Enterprise License Agreement Terms and Conditions

Enterprise License Agreement

Last Updated: 7/30/2025

For good and valuable consideration, the receipt and sufficiency of which are acknowledged, InContext Solutions, Inc. (“InContext” or “ICS”) and the Customer (“Customer”), referred to in this Enterprise License Agreement (“Agreement” or “ELA”) individually as a “Party” and collectively as “Parties”, the Parties agree as follows:

This ELA governs Customer access and use of ICS Technologies and ICS Content.  Customer acceptance of this ELA by i) signing the ELA, ii) executing an Order Form under the ELA, or iii) otherwise accessing or using the ICS Technologies and ICS Content in any way, confirms Customer is agreeing to the terms and conditions of this ELA (also located at https://incontextsolutions.com/terms-and-conditions/).  This ELA shall be effective on the date Customer accepts and agrees to this ELA (the “Effective Date”) by one of the means described above. If the individual accepting this ELA is doing so on behalf of Customer, such individual represents that they have the authority to bind Customer to these terms and conditions.  If the individual accepting this ELA does not have Customer authority to do so or does not agree to the terms and conditions of this ELA, such individual must not accept or attempt to accept this Agreement and may not access or use the ICS Technologies and ICS Content.

InContext may update the terms and conditions of this ELA from time to time and will use commercially reasonable efforts to notify Customer in advance of any such modifications.

  1. Definitions

Each term in quotes below and each capitalized term throughout this Agreement, when used in this Agreement, applicable Order Form and/or in any other referenced attachments under this Agreement, has the meaning as specified herein.

1.1 “Administrator” means an Authorized User designated by Customer with the ability to (i) make service requests, (ii) provide first level support to Authorized Users, and (iii) reset an administrative password with respect to the Subscription Services.

1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.3 “Agreement” means this Enterprise License Agreement.

1.4 “Artificial Intelligence” or “AI” means an engineered or machine-based system, tool or model that can, for a given set of objectives, input or upload data, such as an audio file, video file, document, image, material, text, or a combination of such content, and with varying levels of autonomy, generate outputs such as predictions, recommendations, or decisions influencing real or virtual environments or data, such as an image, text, text effects, material, vector graphic, audio file, texture, or video file.

1.5 “Authorized User” means an individual authorized by Customer to access and use the Subscription Services.

1.6 “Confidential Information” has the meaning set forth in Section 8.

1.7 “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms under this Agreement.

1.8 “Customer Account” means the account created by InContext for Customer by which Customer accesses and uses the Subscription Services.

1.9 “Customer Data” means all data, materials, content and other information obtained from or provided by Customer and/or its Affiliate(s), or any Third-Party on its/their behalf, and any summaries, reports, and compilations of the same.

1.10 “Customer Insight Data” means any reports, commentaries, do-it-yourself market testing outputs, consumer testing outputs, do-it-yourself data analyses, test results and consumer insights gained by Customer through Customer’s permitted do-it-yourself use of the Services.

1.11 “Customer Materials” means all Customer Data, Customer Confidential Information, and any Customer materials, inventions, data, ideas, content, products, intellectual property created under this Agreement, if any (excluding InContext Confidential Information, Content, and Technologies).

1.12 “Disclosing Party” has the meaning set forth in Section 8.

1.13 “Documentation” means manuals, end user documentation, self-serve user guides, technical and system documentation, marketing materials and other written materials provided to Customer by ICS (both online and in hard copy), including information on Updates, Upgrades, revisions or new releases thereto, that describe the business functionality or technical specifications of the Software

1.14 “Hosting Infrastructure” means the computer server hardware and associated network appliances, along with reasonable and appropriate security that ICS will be responsible for providing, operating, maintaining, and/or engaging a Third-Party to do so on its behalf in provisioning the Subscription Services.

1.15 “InContext Content” means information developed by InContext or obtained by InContext and its Affilate(s) or from publicly available sources or its Third-Party content providers including any virtual environments or 3D objects, or images of same, and licensed by Customer and made available to Customer through the Subscription Services pursuant to this Agreement and an applicable Order Form.

1.16 “InContext Technologies” means the Software and all technologies, methodologies, improvements and modifications and all related intellectual property developed or acquired by InContext, prior to, during or after a relationship with Customer, (whether or not such is used by Customer in connection with the performance of Services for Customer). For the avoidance of doubt, InContext Technologies do not include Customer Data, Customer’s Insight Data, Customer Confidential Information.

1.17 “Integration Studies” means Customer accessing and using the Software and Subscription Services to upload its own market research parameters and test questions on Customer Data for use in a specified number of performance indicator tests as identified on the applicable Order Form. In the event Customer performs such Integration Studies, Customer is responsible for the effectiveness of any test results generated, which are outside of InContext’s control as set forth in the applicable Order Form.  For clarity, in the event Customer requires additional InContext support for such Integration Studies, the Customer and InContext will execute a separate written Master Services Agreement and/or Statement of Work defining the specific additional services, responsibilities, and fees.

1.18 “Order Form” means an ordering document or online order (substantially similar to the Order Form template presented in Exhibit A hereto) specifying the Subscription Services to be provided hereunder that is entered into between Customer or Customer Affiliate and InContext, including any addenda and supplements thereto. By entering an Order Form hereunder, a Customer and Customer Affiliate(s) agrees to be bound by the terms of this Agreement and any amendments hereto.

1.19 “Performance Indicators” has the meaning given that term in Section 2.17.

1.20 “Personal Information” means information that can be used by itself or in combination with other available information to identify a specific individual, or that is otherwise defined as personal information by applicable law, including without limitation, personal data, credit card data, health information or other regulated information.

1.21 “Professional Services” means the professional or consulting services to be provided to Customer by ICS under a separate written Master Services Agreement and Statement of Work as executed between Customer and ICS.

1.22 “Receiving Party” has the meaning set forth in Section 8.

1.23 “Software” means InContext proprietary Software products including but not limited to ShopperMXTM and SMXGO, Content including any virtual environments and 3D templates, and all programs, components, functions, screen designs and report formats available via the same and all Updates, Upgrades, User Manual, Documentation, and other derivative works, releases, fixes, patches, etc. related to the Software that InContext develops, deploys, and otherwise provisions under this Agreement.

1.24 “Subscription Period” means the Term during which Customer may access and use the Subscription Services, as specified in the applicable Order Form, which may be extended or renewed in accordance with this Agreement.

1.25 “Subscription Services” means InContext’s hosting, provisioning, and maintaining of the Software and Services including the Customer support and training, and Service Bureau Hours, if any, as set forth in the Agreement and applicable Order Form.

1.26 “System Performance Data” means the system performance data and Usage Data that ICS may collect, aggregate, compile and analyze for use in system analysis, benchmarking, establishment of norms, performance monitoring and other uses.

1.27 “Term” has the meaning set forth in Section 6.

1.28 “Third-Party” means any natural person or legal entity other than InContext and Customer.

1.29 “Updates” has the meaning set forth in Section 2.13.

1.30 “Upgrades” has the meaning set forth in Section 2.13.

