incodox Terms & Conditions
Last updated January 31, 2024.
These incodox Terms (“Terms”) govern Customer’s use of the incodox Service. Any capitalized terms used in these Transfer Pricing Terms and not defined have the meanings given in the Terms.
1. Definitions. Unless otherwise defined in the Agreement, capitalized terms have the following meaning:
“Applicable Laws” means all applicable local, state, provincial, and federal laws and regulations.
“Authorized User” means any Representative or other person or entity acting on Customer’s behalf who is authorized by Customer to use the Products and who has been supplied with access to the Products either by Customer or by incodox at Customer’s written request.
“Content” means any information provided by incodox through its products, including, benchmarks, templates, forms, laws, explanations, answers, matrices, rates, rules, fees, ontologies, taxonomies, decision trees, history and changes, data schemas, reports, information about applicable regulations, responses to questions posed through the “Ask an Expert” feature, and anything provided through a custom library and/or through a customized research engagement.
“Customer” means the legal entity that executes an Order Document or uses the Products.
“Customer Data” means any information, including Personal Information, uploaded, provided, or made accessible to incodox’s production or sandbox systems by Customer or Authorized Users (or by incodox on behalf of Customer) to use the Products.
“Documentation” means incodox’s user guides, training manuals, instructions, usage information, and other similar documentation, as updated or revised by incodox from time to time, that incodox provides to Customer (i) within the Service or (ii) at https://incodox.com
“Expenses” means any reasonable, preapproved expenses described in an Order Document or otherwise as being reimbursable to incodox by Customer, that incodox actually incurs while providing Customer the Products. incodox’s reimbursable Expenses include (as applicable) postage fees, wire transfer fees, and other out-of-pocket administrative costs.
“Incodox” means Incodox, Inc., a Delaware corporation with offices located at 9024 Froude Ave, Surfside, FL 33154.
“incodox Technology” means the technology and Intellectual Property used in providing the products and products offered by incodox, including computer software programs, websites, networks, and equipment. incodox Technology does not include Third-Party Applications.
“Intellectual Property” means all trade secrets, Inventions, patents and patent applications, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such marks), trade names, trade dress, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
“Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, or discovery, whether or not copyrightable or patentable and whether or not reduced to practice.
“Order Document” means a Sales Order or other document used to purchase Products from Incodox.
“Personal Information” means any information that relates to an identified or identifiable natural person or that reasonably could be used to identify that person, or other data or information defined as personal information under Applicable Laws.
“Professional Products” means products supplemental to the Products, including professional consulting products, to be performed for Customer by incodox’s employees or contractors, as specified in the applicable Order Document.
“Report” means a transfer pricing report produced by the incodox whether a Local File, Benchmark Memo or Gudance Memo.
“Sales Order” means Incodox’s sales order form that describes the Products, Professional Products, and support plans ordered by Customer and the fees, certain Expenses, and other specified terms.
2. Customer Obligations; License.
a. Customer will provide all necessary information to Incodox in the form that Incodox specifies from time to time. Customer shall not reuse all or any portion of a Report (including extracting benchmark data) or modify or prepare derivative works of a Report.
b. Incodox grants Customer a limited, nonexclusive, nontransferable, nonassignable, worldwide license to use and retain the Content that is returned by the Products to Customer solely for its internal or its clients’ compliance purposes in connection with the specific Report for which it was provided.
3. Use of Customer Data. The use and disclosure of Customer Data described in Section 4(a) of the Terms that is “tax return information” under Treas. Reg. § 301.7216-1(b)(3) shall be made in accordance with Treas. Reg. § 301.7216-2.
4. Deviations from the Terms. Notwithstanding anything to the contrary contained in the Terms, incodox may elect not to provide notice of planned downtime.
5. Disclaimer. Customer acknowledges that Reports will be issued subject to a customary disclaimer substantially similar to the following:
The scope and purpose of this Report is limited to (i) reviewing the Group’s transfer pricing results in relation to the Covered Transaction under the arm’s length principle of the US Regulations and the OECD Guidelines, (ii) establishing that the Group reasonably concluded that the method (and the application of that method) applied in this Report provided the most reliable measure of an arm’s length result for the Covered Transaction.
We assume no responsibility for any issues beyond this express and limited scope of this Report. Additional issues may exist that affect the U.S. federal, state, local or foreign income and non-income tax treatment and consequences of the Covered Transaction, as well as other transactions or matters that may affect the Group. This Report does not consider, and we express no view any such other tax issues, nor any non-tax legal, regulatory, accounting, or other non-tax issues that may impact the Covered Transaction or any other transaction(s) or matters affecting the Group.
