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Incognito Master License
and Services Agreement

Incognito Software Systems Inc.
Master Software License, Maintenance, Support, and Services Agreement
("Master License and Services Agreement" or "MLSA")

 

Updated February 1, 2022

 

This Agreement is an agreement between INCOGNITO SOFTWARE SYSTEMS INC. ("INCOGNITO") and you (an individual or entity) ("Licensee") and is effective as of the first date the Software is installed or License Keys are delivered, whichever is earlier. The current version of this Agreement is available at www.incognito.com/master-license-services. Any Order or SOW made pursuant to this Agreement is incorporated into and forms an integral part of this present Agreement.

 

For good and valuable consideration, INCOGNITO and Licensee (the "Parties") agree as follows:

 

1. DEFINITIONS

 

"Confidential Information" or "CI" means any non-public, confidential information provided by one party to the other, including the Software and Documentation provided to Licensee and other information, data or materials relating to the business of either party as the case may be, including but not limited to information and materials concerning technology, business operations, customers and suppliers of the disclosing party. "Confidential Information" does not include information or materials in the public domain;

 

"CPI" means the Consumer Price Index as established by Statistics Canada for the City of Toronto;

 

"Concurrent users" means the number of simultaneous users accessing the program at the same time;

 

"Subscriber" means a single Licensee account established with Licensee that is valid and authorized to use the subscriber network in which the Software has been installed under this License;

 

"IP Address" means the Internet Protocol Address, including a single active IP address allocated or a single IP address managed of a Subscriber;

 

"Device" means a managed IP device, a physical piece of equipment on a service provider's network or located at a subscriber's premise;

 

"Documentation" means the Specifications, system requirements, written operating instructions (including online instructions), release notes, maintenance and service level standards, training and support material, and user guides and manuals for the Software, as may be published or made available from time to time, and any other documentation created pursuant this Agreement or any associated agreement or SOW;

 

"License Key" means the permanent or temporary software license key provided by INCOGNITO to Licensee to activate, start or permit access to the Software pursuant to a License granted to Licensee under this Agreement;

 

"Order Form(s)" or "Order" means the applicable purchase order(s), quote(s) or order form(s) completed or issued by any party in connection with this Agreement and as accepted by INCOGNITO;

 

"License" means a non-transferable license to use the Software in accordance with this Agreement solely on the device on which it was installed, as provided for in the applicable Order Form.

 

"Software" means the software referred to in the applicable Order Form(s) and any updates, upgrades, or bug fixes as may be provided from time to time pursuant to this Agreement or any associated agreement;

 

"Specifications" means INCOGNITO's written description of the Software, release notes, operating environment, and any other specifications or technical descriptions related to the Software and as contained in the Documentation.

 

2. LICENSE AND SERVICES

 

2.1 License

  1. The license granted herein is a non-exclusive, non-transferable (except as expressly set out herein) right to use the Software solely for the internal business purposes of Licensee as part of Licensee's subscriber network in accordance with the terms of this Agreement and the Order Form(s). If the term of the License for any Software product is not specified in the Order Form, then the term of such License shall be deemed to be perpetual, subject to compliance with this Agreement.
  2. The licensed use does not include any right to (i) copy, sell, rent, loan, transfer, make available to another party, sub-license, modify, adapt, translate, reverse engineer, or decompile the Software or (ii) provide hosted access to the Software to any person or operate the Software as part of a service bureau, other than for the business purposes of Licensee, unless specified in the applicable Order Form(s). Licensee may make one complete copy of the Software for backup or archive purposes only.
  3. The Software is protected by Canadian, United States, and international copyright and intellectual property laws. All rights to the Software are owned by INCOGNITO subject to any rights are expressly granted to Licensee in this Agreement.
  4. To prevent unauthorized installation and ensure compliance with Licensee's obligations under this Agreement INCOGNITO may, on an annual basis, request, and the Licensee shall provide, a written certification issued and signed by an officer of Licensee that Licensee is in compliance with the terms of this License and any associated agreement. Where applicable, INCOGNITO may also use non-intrusive, automated industry-standard software license management tools to monitor and manage optimization of the Software and compliance with such obligations.
  5. The license granted is restricted to the Licensee set out in the applicable Order Form(s).
  6. INCOGNITO will not make custom modifications for Licensee except as may be agreed by the parties in writing.
  7. Licensee accepts and acknowledges that the Software may contain non-GPL source code.
  8. Delivery date will be upon acceptance of this Agreement or otherwise as agreed between the parties at which time Licensee will be permitted at its own expense to download and install the Software and Documentation from an INCOGNITO designated web site or INCOGNITO will e-mail License Keys to an email address designated by Licensee.

