Master Services Agreement

Last Updated: 7/30/2025

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

• Customer desires to engage Supplier to perform certain Services (as such term is defined below) related to Supplier Software; and
• Supplier has the personnel and expertise and is willing and able to provide such Services as requested by Customer through a Statement of Work and/or Order Form;
• Supplier may or may not use its Software in the provisioning of Services to Customer;
• Customer may or may not have direct access to and use of Supplier Software (such Customer access and use shall be governed by a separate Software Enterprise License Agreement.

This MSA governs the ICS provision and Customer use of Services (as defined herein).  Customer acceptance of this MSA by i) signing the MSA and/or ii) executing a Statement of Work and/or Order Form under the MSA, confirms Customer is agreeing to the terms and conditions of this MSA (also located at https://incontextsolutions.com/terms-and-conditions/).  This MSA shall be effective on the date set forth in the applicable Statement of Work and/or Order Form (the “Effective Date”) by one of the means described above. If the individual accepting this MSA 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 MSA does not have Customer authority to do so or does not agree to the terms and conditions of this MSA, such individual must not accept or attempt to accept this Agreement and may not request ICS to perform any Services.

InContext may update the terms and conditions of this MSA 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 Statement of Work or Order Form, and/or in any other referenced attachments under this Agreement, has the meaning as specified herein.  The Parties understand and agree that certain terms are specifically related to and/or reference the Supplier Software, and such terms are only applicable in the event Supplier Software is used in the provisioning of Services and/or Customer has also entered into a separate Supplier Software Agreement license.

1.1 “Administrator” means an Authorized User or Customer representative designated by Customer with the ability to (i) make requests for Services under this MSA and/or Subscription Services under the applicable Software Agreement or Enterprise License Agreement, (ii) make decisions on behalf of the Customer regarding matters related to Services and/or Subscription Services and (iii) if Customer is accessing and using Supplier Software under a separate Supplier Software Agreement or Enterprise License Agreement, provide first level support to Authorized Users, and (iii) reset an administrative passwords 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 Master Services 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 “Change Order” means an amendment to a Statement of Work (substantially following the Change Control Process presented in Exhibit C and the Change Order template presented in Exhibit D) including any changes in the Services, Deliverables, schedules, fees, and/or responsibilities as set forth in the applicable Statement of Work and shall be mutually agreed upon in writing and executed by the Parties.

1.7 “Confidential Information” has the meaning set forth in Section 7.

1.8 “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 Statements of Work and/or Order Forms under this Agreement.

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

1.10 “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.

1.11 “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.

1.12 “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).

1.13 “Deliverables” means the specific work product defined in the applicable Statement of Work to be developed and delivered by Supplier as the result of Services. Other than as set forth in Section 6, Deliverables does not include Supplier Materials.

1.14 “Disclosing Party” has the meaning set forth in Section 7.

1.15 “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 and related Deliverables.

1.16 “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.

1.17 “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 and/or the Services under this MSA and an applicable Statement of Work and/or Order Form.

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

1.19 “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). Further, InContext Technologies may include certain Third-Party software and/or software components, which, unless otherwise explicitly set forth in the applicable Statement of Work or Order Form, may be accessed through ICS’s website at no additional cost to Customer; provided, however, the 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 F. For the avoidance of doubt, InContext Technologies do not include Customer Data, Customer’s Insight Data, Customer Confidential Information.

1.20 “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 Statement of Work and/or 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 Statement of Work and/or Order Form.  For clarity, in the event Customer requests any InContext support for such Integration Studies or for InContext to perform such Integration Studies on behalf of Customer, such Services shall be performed under this Agreement and applicable Statement of Work defining the specific additional Services, responsibilities, and fees.

1.21 “Intellectual Property” means any and all completed or in-progress patentable or non-patentable: trade secrets, service marks, logos, internet URLs, copyrights, patents, inventions, original works of authorship, ideas, designs, technology, database rights, computer programs, semi-conductor topography rights, rights of publicity, application programming interfaces, formulas, systems, techniques, know-how, data, writings, compositions, content, documents, designs, processes, procedures, all source code or object code related to any of the foregoing, or any other item, material or works that are made, conceived, developed, acquired or otherwise obtained, in any country or jurisdiction in the world, by a P

1.22 “Order Form” means an ordering document or online order (substantially similar to the Order Form presented in Exhibit E) specifying the Services to be provided under the Master Services Agreement and/or applicable Statement of Work 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, the applicable SOW and/or any attachments thereto. For clarity, any Subscription Services will be ordered through a separate Order Form under a separate Software Agreement or Enterprise License Agreement.

