Terms and Conditions
By signing an Order Form (an “Order Form”), entered into between the customer specified on such Order Form (“Customer”) and Incyte SEO Inc. (“Incyte SEO”), which references these Terms and Conditions (these “Terms and Conditions” and, together with the Order Form, the “Agreement”), Incyte SEO and Customer each signifies that it has read, understands, and agrees to be bound by the terms and conditions hereof. Incyte SEO and Customer may be referred to individually as a “Party” and collectively as the “Parties.” For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these terms and conditions through their undersigned authorized representatives.
These Terms and Conditions govern the access and use by the Customer of any services (the “Services”) ordered by Customer from Incyte SEO and set forth in one or more Order Forms.
Customer may purchase subscriptions and access to the Services, by executing one or more Order Forms with Incyte SEO. Incyte SEO will provide the Services identified in the Order Form(s) pursuant to these Terms and Conditions.
FEES AND PAYMENT
In consideration for the Services, Customer agrees to pay Incyte SEO the fees set forth in the applicable Order Form(s) (collectively, the “Fees”). All Fees are non-refundable, and for the avoidance of doubt, Customer shall not be entitled to any pro rata refund regardless of an early termination and all fees are due any payable for the entirety of the term, regardless of any early termination.
- Payment Terms
Unless otherwise set forth in an Order Form, Customer will pay to Incyte SEO (by credit card payment, wire transfer or other method mutually acceptable to the Parties) all Fees immediately upon execution of the applicable Order Form. Late payment of Fees may be subject to interest on the past due amount at the lesser of 1.5% per month or the maximum rate permitted by applicable law.
All Fees are exclusive of, and Customer shall pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Fees, excluding only taxes based on Incyte SEO net income.
TERM AND TERMINATION
- Order Form Term
The “Initial Term” of each Order Form will commence on the date on the effective date set forth on an Order Form that is accepted by Incyte SEO (the “Effective Date”) and will continue until the date set forth on such Order Form. Unless otherwise set forth on the relevant Order Form, each Order Form will automatically renew after the Initial Term for successive renewal terms of the duration identified on that Order Form (each a “Renewal Term”), unless either Party gives prior notice of its intent not to renew such Order Form at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term. Incyte SEO may increase the Fees due under Order Forms for Renewal Term by providing notice to Customer of such increase at least sixty (60) days before the commencement of the upcoming Renewal Term.
- Agreement Term
The “Term” of this Agreement will commence on the Effective Date and will continue until either (a) this Agreement is terminated in accordance with Section 5 below, or (b) all Order Forms under this Agreement have expired or been terminated in accordance with this Agreement.
- Termination By Either Party
Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement if the other Party materially fails to perform or observe any term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party.
- Effect of Termination
The following sections of this Agreement will survive termination or expiration of this Agreement for any reason: Sections 3, 5.2, and 6.3-12. All other rights and obligations of the Parties under this Agreement will expire and terminate upon the earlier of the termination or expiration of this Agreement. After any expiration or termination of this Agreement, and upon Customer’s request, Incyte SEO will provide Customer with access to the Customer Data (defined below) in the possession of Incyte SEO for a period of thirty (30) days, in the then-current standard export format or another industry-standard format mutually agreed by the Parties, after which such Customer Data will be deleted.
LICENSES, RESTRICTIONS, AND RESPONSIBILITIES
- From Incyte SEO
Subject to the terms and conditions of this Agreement and the applicable Order Form(s), Incyte SEO hereby grants to Customer a limited, worldwide, nonexclusive, non-transferable, royalty-free right and license (without the right to sublicense), during the applicable Order Form Term(s), to access and use the Services.
- Customer Data
Customer acknowledges and agrees that the provision of the Incyte SEO Services to Customer may require the use of Customer Data (defined below) and that Incyte SEO is permitted to use such Customer Data for the provision of the Incyte SEO Services to Customer and that such right shall immediately terminate upon the termination or expiration of this Agreement.
- Use of Services; Ownership of Services
As between Customer and Incyte SEO, Customer will retain sole and exclusive ownership of all Customer Data. “Customer Data” means confidential or proprietary data supplied by Customer or end users of Customer (“Users”) to Incyte SEO. Notwithstanding the foregoing, Customer Data does not include Incyte SEO’ Aggregated Anonymous Data (defined below).
- Use of the Services; Ownership of Services
Customer may use the Services only as permitted under this Agreement and the applicable Order Form(s) and in compliance with all applicable laws. Without limiting the foregoing, Customer will not copy, modify, make derivative works of, disassemble, reverse engineer, decompile or in any way attempt to extract the source code of, any Incyte SEO Sites (defined below), Services, or any component thereof. Incyte SEO retains all title, ownership, and, except for the limited license granted pursuant to Section 6.1, other rights in and to the Services, including, without limitation, any and all intellectual property rights associated with the Services.
