API (“Customer”, “you” or “your”)(each, a “Party”, and together, the “Parties”) (“Service”). BY USING OUR SERVICE, YOU ARE ACCEPTING THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THE SERVICE, AND IF APPLICABLE, INFORM THE PARTNER THROUGH WHOSE PARTNER APPLICATION YOU’VE ACCESSED THE SERVICE, AND EXIT IMMEDIATELY. INCOUNTRY RESERVES THE RIGHT TO MODIFY OR AMEND THESE TERMS OF SERVICE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR TERMS OF SERVICE WILL APPLY RETROACTIVELY. IF YOU ARE ACCESSING AND USING THE SERVICE ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY. ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH INCOUNTRY INC.
SERVICE OVERVIEW:
InCountry enables customers to meet various data residency requirements by allowing customers to store their data encrypted in the country of their choice. Customers should consult their internal teams to ensure they are storing data in alignment with the various regulatory requirements. Due to the complexity of local and national data protection and residency requirements, InCountry does not make any warranties regarding regulatory requirements as they apply to each customer’s unique scenario.
DEFINITIONS:
“API” means the application programming interface used by Customer to facilitate the transfer of Customer Data to the Service.
“Customer Data” means any data, links, information, media, content, or materials provided, disclosed, posted, or delivered by Customer via the Service.
“Customer System” means any server systems, mobile devices, personal computers, applications, or other equipment owned, operated, or managed by Customer on which the Service is accessed.
“Location” means the geographic location of data or information as specified in Customer’s Subscription. If one of the specified Locations is China, access to the Service will be provided by InCountry’s authorized Partner in China (“ China Partner”). In the event of a conflict between this ToS and your agreement with the China Partner’s Partner Terms, the Partner Terms will take precedence with respect to Sections 4, 5, 9.1-9.5, 10, and 11.
“Managed Package” means the InCountry proprietary software that provides the ability to transfer Customer Data from a CRM instance maintained by Customer on the Customer System, if any, to the Service, including associated user documentation made available to Customer. The Managed Package Software includes any updates to the Managed Package Software developed and made commercially available during the Term of this Agreement. If Customer licenses the Managed Package, it shall be set forth in the applicable Subscription.
“Order Form” means an initial order form for the Service executed between Customer and InCountry, and any subsequent order forms, agreed in writing between the Parties from time to time and made a part of this ToS, specifying, among other things, the applicable Service, pricing, term, which Order Form will, upon execution, be incorporated by reference to and deemed a part of this ToS.
“Partner” means a third party authorized by InCountry to promote, distribute, and/or resell the Service either directly or via such third party’s Partner Application.
“Partner Application” means a platform for which Partner is the original equipment manufacturer and into which the InCountry Platform has been integrated as part of a larger solution to which Customer has purchased access from the Partner.
“Proxy Services” means one or more virtual servers used to collect and evaluate Customer Data for appropriate treatment, including storage and may include a Border Proxy and a Mail Proxy. Any Proxy Services subscribed to by Customer shall be set forth in the Subscription.
“Service” means the InCountry offerings which enable storage of Customer’s encrypted data in the country of Customer’s choice, including the API, and Proxy Services, as applicable.
“Start Date” is the earlier of the date you register for or start using the Service.
“Subscription” means a subscription for the Service purchased pursuant to a mutually agreed Order Form or Partner order, as applicable (the term of such Subscription, the “ License Term”)
ACCESS AND SERVICE
- Access to Service. Subject to Customer’s compliance with the restrictions and obligations set forth in Sections 3.5, 3.6, and 4, InCountry shall use commercially reasonable efforts to provide Customer with non-exclusive access to the Service commencing on the activation date through the Trial Period for the Trial Service and the License Term for the Paid Service or if applicable, make non-exclusive access to the Service available to the Customer via the Partner Application commencing on the Activation Date of the License Term for the Paid Service.