1.23 “Performance Indicators” means those Software performance indicators that may be available to Customer as set forth in the applicable Statement of Work, 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; provided, however, Customer is responsible for the effectiveness of any test results generated, which are outside of ICS’s control.

1.24 “Personal Information” means information that can be used by itself or in combination with other available information to identify a specific individual including actual research respondents, 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.

1.25 “Pre-Existing Intellectual Property” means any Intellectual Property rights of a Party that are made, conceived, developed, acquired or otherwise obtained by that Party independently from any Services under this Agreement.

1.26 “Proprietary Rights” means all copyrights, trademarks, product or service marks, trade dress, patents, trade secrets, moral rights, author’s rights, privacy rights, publicity rights and all other forms of intellectual property protection, or rights arising under common law, by statute and/or by contract.

1.27 “Receiving Party” has the meaning set forth in Section 7.

1.28 “Representatives” means Supplier’s directors, officers, employees, agents, Affiliates and

1.29 “Research Data” means the survey responses and behavioral unprocessed data collected during market or consumer testing performed under this Master Services Agreement and corresponding Statement of Work as executed between Customer and InContext.

1.30 “Services” means the professional or consulting services to be performed by Supplier and the obligations and responsibilities of the Supplier as set forth in this Agreement or any related Statement of Work, Order Form, Change Order, or other written amendment thereto (for clarity, Services may be referred to as professional or consulting services and are necessarily different from Subscription Services which are governed by a separate Software Agreement or Enterprise License Agreement).

1.31 “Software” means InContext proprietary Software products provided via the software as a service model under this Agreement including but not limited to ShopperMX^TM and SMXGO^TM, 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.

1.32 “Statement of Work” and/or “SOW” means a statement of work or SOW (substantially similar to the SOW presented in Exhibit A) or other similar document including an Order Form (substantially similar to the SOW presented in Exhibit E) or any related amendment or Change Order thereto, as mutually agreed to in writing and duly executed with authorized signatures of each Party and attached to this Agreement specifying among other relevant details, the applicable Services and Deliverables to be performed and/or delivered by Supplier and the related fees and expenses to be paid by Customer.

1.33 “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 the Subscription Agreement.

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

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

1.36 “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.

1.37 “Term” has the meaning set forth in Section 4.

1.38 “Transition Assistance Services” means in the event of termination of Agreement and/or SOW under the Agreement, Supplier will provide transition services, as requested by Customer, and as mutually agreed to in an amendment to the applicable SOW or a new SOW, for a set period of time and assistance required to facilitate the orderly transfer of Services to Customer or new service provider successor as identified by

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

1.40 “Updates” means any Software updates, modifications, improvements, enhancements, extensions, new releases, and other changes and in its sole discretion, ICS will make such updates available to Customer when they become generally available.

1.41 “Upgrades” means any Software upgrades or modifications, improvements and other changes that provide substantial new functionality and may be separately licensed by ICS for an additional fee.

1.42 “Usage Data” means any data regarding the movements in the Software of Authorized Users, including metadata, logs, performance data, behavioral patterns, interaction logs, and other data generated by the Software, movements around an environment and score carding, that is collected on a non-personally and non-Customer identifiable basis.

1.43 “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. Scope of Services

2.1 By entering into this non-exclusive Agreement, neither Party makes any promise or commitment to engage in any minimum quantity of Services or to execute and deliver any Statement of Work or Order Form. In the event the Parties mutually agree to execute a Statement of Work or Order Form, any change in the scope of Services as set forth in a Statement of Work or Order Form shall be agreed upon in writing by the Parties. Supplier shall have no obligation to perform Services in connection with any such change until the Parties have agreed upon the impact of such change in a written and duly executed amendment or Change Order including the impact on scope of Services, Deliverables, schedules, fees, and or any responsibilities of the Parties.

2.2 Each SOW shall be deemed incorporated into and governed by the terms and conditions of this Agreement. If any term or condition of a SOW, Change Order, or Order Form conflicts or is inconsistent with any term or of this Agreement, then, unless the SOW, Change Order, or Order Form expressly identifies such conflict (or inconsistency) and stipulates otherwise, the terms or conditions contained in this Agreement will prevail. Further, in the event of a conflict between the Statement of Work and the Change Order, the terms and conditions set forth in the Statement of Work shall prevail for that Statement of Work only.

2.3 Unless otherwise set forth in a Statement of Work, Change Order, or Order Form, Supplier may use or subcontract with Third-Parties to provide any part of the Services or Deliverables. Supplier will be responsible for: (i) selecting, hiring, and managing Supplier 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.  Supplier shall be responsible for enforcing the requirements of this Agreement with respect to its subcontractors and other Representatives and shall be responsible for Services performed or Deliverables provided by its subcontractors and other Representatives hereunder to the same extent as if performed by Supplier itself. Supplier is responsible and liable to Customer for any breach of such terms and conditions.  In the event Customer objects to the use of certain Supplier subcontractors, the Parties agree to review the impact of such decision on the applicable SOW or Order Form and to process changes, if any, through a written amendment or Change Order to the applicable SOW or Order Form.