2.2 Services

 

Licensee may, from time to time, use INCOGNITO to perform certain services such as but not limited to support, maintenance, training and consulting (collectively, "Services"). INCOGNITO will provide Services in accordance with the terms and conditions set out in Section 10, 12 and any applicable Statement of Work ("SOW").

 

3. CONFIDENTIALITY

 

Each party will (a) use a reasonable standard of care to protect the Confidential Information ("CI") of the other party (b) not disclose CI of the other party to third parties, and (c) not reproduce CI of the other party without the other party's advance written consent. Subject to the License granted in this Agreement, either party may at any time on written request require the other party to immediately return any of the other party's CI in the other party's possession or control. However, either party may disclose CI of the other party in accordance with a judicial, government or agency order, if reasonable prior notice is given to the party that owns the CI and the party ordered to disclose the CI complies with any applicable protective order or equivalent that applies to the disclosure. Each party acknowledges that monetary damages, including but not limited to, the forfeiture of any License fees under this Agreement between the Parties may not be a sufficient remedy for a breach of these obligations and that the other party will be entitled to, and may seek, injunctive or other equitable relief as it may deem proper or necessary to ensure compliance with this section.

 

4. LICENSE FEES AND PAYMENT

 

The Software licensed under this Agreement will be identified on the Order Form(s) created in connection with this Agreement. All Orders are binding on acceptance by INCOGNITO. Licensee agrees to pay to INCOGNITO the fees specified in any accepted Order. Unless otherwise noted in the Order, Licensee agrees to pay INCOGNITO within 30 days of delivery of the Software. For payments not received within 30 days from their due date INCOGNITO reserves the right to charge interest payable at the lesser of 18% per annum or the most allowed by law. All license rights granted in this Agreement are conditional upon Licensee making timely and complete payment to INCOGNITO of all license fees and other amounts due to INCOGNITO hereunder and Licensee making payment of all applicable taxes. Licensee shall make timely and complete payment to INCOGNITO: (a) of all license fees and other amounts due to INCOGNITO hereunder; and (b) of all country, federal, provincial, state, municipal, and other government excise, import, customs, sales, use, consumption, goods and services, property, value-added, internet, online, e-commerce, and other duties, levies and taxes of every kind arising out of this Agreement, whether imposed on the Software or otherwise and regardless of whether any or all of same exist as at the date of execution of this Agreement by INCOGNITO and Licensee, or are imposed thereafter, except any taxes that may be imposed on INCOGNITO's income. If INCOGNITO is obligated to pay any taxes, fees, or levies on behalf of Licensee, Licensee shall reimburse INCOGNITO in full for same promptly following receipt of INCOGNITO's invoice for same and/or INCOGNITO shall be entitled to gross-up fees payable to account for such amounts. INCOGNITO shall be entitled to invoice and immediate payment of additional fees arising based on Licensee achieving additional users or subscribers under tiered pricing or otherwise in excess of the paid License.

 

5. WARRANTY AND ACCEPTANCE

 

INCOGNITO warrants that upon delivery of the Software to Licensee, the Software will not contain any computer viruses or other programs that may affect the normal use of the Software in accordance with the Documentation and that for a period of 60 days from the date of delivery the Software will conform in all material respects to the Specifications. INCOGNITO's entire liability, and Licensee's sole remedy against INCOGNITO for breach of this warranty shall be limited to requiring INCOGNITO, at INCOGNITO's option and sole discretion, to: (1) correct the error giving rise to such breach; or (2) assist Licensee to find a work around solution; or (3) replace the defective Software. Provided that this warranty shall not apply to any breach and/or error arising from: (a) a change to the Software made by a party other than INCOGNITO; (b) accident, neglect, or misuse by a party other than INCOGNITO; (c) Any user or Licensee's failure to provide correct installation or operating environment or comply with the Documentation; (d) software, hardware, firmware, data, processes, and/or technology not licensed or specified or provided by INCOGNITO; (e) any IT infrastructure, system or telecommunications medium used by Licensee not supplied by INCOGNITO.