Although the conclusions set forth in our Report reflect our best professional judgement regarding the arm’s length nature of the Group’s transfer pricing results with respect to the Covered Transaction, we cannot provide assurance that such conclusions will not be subject to challenge by any federal, state, local or foreign taxing authority, or that in the event of such a challenge, that a court in any jurisdiction will ultimately uphold such conclusions
This Report has been prepared for the sole benefit of the Group and may not be relied upon by any other party for any purpose without our prior written permission, and we assume no responsibilities to any such other parties. Notwithstanding the foregoing, nothing in this Report should be interpreted to limit the Group’s right to disclose the tax treatment and tax structure of the Covered Transaction to any person.
In preparing this Report, we have relied on data, provided by Client, which we have not independently audited or verified. We have assumed that all such data, documents and factual representations are true, correct, and complete in all material respects. Any misstatement, omission, or subsequent change in any such data, facts or documents may impact the validity of our conclusions.
Additionally, this Report reflects the applicable law and guidance of the US Regulations and the OECD Guidelines thereof in effect as of the end of the tax year to which this Report relates. Such law and guidance may be subject to change, possibly on retroactive basis or in a manner that could otherwise materially affect the conclusions stated in this Report.
We assume no obligation to update this Report in the event of any change in facts, circumstances, law, or guidance that could impact the conclusions stated herein.
2. THE PRODUCTS. Each service may be governed by additional terms that describe pricing, usage, and additional obligations of the Parties with respect to that particular Service.
a. Use of the Products. incodox delivers “software as a service” and other future products on a subscription basis. incodox grants Customer a nonexclusive, nontransferable, worldwide right to access and use the Service(s) during the Term, solely for Customer’s internal business operations. Incodox reserves all other rights. Customer shall not use any products that are not set forth in an Order Document signed by Customer and accepted by Incodox, except as otherwise provided in the Agreement. If Customer has a sandbox Account, Customer shall use it solely for testing non-production data and for internal business purposes only.
b. Customer’s Account. Incodox shall enable an account for Customer to access the Service(s) (“Account”). Customer shall designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users shall maintain the confidentiality of all usernames, passwords, access, and Account information under their control. Except to the extent caused by Incodox’s breach of the Agreement, including its obligations under Section 8 (Confidential Information), Incodox is not responsible for unauthorized access to the Account. Customer shall contact Incodox promptly if (i) Customer reasonably believes that the Account has been compromised, including any loss, theft, or unauthorized access, use, or disclosure of Account information or (ii) Customer becomes aware of any other breach of security in relation to Customer’s Account information or the Products that may have occurred or is reasonably likely to occur.
c. Incodox’s Responsibilities. Incodox shall: (i) track uptime statistics and, as applicable, provide status updates at status.incodox.com or an equivalent replacement site; (ii) use commercially reasonable efforts to make the Products available 24 hours a day, 7 days a week, except for: (1) planned downtime (scheduled with at least 7 days’ notice and at a time intended to minimize impact to Incodox customers) and (2) any unavailability caused by circumstances beyond Incodox’s reasonable control, including internet service provider failures or delays or denial of service attacks against which Incodox maintains commercially reasonable prevention controls; (iii) provide its standard support for the Products to Customer at no additional charge, or upgraded support if purchased separately; and (iv) conduct its business in compliance with Applicable Laws.
d. Customer’s Responsibilities. Customer (i) shall ensure the accuracy and completeness of Customer’s initial and ongoing configuration and setup of the Products; (ii) shall ensure that the Products are compatible with Customer’s business and systems requirements; (iii) shall ensure the accuracy, quality, legality, completeness, and integrity of the Customer Data provided by Customer and the means by which Customer acquired it; (iv) shall ensure the information Customer provides in connection with the Products, such as billing information and purchase orders (excluding Customer unique output that is returned by the Products to Customer), is current, accurate, and complete; and (v) is responsible for the provision, maintenance, and use of Customer’s hardware, network, internet connectivity, and software. Customer shall comply with the Acceptable Use Policy available at https://www.incodox.com, with all Documentation, and with all Applicable Laws. Customer shall ensure that the Authorized Users and Representatives of Customer (and, if Customer enables its Affiliates to use the Products, its Affiliates, their Authorized Users, and their Representatives) comply with all of Customer’s obligations under the Agreement, and Customer shall be responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
e. Customer Affiliates. Customer may enable its Affiliates to use the Products. Unless Incodox accepts an Order Document from an Affiliate or otherwise agrees in writing, all use of the Products by Customer’s Affiliates will be under Customer’s Account, Incodox will invoice Customer and not its Affiliates for the Products, and Customer shall pay all invoices to Incodox. When an Affiliate of Customer uses the Products, all references to “Customer” in the Agreement relating to access or use of, or restrictions or limitations on access or use of, the Products refer to the Affiliate. Among Customer and its Affiliates, only an entity specified on an Order Document may (i) take any action to enforce such entity’s rights and obligations arising from the Agreement, or (ii) request technical support for such entity with respect to the Products.
