This Online Customer Agreement (“Agreement”) is a legal agreement between InCountry Inc. a Delaware corporation (“InCountry”, “Provider”, “we”, “us” or “our”) and the user who has registered to use our Service (“Customer”, “you” or “your”)(each, a “Party”, and together, the “Parties”) for the use of InCountry platform and service offerings as defined below (“Service”).
ARBITRATION NOTICE: THIS AGREEMENT CONTAIN 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.
1. 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.
“Customer Data” means any data, links, information, media, content, or materials provided, disclosed, posted, or delivered by Customer via the Service.
“Customer Systems” means any server systems, mobile devices, personal computers or other equipment owned, operated, or managed by Customer on which the Service is accessed.
“Service” means offerings which enables storage of Customer’s encrypted data in the country of Customer’s choice, including the Service SDK
“Service SDK” means InCountry’s automatically-generated software development kit that enables implementation and use of the Service.
“Start Date” is the earlier of the date you register for or start using the Service.
3. ACCESS AND SERVICE
3.1 Access to Service. Subject to Customer’s compliance with the restrictions and obligations set forth in Sections 3.5 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.
3.2 Registration. You will need to register and create an account with InCountry to access the Service. You will 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 Agreement. Customer is responsible for any use of the Service by its Permitted Users and their compliance with this Agreement. 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 account.
3.3 Trial and Paid Service. 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.
3.4 License to Customer Data.
Customer hereby grants InCountry a non-exclusive, royalty-free, fully paid-up, sublicensable (through one or more tiers of sublicensees), and transferable license to use, reproduce, create derivative works of, and distribute Customer Data during the term of the agreement for the purpose of (i) providing the Service and (ii) developing, maintaining, supporting or improving the Service. Customer acknowledges and agrees that InCountry may collect technical information and data about Customer’s use of the Service. Customer shall not provide, disclose, or deliver any Customer Data to InCountry that Customer does not own or otherwise have a valid authorization or license to do so.
(a) Customer may access and use the Service only for Customer’s internal business purposes. Customer may access and use the Trial Service to evaluate the Service to determine if the Service meet Customer’s needs. Customer shall use the Service only in conformity with the Documentation. 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.
(b) Customer shall not (or not allow, permit, authorize, or assist any third party to): (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Service; (ii) use or integrate the Service, or any component thereof, with any software, hardware, or system other than the Customer Systems (as defined below) without InCountry’s express prior written agreement; (iii) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or include any part of the Service in a service bureau or outsourcing offering, or encumber the Service with any lien or grant a security interest in the Service; (iv) publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Service; (v) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (vii) access the Service for the purposes of monitoring its availability, performance, or functionality; (viii) access, or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service, or copy any features, functions, or graphics of the Service; (ix) attempt to disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; (x) 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 (xi) take any action that imposes, or may impose, at InCountry’s sole discretion, an unreasonable or disproportionally large load on InCountry’s infrastructure.
3.6 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.
3.7 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.
3.8 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.
3.9 Ownership. Except for the rights expressly granted in this Agreement, InCountry retains all right, title, and interest, including all intellectual property rights, in and to the Service and the Documentation and the Resultant Data (as defined in Section 4.7 below). No implied license or right is granted by InCountry by estoppel, reliance, or otherwise. Except for the rights expressly granted in this Agreement, Customer retains all right, title and interest, including all intellectual property rights, in the Customer Data.
4.1 Confidential Information. The term “Confidential Information” means any information disclosed by one Party (“Disclosing Party” to the other Party (“Receiving Party”), whether before or after the Effective Date, that: (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature; (ii) should be reasonably understood by Receiving Party to be the confidential or proprietary information of Disclosing Party; or (iii) that is oral information disclosed by Disclosing Party to Receiving Party, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by Disclosing Party within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Receiving Party. The Service and Documentation shall be InCountry’s Confidential Information.
4.2 Confidentiality. Receiving Party shall treat as confidential all Confidential Information of Disclosing Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, Receiving Party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of Disclosing Party. Receiving Party shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Disclosing Party’s Confidential Information.
