Try Incompass free for 30 days. No credit card required.
Start Free TrialThese Terms of Service (collectively, including any documents or terms attached hereto or incorporated herein, this "Agreement"), dated as of the date Customer clicks "Sign up" or "I agree" or otherwise indicates assent hereto or first accesses any Services (the earliest of such dates, the "Effective Date"), is entered into by and between Incompass, Inc., located at 210 South 25th Street, #1101, Philadelphia, PA 19103 ("Incompass"), and the entity on whose behalf you are entering into this Agreement and/or using the Services ("Customer"). Incompass and Customer are each referred to in this Agreement as a "party" and collectively as the "parties". The terms of any order for Services submitted by Customer and accepted by Incompass (each, an "Order") are incorporated into this Agreement by reference. By clicking "Sign up" or "I agree" or otherwise indicating your assent, by signing up for or accessing any Services, or by submitting an Order, you agree to be bound by this Agreement. If you are entering into this Agreement (or an Order) on behalf of Customer, you represent that you have the authority to and you hereby bind Customer to this Agreement (and any applicable Order). If you are using the Services on behalf of Customer, you hereby agree to comply with and be bound by the relevant terms of this Agreement. In the event of any conflict between the terms of the body of this Agreement and the terms of an Order, the terms of the body of this Agreement shall control (unless, solely for the purposes of such Order, such Order states otherwise).
Subject to the terms of this Agreement and Incompass's applicable standard policies (as made available and updated by Incompass from time to time), Incompass hereby grants to Customer (through Customer's applicable personnel authorized under the Order(s) ("Authorized Users")) a limited, non-exclusive, non-sublicensable, non-transferable license to use the then-current version of the software service(s) set forth in the applicable Order (collectively, "Software" and together with any professional services set forth in the applicable Order, "Services") solely for the purposes stated in the applicable Order and solely during the term of such Order.
Customer agrees that Customer's purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Incompass regarding future functionality or features.
Customer shall not (directly or indirectly), and shall not permit any Authorized User or third party to, do or attempt to do any of the following: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover or access the source code or underlying ideas or algorithms of any Services (or any content, code, documentation, or other materials provided or made available through or in connection with, or contained in or embodied by, the Software (collectively, including any portions, copies, modifications, enhancements, derivatives, versions, or embodiments of the Services or any such other materials (in any form or media), "Software Materials"); (ii) copy, modify, translate, or create derivative (or substantially similar) works based on any Software Materials; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use any Software Materials; (iv) use any Software Materials for timesharing or service bureau purposes or otherwise for the benefit of a third party or in/for any competitive, unlawful, discriminatory, or unauthorized manner or purpose; (v) use any Software Materials to encourage, facilitate, or participate in the circumvention of the intended functionality or use of any Software Materials, or bypass or breach any security device or protection; (vi) remove any disclaimers or proprietary notices from any Software Materials; (vii) provide or make available any personal data to Incompass (without Incompass's express prior written consent in each instance); (viii) publish or disclose to third parties any evaluation of any Software Materials; (ix) make any Software Materials available to anyone other than Authorized Users; (x) interfere with or disrupt the integrity or performance of any Software Materials, any Incompass systems, or any contents thereof; (xi) use any Software Materials (or any output thereof) to train or fine-tune any machine learning or artificial intelligence application, model, or algorithm without Incompass's express prior written consent; (xii) enlarge, misrepresent, or convey any misleading information regarding any warranties or other information relating to any Software Materials (or any other Incompass products, materials, or services); or (xiii) access, use, or disclose any data provided or made available to Customer via any Services (other than Customer Content, as defined in Section 6.2) for any purposes other than for the specific purposes for which the data was provided to Customer and in accordance with any associated data access or use limitations.
As may be further described or supplemented in the applicable Order, Incompass will (i) use commercially reasonable efforts to make the Software available, except for any permitted suspension, any unavailability caused by any events or circumstances beyond its reasonable control (as further described in Section 15.10), and any scheduled or emergency maintenance; and (ii) use commercially reasonable efforts to respond to Customer's inquiries regarding Customer's use of the Services.