f. Incodox Affiliates. Incodox may perform the Products itself or through any of its Affiliates. When an Affiliate of Incodox provides the Products, all applicable references to “Incodox” in the Agreement relating to provision of the Products refer to such Affiliate. Incodox is responsible for its Affiliates’ compliance with the terms of the Agreement, and Incodox shall be responsible for their acts and omissions relating to the Agreement as though they were those of Incodox. Incodox or its Affiliate may invoice Customer for the Products, and Customer shall pay all invoices to the Incodox Affiliate that issued the invoice. Customer and its Affiliates shall bring any claims it or they may have solely against Incodox and not against any Incodox Affiliate providing or invoicing for the Service.
g. Subcontractors. Incodox may use subcontractors to facilitate its obligations under the Agreement, and Incodox shall be responsible for the acts and omissions of such subcontractors relating to the Agreement as though they were those of Incodox.
h. Restrictions. Customer shall use the Products only as set forth in the Agreement and the Documentation, and not for the benefit of any third party. Customer shall not (i) reverse assemble, reverse engineer, decompile, or attempt to derive source code from Incodox’s products, Content, or Incodox Technology; (ii) reproduce, modify, create, or prepare derivative works of Incodox’s products, Content, Incodox Technology, or Documentation; (iii) distribute or display Incodox’s products, Content, Incodox Technology, or Documentation other than to Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to Incodox’s products (except with respect to Customer’s Affiliates as expressly provided in Section 2(e)) or use Incodox’s products to operate any timesharing, service bureau, or similar business; (v) alter, destroy, or otherwise remove any proprietary notices within Content, Incodox Technology, or Documentation; or (vi) disclose the results of any benchmark tests to any third parties without Incodox’s prior written consent.
i. Unsupported APIs and Third-Party Application Integrations. Incodox may, in accordance with Section 9(b)(i)(2) (Incodox’s Warranties) of these Terms, cease supporting older APIs and functionality with respect to specific Third-Party Applications at the date specified in the Documentation. Disclosure in the Documentation shall constitute notice. In such case, the following shall not apply to Customer's continued use of such API or functionality beyond such date: (i) the support obligations contained in Section 2(c)(iii) (Incodox’s Responsibilities), (ii) the warranty obligations contained in Section 9(b)(i) (Incodox’s Warranties), and (iii) any support or warranty obligations or any timeliness or accuracy guarantees set forth in any applicable Supplemental Terms.
3. PROPRIETARY RIGHTS
a. Incodox’s Intellectual Property. Incodox and Incodox’s licensors retain and own all right, title, and interest in Incodox’s products, Content, Incodox Technology, the Documentation, Incodox’s Confidential Information, and all enhancements or improvements to, or derivative works of, the foregoing, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to Customer any ownership interest in Incodox’s Intellectual Property.
b. Suggestions. If Customer provides Incodox with any suggested improvements to the Products, that suggestion is provided “as-is,” and Customer grants Incodox a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such suggested improvements. Notwithstanding the foregoing, nothing in this Section 3(b) (Suggestions) grants Incodox a license to use any Inventions covered by a registered patent owned by Customer.
c. Customer’s Intellectual Property. Customer retains all ownership rights in Customer Data and Customer’s Confidential Information, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to Incodox any ownership interest in or to the Customer Data or Customer’s Confidential Information, provided that Incodox has the right to create Aggregate Data (as defined in Section 4(b) (Aggregate Data)) and owns all right, title, and interest in Aggregate Data both during and after the term of the Agreement. Customer shall ensure that it has all necessary rights and permissions required by Applicable Laws to use and permit the use of Customer Data in accordance with the Agreement.
4. PRIVACY AND SECURITY
a. Use of Customer Data. Incodox may retain, use, and disclose Customer Data solely (i) to provide the Products; (ii) to provide customer support; and (iii) to comply with Applicable Laws. Customer Data and Customer’s Confidential Information do not include Personal Information relating to an employee or other authorized Representative of Customer that is collected or received by Incodox in connection with the procurement or use of, or payment for, the Products (for example, the names and email addresses of Customer’s account representatives and accounting personnel). Incodox’s use of Personal Information of such an employee or other Representative is governed by the Incodox Privacy Policy available at https://www.incodox.com, which describes how to manage individual communication preferences. Each Party shall be responsible for informing its own Representatives of the processing of their Personal Information as provided in the Agreement.
b. Aggregate Data. Incodox may create, generate, and use Aggregate Data for any lawful purpose. “Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple Incodox customers (including Customer Data) for the purpose of expressing that information in summary form (for example, price index numbers are aggregated, in contrast to the price of a single commodity). Aggregate Data does not include any Personal Information relating to Customer, Authorized Users, Customer’s clients or customers, or other information that could reasonably identify a natural person or Customer.