 

Unless waived by Licensee in writing or by conduct, Licensee shall have 30 days ("the Acceptance Period") from the initial delivery date of the Software to confirm Software is in accordance with the Specifications. Unless Licensee provides notice in writing within the Acceptance Period to INCOGNITO rejecting the Software, Software shall be deemed to be accepted by Licensee on the thirty-first day after initial delivery. There shall be no additional Acceptance Period for subsequent delivery of the same Software or updates or upgrades thereof.

 

6. DISCLAIMER OF OTHER WARRANTIES

 

EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 5 ABOVE, ALL SOFTWARE AND SERVICES PROVIDED TO LICENSEE UNDER THIS AGREEMENT ARE PROVIDED BY INCOGNITO ON AN "AS IS" BASIS WITH NO OTHER EXPRESS OR IMPLIED WARRANTY. INCOGNITO DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND APPLYING IN ANY WAY TO THE SOFTWARE OR SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE CONDITION, QUALITY OR FREEDOM FROM ERROR OF THE SOFTWARE OR SERVICES, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTIONS, OPERATION, ADEQUACY, SUITABILITY, TITLE, INTENDED USE OR ENJOYMENT, OR NON INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM, OR OTHERWISE. LICENSEE ACKNOWLEDGES THAT INCOGNITO IS NOT LIABLE, AMONG OTHER THINGS, IF THE SOFTWARE OR SERVICES DO NOT MEET THE REQUIREMENTS OF LICENSEE OR IF THE SOFTWARE OR SERVICES WILL NOT OPERATE FREE OF ERRORS, UNINTERRUPTED OR IN LICENSEE'S OPERATING ENVIRONMENT. INCOGNITO DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL IDENTIFY OR PROTECT AGAINST ALL KNOWN OR FUTURE VIRUSES, SECURITY OR SYSTEM RISKS.

 

7. LIMITATION OF LIABILITY

 

REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT (EVEN IF FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT OR PRODUCT LIABILITY, OR OTHERWISE: (A) INCOGNITO'S TOTAL AGGREGATE LIABILITY TO LICENSEE OR TO ANY THIRD PARTY FOR DAMAGES (OF ANY SORT) FOR ANY BREACH OR SERIES OF BREACHES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THE SOFTWARE LICENSE, THE SOFTWARE, OR SERVICES, SHALL BE FOR DIRECT DAMAGES ONLY AND SHALL BE LIMITED TO AND IN NO EVENT EXCEED THE AGGREGATE LICENSE OR SERVICE FEES PAID BY LICENSEE TO INCOGNITO UNDER THE APPLICABLE ORDER OR SOW; AND (B) IN NO EVENT SHALL INCOGNITO BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, ECONOMIC OR PUNITIVE DAMAGES, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT, REVENUE, TIME, DATA OR BUSINESS OPPORTUNITY, ARISING FROM OR RELATING TO THE SOFTWARE, LICENSE, OR SERVICES EVEN IF INCOGNITO KNEW, SHOULD HAVE KNOWN OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

INCOGNITO shall defend and indemnify Licensee and hold the Licensee harmless against any and all amounts payable by Licensee under any FINAL judgment, verdict, court order or settlement entered or agreed, and any and all costs, liabilities, losses, and expenses (including reasonable attorneys' fees, fines, penalties, and taxes), in any third party claim or action that alleges that the Software infringes a patent, copyright, or other proprietary right of such third party ("Infringement Claim"). Licensee shall notify INCOGNITO IN WRITING promptly of any Infringement Claim. Licensee grants INCOGNITO the sole right to control the defence and disposition of any Infringement Claim. Licensee shall provide INCOGNITO with reasonable cooperation and assistance in the defense OR MITIGATION of any Infringement Claim.

If the Software or any part thereof becomes, or INCOGNITO reasonably determines that IT is likely to become subject to an Infringement Claim, INCOGNITO may at its option (a) procure for Licensee the right to continue to access and use the Software, (b) replace or modify the Software so that it becomes non-infringing without causing a material negative effect on the functionality OF THE Software; or (c) if neither of theSE options IS available, remove the infringing part of the Software and refund to Licensee all license fees paid by Licensee hereunder with respect to the infringing Software, adjust the support and maintenance fee payable by LICENSEE thereafter, in which case the license with respect to the infringing Software shall be terminated. The obligations in this section are INCOGNITO's entire liability and the Licensee's sole and exclusive remedy for any Infringement Claim.