1.31 “Usage Data” means any data regarding the movements in the Software of Authorized Users, including movements around an environment and score carding that is collected on a non-personally and non-Customer identifiable basis.

1.32 “User Manual” means the user manuals, FAQs, and any similar material setting forth the features and functionality of and providing technical assistance relating to the use of Software, as provided by InContext from time to time, in whatever form and by whatever means provided including self-serve documentation repository, and embedded tool tips.

2. Access and Use of the InContext Subscription Services and InContext Technologies.

2.1 Subscription Services. ICS agrees to provide the Subscription Services as set forth in detail in a written Order Form for Customer’s access to and use of the Software.  Each Order Form will incorporate all the terms and conditions of this Agreement, in addition to the specific details of the Subscription Services.

2.2 License. For the duration of the Subscription Period and subject to compliance with the Agreement, ICS grants to Customer a non-exclusive, non-transferable (except as provided in this Agreement), non-sublicensable license for its Authorized Users to access and use the Software as made available by ICS up to the number of Authorized Users as set forth on the Order Form solely for Customer’s internal business purposes.  Customer shall have no right to receive any object code or source code for the Software or otherwise relating to the Subscription Services. Customer may not copy or incorporate portions of the User Manual or “screen shots” of the Subscription Services except for Customer’s internal use only and provided that the incorporated materials shall bear notice of ICS’s copyright as specified by the ICS.

2.3 Customer Use.  Use of the Software via the Subscription Services is subject to the terms and conditions set forth in the ELA as they may be updated from time to time.

In addition to the access and use rights set forth in the ELA and applicable Order Form, all Customers, Authorized Users, and Affiliates using any or all ICS Software and Subscription Services, agree to the following:

(a) Customer is responsible for obtaining appropriate Customer approval prior to uploading any information or materials to the Software,

(b) Customer is responsible for the accuracy and integrity of the information and material that Customer uploads or otherwise uses in connection with the Software and Services,

(c) Customer must take all reasonable steps to ensure that Customer password and login information remain confidential, and

(d) Customer is responsible for all use and misuse of Customer password and login information and must immediately notify InContext of any unauthorized access to the Software and Services.

2.4 Customer Restrictions. Customer agrees not to:

(e) sell, lease, sublicense, assign or otherwise transfer its rights to access and use the Subscription Services or Software except and only to the extent expressly provided in Section 16,

(f) copy, modify, publish, sell, export, distribute, transfer or perform, or prepare derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code or source data from the Subscription Services or Software except and only to the extent permitted or required by law,

(g) Customer may not use the Software and Services for its personal benefit or for the benefit of any Third-Party,

(h) Customer may not submit information or material, or otherwise use the Software and Services in a way, that is defamatory, obscene, abusive, illegal, violates a third party’s privacy or intellectual property rights, contains a virus or malicious code or is otherwise objectionable,

(i) knowingly use the Subscription Services or Software in violation of any applicable law or regulation,

(j) knowingly provide, post, or transmit any data that contains any viruses or programming routines that may damage, interrupt or appropriate the Software or the Subscription Services,

(k) use or make the Subscription Services or Software available on a service bureau or time-sharing basis,

(l) use the Subscription Services or Software to create any service offering, computer software program, training materials or user documentation that is substantially similar to the Subscription Services or Software,

(m) attempt to disable or circumvent any security mechanisms used by the Subscription Services or otherwise attempt to gain unauthorized access to any portion or feature of the Subscription Services or Software,

(n) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Subscription Services or any transaction being conducted on the Subscription Services or Software,

(o) forge headers or otherwise manipulate identifiers in order to disguise Customer’s or any Authorized User’s identity, or the origin of any message or other communication that Customer or any Authorized User sends to ICS in connection with the Subscription Services or Software, or

(p) permit any Authorized User or other Third-Party to do any of the foregoing.

2.5 Customer Suspension. ICS reserves the right, at any time, to deactivate or suspend Customer’s or any Authorized User’s access if ICS reasonably and in good faith believes that such person’s use of the Subscription Services violates this Agreement or otherwise creates a security risk to ICS or its systems or those of any Third-Party, provided that ICS shall provide Customer with prior written notice of any such deactivation/suspension as soon as reasonably possible under the circumstances, a detailed description of the alleged violation, and a reasonable opportunity for Customer to cure the applicable violation before suspending/deactivating Customer’s or any Authorized User’s access; provided, however, such cure period does not create further risks to ICS or its systems.

2.6 Account Access. ICS may access and use the Customer Account as follows: (i) at Customer’s request, (ii) to provide support and maintenance, and (iii) to monitor Customer’s compliance with the terms of this Agreement.

2.7 Service Levels. The Software will be available via the Subscription Services at least ninety-nine-point nine percent (99.9%) (“Accessibility”) of the time between 8:00 a.m. and 8:00 p.m. Central Standard Time (“CST”) Monday to Friday inclusive (but excluding United States federal holidays) calculated for any given month during the Subscription Period. Accessibility shall be measured at the Internet facing point at the ICS’s Third-Party data center services provider. The following will be excluded from any outage time when calculating Accessibility:

(a) scheduled maintenance and required repairs in which case ICS will provide prior notice to the extent feasible,

(b) any loss or interruption of service due to causes otherwise beyond the control of ICS or which could not reasonably have been foreseen by ICS,

(c) the failure of any components beyond the premise of ICS’s Third-Party data center services provider,

(d) the failure of any components which cannot be corrected due to inaccessibility,

(e) the failure of public network or public communications components,

(f) errors in the Customer Data provided by Customer, or

(g) unauthorized use or misuse of the Subscription Services or Software by Authorized Users.

2.8 Support. ICS will provide standard support services to Customer Administrators via telephone help line between the hours of 9:00 a.m. and 5:00 p.m. CST Monday to Friday, in order to answer Customer’s reasonable queries in relation to Software errors or Subscription Services problems.

2.9 Backups. ICS will make reasonable efforts to back up the Customer Data daily onto an electronic storage medium. Full backups are performed across all systems on a weekly schedule with incremental backups performed daily.  InContext will maintain a disaster recovery plan that documents the procedures to follow in the event of a disaster that disrupts access and use of the Services.  Notwithstanding the foregoing, ICS will have no liability to Customer if any Customer Data or any backup is lost, damaged or unrecoverable for any reason, except to the extent any such loss/damage results from ICS’s gross negligence or willful misconduct.

2.10  Authorized Users. 

(a) Authorized Users may choose to upload Customer Data via the Subscription Services for use within the Software. Customer shall be responsible for issuing each Authorized User a user ID and password, which may not be shared or used by more than one person. However, a user ID and password may be reassigned from time to time to a new Authorized User replacing a former Authorized User.  Customer will use commercially reasonable efforts to maintain the confidentiality of all usernames and passwords.  Customer shall promptly notify ICS when it reasonably determines or suspects a username or password has been compromised or an Authorized User is no longer employed by or working directly for or on behalf of Customer on matters relating to Customer’s use of the Subscription Services, or if an Authorized User should otherwise be denied access to the Subscription Services.