- License to API and Managed Package. Subject to the terms and conditions of this Agreement, InCountry hereby grants Customer a non-exclusive, non-transferable, and non-sublicensable right, during the applicable License Term, to use the API (as applicable) provided by InCountry to Customer solely for purposes of integrating the Customer System with the Service. Additionally, and if expressly licensed by Customer in the applicable Subscription, InCountry hereby grants Customer a non-exclusive, non-transferable, and non-sublicensable right, during the applicable License Term, to install and configure the Managed Package on the Customer System for the purposes of transferring Customer Data to the Service. Customer’s rights under this Section 3.2 will automatically terminate upon expiration or termination of the Agreement.
- Registration. You will need to register and create an account with InCountry or via a Partner Application, as applicable to access the Service. You may need to create a username, password and provide certain information about yourself as prompted by the registration form, including your name and a valid email address. You agree to provide full, complete and accurate information when registering or creating an account, and to update that information promptly if it should change. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this ToS. Customer is responsible for any use of the Service by its Permitted Users and their compliance with this ToS. Customer shall keep confidential its user IDs and passwords for the Service and remain responsible for any actions taken through its accounts. Customer agrees to immediately notify InCountry of any unauthorized use of the account.
- Trial and Paid Service. When purchasing directly from InCountry, certain of the Services (“Trial Service”) will be provided free of charge to users as described on our service offering pricing page here (“Offering Page”) for a trial period of one (1) month from activation of your account (“Trial Period”). During the Trial Period, Customer agrees to abide by the limitations specified on our Offering Page; if the Customer exceeds these limitations (“Excess Use”), InCountry may restrict or suspend use of the Service or charge Customer for the any Excess Use. After the Trial Period, the Parties will discuss whether Customer wishes to continue to use the Service according to the Service plans and pricing specified on the Offering Page or otherwise agreed to in writing by the Parties (“Paid Service”) for the license term agreed upon (“License Term”). If you elect to use the Paid Service, you agree to pay any and all applicable fees (“Fees”) for the Paid Service and authorize use to charge your credit card, debit card or other approved payment mechanism for the Fees.
- Restrictions. (a) Customer may access and use the Service whether directly or via a Partner Application only for Customer’s internal business purposes and use the Service only in conformity with the Documentation. Except as otherwise explicitly provided in this ToS or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (i) use the API or Documentation to develop code, software, or other materials for anything other than for use with the Service; (ii) modify, adapt, translate, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy, or otherwise attempt to derive the source code of, any part of the Service; (iii) access or use the Service to build or support, directly or indirectly, products or services competitive to the Service; (iv) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Service to any third party except as permitted by this ToS or by the terms associated with access and use of a Partner Application, as applicable; (v) use the Service for any benchmarking activity or in connection with the development of any competitive product; (vi) use the Service for any illegal purpose or in violation of any local, state, national, or international law, (vii) interfere with or disrupt any network, equipment, or server connected to or used to provide the Service, or violate any regulation, policy, or procedure of any such network, equipment, or server; (viii) circumvent or disable any security or other technological features or measures of the Service; (ix) perform or disclose any performance or vulnerability testing of the Service without InCountry’s prior written approval, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of Service; (x) attempt to disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; (xi) use the Service to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; or (xii) take any action that imposes, or may impose, at InCountry’s sole discretion, an unreasonable or disproportionally large load on InCountry’s infrastructure. Customer shall not and shall not permit any Customer employees or contractors to share any account or access credentials for the Service with third parties. Customer shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use. Customer shall notify InCountry immediately of any actual or alleged unauthorized use of the Service. “Documentation” means the documentation, including any specifications, feature lists, or other similar characteristics, provided to Customer that describes the functionality of the Service.