Customer shall (i) be responsible for Authorized Users' compliance with this Agreement; (ii) be solely responsible for the truth, accuracy, completeness, timeliness, quality, integrity, and legality of Customer Content and of the means by which Customer Content was acquired and made available; (iii) use commercially reasonable and diligent efforts to prevent unauthorized access to or use of any Software Materials, and notify Incompass promptly of any such unauthorized access or use; (iv) provide any required or reasonably requested cooperation, information, approvals, access, or assistance in connection with the provision or use of the Services (including, without limitation, any Customer responsibilities set forth in the applicable Order); and (v) use the Services in accordance with all applicable laws and regulations.
From time to time, Incompass may make available (through the Services or otherwise) certain third-party services, data, content, products, applications, tools, and other materials (collectively, "Third Party Materials"). Any acquisition by Customer of any Third Party Materials, and any exchange of data between Customer and any third party or Third Party Materials, is solely between Customer and the applicable non-Incompass provider (and is governed by any applicable agreement between Customer and the relevant third party).
Customer acknowledges that, as between Incompass and Customer, all rights, title, and interests in and to the Software Materials, including all related intellectual property rights, belong to and are retained solely by Incompass (or Incompass's third-party licensors and suppliers, as applicable). Incompass reserves all rights not expressly granted under this Agreement.
"Customer Content" means any data, access, credentials, configurations, specifications, content, instructions, or other material that is provided or uniquely generated by Customer, and is processed, via the Services. Customer represents, warrants, and covenants to Incompass that (i) the Customer Content shall at all times be accurate, true, up-to-date, lawfully obtained, and complete, and shall not infringe or violate any third party rights; (ii) Customer has all rights, consents, and authority necessary to (a) provide to Incompass, and for Incompass to use as permitted under this Agreement, the Customer Content and to otherwise facilitate Incompass's performance and support of the Services, and (b) obtain or access any data or other materials that Customer requests through or in connection with any Services; and (iii) the Customer Content does not and will not violate any law, regulation, or third party rights. Customer hereby grants to Incompass the non-exclusive right to use (and for Incompass's subcontractors to use on its behalf) Customer Content, in accordance with Incompass's Data Processing Agreement (to be found at the preceding link, or any successor link that Incompass makes available) and this Agreement, to offer, provide, maintain, support, monitor, or improve the Services or to provide Customer with information that might be relevant in connection with the Services.
Customer acknowledges and agrees that Incompass may collect, generate, and analyze any de-identified data relating to or resulting from Customer's use of the Services ("Statistical Data"). Statistical Data may be collected, generated, used, and disclosed by Incompass for any lawful business purpose (including, without limitation, product development, improvement, or benchmarking) without a duty of accounting to Customer, provided that Statistical Data is not disclosed to third parties (other than Incompass's affiliates and subcontractors) in a non-aggregated form.
Customer hereby grants Incompass a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services (or any other Incompass products, applications, or services) any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or any Authorized User) relating to the Services. Notwithstanding anything to the contrary in this Agreement, Incompass (and its affiliates) may use, for any purpose, any information of a general nature that is retained in the unaided memories of Incompass's (or any of its affiliates') employees or contractors.
Subject to the terms of this Agreement, Incompass represents and warrants to Customer that (i) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) it will not violate any applicable law or regulation in the performance of its obligations under this Agreement; and (iii) subject to Section 8.4, the Services will be provided in a competent manner.
Customer represents and warrants to Incompass that (i) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (ii) it will not violate any applicable law, regulation, or privacy policy in connection with its use of the Services (or any other Software Materials) or its performance under this Agreement.
Customer shall pay Incompass the amounts described in the Order(s) in accordance with the terms of this Agreement (collectively, "Fees"). Billing will occur in advance (unless otherwise stated in the applicable Order). All Fees are quoted in United States currency. Except as otherwise provided in this Agreement, all Fees are non-refundable. With respect to any Customer payment, Customer hereby authorizes Incompass to, without prior notice and without any further approval, deduct such amounts from any prepaid or outstanding balance or to charge, debit, or otherwise obtain such amounts from any designated payment method, as applicable.