(b) Customer may not use or permit use of the Subscription Services for more than the Customer’s current number of Authorized Users as specified in the applicable Order Form. Customer may purchase access for additional Authorized Users during a Subscription Period in excess of the number set forth on the original Order Form at the then-current price, prorated for the remaining portion of the Subscription Period. The Subscription Period for any additional Authorized User shall end with Customer’s current Subscription Period for that Subscription Service.  Customer agrees to notify ICS if the number of Authorized Users increases and to pay the additional fees as specified in the applicable Order Form for those additional Authorized Users. Unless otherwise provided, the number of Authorized Users cannot be reduced during any Subscription Period.

(c) Customer may not permit use of the Subscription Services by anyone other than the Authorized Users who are (a) employees of Customer, (b) employees of an affiliate, or (c) sub-contractors or consultant personnel of Customer. An Authorized User may not be employed directly or indirectly by or otherwise affiliated with a competitor of ICS. In addition, Customer must provide written notice to ICS identifying any sub-contractor or consultant personnel that are given access to the Software or any Subscription Services. Customer is solely responsible for selecting its Authorized Users and for all acts and omissions of its Authorized Users, including, without limitation, compliance with this Agreement.

2.11 Administrators. Customer will appoint at least one Administrator and may have up to three (3) Administrators as set forth in the applicable Order Form. Submission of support Service requests and the use of the ICS help desk and support Services functions will only be made by the Customer Administrator.  All Authorized Users should direct questions to the Customer Administrator help desk, who will first use commercially reasonable efforts to resolve the question before contacting the InContext support Services help desk.  Only Customer Administrators may contact the InContext support Services help desk and InContext has no obligation to respond to help desk requests from any Authorized User or other individual that is not a Customer Administrator.  Customer Administrators will receive one (1) training session from InContext to be scheduled at a time mutually acceptable to both Parties as further set out on the Order Form.  Any requested help desk Services outside regular business hours or outside the scope of standard support Services may be provided by InContext for additional fees pursuant to a Statement of Work under the Master Services Agreement or separate written agreement between the Parties.

2.12 Degradation. In the event that Customer’s authorized use of the Subscription Services may degrade or otherwise interfere with the Subscription Services or other system performance, ICS will promptly take appropriate and reasonable measures to alleviate such degradation/interference, at no additional cost to Customer. Customer will reasonably cooperate with ICS to identify the source of any problem with the Subscription Services that ICS reasonably believes may be attributable to Customer Data or excessive use of the Subscription Services.

2.13 Maintenance. ICS regularly provides upgrades, modifications, improvements, enhancements, extensions, new releases, and other changes to the Subscription Services, Software and User Manual in its discretion (collectively “Updates”), and therefore the Subscription Services are continually evolving. ICS will make all Updates available to Customer when they become generally available.  Notwithstanding the foregoing, Updates shall not materially diminish the features or functionality of the Software or Subscription Services available as of the Effective Date and Updates shall not unreasonably interfere with Customer’s access to and use of the Software or Subscription Services. ICS has no obligation to issue any Updates.  Any Software upgrades or modifications, improvements and other changes that provide substantial new functionality (“Upgrades”) may be separately licensed by ICS for an additional fee.  The determination of which constitutes an Update, and any Upgrades shall be at ICS’s sole discretion.

2.14 Features and Functions. ICS reserves the right to change or discontinue features or functionality of the Software or Subscription Services from time to time; provided, however, that any such change shall not materially diminish the features or functionality of the Software or Subscription Services available as of the Effective Date. In the event such changes to materially diminish the features or functions, Customer can terminate the applicable Order Form in its discretion, which termination is Customer’s sole and exclusive remedy for such change.  Notwithstanding anything herein to the contrary, Customer understands, acknowledges, and agrees that (i) certain features and functionalities of the Subscription Services are provided by Third-Party software, the use of which ICS licenses from such Third Parties and (ii) ICS shall not be responsible for or liable for any damages resulting from the discontinuance, reduction, or other modification of such features or functionality as a result of the acts or omissions of such Third Parties, including but not limited to the revocation of any such licenses.

2.15 Not Fault Tolerant. THE SOFTWARE OR SUBSCRIPTION SERVICES MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND THE SOFTWARE AND SUBSCRIPTION SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE OR SUBSCRIPTION SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE.

2.16 Third-Party Components. Access to the Software may require a license to certain Third-Party software and/or software components, which, unless otherwise explicitly set forth in the applicable Order Form, may be accessed through ICS’s website at no additional cost to Customer. Use of such Third-Party software and/or software components will be subject to the Third-Party licensor terms and conditions, if any and as set forth in Exhibit B and any corresponding attachments, if any.

2.17 Performance Indicators. Access to the Software may include access to the Software performance indicators that may be available within the Software as designated on the applicable Order Form (“Performance Indicators”), which allows Customer to upload its own market research parameters and test questions on Customer Data for use in a specified number of do-it-yourself tests as identified on the applicable Order Form.  In the event Customer uses such feature, it is responsible for the effectiveness of any test results generated, which are outside of ICS’s control.

2.18 Hosting Infrastructure. ICS will be responsible for operating and maintaining (or engaging a Third-Party to do so on its behalf) the Hosting Infrastructure to provide the Subscription Services.

2.19 Customer Responsibilities. It is understood that ICS’s ability to perform and deliver Subscription Services in accordance with the applicable Order Form is dependent upon Customer’s reasonable provision of information and approvals, and compliance with and performance of Customer’s obligations within timelines/deadlines set forth in the applicable Order Form, including, e.g., as applicable, providing ICS with timely, complete and sufficient access to Customer Data, providing access to appropriately skilled Customer personnel, as well as compliance with timing, requirements, lead times, scheduling and other related matters which will impact the plans, delivery schedule and other matters associated with the Subscription Services, as well as prompt responses to ICS’s questions and requests as necessary for ICS to complete the Subscription Services. ICS will not be liable for any failure or delays in performing the Subscription Services if and to the extent such failure or delay is caused by Customer’s unreasonable failure to provide the information, approvals or other cooperation necessary pursuant to its obligations under the applicable Order Form to allow ICS to perform its obligations under the applicable Order Form.

2.20 Customer Data Format. Customer Data must be provided in a format that conforms to the relevant format specifications provided by ICS. Customer is solely responsible for the accuracy and integrity of Customer Data it provides to ICS. ICS is entitled to and will rely upon the accuracy and completeness of Customer Data and all other data, material responses, and other information furnished to it by or on behalf of Customer, without any independent investigation or verification, unless otherwise expressly provided in the applicable Order Form, related working documents or Statement of Work, if any. Customer may not upload or transmit any Customer Data to ICS (via the Subscription Services or otherwise) unless Customer has the right and authority for such upload or transmission. ICS reserves the right to remove any Customer Data that violates this Agreement and/or the Software Acceptable Use Policy, as applicable, and may refuse to utilize any Customer Data that ICS determines in good faith fails to meet the required format specifications.  ICS has no obligation to make use of any Customer Data or other materials provided by or on behalf of Customer if ICS reasonably believes the same to infringe a Third-Party’s intellectual property rights, provided ICS notifies Customer in advance without delay in the event that ICS makes such determination.