c. Protection of Customer Data, Personal Information, and Confidential Information. Each Party is responsible for complying with Applicable Laws, including applicable data protection legal requirements, for the purposes of the Agreement. Incodox shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access, destruction, modification, or disclosure of Customer Data, Confidential Information, or Personal Information. Incodox may occasionally update, upgrade, change, or add safeguards and security methods as warranted in Incodox’s sole discretion, and Customer may need to take action to facilitate continued interaction with the Products. Incodox shall implement processes and maintain procedures designed to comply with Applicable Laws and shall facilitate Customer’s compliance with its obligations for data security and response to individual data subject requests with respect to Personal Information in Incodox’s possession or control, to the extent that Customer is required to comply with any existing or newly enacted Applicable Laws regarding privacy including, for example, the General Data Protection Regulation (GDPR) or the California Privacy Rights Act (CPRA); and any amendments and successors to the foregoing. The Agreement and the Documentation are Customer’s instructions for processing Customer Data, and Incodox shall not process Customer Data for any other purpose. Incodox shall use commercially reasonable measures to ensure that any Incodox subcontractors implement and comply with reasonable security measures in handling any Customer Data, Personal Information, or Customer’s Confidential Information.
d. Data Processing Agreement. The Parties agree to comply with the Incodox Products Data Processing Agreement, which is incorporated by this reference and is located at https://www.incodox.com (the “DPA”).
e. Notices. Incodox shall notify Customer without undue delay in accordance with Applicable Laws of unauthorized access, use, or disclosure of any Customer Data or Customer’s Confidential Information under Incodox’s control. Incodox shall provide Customer with information regarding such incident as required by Applicable Laws or as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Laws. Incodox shall use commercially reasonable efforts to: (i) identify the cause of the incident and (ii) remediate the cause of the incident within Incodox’s systems, to the extent such remediation is within Incodox’s reasonable control.
5. SERVICE SUSPENSION AND DISPUTES
a. Generally. As reasonably practicable under the circumstances, Incodox shall endeavor to resolve together with Customer any circumstance that may give rise to Incodox’s suspension rights, which include, for example, the following: (i) a material risk caused by Customer, its Affiliates, or its or their Authorized Users or Representatives to the security or performance of the Products, the network, Customer, or any other Incodox customer or business partner; (ii) use of the Products in violation of the Agreement; or (iii) Customer is delinquent in its payment obligations for any undisputed amounts. In the case of payment delinquency, Incodox shall notify Customer (including by phone or email to Customer’s business contact) at least 10 days before suspending the applicable Service. For any other suspension, other than with respect to sandbox Accounts, Incodox shall make a good faith effort to contact and provide notice to Customer (including by phone or email to Customer’s business contact) in advance. Payment of undisputed amounts will be considered delinquent if not received within 15 days following the due date set forth on an invoice. Incodox acknowledges that suspending Customer’s right to access or use the Products is a significant action, and therefore Incodox shall not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to Incodox’s right to suspend the Products. Incodox shall also pursue other less drastic measures it deems appropriate, including collaborating with Customer to isolate the issue and escalating unresolved issues to senior management of Customer and Incodox. Incodox shall not destroy or overwrite any Customer Data during the suspension period.
b. Effect of Suspension. If Incodox suspends Customer’s ability to access the Products, (i) Customer remains responsible for all fees and charges for suspended Products and for other Products to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to Incodox’s error or omission.
c. Payment Disputes. Customer must assert any payment dispute in writing to Incodox according to the instructions in the Documentation within 15 days after the due date of the invoice giving rise to the dispute. Incodox shall not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
6. TERM AND TERMINATION
a. Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date of the Initial Subscription Term for the first Service purchased and ends on the date of termination or expiration of the final Subscription Term.
b. Subscription Terms. Customer may purchase subscriptions to one or more Products during the Term. The effective period (usually one year) of each subscription is a “Subscription Term” and, depending on the timing and agreed terms of the applicable Order Documents, those subscriptions may have different Subscription Terms. Each Initial Subscription Term begins on an “Effective Date,” which is either (1) the date Incodox enters Customer’s Order Document into Incodox’s billing system or (2) an alternate date mutually agreed by the Parties in writing.
i. Initial Subscription Term. Customer’s initial Subscription Term for a Service (the “Initial Subscription Term”) is one year, which begins on the Effective Date and ends on the first anniversary of the Effective Date, unless the Order Document specifies a different period.
ii. Automatic Renewal. At the end of the then-current Subscription Term, each subscription to a Service will automatically renew for an additional one-year period (a “Renewal Subscription Term”) unless (1) Customer provides written notice of non-renewal to Incodox on or before the expiration date of the then-current Subscription Term, or (2) Incodox provides written notice of non-renewal to Customer at least 90 days before such expiration date. Customer must submit notice of non-renewal to Incodox in accordance with the instructions provided in the Documentation. Unless another payment method has been specified, Incodox will charge Customer’s payment information on file for the Service fees for the Renewal Subscription Term.