 

8. INDEPENDENT CONTRACTORS

 

No relationship of principal and agent shall exist or be implied between INCOGNITO and Licensee. The Parties shall remain at all times independent contractors. Neither INCOGNITO nor Licensee shall have any authority to bind or create any liability for the other to any third party in any manner. In no event will either party's personnel or contractors be considered agents or employees of the other party and each party assumes all employment and other obligations for its own personnel.

 

9. TERMINATION

 

Either party may terminate any licenses granted under this Agreement if the other breaches any material term and fails to remedy the breach within thirty (30) days from receiving written notice specifying the breach. Upon issuing such notice of breach, the issuing party may suspend any license granted under this Agreement until the breach is cured. Either party may terminate this Agreement (i) if any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within thirty (30) days, or (ii) if the other party makes an assignment for the benefit of its creditors, becomes insolvent, commits an act of bankruptcy, ceases to do business, or seeks an arrangement or compromise with its creditors under any statute or otherwise.

 

Upon any termination of this Agreement: (a) all licenses granted by INCOGNITO shall immediately terminate; and (b) Licensee shall immediately cease all use of the Software and return all copies of the Software and license keys to INCOGNITO. All provisions of this Agreement, which by their nature are intended to survive termination, shall continue in full force and effect following any such termination, including Sections 3, 6, 7, 8 and 12 hereof.

 

10. SUPPORT AND MAINTENANCE

 

During the Warranty Period and for any annual support period for which Support Services Fees have been paid in full by Licensee, Incognito will maintain the Software so that it operates in substantial conformity with the descriptions and specifications for the Software set forth in the Documentation. Incognito will provide to Licensee, when available, all Updates and Releases to the Software at no additional charge. In the event that the Licensee requires a fix or feature that is present in a new Update or Release, Licensee agrees to install and upgrade to new Updates and Releases and acknowledges that Incognito will not be maintaining older Updates or Releases. In any event, Licensee agrees to complete installation and upgrade to such new Updates and Releases within one hundred and eighty (180) calendar days after receipt of all Updates and Releases provided by Incognito to Licensee. Support for non-current versions of the Software may result in additional charges at Incognito's then published rates and terms unless provided for in the applicable Order.

 

Incognito shall, upon the written request of Licensee, specifying the problem, use reasonable efforts to correct Software malfunctions or failure of the Software to perform, provided that Licensee provides Incognito assistance as required to do so, and that Incognito has no obligation hereunder with respect to (i) Software or any portion thereof which is altered or modified by anyone other than Incognito; (ii) Derivative Works created by anyone other than Incognito; (iii) a combination of the Software with software not covered by the Agreement; (iv) problems with the Software arising from the negligence or fault of Licensee; (v) Software problems resulting from Licensee's hardware malfunction; or (vi) use of the Software on a hardware system other than approved for use by Incognito.

 

Support and maintenance services and fees for the Software shall be set out in the applicable Order Form and shall be paid by Licensee annually in advance upon the Effective Date of the applicable Order Form. Only Licensees with paid-up maintenance fees will be provided support by INCOGNITO as per the terms posted at www.incognito.com/support-terms. INCOGNITO reserves the right to increase the maintenance fees on an annual basis.

 

Licensees with paid-up maintenance fees will be notified by INCOGNITO, via email to an address identified by Licensee, of new releases of software. INCOGNITO will provide instructions to download and install new releases and provide any required license keys. Licensees who do not maintain continuous yearly maintenance must pay in full any back maintenance fees to the last date for which fees were paid in order to gain access to support and maintenance services or any subsequent software release not already delivered.

 

Annual maintenance services shall automatically renew for a subsequent annual (twelve-month) period unless terminated by either party by delivering a written notice to the other no less than sixty (60) days before termination of then current term. INCOGNITO shall notify Licensee no less than thirty (30) days before such notice date of any change in maintenance fees or services, including fee increases.