3. Personnel.

3.1 Staffing. The ICS account manager or other designated ICS representative shall coordinate performance of Order Forms with the Customer project manager or other designated Customer representative.  The Customer project manager or its designated representative shall have responsibility over all matters and for all communications related to Order Forms on behalf of Customer. ICS account manager and/or its designated representative shall engage the appropriate ICS personnel and other such agents, consultants and subcontractors, if any (“ICS Personnel”) as reasonably necessary to assist ICS in providing the Subscription Services. ICS shall remain liable and responsible for the acts and omissions of all ICS Personnel.

3.2 Competency. ICS Personnel shall be competent and skilled in and for the performance of the Subscription Services.  ICS also, as applicable, shall provide and maintain, or engage a Third-Party to provide and maintain, facilities sufficient in quality and quantity to perform the Subscription Services.

3.3  InContext Subcontractors. Unless otherwise set forth in the applicable Order Form, ICS may use or subcontract with Third-Parties to provide any part of the Subscription Services.  ICS will be responsible for: (i) selecting, hiring, and managing its subcontractors in compliance with the terms and conditions under this Agreement and all applicable laws; (ii) executing appropriate confidentiality agreements with its subcontractors; and (iii) paying its subcontractor wages in accordance with applicable laws.  ICS shall be responsible for enforcing the requirements of this Agreement with respect to its subcontractors and other ICS Personnel and shall be responsible for any Subscription Services provided by its subcontractors and other ICS Personnel hereunder to the same extent as if performed by ICS itself. ICS is responsible and liable to Customer for any breach of such terms and conditions.  In the event Customer objects to the use of certain ICS subcontractors, the Parties agree to review the impact of such decision on the applicable Order Form and to process changes, if any, through a new Order Form or written amendment to the applicable existing Order Form.

4. Fees and Payments. 

4.1 Fees. Access to InContext Software, Content, and Services for the Subscription Period is contingent on ICS receipt of the fees set forth in the applicable Order Form including all reasonable and necessary out-of-pocket expenses incurred by ICS in performing the Subscription Services, if any.  All Customer payment obligations are i) non-cancelable, ii) nonrefundable, and iii) all quantities purchased cannot be decreased during the relevant Subscription Period.

4.2 Invoice and Payment. Unless otherwise explicitly stated in the Order Form, InContext will submit invoices within thirty (30) calendar days of the agreed upon payment schedule in the applicable Order Form and Customer will pay all undisputed amounts within thirty (30) days after receipt of the invoice.  Any unpaid balance not received within forty-five (45) days from the invoice date will incur interest at a rate of either 1.5% per month or at a rate permitted by applicable law, whichever is higher.  In the event any fee is not paid when due, InContext may suspend Customer access to and use of the InContext Subscription Services and Software until all amounts are paid in full.

4.3 Disputes. In the event Customer disputes any invoiced amount, Customer shall promptly notify InContext in writing with a reasonably detailed explanation of the dispute, and Customer and InContext shall use commercially reasonable efforts to resolve the dispute within thirty (30) days following receipt of Customer notice of dispute.  In the event the Parties are unable to resolve a dispute within thirty (30) calendar days after identifying, documenting and communicating to one another the existence and details of such dispute, then, if necessary, the Parties will make good faith efforts to use a mutually agreeable alternative dispute resolution technique prior to resorting to litigation.

4.4  Taxes. Fees, costs and expenses described in this Agreement do not include any sales, use, personal property, duty, levy or similar governance charge, value added or good/services taxes.  ICS may include applicable taxes as separate items on Customer’s invoice, and Customer shall be responsible to pay and/or reimburse ICS for all taxes (other than federal, state or local taxes based on ICS’s income and any employment taxes and withholding with respect to ICS Personnel), unless Customer has provided adequate evidence of exemption upon execution of this Agreement.  If withholding taxes are imposed by any government, Customer shall remit such taxes in accordance with applicable law and provide Provider with applicable evidence of withholding.

5. Ownership.

5.1 Customer Data. Customer shall at all times have exclusive ownership rights in and to any and all Customer Data. All Customer Data shall be deemed Customer’s Confidential Information. To the extent applicable, Customer hereby grants InContext a non-exclusive, sublicensable, worldwide right and license to: (i) use the Customer Data in connection with provision of the InContext Services and InContext Intellectual Property; (ii) reproduce and/or modify the Customer Data in connection with the provision of the InContext Services and InContext Intellectual Property; and iii) use Customer Data, and Customer Insight Data, if any, uploaded to the Software to train its AI models for use under and outside of this Agreement; provided, however, all such use by InContext shall be subject to the confidentiality provisions, use rights and restrictions under this Agreement.

5.2  Customer Materials. Customer shall at all times have exclusive ownership rights in and to any and all Customer Materials. All Customer Materials shall be deemed Customer’s Confidential Information. Customer grants to ICS a limited non-exclusive, non-transferable right to access and use Customer Data solely as reasonably required to provide the Services under this Agreement to Customer and its Authorized Users.

5.3 Customer Insight Data. Customer will own any Customer Insight Data generated by Customer through the use of InContext Services.

5.4  ICS Intellectual Property.ICS holds title or rights to any and all InContext Technologies. All InContext Technologies are and will remain the exclusive property of, and all ownership rights therein do and will vest in ICS. In no event will Customer have or gain any right of ownership in or license to the InContext Technologies except as expressly set forth in this Agreement.

5.5 System Performance Data.ICS may collect, aggregate, compile and analyze Usage Data for use in system analysis, benchmarking, establishment of norms, improving insights, performance monitoring and other uses. ICS shall retain title to all Usage Data and Customer shall have no right or access to the same.  For clarity, such Usage Data does not include Customer Confidential Information, Customer Materials, or Customer Personal Information.

5.6  Customer Feedback.Customer grants to ICS and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Authorized Users relating to the operation of ICS Subscription Services, InContext Technologies, and/or other related services and subject to the confidentiality provisions under this Agreement.

6. Term and Termination. 

6.1  Term of Enterprise License Agreement. This Agreement commences on the date Customer first accepts it as defined herein and continues until all Subscription Services hereunder have expired or have been terminated.

6.2  Term of Subscription Services or Order Form. The Term of each Subscription shall be as specified in the applicable Order Form.  Unless otherwise set forth in the applicable Order Form, the Subscription will be effective upon full execution by the Parties and will be effective for a period of one (1) year thereafter (“Term”).  Except as otherwise specified in an Order Form, Subscription Services will automatically renew for an additional one-year period, unless either Party gives the other written notice (email acceptable) at least sixty (60) days prior to the end of the relevant Subscription Period.