4.3 Exceptions. Confidential Information excludes information that Receiving Party can show: (i) was in the public domain at the time it was disclosed or has become in the public domain through no act or omission of Receiving Party; (ii) was known to Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information; or (iv) becomes known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of an obligation to keep such information in confidence.
4.4 Compelled Disclosure. If the Confidential Information of Disclosing Party must be disclosed by Receiving Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, Receiving Party shall: (i) provide prompt notice thereof to Disclosing Party to the extent legally allowed; (ii) use its commercially reasonable efforts to cooperate with Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the exact Confidential Information (or portion thereof) required to be disclosed.
4.5 Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, Receiving Party shall deliver to Disclosing Party all of Disclosing Party’s Confidential Information that Receiving Party may have in its possession or control or, at Disclosing Party’s option, shall destroy all such Confidential Information and certify such destruction in a writing signed by an authorized officer of Receiving Party.
Resultant Data. Notwithstanding anything to the contrary in this Agreement, InCountry shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (collectively, “Resultant Data”), and InCountry will be free (during and after the term of this Agreement) to (i) use such Resultant Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other InCountry offerings, and (ii) disclose such Resultant Data solely in aggregate or other de-identified form, provided that we will not disclose Customer or any specific Confidential Information of Customer in connection with our use of such Resultant Data.
5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
5.1 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 otherwise and has all rights necessary to grant to InCountry the rights and licenses contained in this Agreement; (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.
5.2 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.
6.1 Customer Indemnity. 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) death, personal injury, or damage to property (whether real or personal); (ii) any costs, damages, liabilities, losses, or expenses arising out of use of the Service (iii) costs, damages, liabilities, losses, or expenses arising out of any act or omission by Customer; (iv) facts, that if true, would constitute a breach of Customer’s representations, warranties, and covenants under this Agreement; (v) 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.
7. LIMITATION OF LIABILITY
7.1 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 AGREEMENT SHALL NOT EXCEED $100. THE DISCLAIMERS AND LIMITATIONS IN SECTION 3 AND THIS SECTION 5 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement shall commence on the Start Date and continue until the expiration of the Trial Period or the License Term, whichever is later, hereunder or as earlier terminated in connection with this Section 8.
8.2 Termination for Breach. InCountry may terminate this Agreement upon written notice to the Customer in the event that Customer materially breaches this Agreement and fails to cure such material breach within 30 days after receipt of written notice thereof.
8.3 Termination Without Cause. Either Party may terminate this Agreement without cause by providing the other Party with prior written notice.
8.4 Suspension and Termination. Notwithstanding anything to the contrary in this Agreement, if Customer violates the restrictions set forth in Section 3.5 or Section 4, InCountry may immediately upon written notice to Customer, suspend or terminate Customer’s access to the Service.
8.5 Effect of Termination; Survival. Expiration or termination of this Agreement will not relieve Customer of its obligations to pay any amounts accrued or otherwise owed under this Agreement. Upon expiration or termination of this Agreement, 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 4–10 shall survive any expiration or termination of this Agreement.
9 DISPUTE RESOLUTION
9.1 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.
10 GENERAL PROVISIONS
10.1 Force Majeure. Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either Party will be considered a breach of this Agreement 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.
10.2 Governing Law and Jurisdiction. This Agreement 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 Agreement. The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
10.3 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.
10.4 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.
10.5 Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement 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.
10.6 Binding Effect. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.
10.7 Amendments. No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of both Parties.
10.8 Partial Invalidity. If any provision of this Agreement 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.
10.9 No Waiver. No waiver of any term or condition of this Agreement 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 Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, 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.
10.10 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. 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.”
10.11 Entire Agreement. This Agreement 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.
10.12 Assignment. Customer shall not assign or delegate this Agreement or any of its licenses, rights, or duties under this Agreement (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 Agreement or any of its licenses, rights, or duties hereunder in InCountry’s sole discretion.
10.13 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.
10.14 InCountry Contact Information.
505 Montgomery Street, Suite 1025
San Francisco, CA 94111