ShopperMX™ Desktop End User License Agreement

This End User License Agreement (“EULA“) is made between InContext Solutions, Inc., a Delaware corporation (“Licensor”) and you (“You”) and provides the terms and conditions under which You may access, download and use the Licensor’s ShopperMX Desktop viewer (the “Viewer”). Licensor provides the Viewer for download to Your desktop to enable you to access and view content through Licensor’s proprietary web-based ShopperMX platform, separately licensed by Licensor under separate terms and conditions (“SMX Terms”). All access to and use of the Viewer is subject to the terms of this EULA.

PLEASE CAREFULLY READ THIS AGREEMENT. BY DOWNLOADING, ACCESSING OR USING THE VIEWER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS EULA AS OF THE DATE ON WHICH YOU DOWNLOAD, ACCESS OR USE THE VIEWER (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO THIS EULA, LICENSOR IS UNWILLING TO ALLOW YOU TO ACCESS OR USE THE VIEWER AND YOU MAY NOT DOWNLOAD, ACCESS OR USE THE VIEWER. IF YOU DOWNLOAD, ACCESS OR USE THE VIEWER, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS EULA AND AGREE TO BE BOUND BY THIS EULA.

Licensor reserves the right, at any time, to modify the functionality of the Viewer or the terms of this EULA by making such modification available on the Viewer or by providing other notice to You. Any modification will be effective immediately upon posting on the Viewer or such other notice. Material modifications will be conspicuously posted. If You do not approve of any such modification, You may terminate this EULA at any time as set forth in Section 3 below. If You do not terminate this EULA, You will be deemed to have agreed to such modifications through Your continued use of the Viewer.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND ELIZABETH ARDEN WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. DEFINITIONS. Terms used in this EULA will have the definitions given in this EULA or, if not defined in this EULA, will have their plain English meaning as commonly interpreted in the United States.

2. LICENSE.

2.1 LICENSE. Subject to Your compliance with this EULA, Licensor grants to You a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to download, access and use the Viewer solely for Your internal purposes and solely in connection with Your use of and access to ShopperMX in accordance with the SMX Terms on supported desktop hardware, which may change from time to time, that You own or control, without modification, for Your own personal purposes in accordance with this EULA. The Viewer is only compatible with ShopperMX. If you do not have an active license to ShopperMX, you will not be able to use the Viewer.
2.2 RESTRICTIONS. Except as expressly set forth in Section 2.1, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Viewer or any Intellectual Property Rights (as defined below) in the same. Licensor reserves all rights not expressly granted to You under this EULA. You may not (a) modify, translate or create derivative works of the Viewer; (b) decompile, reverse engineer or reverse assemble any portion of the Viewer or attempt to discover any source code or underlying ideas or algorithms of the Viewer; (c) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Viewer or otherwise provide access to the Viewer to any third party; (d) make, have made, reproduce or copy the Viewer; (e) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Viewer; and (f) cause or permit any other party to do any of the foregoing. For purposes of this EULA, “Intellectual Property Rights” means all worldwide intellectual property and proprietary rights, including without limitation all trade secrets, patents and patent applications, copyrights, trademarks, trade names, service marks, moral rights, contractual rights and other intellectual property and proprietary rights.
2.3 USE LIMITATIONS. You acknowledge that the Viewer, and the databases, software, hardware and other technology used by or on behalf of Licensor to operate the Viewer and provide ShopperMX (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets and intellectual property of Licensor. You will not, and will not permit any third party to: (1) access or use the Viewer, in whole or in part, except as expressly provided in this EULA; (2) use the Viewer in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Viewer or to violate the intellectual property or other rights of any third party; (3) use automated scripts or bots to use or access the Viewer; (4) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Viewer or the Technology; or (5) interfere in any manner with the operation or hosting of the Viewer or the Technology, or attempt to gain unauthorized access to the Viewer or the Technology. If You modify the Viewer or otherwise use the Viewer in a manner for which it is not intended, the Viewer may not function and access to ShopperMX may be interrupted as a result. Licensor will not have any resulting liability for any damage to Your systems or any interruption in or failure of ShopperMX as a result of such conduct. The Viewer is not intended to be used in any high risk activity.
2.4 SUPPORT. In no event is any third party responsible for maintenance. Support requests, as well as questions or complaints regarding the Viewer, may be directed to Licensor Customer Support, at support.shoppermx.com to inquire via email. Licensor will provide updates to the Viewer if and when such updates become available. Notwithstanding the preceding sentence, Licensor has no obligation to provide support or maintenance for the Viewer in the event that the Viewer is not used in compliance with this EULA. In addition, Licensor the right, in its sole discretion, to make unscheduled deployments of updates or enhancements to the Viewer. The device on which the Viewer is installed must be connected to the internet in order to receive updates.
2.5 OWNERSHIP. As between the parties, Licensor owns all right, title and interest in and to the Viewer and any and all Intellectual Property Rights recognized in any jurisdiction, including applications and registrations for any of the foregoing embodied therein.
2.6 CONTACT. Any questions, complaints, claims, or support issues with respect to the Viewer should be directed to Licensor at the address below.
 