6.3  Termination. Either Party may immediately terminate this Agreement, Subscription, or Order Form hereunder if the other Party: (i) is in breach of any material provision hereof, and such breach continues for thirty (30) days after receipt by the breaching Party of a written notice specifying the breach (except for a failure to pay on the part of Customer in which case ICS may terminate if such breach continues for twenty (20) days after receipt of written notice from ICS); or (ii) has: (A) made an assignment for the benefit of creditors; (B) has substantially all of its assets placed in the control of a receiver or trustee for thirty (30) days or longer; (C) files a voluntary petition for bankruptcy, or sought to effect a plan of liquidation or reorganization; or (D) has bankruptcy proceedings brought against it by a Third-Party which are not contested and discharged within sixty (60) days.

6.4 The Parties further acknowledge and agree that termination of any Subscription or Order Form will not affect the validity of any remaining Subscriptions or Order Forms, if any.

6.5  Refund or Payment Upon Termination. If this Agreement, Subscription, or Order Form is terminated by Customer in accordance with the “Termination” Section 6.3 above, ICS will refund Customer any prepaid fees covering the remainder of the Term of all applicable Subscriptions and Order Forms after the effective date of termination. If this Agreement is terminated by ICS in accordance with the “Termination” Section 6.3 above, Customer will pay any unpaid fees covering the remainder of the Term of all applicable Subscriptions and Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to ICS for the period prior to the effective date of termination.

6.6 Return of Customer Data and Materials. In the event of expiration or termination of the Agreement, Subscription, Order Form, upon Customer payment in full, ICS will promptly return to Customer all Customer Data and Materials. If Customer requests any non-standard formatting of Customer Data, Software access, support or other wind-down services, the Parties will execute a separate Order Form or other written agreement to define the specific services and fees.

7. Representations and Warranties. 

7.1  Mutual. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2 Customer. 

7.2.1 Customer warrants and covenants that it will use the Subscription Service and Software solely for lawful purposes and in compliance with all applicable laws, rules, and regulations.

7.2.2 Customer represents and warrants that as of the Effective Date, it is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that it is not listed on any U.S. Government list of prohibited or restricted parties.

7.2.3 Customer warrants, represents and covenants that Customer has the right to provide all Customer Data to ICS without infringing, misappropriating, or violating any Third-Party intellectual property or privacy right and that Customer Data does not and will not consist of, and Customer will not provide or submit to ICS, any Personal Information, except for Authorized Users where the users are required to submit name, job title/employment affiliation, phone number, work address and email address. For the avoidance of doubt, it is understood and agreed that the Subscription Services to be provided under this Agreement will not require or involve the collection, use or processing of any Personal Information other than ICS’s procurement of Personal Information from Authorized Users.

7.3  InContext. 

7.3.1 ICS warrants that (i) the Subscription Services and Software will perform substantially in accordance with the applicable Documentation and User Manual for the term of Customer’s Subscription Period and (ii) it will not materially decrease the functionality of the Subscription Services and Software during the Subscription Period. In the event of a breach of this warranty by ICS, ICS will repair or replace the affected Subscription Services and Software at no cost to Customer, which repair or replacement is Customer’s sole and exclusive remedy and ICS’s sole and exclusive obligation.

7.3.2 Subscription Services provided shall (a) be provided and performed by qualified ICS Personnel in a professional, workmanlike manner, consistent with the prevailing standards of the industry; and (b) it shall use industry best practices to fulfill its obligations.

7.3.3 ICS has no responsibility for any breach of warranty to the extent it is a result of Customer’s misuse of the Subscription Services or Software or Customer’s negligence, willful misconduct or material breach of this Agreement or Order Form.

7.4  Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 7 ARE ICS’ SOLE AND EXCLUSIVE WARRANTIES AND ARE IN LIEU OF, AND ICS DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATED TO THIS AGREEMENT, WHETHER ARISING BY LAW, CUSTOM OR USAGE IN THE TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ICS IS AWARE OF ANY SUCH PURPOSE) AND ANY WARRANTIES ARISING AS A RESULT OF A COURSE OF DEALING OR USAGE IN TRADE.  NEITHER ICS NOR ANY THIRD-PARTY SOFTWARE SUPPLIER MAKES ANY REPRESENTATION OR WARRANTY THAT CUSTOMER’S USE OF ANY SUBSCRIPTION SERVICE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

7.5  Internet Transmission. NEITHER PARTY GUARANTEES THE PRIVACY, SECURITY, AUTHENTICITY AND NON-CORRUPTION OF ANY INFORMATION TRANSMITTED OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY CONSEQUENCES WHATSOEVER OF THE OTHER PARTY’S CONNECTION TO OR USE OF THE INTERNET, AND NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY USE BY THE OTHER PARTY OR ITS AUTHORIZED USERS OF ANY INTERNET CONNECTION IN VIOLATION OF ANY RULE, LAW OR REGULATION.

7.6 Market Research. ICS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE USEFULNESS OR BENEFITS OF ANY DELIVERABLES, INSIGHT DATA OR ANY RESULTS OR OTHER OUTCOMES AS A RESULT OF RECEIPT OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES OR USE OF THE SOFTWARE. CUSTOMER UNDERSTANDS AND AGREES THAT THE RESULTS OF ANY MARKET RESEARCH SERVICES ARE OUTSIDE OF ICS’S CONTROL AND AS A RESULT ICS CANNOT BE RESPONSIBLE FOR THE SAME.

8. Confidential Information. 

8.1 Parties. The term “Disclosing Party” shall mean the Party disclosing Confidential Information, as defined below, to the other Party. The term “Receiving Party” shall mean the Party receiving Confidential Information from the Disclosing Party.

8.2  Definition. Subject to the exclusions in Section 8.3, below, the term “Confidential Information” shall mean any and all information that the Disclosing Party furnished to the Receiving Party, which information is considered and maintained by the Disclosing Party as confidential and which is otherwise understood given the content of the information and the circumstances of disclosure to be confidential, whether tangible or intangible and whatever form or medium provided, including all information generated by the Receiving Party that contains, reflects or is derived from such furnished information, namely, (i) in the case of ICS as the Disclosing Party, ICS’s Confidential Information includes the Software and InContext Technologies, capabilities, research methods, product plans, business practices and plans, and any other information that relates to ICS and the way ICS conducts its business and (ii) in the case of Customer as the Disclosing Party, Customer’s Confidential Information includes Customer Materials, Customer Data, and Insight Data even though such information may be received by Customer from ICS and/or developed by ICS pursuant to this Agreement.

8.3 Confidential Information shall not include any information which:

8.3.1 is already known to the Receiving Party (as shown by documentary evidence) at the time of disclosure by or on behalf of the Disclosing Party and was not received directly or indirectly from the Disclosing Party;

8.3.2 is or becomes generally available to the public other than as a result of an act or default of the Receiving Party or any of its affiliates, agents, employees, contractors, or representatives in breach of the terms hereof;

8.3.3 becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party, its agents, representatives, contractors or employees) as a matter of legal right and not under a duty of confidentiality to the Disclosing Party; or

8.3.4

  • is independently developed by agents of the Receiving Party without access to, or the benefit of, any Confidential Information.