c. Subscription to Upgraded or Additional Products. If Customer upgrades any of Customer’s Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Service will be coterminous with the current Subscription Term. In the event of any upgrade, Incodox will charge Customer’s payment information on file, unless another payment method is agreed, for the then-current applicable upgrade fee plus an amount equal to the difference between the then-current Service fee and the upgraded Service fee. If Customer subscribes to an additional Service, the Subscription Term for that Service will begin on the Effective Date for that Service and Customer will be separately charged for the applicable activation and annual Service subscription fee for the additional Service. If Customer upgrades the tier of Service purchased, renews a Service, or purchases an additional Service (excluding automatic upgrades), then all Products to which Customer subscribes under these Terms will be subject to the then-current Terms and applicable Supplemental Terms.
d. Termination for Breach or Cause. Either Party may terminate the Agreement or any affected Service by notice to the other Party (i) if the other Party materially breaches its obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of written notice of breach; or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. Material breach by Customer includes the following by way of example and not limitation: (1) Customer is unable to resolve any material issue leading to suspension of Customer’s Products as a result of the acts or omissions of Customer, its Affiliates, or its or their Authorized Users or Representatives within 30 days following notice of suspension; (2) Customer’s use of the Products in violation of Applicable Laws; or (3) if Customer purchases a returns Service and fails to fund its tax liabilities within the specified deadlines.
e. Consequences of Termination for Breach. If Customer terminates the Agreement or any Service as a result of Incodox’s material breach, then Incodox shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees); provided, however, that if Customer was unable to use the Service as a result of Incodox’s material breach, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service (or the date of Customer’s written notice of breach, if later). If Incodox terminates the Agreement or any Service due to Customer’s material breach, Incodox shall not refund any amounts to Customer.
f. General Effects of Termination. Upon any termination of the Agreement: (i) all of Customer’s rights under the Agreement immediately terminate (with the exception of those surviving termination, as described below); (ii) except as set forth in Section 6(e) (Consequences of Termination for Breach), Customer remains liable for all fees, charges, Expenses, and any other obligations Customer has incurred during the Subscription Term; and (iii) Incodox shall destroy or overwrite Customer Data and Customer’s Confidential Information as provided in Section 6(h) (Deletion of Data). All provisions that by their nature should survive termination of this Agreement will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
g. Return of Customer Data. Upon receipt of a request to return Customer Data at any time up to 60 days after termination of the Agreement or the applicable Service, Incodox shall either (i) provide Customer with limited access to the Service, at no additional cost and subject to the obligations and restrictions of these Terms, solely for the purpose of retrieving Customer Data; or (ii) provide an export file of Customer Data stored on Incodox’s systems in a commonly used format reasonably determined by Incodox and subject to Incodox’s standard fees for such export. Incodox may, but has no obligation to, maintain or return Customer Data more than 60 days after termination of the Agreement.
h. Deletion of Data.
i. At Customer’s Request. Upon Customer’s request at any time during the Subscription Term for a Service or up to 60 days after termination of the Subscription Term, Incodox shall promptly destroy or overwrite Customer Data for such Service or Customer’s Confidential Information, other than Customer Data or Customer Confidential Information or Personal Information contained in automatic computer backups or historical archives or that must be retained to fulfill obligations under the Agreement for regulatory, legal, or audit purposes, or for compliance with Incodox’s data retention policies. If Customer requests Incodox permanently destroy or overwrite Customer Data, Customer releases Incodox from any claims or liability relating to that Customer Data, including, without limitation, any accuracy guarantee, warranty, or indemnification.
ii. Upon Termination. If Customer does not request deletion of its Customer Data or Customer’s Confidential Information, Incodox will destroy or overwrite such data and information in accordance with Incodox’s document retention policies and standard backup and archival procedures, after the data or information is no longer reasonably necessary to fulfill obligations under the Agreement or for regulatory, legal, or audit compliance.
7. FEES AND TAXES
a. Fees. Customer shall pay all fees specified in each Order Document and applicable Expenses. Customer will be invoiced based on the Order Document, including, if applicable, for usage-based fees. Except as otherwise specified in the Agreement: (i) amounts are quoted and payable in the currency specified on the Order Document; and (ii) payment obligations are non-cancelable and fees and Expenses paid are non-refundable. Unused one-time Products will expire 12 months from the date of order, and Customer will not be entitled to receive a refund for any fees prepaid for such expired one-time Products. Unless otherwise agreed in writing, Incodox will automatically charge Customer’s payment information on file for any renewals, upgrades, overage fees (if applicable), and additional Products purchased. Customers not enrolled in Incodox’s automatic payment program, when applicable, will be assessed a non-refundable opt-out convenience fee.
b. Automatic Upgrades and Overages. If Customer’s Service fees include a usage tier, Customers may choose one of two options if Customer exceeds the usage tier for the applicable Service set forth in the Order Document: either payment of an overage charge or automatic upgrade to the next subscription tier. At any time prior to exceeding the applicable usage tier, Customer may change the selected option. The default choice is the automatic upgrade option. Overage fees for the Initial Subscription Term will be charged at the rate specified in the Order Document, and in any Renewal Subscription Term, Incodox’s then-current overage rates will apply.