Unless otherwise stated in the applicable Order, all Fees are due and payable by Customer within thirty (30) days following the receipt of the invoice by Customer. The outstanding balance of any payment not received from Customer by the due date shall accrue interest (except with respect to charges then under reasonable and good faith dispute) at one and a half percent (1.5%) per month (or, if lower, the maximum rate permitted by applicable law) from the date such payment is due until the date paid. Customer shall also pay all costs incurred (including, without limitation, reasonable legal fees) in collecting overdue payments.
All Fees are exclusive of all taxes and similar fees. Customer shall be responsible for and shall pay in full all applicable sales, use, excise or similar governmental taxes imposed by any federal, state, or local governmental entity in connection with any Fees, exclusive, however, of taxes based on Incompass's income, which taxes shall be paid by Incompass. If any taxes for which Customer is responsible hereunder are paid by Incompass, Company shall promptly reimburse Incompass upon Company's receipt of proof of payment.
If Customer obtains a free (or beta) trial or free (or beta) Services, the applicable provisions of this Agreement will also govern that trial or those Services. Such trial or Services might be services or functionality that may be made available to Customer in connection with testing or evaluation and may be marked or otherwise indicated as beta, pilot, developer preview, non-production, evaluation, or another similar description. Incompass will make such Services available to Customer, free of charge (unless otherwise mutually agreed by the parties in writing), until the earlier of (a) the end of the free trial period, or (b) termination by Incompass in its sole discretion. Any such trial or Services shall be on an "AS IS" AND WITH ALL FAULTS basis; Customer assumes all risks associated with, and Incompass shall not have any liability related to, any such trial or Services. Additional trial (or beta) terms and conditions may appear on Incompass's website or the Software, and any such additional terms and conditions are incorporated into this Agreement by reference.
This Agreement begins on the Effective Date and shall continue, unless terminated earlier in accordance with this Agreement, until the expiration or termination of all Orders.
Either party may terminate this Agreement (or any Order) upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
Either party shall have the right to terminate this Agreement (or any Order) if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes a general assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor's relief law (which proceedings, if involuntary, are not dismissed within thirty (30) days); or (iv) the other party is liquidated or dissolved.
Without limiting Incompass's termination rights under this Agreement, Incompass may suspend or terminate access to any Services, at its sole option, with or without notice to Customer if (i) any undisputed payment is delinquent by more than fourteen (14) days; (ii) Customer violates any applicable law or regulation; or (iii) Incompass reasonably determines that (a) Customer has breached Sections 4 or 11, or (b) continued access would, or is reasonably likely to, result in a violation of security, applicable law, or any intellectual property, privacy, property or other rights.
Either party may immediately terminate this Agreement (or any Order) for any breach of Sections 4 or 11 by the other party.
Incompass shall not be liable to Customer or any third party for any permitted suspension or termination of Customer's access to, or right to use, the Services. Upon termination of this Agreement, Customer shall pay (if not already prepaid) the balance due for the Services through the remainder of the then-current term under the applicable Order (unless otherwise expressly stated in the applicable Order). Upon the effective date of termination of this Agreement, Customers' access to and use of the Services (and all then-effective Orders) shall automatically and immediately terminate. Sections 4, 5.3, 6, 8, 10.5 and 11-15 of this Agreement shall survive the termination of this Agreement.
Each of the parties agrees to maintain in confidence any proprietary or non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party ("Confidential Information"). Incompass's Confidential Information includes, without limitation, any non-public information constituting, associated with, embedded in, or copied, derived, received, downloaded, or otherwise obtained from any Software Materials (and any portions, copies, modifications, enhancements, versions, summaries, embodiments, or derivatives of any of the foregoing, in any form or media). Customer's Confidential Information shall include, without limitation, all and any information disclosed or made available to Incompass in connection with the provision of the Services, including, but not limited to, technical, financial, operational and strategic data, as well as any information relating to the Client's employees, such as salary details, compensation structures, performance results and other employment-related records. The parties hereby agree that the terms and conditions of this Agreement, and any discussions between the parties related to the Services, shall be considered Confidential Information, and therefore any breach of the confidentiality obligation shall subject the breaching party to indemnify the other party for any proven losses and damages it may cause up to a One Million USD.