- Customer Systems. Customer is solely responsible for the operation and maintenance of the Customer Systems and for having and paying for all equipment and internet access necessary to access and use the Service. InCountry disclaims all warranties, express or implied, and shall have no liabilities to Customer, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damage attributable thereto. During the Term, Customer shall provide InCountry with all access credentials, passwords, security protocols, and other information required for the operation of the Service. Such credentials, passwords, protocols, and information will be Customer’s Confidential Information. In order for the Service to operate, Customer may need to activate certain configuration options or Service on Customer’s cloud infrastructure. If Customer does not activate such configuration options or Service, Customer understands and agrees that the Service may not function or operate in accordance with its documentation. Customer is solely responsible for any additional fees or charges payable to Customer’s cloud infrastructure provider in connection with any changes to such configuration options or Service. To the extent Customer’s cloud infrastructure provider implements any rate limiting restrictions on such activities, InCountry shall not be liable for any decreased performance or failure of the Service in connection therewith.
- Feedback. Customer may have the opportunity to present to InCountry recommendations or feedback for new features, functionality, or other improvements to the Service (“Feedback”), which InCountry will consider, at its sole discretion, implementing in future updates to the Service. The Parties agree that all Feedback is and shall be given voluntarily. Feedback, even if designated as confidential by Customer, shall not, absent a separate written agreement, create any confidentiality obligation for InCountry. Customer will not provide InCountry with any Feedback that Customer is not authorized or permitted to provide to InCountry. InCountry shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
- Changes to Service. Customer understands and agrees that InCountry may change or discontinue the Service or change or remove functionality of the Service at any time at InCountry’s sole discretion. InCountry will use commercially reasonable efforts to notify Customer of any material change to or discontinuation of the Service.
- Ownership. Except for the rights expressly granted in this ToS, InCountry retains all right, title, and interest, including all intellectual property rights, in and to the Service and the Documentation. No implied license or right is granted by InCountry by estoppel, reliance, or otherwise. Except for the rights expressly granted in this ToS, Customer retains all right, title and interest, including all intellectual property rights, in the Customer Data.
Disclosure of Customer Data
Compelled Disclosure of Customer Data. If Customer Data must be disclosed by Receiving Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, InCountry shall: (i) provide prompt notice thereof to the Customer via the Partner to the extent legally allowed; (ii) use commercially reasonable efforts to cooperate with Customer to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the exact Customer Data (or portion thereof) required to be disclosed.
FEES AND BILLING
- Fees. Customer will pay the subscription fees (“ Subscription Fee”) and all other applicable fees, in each case, as specified in the Subscription or separately agreed (collectively, the “ Fees”). All Subscriptions are non-cancellable, and all Fees paid are non-refundable.
- Billing and Payment Terms; Late Payment. Unless otherwise specified on a Subscription, all invoices are due net 30 days from the invoice date. Annual invoices are issued on the Start Date specified on the Subscription, and on each anniversary thereto. All Fees are quoted in, and all payments must be made in U.S. dollars. Late payments will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, and may result in suspension or termination of the Service. If any amount of Fees is thirty (30) or more days overdue, InCountry may, without limiting InCountry’s other rights or remedies, in its sole discretion, suspend provision of the Service to Customer until all amounts are paid in full. Customer agrees to pay all invoices in a timely fashion, even those subject to dispute.
- Disputes. If Customer reasonably disputes any invoice, Customer shall notify InCountry in writing thereof prior to the invoice due date, and the parties shall promptly confer in good faith to resolve such dispute. Customer shall have the right to withhold the disputed amount until the resolution of the dispute but shall pay all undisputed amounts in the invoice in accordance with the payment terms set forth herein. If InCountry reasonably determines that a disputed amount is in fact due, Customer will pay such amount within ten (10) days of InCountry’s notice of its determination.