3. Invoice and Payment

3.1 Supplier shall be compensated for the Services only as expressly set out in an applicable SOW, Change Order, or Order Form.

3.2 Supplier will not be reimbursed for any expenses unless Customer expressly agrees otherwise in the applicable SOW, Change Order, or Order Form. All such reimbursements shall adhere to Customer’s standard policies. Customer has no obligation to deduct from any compensation due to Supplier hereunder any payments required by any taxing authorities, including income tax and social security payments. Payment of all such taxes is the Supplier’s responsibility. Supplier agrees to indemnify and hold Customer harmless for any claims made by any taxing authorities resulting from Supplier’s compensation or Services hereunder.

3.3 Invoices will be delivered to Customer by Supplier as provided in the applicable SOW, Change Order, or Order Form. Invoices must be in a form acceptable to Customer and supported with documentation evidencing invoiced amounts. Undisputed portions of such invoices shall be paid within thirty (30) days of the date Customer receives Supplier’s invoice, unless a different period is specified in the applicable SOW, Change Order, or Order Form. 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 Services until all amounts are paid in full.

3.4 Should Customer have a good faith dispute with any item(s) on an invoice, Customer will first make reasonable efforts to identify and resolve such dispute with Supplier prior to withholding any payment. Otherwise, Customer will deduct the amount of said item(s) from the total and will make payment of the remaining undisputed amount as set forth herein and the applicable SOW. The amounts and reasons for such disputed item(s) will be documented in reasonable detail and provided to Supplier as soon as reasonably possible and not later than the time any such withheld amount is otherwise due to Supplier. Disputed items which are subsequently justified to Customer’s satisfaction will be paid within fifteen (15) days after any resolution of the dispute.

3.5 The Parties will make good faith efforts to internally resolve any payment dispute first by escalating it to higher levels of management. 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. Term and Termination

4.1 Term of Master Services Agreement. The effective date of this Master Services Agreement (“MSA Effective Date”) shall be the same date as the initial Statement of Work Effective Date or Order Form Effective Date executed and incorporated under this Agreement and this Agreement will continue until all Statements of Work and Order Forms incorporated hereunder have expired or have been terminated.  The Parties agree to meet not less than sixty (60) days prior to each annual anniversary of this Agreement to review potential amendments to the Agreement.  Amendments to the Agreement, if any, shall be done in writing in accordance with this Agreement.

4.2 Customer shall have the right to terminate this Agreement at any time, without reason, by giving thirty (30) days prior written notice to Supplier. In the event of termination of this Agreement, unless provided otherwise in an applicable SOW, each SOW that extends beyond the Term of the Agreement shall continue under the provisions of this Agreement and the applicable SOW until the completion of such. Customer may terminate all or any SOW, in whole or in part, for convenience, immediately upon written notice to Supplier without terminating this Agreement. Upon notice of termination of this Agreement and/or any SOW, Supplier shall immediately cease providing the Services that Customer requests to be stopped, and Customer’s only obligation shall be to pay for Services and Deliverables in accordance with the Agreement or applicable SOW for work that was partially or fully completed up through the effective date of such termination. In the event an SOW is termed in whole or part, Customer will reimburse pre-approved incurred expenses by the Supplier tied specifically to the Services provided in the SOW including expenses associated with additional costs and/or penalties for canceling contracts for pre-approved expenses such as lodging, car rentals, airfares, equipment and software, if any, according to the terms herein and the applicable SOW, up through the effective date of the applicable termination.

4.3 Either Party may terminate this Agreement or any Statement of Work by giving the other Party written notice of material breach, with such notice identifying specifically the alleged breach including, for example, nonpayment of fees, failure to fulfill any material responsibility, or failure to cooperate in good faith with the other Party, provided that the breaching Party does not cure such breach within the fifteen (15) calendar days from receiving such notice. During this notice period the non-breaching Party shall have the right to suspend its performance under this Agreement.

4.4 In the event of expiration or termination of this Agreement or any SOW, each Party shall promptly return all applicable data, Materials and other property of the other held by it; provided, however, that if Customer has not fully paid all undisputed outstanding invoices for Services and Deliverables provided by Supplier prior to the effective date of termination, Supplier shall be entitled to retain the specific Deliverables directly related to such non-payment until payment is made as may be required and as set forth herein. For the avoidance of doubt, Supplier shall not have any right to retain, recover, or restrict access to or use of any Deliverables for which Customer has fully paid undisputed amounts; provided, however, any remaining disputed amounts continue to be addressed pursuant the applicable provisions in Section 3. Supplier shall retain all and any other remedies it may have at law or in equity.