The receiving party shall not disclose to any third party or use any of the disclosing party's Confidential Information, except as reasonably necessary to perform its obligations or exercise its express rights under this Agreement, and shall take such actions as are reasonably necessary and appropriate to preserve and protect such Confidential Information and the disclosing party's rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those individuals who reasonably require access in order to perform hereunder and who are bound by confidentiality and restricted use obligations at least as protective as those set forth herein. Upon termination of this Agreement, and at the request of the disclosing party, the receiving party shall promptly return or destroy (at the disclosing party's option), all copies of the disclosing party's Confidential Information.
Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) disclosed to the receiving party on a non-confidential basis by a third party that, to the receiving party's knowledge, has obtained such information lawfully and has the right to make such disclosure; (iv) independently developed by the receiving party without any use of or reference to the disclosing party's Confidential Information; or (v) communicated to a third party by the receiving party with the express written consent of the disclosing party. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the disclosing party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (AND ALL SOFTWARE MATERIALS) ARE PROVIDED "AS IS AND AS AVAILABLE," AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INCOMPASS MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, INCLUDING WITH RESPECT TO ANY ACCESS, USE, AVAILABILITY, COMPLIANCE, SUITABILITY, QUALITY, INTEGRITY, ACCURACY, OR RESULTS OF THE SERVICES (IN WHOLE OR IN PART), ANY THIRD PARTY MATERIALS, OR ANY OTHER PRODUCTS, CONTENT, OR SERVICES PROVIDED TO CUSTOMER BY INCOMPASS, OR OTHERWISE UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, INCOMPASS DOES NOT WARRANT THAT ALL ERRORS CAN OR WILL BE CORRECTED, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. INCOMPASS DOES NOT PROVIDE ANY LEGAL (OR OTHER PROFESSIONAL) ADVICE, AND NEITHER CUSTOMER NOR ANY AUTHORIZED USER SHOULD RELY ON ANY SOFTWARE MATERIALS WHEN MAKING (OR ADVISING WITH RESPECT TO) ANY PERSONAL, BUSINESS, OR PROFESSIONAL DECISIONS.
Customer shall indemnify, defend, and hold harmless Incompass, its affiliates, directors, officers, employees, licensors, representatives, and successors against any third-party claim or suit, and any resulting damages, liabilities, losses, costs, or expenses (including reasonable attorneys' fees and costs), to the extent arising from (i) any Customer Content (ii) any employment-related decisions or actions made or taken by Customer; or (iii) any breach of this Agreement or violation of law by Customer or any Authorized User. Incompass will promptly notify Customer in writing of such claim or suit and give all information and assistance reasonably requested by Customer or such designee.
Subject to Section 8.4, Incompass shall indemnify, defend, and hold harmless Customer against any third-party claim or suit to the extent based on a claim that the Software (excluding any Third Party Materials) violates, infringes, or misappropriates any United States patent, copyright, or trade secret, and Incompass shall pay any final judgment or settlement arising from such proceeding, provided that (i) Incompass is promptly notified in writing of such claim or suit; (ii) Incompass or its designee has sole control of such defense or settlement; (iii) Customer gives all information and assistance requested by Incompass or such designee; and (iv) such claim does not result from any Customer Content or any unauthorized access, use, modification, or combination of any Software Materials. To the extent that use of the Software is enjoined, Incompass may at its option either (a) procure for Customer the right to use the Software; (b) replace the Software with a similar service; or (c) refund the prepaid, unused portion (as applicable) of the Fee(s) paid by Customer for the Software or the affected part thereof. Incompass shall have no liability under this Section 13.2 or otherwise to the extent a claim or suit results from any negligence or willful misconduct by or on behalf of Customer (or any Authorized User) or is covered by Customer's indemnification obligations under Section 13.1.
THIS SECTION 13.2 STATES INCOMPASS'S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIMS RELATED TO THE SERVICES (OR ANY OTHER SOFTWARE MATERIALS).