8.4 In consideration of the Disclosing Party’s disclosure to the Receiving Party of Confidential Information, the Receiving Party shall, both during the Term and for five (5) years subsequent to the Term, retain in strict confidence, and not disclose in any manner whatsoever, in whole or in part, to any person other than Permitted Recipients (defined below), or use for any purpose other than in connection with the performance of its obligations under this Agreement and any applicable Order Form, any Confidential Information. The Receiving Party, may disclose the Disclosing Party’s Confidential Information to its direct and indirect affiliates and its and their respective directors, officers, employees, advisors and representatives (collectively, the “Permitted Recipients“) who need to know the Confidential Information for the purposes of the Services hereunder, provided that such Permitted Recipients are legally obligated to the Receiving Party: (i) to hold such information in confidence and (ii) to use such information only for the purposes expressed herein. Receiving Party agrees, at its sole expense, to take all reasonable measures to prevent prohibited or unauthorized disclosure or use of the Disclosing Party’s Confidential Information and shall be liable for any breach by Permitted Recipients.

8.5 Each Party acknowledges that unauthorized disclosure of the other Party’s Confidential Information could give rise to irreparable injury to the other Party and that such injury may be inadequately compensable in damages. Accordingly, the Disclosing Party is entitled, in addition to the rights and remedies it may have under and pursuant to this Agreement or under applicable law, and without posting bond, to have an injunction issued by any competent court enjoining and restraining the other Party and/or its affiliates, employees, personnel, agents, representatives and consultants from continuing any breach or threatened breach of the foregoing undertakings.  The existence of any claim or cause of action that either Party may have against the other Party shall not constitute a defense or bar to the enforcement of this provision.

8.6 Nothing in this Agreement shall obligate either Party to refrain from disclosure of Confidential Information to the extent such disclosure is required by law, judicial or administrative process or subpoena. In the event that any Confidential Information is required to be disclosed by law, including without limitation, pursuant to the terms of a subpoena or similar document or in connection with litigation, arbitration or other proceedings, the Receiving Party shall use its reasonable efforts to give prior prompt notice of such disclosure to the Disclosing Party, and shall allow the Disclosing Party, in its sole discretion and at its sole expense, to contest the disclosure of Confidential Information on the Disclosing Party’s behalf, and the Receiving Party will reasonably cooperate with the Disclosing Party in such efforts to contest such disclosure. In any event, the Receiving Party agrees to furnish only that portion of the Confidential Information which it reasonably believes, on the basis of advice of its legal counsel, that Receiving Party is legally required to disclose and will exercise reasonable efforts to obtain confidential treatment for that part of the Confidential Information being disclosed.

8.7 Upon the expiration or earlier termination of this Agreement, the Receiving Party shall return all originals and copies of any Confidential Information to the Disclosing Party or, with respect to copies, shall certify to the Disclosing Party that all copies of Confidential Information in the Receiving Party’s control have been destroyed. Notwithstanding the foregoing, the Receiving Party shall not be required to return to the Disclosing Party or destroy copies of Disclosing Party’s Confidential Information that (i) reside on the Receiving Party’s backup, disaster recovery or business continuity systems, or (ii) that the Receiving Party is obligated by applicable law and/or industry and/or governmental regulations to retain, which copies shall remain subject to all confidentiality obligations under this Section 8.

9. Export. The Parties agree and understand that any information or materials provided by Disclosing Party or generated by Receiving Party pursuant to this Agreement are subject to United States laws and regulations, which may restrict exports, re-exports or other transfers to other countries and parties.  The Parties agree that no material or information will be exported, re-exported, transferred or disclosed contrary to the applicable laws and regulations of the United States, or to any country, entity or other party which is ineligible to receive such items under U.S. law and regulations including the regulations of the U.S. Department of Commerce and the U.S. Department of Treasury.  The Parties agree and understand that each Party shall be solely responsible for (i) complying with applicable laws and regulations related to the performance of their obligations hereunder and (ii) monitoring any modifications to them.

10. Publicity. For purposes of clarification, and not in limitation of the duty of confidentiality set forth above, each Party acknowledges and agrees that it shall not use the name (or any trademark, logo, or service mark) of the other Party without the prior written consent of the other Party in each instance. Neither Party may, without the prior written consent of the other in each instance, which such consent will not be unreasonably delayed, conditioned, or withheld, make any public announcement, issue any press release, make any statement to any Third-Party, or make or authorize the publication of any external article, that relates to, or otherwise gives publicity to this Agreement.  Either Party may identify the other Party or disclose the existence of this Agreement to its attorneys, auditors, and in connection with regulatory filings to the extent reasonably required by such regulations.

11. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 4 ABOVE.

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12. Audit. During the Term of this Agreement and for a period of two (2) years following termination of the Agreement, Customer may, with reasonable notice, audit ICS’ books and records (electronic or hard copy) relating to this Agreement and ICS agrees to securely maintain its books and records for such period. With ten (10) business days advance written notice, ICS will make available such books and records for Customer’s personnel, accountants and/or auditors for inspection and will enable Customer to review and audit the processes and procedures ICS observes to perform under this Agreement and to produce related records. Upon such advance written request, ICS shall allow on-site audits and, in such case, ICS agrees to schedule such audits during ICS’ regular business hours. Any such audit shall be limited to not more than one (1) per year and (i) must be supervised by and performed in the presence of ICS Personnel; (ii) must be performed in accordance with ICS’s reasonable security policies and procedures; (iii) if using a Third-Party, then the Third-Party reviewer must enter into a non-disclosure agreement with ICS; and (iv) the Third-Party reviewer shall not be a direct competitor or an affiliated company or representative of a direct competitor, as determined in the sole discretion of ICS. All audit-related data exchanged shall be treated as Confidential Information by the Parties. If an audit reveals that Customer was materially overcharged (more than 5% of total amounts paid for the audit period), in addition to a refund, ICS will be responsible for the reasonable costs of the audit.

13. Mutual Indemnification. 

13.1  Customer. Customer shall indemnify, defend and hold ICS and its Affiliates, and each of their respective officers, directors, shareholders, employees, and agents harmless from and against any Third-Party claims to the extent arising from (i) any business decision made by Customer based on its use of Subscription Services, Software, or Deliverables, if any; (ii) Customer’s violation of any applicable law, rule or regulation; (iii) Customer’s misuse of Subscription Services, Software, or Deliverables, if any, or any unauthorized modifications to the same; or (iv) any claims that ICS’s authorized use of Customer Data or other Customer Materials as provided by or on behalf of Customer, in the provision of Subscription Services infringe the intellectual property or other proprietary rights of a Third-Party (“Claim Against ICS”), and will indemnify ICS from any damages, attorney fees and costs finally awarded against ICS as a result of, or for amounts paid by ICS under a settlement approved by Customer in writing of, a Claim Against Customer; provided ICS (a) promptly gives Customer written notice of the Claim Against ICS, (b) gives Customer sole control of the defense and settlement of the Claim Against ICS (except that Customer may not settle any Claim Against ICS unless it unconditionally releases ICS of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against ICS arises from ICS’s breach of this Agreement or applicable Order Forms.