Customer agrees that Customer is responsible for maintaining the confidentiality of Customer’s username, account number and passwords and responsible for any unauthorized usage by Customer or Users. Each Party agrees to immediately notify the Other Party of any unauthorized use of Customer’s account of which Party becomes aware.
Customer agrees that it is solely responsible for the content of all visual, written or audible communications, files, documents, videos, recordings, and any other material (“Content”) displayed, posted, uploaded, stored, exchanged or transmitted on or through the Service. Under no circumstances will Incyte SEO be liable to Customer for any loss or damages: (i) arising from any Content, or Content related errors or omissions; or (ii) incurred as a result of the use of, access to, or denial of access to the Content. Customer understands and agrees that by displaying, posting, uploading, storing, exchanging or transmitting Content while using the Services or otherwise providing Content to a Incyte SEO or Customer website or space (“Site”), Incyte SEO has no control over what Customer or its Users of any of the Services post or submit to a Site and cannot guarantee the accuracy of any information submitted by any User. Customer shall contact Incyte SEO Customer Support if Customer becomes aware of misuse of the Services by any person. Incyte SEO may without notice or liability investigate any complaints or suspected violations of this Agreement that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating Customer or any User’s access to a Site or Services, however, Incyte SEO also reserves the right not to take any action.
Customer acknowledges and agrees that Incyte SEO does not monitor or disclose Content, except as needed to provide the Services, as instructed by Customer, or as otherwise required by law.
- Aggregated Anonymous Data
Incyte SEO may aggregate Customer’s metadata and usage data so that the results are non-personally identifiable with respect to Customer or User (“Aggregated Anonymous Data”). The Aggregated Anonymous Data will be deemed Incyte SEO’ Technology, and Customer acknowledges that Incyte SEO may use the Aggregated Anonymous Data (i) for its own internal, statistical analysis, (ii) to develop and improve the Services, and (iii) to create and distribute reports and other materials regarding use of the Services. For purposes of clarity, nothing in this Section 6.8 gives Incyte SEO the right to publicly identify Customer as the source of any Aggregated Anonymous Data without Customer’s prior written consent.
Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement, and only to the extent necessary for such purposes, and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know, and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
For purposes of this Agreement, “Confidential Information” means information and tangible materials disclosed by the Disclosing Party or its affiliate (collectively “Discloser”) to the Receiving Party or its affiliates under the Agreement with respect to which a reasonable person would have an expectation of confidentiality because (i) the tangible materials have a “Confidential” or similar marking, or (ii) the information and materials are disclosed in circumstances where the Receiving Party reasonably should understand such information and materials are to be treated as confidential, whether or not marked “Confidential” (including, without limitation, the Disclosing Party and any third party’s information and materials relating to any of the following – inventions or trade secrets; proprietary software or other technology; pricing and discounting of products or services; company finances; personally-identifiable information; data; the features and performance of products and services; employees and contractors; customers; business partners; strategies, plans, forecasts and opportunities; research and development; and concepts, know-how, design and techniques). Incyte SEO’ Aggregated Anonymous Data is regarded as Incyte SEO’ Confidential Information.
Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; or (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights.
Customer may be asked to provide suggestions, ideas, recommendations, bug fixes, corrections, or other feedback (“Feedback”) regarding the Service(s). Customer agrees that Incyte SEO is free to reproduce, make, use, create derivative works of, publicly perform, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of such Feedback without payment of compensation or any other obligation of any kind to Customer.
- No License to Confidential Information.
All Confidential Information, including, without limitation, all copies of Confidential Information exchanged under the Agreement, is and will remain the property of the Disclosing Party and/or Disclosing Party’s licensors.
COPYRIGHT, MARKS, AND INTELLECTUAL PROPERTY
Customer retains copyright and any other rights it already holds in Content which Customer submits, stores, posts or displays on or through, the Services. Customer may not post, store, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Incyte SEO may deny access to the Sites or the Services to any User who is alleged to infringe another party’s copyright.
- Use of Customer’s Name and Logo for Customer Lists
Incyte SEO may include Customer’s name or logo in Incyte SEO’ customer lists..
- Incyte SEO IP
Customer acknowledges that in using the Services, Customer may have access to or might be permitted to use documents, software, works of authorship, inventions, technology, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, and other tangible or intangible technical material or information (collectively, “Incyte SEO Technology”), and that the Incyte SEO Technology is covered by or subject to Intellectual property rights owned or licensed by Incyte SEO (collectively, “Incyte SEO IP Rights”). Except in connection with the license granted pursuant to Section 6.1, no license or other rights in or to the Incyte SEO Technology or Incyte SEO IP Rights, even if developed, invented, delivered, or authored by Incyte SEO under or in connection with this Agreement, are granted, assigned, licensed or conveyed to Customer, and all such Incyte SEO Technology and Incyte SEO IP Rights are hereby expressly reserved exclusively by Incyte SEO.