The indemnified party will give prompt written notice of any action requiring indemnification hereunder to the indemnifying party. The indemnifying party may control the defense and settlement thereof, provided that it does so diligently and it does not enter into any settlement that imposes material non-monetary obligations on the indemnified party without the indemnified party's prior written consent, which consent shall not unreasonably be withheld. The indemnified party will reasonably cooperate in such defense and settlement at the indemnifying party's request and expense, and the indemnified party may participate at its own expense using its own counsel.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL INCOMPASS'S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT FIRST GAVE RISE TO THE DAMAGES CLAIMED, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH DAMAGES WERE FORESEEABLE.
EXCEPT FOR ANY BREACH OF SECTIONS 4 OR 11, EXCEPT FOR ANY DAMAGES FINALLY AWARDED TO A THIRD PARTY THAT ARE COVERED BY THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, AND EXCEPT FOR CUSTOMER'S FEE (OR OTHER RELATED PAYMENT) OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE OR PROFITS, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH DAMAGES WERE FORESEEABLE.
The parties to this Agreement are independent entities, and no agency, partnership franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
Except as otherwise set forth in this Agreement, all notices to a party shall be in writing and sent to the applicable address specified in Section 1 or associated with Customer's account (which address may be updated by such party from time to time by written notice), and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Any notices to Customer may be sent by email to the email address associated with Customer's account or may be posted in the Software, and any such notices shall be effective when delivered in accordance with the foregoing. Customer hereby consents, on behalf of itself and Authorized Users, to receiving notices and communications from Incompass electronically.
This Agreement may not be assigned or transferred by Customer without Incompass's prior written consent. Any assignment in derogation of the foregoing is null and void. Incompass may (i) subcontract any of its obligations or responsibilities under this Agreement, or (ii) assign or transfer this Agreement to an affiliate or in connection with a merger, acquisition, reorganization, sale of all or substantially all of its equity or assets to which this Agreement relates, or other similar corporate transaction. This Agreement shall inure to the benefit of each party's successors and permitted assigns.
This Agreement, including all Exhibits and Orders, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings regarding the subject matter hereof.
From time to time, in Incompass's sole discretion, Incompass may amend the terms and conditions of this Agreement (other than any terms in an Order that are identified as requiring mutual agreement regarding changes thereto). Such changes will become effective upon the date specified in Incompass's notice of such changes; Incompass will, to the extent practical, provide Customer with at least thirty (30) days' prior notice of any material changes to the terms of this Agreement. By continuing to receive, use or access any Services, Customer agrees to be bound by the amended terms of this Agreement. No other change of any of the provisions hereof shall be effective unless and until set forth in writing and duly signed by both parties.
This Agreement shall be governed by the laws of the State of Delaware, excluding its conflict of laws rules. Each party hereby irrevocably submits to the exclusive jurisdiction of the state or federal courts located in New York, provided that either party may seek preliminary equitable relief in any court of competent jurisdiction in connection with any actual or threatened breach of Sections 4 or 11.
The failure to insist upon strict compliance with any of the provisions of this Agreement shall not be deemed a waiver of any such provision, nor shall any waiver or relinquishment of any right or power hereunder, at any one or more times, be deemed a waiver or relinquishment of such right or power at any other time or times.
Incompass may use Customer's name and logo in marketing, subject to Customer's standard trademark usage guidelines (if applicable, as provided by Customer to Incompass). Except as otherwise provided in or necessary to perform this Agreement, neither party will use the other party's name, trademarks, or other proprietary indicia on or in any form of publicity without the other party's prior written consent.
Any provision of this Agreement held to be unenforceable shall be enforced to the maximum extent permitted under applicable law and shall not affect the enforceability of any other provisions of this Agreement.
Neither party shall be in breach or liable for its delay or failure in performing any obligation (other than payment and confidentiality obligations) under this Agreement to the extent resulting from any events or circumstances beyond such party's reasonable control, including, without limitation, acts of God, delay or failure in performance by the other party, civil commotion, war, strikes, epidemics, Internet service interruptions or slowdowns, vandalism or "hacker" attacks, acts of terrorism, or governmental actions.