13.2 ICS. ICS shall indemnify, defend and hold Customer and its Affiliates, and each of their respective officers, directors, shareholders, employees, and agents harmless from and against any Third-Party claims arising from Customer purchased Subscription Services that (a) ICS’s violation of any applicable law, rule or regulation or (b) any claims that Customer’s authorized use of the Subscription Services, Software, or Deliverables, if any, as provided by ICS infringe the intellectual property rights of a Third-Party (“Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by ICS in writing of, a Claim Against Customer; provided Customer (a) promptly gives ICS written notice of the Claim Against Customer, (b) gives ICS sole control of the defense and settlement of the Claim Against Customer (except that ICS may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives ICS all reasonable assistance, at ICS’s expense.  In addition to defending Customer and its Affiliates as stated above in this Section 13.2, without limiting Customer’s rights or other available remedies, if a claim occurs or, in ICS’s opinion, is likely to occur, ICS shall, at its sole option and expense, either (i) procure for Customer the right to use such technology/rights, (ii) modify the Subscription Services, Software, or Deliverables, if any, or any part thereof, so that it does not infringe on any Third-Party’s claimed rights, provided, however that such modification will not prevent such Subscription Services, Software, or Deliverables, if any, or any part thereof, from performing its present and intended function and/or (iii) provide Customer with substitute or replacement Subscription Services, Software, or Deliverables, if any, and a right to use the same, provided that such will perform the intended functions. Notwithstanding anything to the contrary herein, the foregoing obligations shall not apply in the event it is determined that the infringement claim directly arises solely from (A) Customer’s unauthorized use of the Subscription Services or Software; (B) negligence or misconduct on the part of Customer or its personnel; (C) arises from Services under an Order Form for which there is no charge; (D) modification to any InContext Technologies made by Customer without ICS’s prior express written consent; or (E) Customer’s combination of any InContext Technologies with or use by Customer of any Third-Party software, hardware, or other technology not provided or authorized for use by ICS.

13.3 The indemnifying Party’s obligations under this Section 13 shall not apply to the extent any such claims are caused by the gross negligence or willful misconduct of the indemnified Party or any of its Affiliates, agents, contractors or employees.

13.4 The absence of insurance shall not diminish a Party’s responsibility to defend or indemnify the other Party’s Indemnitees.

13.5 Exclusive Remedy. This mutual indemnification states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any Third-Party claim described in this Section 13.

14. Independent Contractor. The relationship of the Parties under this Agreement and each Order Form is that of independent contractors.  Nothing contained in this Agreement, or any Order Form is intended or is to be construed so as to constitute the Parties as partners, joint venturers, or one Party as an agent or employee of the other Party.  Neither Party has any express or implied right under this Agreement or any Order Form to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any Third-Party, and no conduct of a Party will be deemed to infer such right. To the extent ICS engages the services of any individual to support the Services under this Agreement or any Order Form, ICS is responsible for compliance with any applicable employment or tax laws.

15. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

16. Assignment. Except as otherwise expressly provided in this Section 16, neither Party may assign this Agreement without consent of the other Party. Notwithstanding the foregoing, such consent from the non-assigning Party will not be required in the event that the other Party assigns to a wholly owned subsidiary or in connection with a transaction that involves the sale, merger or transfer of substantially all of the assets of the Party’s business to which this Agreement relates.  Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. In the event of such a termination, InContext will refund Customer any prepaid fees covering the remainder of the Term of the Subscription Period after the effective date of such termination.  Any permitted successor will continue to be bound by the terms and conditions of this Agreement. No assignment shall be valid unless the permitted assignee(s) assumes all obligations of its assignor under this Agreement. No assignment shall relieve any Party of responsibility for the performance of its obligations hereunder except as explicitly provided herein.

17. Notices. Any notices required or permitted under this Agreement will be in writing, will refer specifically to this Agreement, and will be sent by recognized national or international overnight courier, confirmed facsimile transmission (provided that duplicative copy is provided via confirmed electronic mail, registered mail or certified mail), or registered or certified mail, postage prepaid, return receipt requested, or delivered by hand to the address as set forth herein.  Notices under this Agreement will be deemed to be duly given: (a) when delivered by hand; (b) upon confirmed electronic mail transmission; (c) two days after deposit with a recognized national or international courier; or (d) on the delivery date indicated in the return receipt for registered or certified mail.  A Party may change its contact information immediately upon written notice to the other Party in the manner provided in this Section 17.

If to ICS, address to:

InContext Solutions, Inc.

Attn: Chief Financial Officer

20 N Upper Wacker Drive, 12th Floor, Chicago, Illinois  60606

Phone: (312) 462-4198

If to CUSTOMER, address to:

Billing related notices to Customer will be addressed to the relevant billing contact as designated by Customer.

All other notices to Customer will be addressed to the relevant Administrator as designated by Customer.

18. Insurance. At a minimum, ICS shall maintain at least the amount of coverage identified below:

18.1 Technology Errors & Omissions insurance with an aggregate limit not less than $5,000,000 to cover errors, omissions or negligent acts in the delivery or performance of Services and Deliverables as well as other products, services and/or licensed programs, and must include coverage for claims and losses as to network risks (such as data breaches, unauthorized access/use, identity theft, invasion of privacy, damage/loss/theft of or to data, degradation, downtime, etc.) and Intellectual Property infringement. The insurance retroactive coverage date will be no later than the Effective Date of this Agreement. This coverage will be maintained for a period of 2 years after the expiration or termination of this Agreement.

18.2 Commercial General Liability insurance, including Premises-Operations Coverage, Contractors Protective Coverage, Completed Operations Coverage, and Contractual Liability, Bodily Injury and Property Damage Coverage with minimum limits of $2,000,000 per occurrence and $4,000,000 general aggregate limits for General Liability

18.3 Statutory – Worker’s Compensation (each accident) for state(s) of operation $2,000,000 – Employer’s Liability Limits

18.4 Such insurance will be maintained with reputable insurers that are licensed to do business in the jurisdictions in which ICS conducts business and that have a rating of at least A- from the AM Best rating service and financial strength of VII or greater. The Commercial General Liability insurance policy will provide additional insured status to Customer and its Affiliates (“Additionally Insured Parties”). Except for Technology E&O insurance, all insurance policies shall be on an occurrence basis. General Liability and Employer’s Liability limits may be satisfied with umbrella or excess liability policies.  Any insurance or self-insurance that Additionally Insured Parties maintain shall not be called upon to contribute to or reimburse any loss. Upon execution of this Agreement and upon each insurance renewal, ICS will provide Customer with a certificate of insurance evidencing the required coverages set forth above. ICS will require its subcontractors providing Services and Deliverables on behalf of ICS maintain insurance policies with the same terms.  ICS will provide Customer with at least 30 days advance notice if any required insurance policy is cancelled.

19. Entire Agreement. This Enterprise License Agreement (including, but not limited to, the terms and conditions, Order Form, Privacy Policy (located at https://incontextsolutions.com/privacy-policy/), and Third-Pary terms, if any) is the entire agreement between the Parties relating to the subject matter herein and supersedes any prior representations or agreements, oral or written and all other communications, except that the protections of any Non-Disclosure Agreement(s) that were executed prior to this Agreement are incorporated into this Agreement and will continue to be in force. This Agreement will not be varied except in writing, signed by the Parties.  Except as otherwise explicitly provided in this Agreement the provisions of this Agreement will control and prevail over any conflicting provisions in any proposal, purchase order, acceptance notice, or other document attached hereto and/or related to the subject matter of this Agreement.