 

11. GENERAL

 

Assignment. This Agreement or any rights, licenses or obligations hereunder, may not be assigned, pledged or transferred in any way by Licensee, in whole or in part, without INCOGNITO's prior written consent, which consent may not be unreasonably withheld. Any purported assignment in violation of this section shall be void and of no effect. Subject to this, this Agreement will benefit, bind and enure to the parties' lawful successors and assigns.

 

No Additional Services. Licensee agrees and acknowledges there are no other services provided under this Agreement by INCOGNITO in relation to the Software, including, without limitation, software customization or repair of any errors, malfunctions or defects which may arise during the term of this Agreement, except where such services are determined by agreement in writing between the Parties.

 

Force Majeure. Except for payment obligations pursuant to this Agreement (including applicable taxes) or obligations relating to the protection of or restrictions applicable to protection of a party's CI or intellectual property, neither party shall be liable to the other or in breach of this Agreement by reason of any failure or delay in performance of any obligations hereunder to the extent such failure or delay arises (and only for the duration that the affected Party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, unlawful hacking, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, generalized failures or interruptions of the Internet, IT infrastructure, utilities or telecommunications equipment or services, system failures or any other cause or event that is beyond the reasonable control of that party.

 

Governing Law. Unless otherwise specified in the Order Form, this Agreement shall be governed by the laws of the Province of British Columbia excluding its conflicts and/or choice of law rules and the venue for any disputes arising hereunder shall be in the Province of British Columbia (Canada) and before the Federal and Provincial courts sitting at Vancouver.

 

Export and Other Laws. Licensee shall comply with applicable laws, regulations and standards pertaining to the Software, including export laws, regulations, and/or directives, and comply with laws and regulations in Licensee's jurisdiction and any other location related to the import, export, transfer, shipping, and/or use of the Software and any laws and regulations relating to personal and private information.

 

Waiver, Amendment, Severability, Preprinted Terms. No waiver of any provision herein shall be binding on INCOGNITO or Licensee unless set out in a written waiver signed by both parties. This Agreement can only be amended by a written document signed by INCOGNITO and Licensee stating such document is an amendment or an addendum hereto which may include any such statement or provision in a duly agreed SOW hereunder. If any provision of this Agreement is found contrary to any applicable law or unenforceable by any court or body of competent jurisdiction, that provision shall be considered severed from this Agreement but all remaining provisions shall continue in full force. Any terms and conditions on the front or back of any purchase order or like document that conflicts with the provisions of this Agreement, Order Form, quote, SOW or like document provided by INCOGNITO or Licensee to the other in connection with this Agreement, shall be ineffective, void and of no force and effect to the extent of such conflict.

 

Use of Licensee Name. Licensee agrees INCOGNITO may use and disclose Licensee's name in a press release, publication, and/or marketing materials with the prior written consent of Licensee.

 

Attribution Notices. Within the Software, there are or may be ownership, attribution and/or branding notices including, but not limited to, notices attributing copyright and trademark ownership to INCOGNITO (all such notices and instances collectively referred to as "Notices"). Licensee shall maintain such Notices in their original form and shall not: i) remove, modify, obscure, re-size or re-locate Notices, or ii) cause any Notices to become not visible to any users of the Software, without the prior written consent of INCOGNITO.

 

Entire Agreement. This Agreement, together with each written amendment, and/or written addendum to this Agreement signed by INCOGNITO and Licensee, and any SOW or Order Form(s) which reference this Agreement, sets forth the entire agreement between INCOGNITO and Licensee regarding the subject matter hereof, and supersedes any prior oral or written representations, statements, agreements and understandings between the parties. Neither party shall be bound by or liable for any alleged representation, warranty, promise, or inducement not expressly contained herein.

 

Choice of Language. The Parties hereto confirm that it is their wish that this Agreement as well as other documents relating hereto including notices, have been and shall be in the English language only.

 

12. TERMS AND CONDITIONS FOR SERVICES

 

12.1 Services

 

INCOGNITO may provide to Licensee services in accordance with the detailed terms set out, on a project by project basis, in the separately executed Statement(s) of Work ("SOW"), as may from time to time be issued hereunder (the "Services"). The SOWs shall be incorporated herein and form an integral part of this Agreement and be subject to the terms and conditions of this Agreement unless expressly stated otherwise in the SOW. Each SOW may be amended or modified by supplementary change orders agreed to by both parties hereto and attached to the related SOW, and the Services shall be include such change orders.