- Disclaimer of Warranties
EXCEPT TO THE EXTENT EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER), THE Incyte SEO SERVICE AND Incyte SEO CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND Incyte SEO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
Incyte SEO AND ITS AFFILIATES AND LICENSORS HEREBY SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, UPTIME OR AVAILABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Incyte SEO AND ITS AFFILIATES AND LICENSORS FURTHER DO NOT REPRESENT OR WARRANT THAT THE Incyte SEO SERVICE OR ANY INFORMATION PROVIDED THEREFROM WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR FREE OF VIRUSES, NOR DOES Incyte SEO WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH THE Incyte SEO SERVICE.
LIMITATION OF LIABILITY
- Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES. THE LIMITATIONS IN THIS SECTION 10 APPLY REGARDLESS OF (i) WHETHER EITHER PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) THE FORM OF CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- Liability Cap
Incyte SEO’S ENTIRE LIABILITY AND OBLIGATION TO CUSTOMER WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID (OR DUE) BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL Incyte SEOTHE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
- Incyte SEO shall indemnify, defend and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns from and against any third party Claims that the technology underlying the Incyte SEO Services infringes or misappropriates any copyright or patent, or any third party intellectual property right. Customer shall indemnify, defend and hold harmless Incyte SEO and its officers, directors, consultants, employees, successors and permitted assigns from and against any third party claims made or brought against Incyte SEO by a third party alleging that Customer’s Content or other data or use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law or the rights (including, without limitation, through a tort or civil claim) of any third party. Each Party shall indemnify, defend, and hold harmless the other Party and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees), as a result of any third-party claim, demand or action (collectively, a “Claim”) arising from a breach or alleged breach of any covenant or any of its representations or warranties herein.
Indemnification Procedure The Parties’ obligations under Section 11 are the Parties’ entire respective liability and sole and exclusive remedies for infringement or misappropriation actions and third party liability of any kind relating to this Agreement, and are conditioned upon the indemnified company and individuals: (a) providing the indemnifying Party with prompt written notice of the lawsuit or action (though any failure to give notice will only affect the indemnifying Party’s obligations to the extent such failure materially impaired the indemnifying Party’s ability to effectively defend or settle the lawsuit or action); (b) giving the indemnifying Party sole control of the defense of the lawsuit or action and any related settlement negotiations (though the indemnified company and individuals may participate in the defense and settlement at their own expense, and the indemnifying Party may not enter into any settlement that adversely affects the indemnified company and individuals’ respective interests to a material degree without their written consent); and (c) providing to the indemnifying Party (at the indemnifying Party’s expense) all assistance, information and authority reasonably required to effectively defend or settle the lawsuit or action.
- Governing Law, Jurisdiction and Venue
The laws of the State of Washington and the United States, without regard to any conflicts-of-laws provisions or rules, govern the Agreement. The exclusive jurisdiction and venue for any legal proceedings or actions arising out of or relating to the Agreement will be the Washington State and U.S. federal courts located in Spokane County, Washington, and both Parties hereby submit to the personal jurisdiction of those courts and irrevocably waive any objection they may have to such venue.
- Prevailing Party Attorneys’ Fees
If the Parties litigate any issue relating to the Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees, costs and expenses (including, without limitation, expert witness fees and costs of appeal).
- Injunctive Relief
The Parties acknowledge and agree that any breach or threatened breach of the Agreement may cause harm for which money damages may not provide an adequate remedy. Accordingly, the Parties agree that in the event of a breach or threatened breach of the Agreement, in addition to any other available remedies, each Party may seek temporary and permanent injunctive relief without the need to post any bond or other security that otherwise may be required under applicable law.
Neither Party shall assign or transfer, by operation of law or otherwise, any rights or obligations under this Agreement without the prior written consent of the other Party, except in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of Incyte SEO’s assets not involving a direct competitor of Customer.
- Waiver; Severability; Interpretation
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. If a court of competent jurisdiction finds any provision of the Agreement to be unenforceable or invalid, then to the maximum extent permitted by law, that provision will be modified and interpreted to accomplish the objectives of such provision, or severed, and the remaining provisions will remain in full force and effect. Each Party has had a reasonable opportunity to participate in the drafting of the Agreement, and to consult its own counsel with respect to that drafting; accordingly, no ambiguity in the Agreement will be construed against either Party by virtue of such Party’s role in drafting the Agreement. The Agreement does not obligate either Party to proceed with any other activities. The Agreement also does not give rise to any expectation of compensation, or to any other inducement to take (or refrain from) any other action except as expressly set forth in the Agreement.
Any notices required under the Agreement shall be in writing (email being sufficient) and addressed to the person identified in an Order Form or, if no such person is identified, to the signatories of the Order Form.
- Entire Agreement; Changes
The Agreement (including the Order Form and its Exhibits) constitute the entire agreement between the Parties regarding this subject matter, and supersede all prior agreements, representations and understandings, oral or written, between the Parties regarding this subject matter. The Agreement may not be amended, modified or supplemented except by a written amendment signed by an authorized representative of each Party.
Incyte SEO, Inc
608 W 2nd Ave, Ste 301
Spokane, WA 99201