4.5 For clarity, in the event of expiration or termination of this Agreement or any SOW under this Agreement, upon Customer payment for Services and Deliverables in full, ICS will promptly deliver all Deliverables to Customer as well as all Customer Data and Materials. If Customer requests any non-standard formatting of the returned Customer Data or additional Software access, support or other wind-down services, the Parties will work together in defining certain limited transition assistance services as described in Section 5 below.

5. Transition Assistance Services

5.1 Transition Assistance Services. In the event of expiration or termination of this Agreement other than for breach by Customer, Customer may request additional services and support in the wind-down and transition activities. Customer and Supplier will work together to define such Transition Assistance Services in an amendment to the Agreement and/or applicable SOW or other separate written mutual agreement. Unless otherwise set forth in the applicable amendment, SOW, or other written agreement, the quality and level of performance of the Transition Assistance Services must be consistent with the general quality and level of performance of any such Services that were provided prior to termination. Transition Assistance Services are subject to all of the terms of this Agreement and applicable amendment, SOW, or written agreement, if any.

5.2 Transition Assistance Services Compensation. Supplier shall be compensated for the Transition Assistance Services as set forth in the Agreement and applicable amendment, SOW, or written agreement. The Transition Assistance Services fees and expenses (which continue to accrue during the Transition Assistance period unless otherwise agreed to by the Parties) will be assessed for all Transition Assistance Services performed by Supplier during the Transition Assistance period, and Supplier shall not charge Customer any variable or other fees for such Transition Assistance Services unless otherwise set forth in the applicable amendment, SOW, or written agreement. Supplier shall perform Transition Assistance Services: (a) in the case of Transition Assistance Services that are Deliverables, at the rates in effect for those Deliverables immediately before the applicable effective date of termination; provided, however, there are no other changes in the Specifications and/or Customer roles and responsibilities, otherwise, the Parties will execute a new Statement of Work, Change Order, or other written amendment to reflect the applicable changes including changes in fees, if any, and (b) for Transition Assistance Services for which no rates exist immediately before the applicable effective date of termination, at the applicable rates in the applicable Statement of Work, if any, or Supplier’s standard commercial rates then in effect, subject to agreed upon discounts consistent with the discounts applied under this Agreement, whichever is lower. Notwithstanding the foregoing, if Customer terminates (1) this Agreement under Section 4.2, Customer shall, as a condition to receiving Transition Assistance Services, pay to Supplier any undisputed Services fees otherwise due and payable under this Agreement or the applicable Statement of Work. Prior to completion of the Transition Assistance Services, Supplier will include the necessary time, information, resources, and applicable Services fees to: (1) answer questions from Customer and its other Third-Party Suppliers, if any, regarding the Services; and (2) deliver to Customer and its other Third-Party Suppliers, if any, any remaining Customer-owned reports and documentation still in Supplier’s possession.

6. Ownership

6.1 All Pre-Existing Intellectual Property of a Party shall remain the sole and exclusive property of that Party unless otherwise agreed upon in a separate written agreement or licensed for use in this Agreement or in an applicable SOW.

6.2 All Customer Materials shall remain the sole and exclusive property of Customer, and all Supplier Materials shall remain the sole and exclusive property of Supplier, other than as set forth Each Party agrees to (a) access and use the other Party’s Materials solely in connection with this Agreement; (b) reasonably protect and safeguard the other Party’s Materials from misuse, loss and destruction; and (c) not use or disclose the other Party’s Materials without the prior written consent of the other Party. Regardless of any such consent, except as otherwise stated herein, neither Party is conferred or granted, by estoppel, implication or otherwise, any Proprietary Right, license, interest or title in, to or under the other Party’s Materials.

6.3 Customer shall remain the sole and exclusive owner of all right, title, and interest in and to its Intellectual Property and Materials. Customer grants to Supplier a limited, revocable, and non-sublicensable right to use any Customer Intellectual Property and Customer Materials solely during the Term of this Agreement and only to the extent necessary to provide the Services to Customer.