20. Severability. If any provision, right or remedy provided for herein is held to be unenforceable or inoperative by a court of competent jurisdiction, the validity and enforceability of the remaining provisions will not be affected thereby.

21. Waiver. No waiver will be implied from conduct or failure to enforce rights. Waivers, to be binding, must be made in writing, refer to this Agreement and signed by both Parties. No waiver of the terms of this Agreement or failure by either Party to exercise any option, right or privilege on any occasion or through the course of dealing shall be construed to be a waiver of the same on any other occasion.

22. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of which together will constitute one and the same agreement.  Each Party acknowledges that an original signature or a copy thereof transmitted by facsimile or by PDF will constitute an original signature for purposes of this Agreement.

23. Headings and Captions. The descriptive headings of the articles, sections and subsections of this Agreement are for convenience only and do not constitute a part of this Agreement.

24. Force Majeure. No delay in or failure of performance by either Party under this Agreement will be considered a breach hereof if and to the extent that such delay or failure of performance is caused by an occurrence or occurrences beyond the reasonable control of the party.  Neither Party will be liable in any way for failure to perform their respective obligations in respect of any matter (save for Customer liability for InContext’s fees, costs and disbursements) if the failure is due to causes outside the reasonable control of the Party which has failed to perform.

25. Equitable Relief. In the event of a breach or threatened breach by either Party of Section 5 or Section 8 the Parties understand and agree that such a breach would cause irreparable harm to the other Party, which harm would not be sufficiently remedied by an award of damages such that the injured Party may seek injunctive or other equitable relief in a court of competent jurisdiction without the posting of a bond, proof of damages or other similar requirement. Nothing herein shall be construed as prohibiting the non-breaching Party from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of damages.

26. Survival. The following provisions will by their nature survive any expiration or termination of this Agreement: Sections 5, 6, 7, 8, 10, 11, and 13-28.

27. Governing Law. This Agreement is governed and interpreted in accordance with the laws of the State of Delaware, excluding its conflicts of law provisions. Each of the Parties irrevocably and unconditionally agrees that any suit, action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or Federal courts, as appropriate, located in Delaware, and the Parties hereby consent to the personal jurisdiction and venue of these courts.

28. Miscellaneous. This Agreement includes all attached exhibits, all of which are herein incorporated by reference.  This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all previous agreements and undertakings with respect thereto.  This Agreement may be modified only by written agreement signed by the Parties.  No Customer purchase order may change the terms of, contain terms in addition to or contain terms inconsistent with this Agreement or any Order Form.  Any purchase order is solely for Customer’s administrative use, therefore, any preprinted or special terms contained on the purchase order that are different from and/or additional to those in the relevant Order Form and this Agreement will not be applicable to such Services, or other performance or observance of any other obligations under this Agreement, and all such terms (whether additional or different, and whether or not such terms materially alter this Agreement) will be excluded from the Parties’ contract without the need for any specific objection to or rejection of such terms and conditions. Without limiting the foregoing, ICS hereby notifies Customer that ICS objects to any additional or different terms contained in any purchase order. Neither silence nor any other conduct on the part of ICS will constitute an assent to any additional or different terms proposed by Customer or a waiver of this provision.

EXHIBIT A

Order Form

InContext Solutions, Inc. Prepared by:
20 N. Upper Wacker Drive, 12th Floor Proposal expiration:
Chicago, IL 60606

INCONTEXT SOLUTIONS ORDER FORM

Address Information

Bill To: Ship To:
Company Name Company Name
Address 1 Address 1
Address 2 Address 2
City, State, Zip City, State, Zip
Country Country
Billing Contact Name: Shipping Contact Name:
Customer Name Customer Name
Billing Email Address: Shipping Email Address:
Customer Email Customer Email
Billing Phone: Shipping Phone:
Customer Phone Customer Phone

Order Details

Order Start Date: DD/MM/YYYY Payment Method: ACH
Order End Date: DD/MM/YYYY Payment Terms: Net 30
Billing Frequency:  Annual Currency: USD
Auto Renewal: Yes

Products

Product Name Pricing
XXX $XXX,000.00
XXX $XXX,000.00
XXX $XXX,000.00
Total $XXX,000.00

Product Details

  • Listed here

Terms and Conditions                  

  • This Order Form, together with the Enterprise License Agreement applicable terms, conditions, and policies incorporated with this reference, which are available at https://www.incontextsolutions.com/terms-and-conditions (the “Agreement”) constitutes the entire agreement between InContext Solutions, Inc. and the Customer. Any terms included with any Customer purchase order or other documents outside the Agreement do not apply and are superseded in full by this Agreement.
  • Except as otherwise provided, all Customer payment obligations under this Order Form are non-cancelable and non-refundable.
  • Prices shown above do not include any sales, use, value added (VAT), goods and services (GST), and/or any other similar taxes, duties, levies and or charges of any nature that might be imposed or required to be collected (collectively “taxes”) by InContext Solutions. Any such taxes are the responsibility of the Customer and will appear on the final invoice(s), as applicable. Taxes are calculated based on the ship-to location listed on this Order Form.
  • Customer Deposit Funds, if any, must be fully consumed within the twelve (12) month period immediately following the Order Start Date set forth above. Otherwise, all such unconsumed remaining Customer Deposit Funds shall be forfeited upon the expiration of tsuch 12-month period.
  • InContext will issue the invoice to Customer not later than the later of the Order Start Date or the Customer purchase order date, if any; provided, however, Customer agrees to provide such purchase order as soon as commercially reasonable following the Order Start Date.
  • Any invoice remaining unpaid 30 days after the invoice due date shall bear interest at a monthly rate of 1.5% from the invoice due date until payment is received.
  • Unless otherwise stated, travel is not included in this Order Form. All travel-related expenses will be summarized upon completion of the project and billed at cost.

Purchase Order Information

Is a Customer issued purchase order (“PO”) required for the purchase or payment of the products on this Order Form?

Please select: Yes____   No____

If “No” is marked, Customer agrees to process payment for any invoices issued pursuant to this Order Form without a PO number.

If “Yes” is marked, please complete the following information, and attach your PO (if available), and the invoice will be issued referencing such PO number:

PO number:____________________

If “Yes” is marked, but a PO number is not provided or a PO document is not attached, then Customer agrees to provide the PO information or PO document to InContext Solutions promptly after execution of this Order Form and Customer agrees to still process payment per the agreed upon terms.

The signatories below are authorized, on behalf of their respective Parties, to execute this Order Form and to agree to the terms herein as of the Order Start Date.

Customer InContext Solutions, Inc.
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:

EXHIBIT B

THIRD-PARTY SOFTWARE

  • 3M VAS Visual Attention Service – Terms of Service (see Attachment 1)

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