c. Subscription Plans. Customer’s subscription plan for the Service is specified in the applicable Order Document. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Order Document during the Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Service Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any unused volume to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Service subscription plan, then Customer must notify Incodox before the start of the next Renewal Subscription Term for the applicable Service, and the reduction will be effective at the start of that next Renewal Subscription Term.
d. Taxes. Customer is responsible for any applicable sales, use, excise, value-added, or similar taxes, levies, or duties payable with respect to Customer’s order of Products assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Document, all fees, rates, and estimates exclude such taxes, levies, and duties. Incodox is responsible only for taxes based upon Incodox’s net income, assets, payroll, property, and employees.
e. Annual Increases. Unless otherwise agreed in writing, Incodox may increase Service fees for each Renewal Subscription Term. In order for price increases to be effective, Incodox must notify Customer 30 days prior to the Renewal Subscription Term. Such notice may be in the form of an invoice or any other form of notice used by Incodox to communicate with Customer. If Customer objects to the increase, Customer may elect to not renew its order of Products. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or any additional Service that Customer orders; (ii) overage fees for usage in excess of Customer’s usage tier; and (iii) expiration of any discount or incentive programs to which Customer was previously entitled.
8. CONFIDENTIAL INFORMATION
a. Confidential Information. “Confidential Information” means information designated by a Party or a Party’s Affiliate as confidential, or given the circumstances, would reasonably be understood by the Recipient to be confidential, and that is disclosed by a Party, its Affiliates, or their respective Representatives (the “Discloser”) to the other Party, its Affiliates, or their respective Representatives (the “Recipient”), regardless of the form of disclosure. Confidential Information includes, with respect to Incodox and its Affiliates, the Incodox Technology and non-public Documentation, and with respect to Customer and its Affiliates, all Customer Data, and with respect to both the Discloser and Recipient, the non-public terms of the Agreement and all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, Inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the Discloser.
b. Exclusions. Confidential Information does not include information that the Recipient can establish: (i) (except with respect to Personal Information) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) has been rightfully received by the Recipient from a third party without confidentiality restrictions; (iii) is known to the Recipient without any restriction as to use or disclosure prior to first receipt by the Recipient from the Discloser; or (iv) has been independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
c. Disclosures Required by Law. If any Applicable Laws or judicial or administrative order requires the Recipient to disclose any of the Discloser’s Confidential Information, the Recipient shall (if legally permitted) promptly notify the Discloser in writing prior to making any such disclosure, in order to facilitate the Discloser’s efforts to protect its Confidential Information. Following such notification, the Recipient shall cooperate with the Discloser, at the Discloser’s reasonable expense, in seeking and obtaining protection for the Discloser’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Discloser, the Recipient is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the Recipient may disclose only that portion of the Confidential Information that is legally required to be disclosed, and the Recipient shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
d. Restrictions on Use and Disclosure. The Recipient shall use Confidential Information of the Discloser solely to fulfill its obligations under the Agreement, to comply with Applicable Laws, or as otherwise permitted under the Agreement. Subject to the permitted disclosures set forth in Section 8(c) (Disclosures Required by Law), the Recipient shall hold Confidential Information in strict confidence and shall not disclose or authorize the disclosure of Confidential Information to third parties except as otherwise permitted by the Agreement. The Recipient may disclose Confidential Information to a Representative or service provider on the condition that the Recipient: (i) ensures that such Representative or service provider is bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as these Terms and (ii) is fully responsible for such Representative’s or service provider’s use and disclosure of the Confidential Information and its compliance with the obligations of the Recipient under this Section 8(d) (Restrictions on Use and Disclosure). The Recipient shall protect Confidential Information of the Discloser from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature and shall not reverse engineer, decompile, or disassemble any such Confidential Information. All rights and obligations regarding Confidential Information (including Customer Data) will survive and remain subject to the confidentiality provisions of this Agreement for as long as the Confidential Information is retained or until it no longer meets the definition of Confidential Information.
e. Return of Confidential Information. Incodox shall destroy, overwrite, or return Customer’s Confidential Information as provided in Section 6(g) (Return of Customer Data) or Section 6(h) (Deletion of Data), as applicable.