6.4 All ownership rights in Customer Insight Data or Research Data Deliverables created and/or modified under this Agreement and as set forth in the applicable Statement of Work, shall vest in Customer. Such Deliverables are “works made for hire” within the meaning of the United States Copyright Act to the extent permitted by law.  Supplier hereby agrees, upon payment in full for any such Deliverables, to irrevocably assign and transfer to Customer all of its worldwide right, title and interest in and to the Deliverables including all associated intellectual property and moral rights therein.  Supplier agrees to execute any additional documents proposed by Customer to effectuate, confirm, perfect and/or register Customer’s sole and exclusive ownership of all copyright in and to the Deliverables or to obtain extensions and renewals thereto.

6.5 Customer grants to Supplier the rights to use Customer Data uploaded to the Software and any Customer Insight Data or Research Data Deliverables in an anonymized format outside the scope of this Master Services Agreement and applicable Statement of Work and to train Supplier artificial intelligence (AI) models for use under and outside of this Agreement; provided, however, all such use by Supplier shall be in a strictly anonymized format and subject to the confidentiality provisions, use rights and restrictions under this Agreement.

6.6 Supplier shall remain the sole and exclusive owner of all right, title and interest to its Pre- Existing Intellectual Property, Content, and Technologies including integrations with other Third-Parties, however, Supplier grants to Customer a worldwide, royalty-free, non- exclusive, revocable, non-sublicensable right and license to use any of Supplier’s Pre-Existing Intellectual Property, Content, and Technologies including integrations with other Third-Parties to the extent incorporated in or combined with any Deliverable, or otherwise necessary for use of the Deliverable solely in connection with Customer’s use of the Services.

6.7 For the avoidance of doubt, notwithstanding any of the rights in Deliverables as defined in this Section 6, in no instance will Customer be granted or receive any rights to any Software products or Software components of the Supplier Software platform as subscribed to by Customer under a separate Software Agreement or Enterprise License Agreement other than those rights set forth in such Software Agreement, Enterprise License Agreement or applicable Order Form.

7. Confidential Information

7.1 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.

7.2 Definition. Prior to commencing this Agreement, if the Parties entered into a Non-Disclosure Agreement (the “NDA”), then such NDA and all related confidential disclosures shall be incorporated under this Agreement by reference.  Further, subject to the exclusions in Section 7.3, below, the term “Confidential Information” shall mean any and all information, including Personal 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, InContext Materials, 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.

7.3 Confidential Information shall not include any information which:

7.3.1 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;

7.3.2 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;

7.3.3 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

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

7.4 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 Statement of Work and/or 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.

7.5 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.

7.6 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.

7.7 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 7.

8. Representations and Warranties

8.1 Supplier warrants that it is fully qualified to perform the Services and, except as expressly set forth in the applicable SOW, has, and will be responsible for providing all the expertise, undertakings, resources, equipment, materials, supplies and other items of expense necessary to perform and complete the Services according to the terms herein.

8.2 Supplier warrants that the Services will be performed by experienced and well-qualified personnel in a professional and workmanlike manner, all in accordance with the terms herein and applicable law. In addition to the foregoing and not in limitation thereof, the Services will conform to generally accepted standards for the type of work involved and will conform to any representations or warranties made by Supplier in any response to requests for proposal or information (or similar requests) issued or made by Customer, and Supplier agrees to use its commercially reasonable efforts to render the Services required in this Agreement or any corresponding SOW(s) in a timely and diligent manner.

8.3 Supplier warrants it has reasonable and adequate resources and policies to protect Customer Confidential Information and detect and respond to any threat to the security of such information.

8.4 Supplier warrants that any material defect or error in the Services or Deliverables provided by or on behalf of Supplier, shall be remedied by Supplier in a timely fashion and at no additional cost to Customer.

8.5 Unless otherwise set forth in the applicable SOW, for a period of ninety (90) days following Customer’s Acceptance of Services and Deliverables (the “Warranty Period”), all Services and Deliverables will materially comply with the Specifications, description, requirements and/or expectations stated in the applicable SOW (“Performance Warranty”). This Performance Warranty applies solely to Services and Deliverables in the condition provided by Supplier to and accepted by Customer and is operative during and after any acceptance test period(s). This warranty is separate from any repair-or-replace warranty or acceptance test obligation stated in the applicable SOW for Deliverables received hereunder. Unless otherwise agreed in the applicable SOW, Supplier agrees to reperform any Services and Deliverables not in compliance with this Performance Warranty brought to its attention in writing within the Warranty Period.

8.6 The foregoing Performance Warranty shall only apply provided that: (a) any Services and Deliverables developed by Supplier have not been modified, unless authorized by Supplier in writing; (b) there has been no change in the computer equipment on which Supplier installed any software, unless authorized by Supplier in writing; (c) the computer equipment on which any software was installed has sufficient capacity, is in good operating order, and is installed in a suitable operating environment; (d) the nonconformity was not caused by Customer or its agents or any Third-Party; (e) the nonconformity was not the result of Customer’s misuse of the Services or Deliverables, or Customer’s negligence, willful misconduct or material breach of this Agreement; (f) Customer promptly notifies Supplier of the nonconformity after discovery and within the Warranty Period; and (g) all fees due to Supplier have been paid.