- Taxes. All payments required by this ToS do not include any sales, value-added, use, or other taxes and obligations, all of which Customer will be responsible for and will pay in full, except for taxes based on InCountry’s net income. If InCountry has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides InCountry with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Purchases through a Partner. If Customer purchases the Service through a Partner, the pricing and payment terms for such Services are between Customer and Partner (“ Partner Terms”). Customer acknowledges that (a) all payments for Services procured via a Partner will be made directly to the Partner and in accordance with the Partner Terms; and (b) if a Partner notifies InCountry of its right to terminate or suspend the Service, InCountry may terminate or suspend such Service. InCountry will not be liable to Customer or any third party for any liabilities, claims, or expenses arising from or relating to any applicable Partner Terms, or Customer’s relationship with any Partner.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
- Customer Warranties. Customer hereby represents and warrants to InCountry that: (i) InCountry’s use, reproduction, modification, distribution, performance, and display of the Customer Data will not infringe, violate, or misappropriate any intellectual property rights of a third party; (ii) Customer exclusively owns or has a valid and written license agreement to all Customer Data provided to InCountry via the Service or a Partner Application or otherwise and has all rights necessary to grant to InCountry the rights and licenses contained in this ToS; (iii) Customer’s providing, disclosing, and delivering of Customer Data will not violate any applicable laws, regulations, contractual commitments or privacy commitments; and (iv) the Customer Data does not include any viruses, trap doors, time bombs, Trojan horses or other malicious code.
- Disclaimer. THE SERVICE IS PROVIDED BY INCOUNTRY “AS IS,” AND NEITHER INCOUNTRY NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND INCOUNTRY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. INCOUNTRY DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET CUSTOMER’S REQUIREMENTS, OR BE COMPLETELY SECURE.
INDEMNIFICATION
- By InCountry. InCountry will, at its own expense, defend or at its option settle any third party claim (“ Claim”) brought against Customer to the extent it alleges that Customer’s use of the Service in accordance with this ToS infringes any third party’s intellectual property rights; provided that Customer provides InCountry with (a) prompt written notice of such Claim; (b) sole control over the defense and settlement of such Claim; and (c) available information and assistance, at InCountry’s expense, to settle and defend any such Claim; provided, however, that the failure to give such notice will not relieve InCountry of its obligations hereunder except to the extent InCountry was actually prejudiced by such failure. In the event any such Claim is brought or threatened, InCountry may, at its sole option and expense: (i) procure for Customer the right to continue to use the Service; (ii) modify or amend all or a portion of the Service, or replace all or a portion of the Service with other service having substantially the same or better capabilities; or (iii) if InCountry determines that the foregoing are not feasible on commercially reasonable terms, terminate this ToS or a Subscription in whole or in part, and credit to Customer a prorated portion of any Subscription Fees paid in advance for any InCountry Platform not provided as a result of such termination. InCountry will have no obligation to Customer under this Section 9.1 to the extent a Claim arises from (A) Customer’s breach of this ToS; (B) the Customer Data; (C) the combination of the InCountry Platform with any of Customer’s products, services, data, hardware, Systems, or business process; or (D) implementation of any of Customer’s specifications or requirements. This Sectionstates the entire liability of InCountry, and the sole remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
- By Customer. Customer, at its expense, shall defend, or at Customer’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against InCountry, its affiliates, and its and their directors, employees, agents, and representatives (the “InCountry Indemnified Parties”) alleging: (i) any costs, damages, liabilities, losses, or expenses arising out of its use of the Service (ii) costs, damages, liabilities, losses, or expenses arising out of any act or omission by Customer; (iii) facts, that if true, would constitute a breach of Customer’s representations, warranties, and covenants under this ToS; or (iv) InCountry’s using, reproducing, modifying, distributing, performing, or displaying of the Customer Data infringes, violates, or misappropriates any intellectual property, privacy or other right, or any law, regulation, or order relating to privacy of personal data (each a “Claim Against InCountry”), and shall indemnify and hold harmless the InCountry Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against an InCountry Indemnified Party arising out of or in connection with a Claim Against InCountry. The applicable InCountry Indemnified Party shall notify Customer promptly in writing of the Claim Against InCountry, provide reasonable assistance in connection with the defense and settlement thereof, and permit Customer to control the defense and settlement thereof. Customer shall not settle any Claim Against InCountry without InCountry’s prior written consent. An InCountry Indemnified Party may, at its expense, participate in any Claim Against InCountry with counsel of its choice.