 

If the Services are consulting or training services respectively, INCOGNITO will perform such services, and Licensee will be bound by (A) INCOGNITO's Consulting Services Standard Operating Policies available from the INCOGNITO web site http://www.incognito.com/services-terms (the "Consulting Policy").

 

Services do not include any rights or License to Software, which rights are strictly and exclusively subject governed by the applicable License.

 

12.2 No Restriction on Services to Others

 

Licensee acknowledges that INCOGNITO has extensive expertise and experience in the area and that INCOGNITO intends to utilize such expertise, experience, products and tools in providing consulting, training and other services to other Licensees. Subject to INCOGNITO's compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit INCOGNITO from performing such consulting, training or other services to any other entity in any industry. Licensee agrees that, except as otherwise agreed in this Agreement, INCOGNITO and its employees may provide consulting, training and other services similar in nature to the Services for any third parties both during and after the term of this Agreement.

 

12.3 Fees and Expenses (Services)

 

For Services defined in the applicable SOW, Licensee agrees to pay INCOGNITO the fees set forth in the applicable SOW plus any applicable sales or use taxes or other charges in accordance with the SOW and section 4 above. Overtime will be billed at 1/8th the daily rate for each additional hour or part hour over 8 hours per day. Licensee shall reimburse INCOGNITO for all reasonable travel and other expenses incurred in connection with providing the Services, in accordance with INCOGNITO's corporate travel and expense policy.

 

For pay-as-you-go time and materials engagements, INCOGNITO shall invoice Licensee on a monthly or bi-weekly basis for fees for Services and expenses as set out in the applicable SOW. Time and expense reports will be provided as requested by Licensee in an agreed format. For pre-paid credits and all other engagements, INCOGNITO shall invoice the Licensee in advance for Services, and shall invoice Licensee on a monthly basis for expenses in an agreed format. Invoices are due and payable on delivery, and shall be deemed overdue if unpaid 45 days. Overdue amounts shall accrue interest at the rate of 2.0% per month and INCOGNITO may, at its option suspend any on-going work until any overdue account is made current. If Licensee's procedures require invoices be submitted against a purchase order, Licensee is responsible for issuing purchase order prior to the commencement of Services. If Licensee pre-pays for any consulting, training or other services, such pre-payment credits shall expire and are non-refundable if not used within six (6) months or the due date or as specified in the applicable SOW.

 

12.4 Intellectual Property Rights

 

As used herein, the term "IP Rights" shall mean recognized protectable intellectual property such as patents and applications, copyrights, trade-marks, trade secrets, mask works, industrial design rights, rights of priority, know how, design flows, methodologies and any and all other legal rights protecting intangible proprietary information. Without limiting the foregoing, IP Rights shall include all software, data, Documentation, and materials.

 

All Incognito Software is exclusive property of Incognito and is licensed subject to the terms of this Agreement and the Licensee shall have no rights in or to the Software other than the right to use it in accordance with the terms of this license. All third-party software embedded within or used by Incognito's software is intellectual property of its respective third-party owners and shall remain the sole and exclusive property of such third-party owners. INCOGNITO shall retain all right, title and interest in and to any computer programs developed hereunder ("Programs") and/or the training courses listed in the applicable SOW, including documentation, microcomputer diskettes, CDs and video cassettes, if any ("Training Materials"). INCOGNITO shall have the right to incorporate such Programs and/or Training Materials in work for other Licensees and in its programs generally. Upon payment of the Service Fees and Expenses hereunder, Licensee shall have a non-exclusive, non-transferable license to use such programs and/or Training Materials in accordance with its most recent license agreement with INCOGNITO. These programs do not include Software.

 

12.5 Services Termination

 

If INCOGNITO terminates this Agreement or any applicable SOW for failure of Licensee to pay any amounts owing to thereunder, the rights of Licensee to use the applicable Deliverables including any express or implied licenses which may have been granted herein shall immediately terminate.