8.7 Should any of the Services and Deliverables not comply with the foregoing warranty, Customer shall promptly inform Supplier of the deficiency and Supplier shall use commercially reasonable efforts to cause the Services and Deliverables to comply with the warranty. In the event that compliant Services or Deliverables cannot be provided within a reasonable time after notification, not to exceed thirty (30) days, unless an extended period of time is otherwise mutually agreed in writing, Customer’s sole and exclusive remedy shall be to receive a refund of any fees already paid to Supplier for the non-conforming Services and Deliverables and at Customer’s option, terminate this Agreement and or the applicable SOW.

8.8 Customer represents, warrants and covenants to Supplier that: (a) Customer owns all right, title and interest in and to, or has full and sufficient authority to use, all materials or data furnished by Customer (including Customer Materials); (b) Customer will secure and comply with the terms and conditions of any licensing agreements which govern the use of any Customer Materials owned by Third-Parties; (c) the Customer Materials do not infringe the patent, copyright, trademark or other intellectual property rights of any party, or constitute libel, slander, defamation, invasion of privacy, or violation of any right of publicity or any other Third-Party rights; (d) Customer has or will secure all necessary consents, permissions, clearances, authorizations and waivers for the use of Customer Materials; and (e) Customer has complied and will comply with all legislation, rules and regulations regarding the use of Customer Materials.

8.9 Additional warranties and specifications may be set forth in the applicable SOW.

8.10 Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 8 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.

9. Mutual Indemnification

9.1 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 any Software, Services, or Deliverables; (ii) Customer’s violation of any applicable law, rule or regulation; (iii) Customer’s misuse of Software, Services, or Deliverables, 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 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, the Documentation or applicable Order Forms.

9.2 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 Services that (a) ICS’s violation of any applicable law, rule or regulation or (b) any claims that Customer’s authorized use of the Software, Services, or Deliverables, 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 9.2, 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 or Software, or other Services, or Deliverables, 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, Services, Deliverables, or any part thereof, from performing its present and intended function and/or (iii) provide Customer with substitute or replacement Software, Services, or Deliverables, 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 Software, Services, or Deliverables; (B) negligence or misconduct on the part of Customer or its personnel; (C) arises from Services under a Statement of Work or an Order Form for which there is no charge; (D) modification to any Software, Services, or Deliverables made by Customer without ICS’s prior express written consent; or (E) Customer’s combination of any Software, Services, or Deliverables with or use by Customer of any Third-Party software, hardware, or other technology not provided or authorized for use by ICS.

9.3 The indemnifying Party’s obligations under this Section 9 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.

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

9.5  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 9.

10. Limitation of Liability. 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, IN CONNECTION WITH THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHERMORE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNTS PAID TO SUPPLIER BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK OR ORDER FORM FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL INCIDENT DIRECTLY RELATED TO AND GIVING RISE TO THE CLAIM, EVEN IF SUCH REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE.  THE LIMITATIONS IN THIS SECTION 10 SHALL NOT APPLY TO LIABILITIES (1) BREACH OF CONFIDENTIALITY, (2) ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (3) IN CONNECTION WITH PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, (4) AS A RESULT OF ITS VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, OR (5) ARISING FROM ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OF THIS AGREEMENT.

11. 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 (i.e., 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.

12. Insurance. 

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

12.1 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.

12.2 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

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

12.4 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.

13. Relationship of the Parties.

The relationship of the Parties under this Agreement and each Statement of Work and/or Order Form is that of independent contractors.  Nothing contained in this Agreement, or any Statement of Work or 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 Statement of Work and/or 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 Statement of Work and/or Order Form, ICS is responsible for compliance with any applicable employment or tax laws.  Each Party will comply with applicable laws, rules and regulations of the United States and the state designated in the governing law provision below, and with any other jurisdiction in which it acts, including but not limited to, the laws of foreign countries relating to government procurement, payment to government officials or employees, conflicts of interest and the like.

14. Third-Party Beneficiaries

There are no Third-Party beneficiaries under this Agreement.