9. WARRANTIES
a. Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into and perform its obligations under the Agreement; (ii) the Agreement does not conflict with any other agreement entered into by it; (iii) it does not conduct business for any unlawful purpose;and (iv) it is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons; Her Majesty’s Treasury, Asset Freezing Unit’s Consolidated List of Financial Sanctions Targets; the European Union’s consolidated list of persons, groups, and entities subject to EU financial sanctions; or any similar list of embargoed or blocked persons applicable to persons or entities in the jurisdiction of such Party’s domicile or use of the Products.
b. Incodox’s Warranties. Incodox offers the following warranties for the Products:
i. Incodox warrants to Customer that: (1) the Products Incodox provides to Customer will perform in all material respects in accordance with its applicable, then-current Documentation; (2) subject to Section 4(c), Incodox will not materially reduce a Service or its features or functionality during a Subscription Term (provided, however, that Incodox may do so upon expiration of a Subscription Term with at least 90 days’ written notice to Customer); and (3) Incodox will use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the Incodox Technology provided to Customer contains no computer virus, Trojan horse, worm, or other similar malicious code. Incodox does not warrant that the Incodox Technology is free from all bugs, errors, or omissions.
ii. If Incodox fails to conform to any of the warranties in this Section 9(b) (Incodox’s Warranties) and Incodox does not render the Incodox Technology conforming within 30 days of Customer’s written notice to Incodox of the nonconformance, then, as Customer’s sole and exclusive remedy for any nonconformance, Customer may immediately terminate its subscription for the affected Service upon notice to Incodox, and Incodox shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees). The refund will be calculated from the date that Customer notifies Incodox of the nonconformance.
iii. The warranties in this Section 9(b) (Incodox’s Warranties) do not apply to the extent that the Service, systems, or software have been modified by persons other than Incodox’s employees or persons authorized by Incodox.
c. Disclaimer of Implied Warranties. Except as expressly provided in the Agreement, the Products are provided on an “as-is” and “as available” basis, and neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all implied warranties, including the implied warranties of merchantability and fitness for a particular purpose, to the maximum extent permitted by Applicable Laws.
10. INDEMNIFICATION
a. Indemnification by Incodox. Incodox shall indemnify and defend Customer and Customer’s directors, officers, employees, and Affiliates against any Losses incurred as a result of a third-party demand, claim, or action that (1) the use of the Service in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other Intellectual Property right of such third party (an “Infringement”); (2) results from Incodox’s breach of its obligations under the Agreement; or (3) results from Incodox’s violation of Applicable Laws. “Loss” means any liability, loss, settlement payment (including any settlement the Indemnitee agrees to pay, as long as it is in a written settlement approved by the Indemnitor in writing), interest, award, judgment, damages (including punitive damages), fines, fees, penalties, filing fees and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses and charges.
i. If the Service is subject to a claim of Infringement and as a result, Customer’s use of the Service is enjoined, then Incodox shall, at no cost to Customer, procure for Customer the right to continue using the Service or replace it with non-infringing or modified Products of materially equivalent functionality.
ii. If none of the above options are available on terms that are commercially reasonable for Incodox, then Incodox may terminate Customer’s right to access and use the Products that require the infringing Service, in which case Incodox shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term for the terminated Service(s) (excluding any activation or other one-time fees) provided, however, that if Customer was unable to use the Service as a result of the Infringement, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service.
iii. Incodox has no obligation with respect to any actual or alleged Infringement to the extent that the Infringement is caused or alleged to be caused by (1) Customer Data (excluding Customer unique output); (2) use or modification of the Products other than by Incodox or other than as specified in the Documentation or the Agreement; or (3) combination of the Service with any products, software, products, data, or other materials not provided by Incodox or approved by Incodox in writing, if the Infringement would not have occurred but for such combination.
b. Indemnification by Customer. Customer shall indemnify and defend Incodox and its Affiliates and their respective directors, officers, and employees against Losses incurred as a result of a third-party demand, claim, or action that (1) Customer’s use of the Service in breach of the Agreement infringes the Intellectual Property rights of a third party; (2) results from Customer’s breach of its obligations under the Agreement; or (3) results from Customer’s violation of Applicable Laws.
c. Process. The obligations of a Party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 10 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim or action within the scope of the Indemnitor’s defense or indemnity obligations set forth in the Agreement, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor must be given exclusive control of the defense of such claim and all negotiations relating to its settlement, except that the Indemnitor may not, without Indemnitee’s approval, (A) make any admissions on the Indemnitee’s behalf or (B) settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability; and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim, at the Indemnitor’s expense. The Indemnitee may participate in the defense of the claim at its sole cost and expense.
d. Exclusive Remedy. This Section 10 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to Infringement and any other type of third-party claim or action described in this Section. This Section does not apply to any direct claims between the Parties. For the sake of clarity, this Section does not cover any claims based on any error in accuracy or timeliness of any Service, including, for example, any tax calculation or determination, tax return, filing, or compliance document. Such claims are governed exclusively by, and limited by, the warranties in the Terms or the warranties or guarantees set forth in the applicable Supplemental Terms, if any.