 

12.6 Dispute Resolution

 

The parties shall attempt in good faith to resolve any dispute relating to the Services. Each party will designate an officer with the responsibility and the authority to resolve the dispute. These officers shall meet within fifteen (15) days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These officers shall then gather relevant information regarding the dispute and shall meet to discuss the issues and to negotiate in good faith to resolve that issue. In the event the parties are unable to resolve the dispute within thirty (30) days after the specific meeting of the designated officers as specified above (or such longer time as the parties agree), then the dispute shall be resolved by binding arbitration under the terms of this Section. Such arbitration shall be conducted in Canada at the City of Vancouver, British Columbia by a single arbitrator appointed in accordance with the Arbitration Act, 1996 (British Columbia) or any successor or replacement legislation thereto. The award rendered by the arbitrator shall be final and binding, and judgment may be entered upon it in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgement of the powers of the arbitrator.

 

12.8 No Refund

 

All Service fees are non-refundable and non-cancellable and any unused services days or credits or other pre-paid Services fees will expire and be forfeited by Licensee automatically without notice on expiry of six months from the date of purchase unless otherwise specified in the applicable SOW.

 

13. ANTI BRIBERY AND CORRUPTION

 

13.1 Licensee represents, warrants and agrees that it, its affiliates, and any approved subcontractors performing services on its behalf:

  • 13.1.1 will comply with all anti-corruption laws, including the U.S.'s Foreign Corrupt Practices Act and the United Kingdom's Bribery Act 2010, applicable to its or INCOGNITO's business operations ("Anti Bribery Laws");
  • 13.1.2 will comply with INCOGNITO's ethics, anti-bribery and anti-corruption policies as notified to Licensee from time to time ("Anti Bribery Policies");
  • 13.1.3 will have and shall maintain in place throughout the term of this agreement its own policies and procedures to ensure compliance with the Anti Bribery Laws and the Anti Bribery Policies (the "Licensee Anti Bribery Policies"), and will enforce them where appropriate;
  • 13.1.4 will immediately notify INCOGNITO (in writing) if a foreign public official becomes an officer or employee of Licensee and/or acquires a direct or indirect interest in Licensee (and Licensee warrants that it has no foreign public officials as officers or employees and/or direct or indirect owners at the date of this agreement);
  • 13.1.5 promptly report to INCOGNITO any request or demand for any undue financial or other advantage of any kind received by Licensee in connection with the performance of this Agreement;
  • 13.1.6 has not and will not offer, promise, give or authorize the payment of anything of value (e.g. cash or cash equivalents, gifts, travel and entertainment, stock, offers of employment, etc.), directly or indirectly, to anyone (including specifically a Government Official (defined below)) with the intention of inducing him or her to engage in improper or unlawful conduct or to secure an improper business advantage;
  • 13.1.7 has not and will not make facilitation payments or "grease payments" to anyone (including specifically a Government Official (defined below)) in a position to expedite routine non-discretionary government or lawful actions (e.g. processing permits, visas and licenses, scheduling inspections, clearing customs, etc.);
  • 13.1.8 has not and will not offer, promise, give, request, receive or accept anything of value, directly or indirectly, to or from any person for the purpose of influencing, inducing or rewarding the improper performance of an act or decision. For purposes of this clause, the term "Government Official" means any (a) officer or employee of government, department, agency, or instrumentality of a government (government-controlled enterprise); (b) officer or employee of a public international organization; (c) political party or party official; (d) candidate for political office; or (e) other person acting in an official capacity; and
  • 13.1.9 will within 3 months of the date of this agreement, and annually thereafter, certify to INCOGNITO in writing signed by an officer of Licensee:
    • 13.1.9.1 compliance with this clause 13 by Licensee and all persons associated with it and all other persons for whom Licensee is responsible; and
    • 13.1.9.2 compliance with Licensee Anti Bribery Policies; and
    • 13.1.9.3 certification that the executives of Licensee have completed appropriate training relevant required for compliance with the Anti Bribery Policies.

Licensee shall provide such supporting evidence of compliance as INCOGNITO may reasonably request.

 

13.2 In addition to the Anti Bribery Policies, Licensee will comply with INCOGNITO's codes and guidelines, in particular INCOGNITO's Code of Conduct made available by INCOGNITO to Licensee from time to time.

 

13.3 Licensee shall ensure that any person associated with Licensee who is performing services or providing goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on Licensee in this clause 13 ("Relevant Terms"). Licensee shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to INCOGNITO for any breach by such persons of any of the Relevant Terms howsoever arising.

 

13.4 Any breach of this clause 13 shall be deemed a material breach, which is irredeemable, of the Agreement, which shall entitle INCOGNITO to terminate the Agreement immediately.