15. Non-Solicitation.  

During the term of this Agreement and for a period of one (1) year after the earlier of expiration or termination of this Agreement, neither Party shall, directly or indirectly (including, without limitation, through an affiliate), solicit, hire, retain as an employee, consultant, independent contractor, or use in any other capacity, any employee or contractor of the other Party who had material involvement in the Services under this Agreement, without such other Party’s prior written consent.  Notwithstanding the foregoing, a Party may solicit and employ any person who (i) responds to a general solicitation of employment through an advertisement not specifically targeted at the other Party or its employees, (ii) is referred to the Party by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by the Party to solicit employees of the other Party, (iii) contacts the Party on his or her own initiative without any direct or indirect solicitation, or (iv) is no longer an employee of the other Party and who had no material involvement in the Services 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, Customer will pay Supplier the applicable fees for Services performed and expenses incurred up to and through the effective date of such termination pursuant Section 4 above.  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, 12^th 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. Entire Agreement. 

This Agreement (including, but not limited to, the terms and conditions, Statement of Work, Order Form, Change Order, Privacy Policy (located at https://incontextsolutions.com/privacy-policy/), and Third-Party 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 or ambiguous provisions in any proposal, purchase order, acceptance notice, or other document attached hereto and/or related to the subject matter of this Agreement.  Further, for clarity, in the event of a conflict or ambiguity between this Agreement and a Statement of Work, Order Form, or Change Order, the terms and conditions set forth in the Statement of Work or Change Order, shall prevail for that Statement of Work only.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. Dispute Resolution.

The Parties will make good faith efforts to internally resolve any dispute first by escalating it to higher levels of management. 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.

25. Equitable Relief.

In the event of a breach or threatened breach by either Party of Section 6 (Ownership) or Section 7 (Confidentiality) 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 4, 6, 7, 8, 9, 10, and 12-28.

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, Statement of Work, 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 Statement of Work, Order Form and/or 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

STATEMENT OF WORK

Project Title:

THIS DOCUMENT MUST BE SIGNED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES PRIOR TO COMMENCING ANY FURTHER SERVICES OR ACTIVITIES DESCRIBED HEREIN.

1. GENERAL. 

This Statement of Work (“SOW”) between InContext Solutions, Inc., a Delaware corporation, with its principal place of business at 20 N Upper Wacker, 12th Floor, Chicago, IL 60606 (“Supplier” or “ICS”), and XXXX, a Delaware corporation, with its principal place of business at XXXX (“Customer” or “XXXX”) (each herein referred to individually as a “Party,” or collectively as the “Parties”) is executed under the Master Services Agreement between the Parties (the “Agreement” or “MSA”) located at  https://incontextsolutions.com/xxx/, and further defines, without limitation, the purpose, approach, schedules, Deliverables, responsibilities, assumptions, investments, expenses, and fees related to certain Services to be performed under the Statement of Work.

In the event of a conflict between the Agreement and this Statement of Work, the terms and conditions set forth in the Statement of Work shall prevail for this Statement of Work only.

Unless expressly agreed otherwise by the Parties in this Statement of Work, each capitalized term in this Statement of Work shall have the meaning specified for that term in the Agreement or applicable Statement of Work.

2. PURPOSE.

3. SCOPE. 

4. APPROACH. 

5. SCHEDULE. 

6. DELIVERABLES.

7.  ACCEPTANCE CRITERIA.

8. CLIENT FLOWDOWN REQUIREMENTS.

9. RESOURCES TO BE PROVIDED BY COMPANY.

10. RESOURCES TO BE PROVIDED BY SUBCONTRACTOR.

11. PROJECT MANAGERS.

12. FINCANCIAL. 

13. LOCATION OF WORK FACILITIES.

14. TERM OF STATEMENT OF WORK.

15. SPECIAL ASSUMPTIONS AND/OR CONDITIONS. 

(Statement of Work signature page follows)

 

 

 

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IN WITNESS WHEREOF, each of the Parties has caused this Statement of Work to be executed by its authorized representative in its name and on its behalf as of the Effective Date written above.

 

XXXX (“Customer”)                                                 InContext Solutions, Inc. (“ICS”)

                                                                                               

By:                                                                              By: __________________________

 

Name:                                                                         Name:                                                

 

Title:                                                                           Title:                                                  

 

Date:                                                                           Date:                                                  

 

Address:                                                                     Address:                                        

 

(Statement of Work signature page)