11. MODIFICATIONS
a. Modification Notice. Subject to the restrictions in this Section 11 (Modifications), Incodox may modify these Terms, the Acceptable Use Policy, the Data Processing Addendum, or any Supplemental Terms. If Incodox modifies these Terms, the Acceptable Use Policy, or any Supplemental Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. Incodox is not required to provide prior notice if modifications are necessary to comply with Applicable Laws but in such case shall use commercially reasonable efforts to provide prior notice when practicable. Incodox may update the list of products in the table in Section 15 (Supplemental Terms) without providing prior notice.
b. Renewal Modification Notice. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Subscription Term, then the modifications will become effective for each Service affected by the changes upon renewal of such Service. Customer may avoid the applicability of the changes only by cancelling the renewal of Customer’s subscription prior to commencement of the Renewal Subscription Term.
c. Mid-Term Modification Notice. If the Modification Notice states that the modifications will become effective during the then-current Subscription Term, and the modifications materially and adversely affect Customer, then Customer may terminate Customer’s subscription to the affected Service by providing written notice to Incodox at any time within the 30-day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (i) the date on which Customer delivers a timely termination notice or (ii) the date on which the applicable modifications become effective, provided that, upon written request by Customer, Incodox shall continue to provide such Service to Customer as needed to manage a reasonable transition to another vendor, not to exceed 60 days, and at Incodox’s then-current rates for the affected Service. If Customer terminates a Service subscription pursuant to this Section 11(c) (Mid-Term Modification Notice), then Incodox shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term for the terminated Service (excluding any activation or other one-time fees).
d. General. If Customer does not terminate the affected Service subscription as specified in this Section 11 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
12. EXCLUSION OF CERTAIN CLAIMS; LIMITATION OF LIABILITY
a. Exclusion of Certain Claims. In no event shall either Party be liable to the other Party or any other party for cost of cover or any consequential, indirect, special, punitive, incidental, exemplary, or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill or investments, use of money or facilities, interruption in use or availability of data, stoppage of other work, or impairment of other assets, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to instances of gross negligence or willful misconduct, to a Party’s breach of its privacy, security, and confidentiality obligations set forth in Section 4 (Privacy and Security) and Section 8 (Confidential Information), to a Party’s misappropriation of the other Party’s intellectual property rights, or to a Party’s indemnification obligations.
b. Limitation of Liability. In no event shall a Party’s aggregate liability to the other Party exceed the fees paid or payable by Customer to Incodox under the Agreement in the 12-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to instances of gross negligence or willful misconduct, to a Party’s indemnification obligations, to Customer’s obligations to pay fees and Expenses when due and payable, to noncompliance with the Acceptable Use Policy by Customer, Customer Affiliates or its or their Authorized Users or Representatives, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.
c. Limitation of Claims. Except with respect to claims of infringement or misappropriation of Intellectual Property of the other Party, a Party’s breach of its confidentiality obligations set forth in Section 8 (Confidential Information), or Customer’s failure to pay amounts due under the Agreement, neither Party may bring any claim relating to the Agreement more than two years after the events giving rise to the claim occurred.
d. General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such Party, its Affiliates or, in the case of Customer, Authorized Users. Without these limitations, the fees for the Service(s) would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply, and the Parties may have additional rights.
13. MISCELLANEOUS
a. Anti-Corruption Laws. Each Party shall at all times comply with all applicable anti-corruption laws, including, to the extent applicable, (1) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and (2) the UK Bribery Act 2010.
b. Relationship of the Parties; No Professional Tax Opinions or Legal Advice. The Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Distributors (as defined in Section 14 (Purchase Through Distributors) below) and Incodox’s other business partners are independent of Incodox and are not Incodox’s agents. Customer acknowledges and agrees that Incodox does not provide legal advice, including legal or professional tax opinions or management advice. Customer is responsible for its own tax policies and tax reporting positions taken. Customer is responsible for conducting its own due diligence and seeking the assistance of a qualified legal, tax, or accounting professional.
c. Third-Party Applications. Incodox is not responsible for and does not in any way endorse any Third-Party Applications or websites linked to by Incodox’s website or the Products.
d. Publicity. Neither Party shall issue any public statement regarding the Agreement without the other Party’s prior written consent. Unless a Party has specifically notified the other Party to the contrary in writing, either Party may use the name or logo of the other Party or its Affiliates to identify such other party as a customer or vendor (as the case may be) in accordance with that Party’s provided marketing guidelines.
e. Other Technology or Products; No Audit Support. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality, and that the Products do not include any audit support (unless otherwise specified in an Order Document).
f. Governing Law; Jurisdiction and Venue. The Agreement and all matters in connection with the Agreement will be governed by laws of the state of New York, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. For any claims or causes of action arising out of the Agreement, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in New York County, New York.
g. Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party or its Affiliates or its or their Representatives (or, in the case of Customer, Authorized Users) violate the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
h. Force Majeure. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this Section 13(h) (Force Majeure) must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate the affected Service. Such termination will not result in any liability by either Party, except that, if Customer terminates the affected Service for Incodox’s failure, Incodox shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees). If Customer was unable to use the Service as a result of the force majeure event, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service.