LIMITATION OF LIABILITY
IN NO EVENT WILL INCOUNTRY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, SECURITY OR DATA BREACH, LOSS OF REVENUE OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT INCOUNTRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INCOUNTRY’S AGGREGATE LIABILITY UNDER THIS TOS SHALL NOT EXCEED $10,000. THE DISCLAIMERS AND LIMITATIONS IN SECTION 6 AND THIS SECTION 8 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
TERM AND TERMINATION
- Term. The term of this ToS shall commence on the Start Date and continue until the expiration of the Trial Period or the Subscription (“ Subsciption Term” and collectively, “ Term”), whichever is later, hereunder or as earlier terminated in connection with this Section 9.
- Termination for Breach. InCountry may terminate this ToS upon written notice to the Customer in the event that Customer materially breaches this ToS and fails to cure such material breach within 30 days after receipt of written notice thereof.
- Termination Without Cause. Either Party may terminate this ToS without cause by providing the other Party with prior written notice.
- Suspension and Termination. Notwithstanding anything to the contrary in this ToS, if Customer violates the restrictions set forth in Section 3.5 or Section 5.1, InCountry may immediately upon written notice to Customer, suspend or terminate Customer’s access to the Service.
- Effect of Termination; Survival. Expiration or termination of this ToS will not relieve Customer of its obligations to pay any amounts accrued or otherwise owed under this ToS. Upon expiration or termination of this ToS, all licenses or rights granted to Customer hereunder shall terminate and Customer shall not, and shall not attempt to, access or use the Service. The provisions of Sections 3.4-3.9, and 4–11 shall survive any expiration or termination of this ToS.
- Partner Application. If purchasing the Service via a Partner or using the Service via a Partner Application, except with respect to Sections 8.4 and 8.5 above, Term and Termination will be governed by the Customer’s applicable Partner Terms.
DISPUTE RESOLUTION
- Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to InCountry’s or its licensor’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), all claims arising out of or relating to these Terms and your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, InCountry will pay the additional cost. You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if InCountry is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
GENERAL PROVISIONS
- Force Majeure. Notwithstanding anything else in this ToS, no default, delay, or failure to perform on the part of either Party will be considered a breach of this ToS if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
- Governing Law and Jurisdiction. This ToS will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles. Each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in the State of California with regard to any dispute arising out of or relating to this ToS. The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
- Export Control. In its use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
- Injunctive Relief. Customer acknowledges and agrees that any breach of its obligations with respect to Confidential Information and intellectual property rights may cause substantial harm to InCountry, which could not be remedied by payment of damages alone. Accordingly, Customer hereby agrees that InCountry will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.
- Independent Contractors. The relationship of the Parties established by this ToS is that of independent contractors, and nothing contained in this ToS will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint ventures, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
- Binding Effect. This ToS will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.
- Modification. InCountry may modify the terms and conditions of this ToS at any time.
- Partial Invalidity. If any provision of this ToS is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.
- No Waiver. No waiver of any term or condition of this ToS will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties. The failure of either Party to enforce at any time any of the provisions of this ToS, or the failure to require at any time performance by the other Party of any of the provisions of this ToS, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter.
- Construction. The titles and section headings used in this ToS are for ease of reference only and shall not be used in the interpretation or construction of this ToS. No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”
- Entire ToS. This ToS sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter.
- Assignment. Customer shall not assign or delegate this ToS or any of its licenses, rights, or duties under this ToS (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of InCountry, and any purported assignment shall be void and of no force or effect. InCountry may freely assign or delegate this ToS or any of its licenses, rights, or duties hereunder in InCountry’s sole discretion.
- Notices. Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by reasonable means to the address of each Party set forth below. Such notice will be deemed to have been given when delivered, or, if delivery is not accomplished as a result of some action or inaction by the recipient, when tendered.
InCountry, Inc.
4023 Kennett Pike #50376
Wilmington, DE 19807
Email: legal@incountry.com