EXHIBIT B

ACCEPTANCE PROCESS

Customer – Supplier Acceptance Process for Deliverables

• Unless otherwise set forth in the applicable SOW, Order Form, or Change Order, the specifications for each Deliverable, including the format and content parameters, business and technical requirements, performance metrics, etc. (the “Specifications”), if any, shall be mutually agreed to by the Parties and set forth in the applicable SOW, Order Form, or Change Order prior to commencement of the Services or as soon as practicable prior to commencing the Services related to a specific Deliverable. Acceptance tests, dates, and related reviews are to be included in the definition of the Specifications. Such acceptance tests are not to be used as an opportunity for redefining new requirements, unless such new requirements are agreeable to both Parties. In the event of any such new requirements, for any reason, the Parties will work together to determine if there is any related impact to the scope, approach, schedule, or price of Services and will execute a Change Order pursuant to the Agreement and the Change Control Process in Exhibit D.
• Customer shall accept each Deliverable when it materially meets the Specifications (“Acceptance”). Customer shall have a default period of (10) business days after delivery of a Deliverable (the “Evaluation Period”) to verify that the Deliverable materially meets the Specifications. In those instances where the default Evaluation Period is not practicable, both Parties will agree in writing to a reasonable alternative Evaluation Period before commencement of the Services, or upon initial discovery of a Nonconformity (as defined below).
• Customer shall conduct its acceptance test in a thorough manner so as to identify all respects in which the Deliverable materially fails to conform to the Specifications (each such failure, a “Nonconformity”), if any. If, prior to expiration of the Evaluation Period, Customer notifies Supplier in writing of any Nonconformity, specifying as to each Nonconformity how the Deliverable fails to meet the Specifications, Supplier shall use reasonable efforts to correct such Nonconformity, or proceed on another mutually acceptable basis. Customer shall then have a default period of an additional ten (10) business days (“Verification Period”) commencing upon Supplier’s redelivery of the Deliverable to verify that the previously reported Nonconformity has been corrected and report any remaining Nonconformity and any Nonconformity caused by the correction of the previous Nonconformity.
• The Deliverable shall be deemed accepted upon Customer providing Supplier a written confirmation of Acceptance that the Deliverable materially conforms to the Specifications enumerated in the SOW. Such notice shall be provided by Customer promptly upon the Deliverable materially conforming to the Specifications, as provided herein, but in no event later than the expiration of the Evaluation Period (or the Verification Period, if applicable).
• Upon expiration of the Evaluation Period or Verification Period for any Deliverable, the Deliverable shall be deemed accepted unless Customer notifies Supplier in writing of a material Nonconformity prior to the relative expiration date, as set forth herein.

EXHIBIT C

CHANGE CONTROL PROCESS

• The Parties agree that any change in the Services, Deliverables, and or responsibilities as set forth in the applicable Statement of Work shall be agreed upon in writing by the Parties by executing an amendment to the Statement of Work (each, a “Change Order”). Supplier shall have no obligation to perform Services in connection with any such change until the Parties have agreed upon proceeding with such change in writing and in a fully executed amendment or Change Order including the impact on scope of Services, fees, schedule, Deliverables, and or responsibilities of the Parties, if any.
• The Parties agree to use the Change Order template or some written instrument substantially similar to this Change Order template to facilitate the Change Order process.

EXHIBIT D

CHANGE ORDER TEMPLATE

Change Order Number X

This Change Order Number X (“Change Order”) is an exhibit to the Statement of Work dated XXXX, 202X, (“SOW”) by and between XXXX (“Customer” or “XXXX”), a XXXX corporation and InContext Solutions Inc., (“Supplier” or “ICS”), which is incorporated herein by reference. In the event of any conflict or ambiguity between any term of this Change Order, SOW, Order Form, or the Master Services Agreement, the terms of this Change Order shall prevail with respect to these SOW terms and conditions only. Exceptions to the Master Services Agreement dated XXXX, 202X, (“Agreement”), if any, shall be expressly stated in the Change Order.

1. Background on Reason(s) for Requested Change:
2. Approach for Implementing Requested Change:
3. Impact of Requested Change on existing Software and Services:
4. Schedule for Implementing Requested Change:
5. Specific Modifications to the SOW:
6. Considerations, Assumptions and Dependencies for Implementing Requested Change:
7. Customer Responsibilities: The following Customer responsibilities have been modified/added/deleted:
8. Supplier Responsibilities: The following Supplier responsibilities have been modified/added/deleted:
9. Impact on Services Fees:

(Change Order signature page follows)

 

 

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IN WITNESS WHEREOF, each of the Parties has caused this Change Order to be executed by its authorized representative in its name and on its behalf as of the Effective Date written above.

 

XXXX (“Customer”)                                                 InContext Solutions, Inc. (“ICS”)

                                                                                               

By:                                                                  By: __________________________

 

Name:                                                             Name:                                    

 

Title:                                                               Title:                                                  

 

Date:                                                               Date:                                                  

 

Address:                                                          Address:                                             

 

(Change Order signature page)

 

EXHIBIT E

Order Form

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

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INCONTEXT SOLUTIONS ORDER FORM

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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

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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

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Products

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

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Product Details

• Listed here

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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.

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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.

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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 F

THIRD-PARTY SOFTWARE

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