INCONTEXT SOLUTIONS, INC.
300 W. ADAMS STREET, SUITE 600
CHICAGO, IL 60606
support.shoppermx.com

3. TERM AND TERMINATION. This EULA will be effective upon the Effective Date and will continue until terminated. You may terminate this EULA at any time and for any reason or no reason by providing written notice of such termination to Licensor or by uninstalling the Viewer. Licensor may terminate this EULA or Your access to or use of the Viewer at any time, for any reason or no reason, in Licensor’s sole discretion. Without limiting Licensor’s right to terminate this EULA, Licensor may also suspend Your access to the Viewer, with or without notice to You, upon any actual, threatened or suspected breach of this EULA or of applicable law or upon any other conduct inappropriate or detrimental to the Viewer or to Licensor. Upon termination or expiration of this EULA for any reason all rights granted to You under this EULA will terminate and Licensor may immediately terminate Your access to the Viewer and You will immediately cease all use of and access to the Viewer, which may impact Your ability to access ShopperMX. The following sections will survive any expiration or termination of this EULA: 1, 2.2, 2.3, 2.5, 2.6, and 3-14, inclusive.

4. DATA PRIVACY; APPLICABLE POLICIES AND TERMS. In addition to the terms of this EULA, Your access to and use of the Viewer is subject to Licensor’s then-current policies relating to the Viewer, including, without limitation, the Licensor Privacy Policy, also available at http://www.incontextsolutions.com/terms-and-conditions/privacy-policy (the “Privacy Policy”). You expressly consent to the use and disclosure of personally identifiable information and other data and information as described in the then-current Privacy Policy for the Viewer.

5. NON-US USERS. Licensor is a Delaware corporation and the Viewer is provided by Licensor based in the United States. Any personal information which You may provide to Licensor as part of a support request or use of the Viewer will be transferred to and maintained in Licensor’s corporate records in the United States. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THIS EULA.

6. WARRANTIES AND DISCLAIMER.

6.1 Warranties By You. You hereby represent, warrant, and covenant for the benefit of Licensor that: (a) You have the legal right and authority to enter into this EULA. You further represent, warrant and covenant that (i) You are 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 (ii) You not listed on any U.S. Government list of prohibited or restricted parties.
6.2 Disclaimer. THE VIEWER IS PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE VIEWER AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF LICENSOR. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
 
 

7. INDEMNITY. You hereby indemnify, defend, and hold harmless Licensor and its respective parent, affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from (1) any actual or alleged violation of any laws, rules, regulations, or ordinances; (2) any actual or alleged breach of this EULA; (3) Your access to or use of the Viewer or Technology, whether or not in breach of this EULA; or(4) any infringement, misappropriation, or other violation of any Intellectual Property Rights by You. Licensor will provide You with notice of any such claim or allegation, and Indemnified Parties will have the right to participate in the defense of any such claim at its expense.

8. INFRINGEMENT. In the event of any third party claim that the Viewer or Your possession and use of that Viewer infringes any third party’s intellectual property rights, it is Licensor that will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

9. LIMITATION ON LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THIS AGREEMENT OR THE VIEWER EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. LICENSOR’S TOTAL CUMULATIVE AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE VIEWER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100, EVEN IF SUCH REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE. YOU AGREE THAT THE FREE ACCESS TO THE VIEWER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, LICENSOR’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

10. DISPUTE RESOLUTION.

10.1 PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH LICENSOR AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM LICENSOR.
10.2 All claims and disputes between the parties that cannot be resolved informally must be resolved by binding arbitration on an individual basis under the terms set forth below (the “Arbitration Agreement”). Notwithstanding the foregoing, in the event of any actual, alleged or threatened violation of confidentiality or violation of the other party’s intellectual property or other proprietary rights, the non-breaching party may immediately resort to court proceedings in a court of competent jurisdiction as set forth below in order to seek immediate equitable relief without posting of a bond, proof of damages or other similar requirement.
10.3 This Arbitration Agreement applies to you and Licensor , and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Viewer provided under the this EULA.
10.4 The arbitration proceeding will be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures before an arbitrator selected by and pursuant to the rules of JAMS. Any final award may be filed and enforced in any court of competent jurisdiction. The parties shall share equally in the costs assessed for the arbitration. Any such arbitration will take place at a location within the United States federal judicial district identified below and will apply the substantive law set forth below. Any arbitration proceeding may not be consolidated or joined with any other proceeding and will not proceed as a class action. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, AND TO PARTICIPATE IN A CLASS ACTION OR OTHER PROCEEDING INVOLVING MULTIPLE CLAIMANTS, BUT THEY CHOOSE TO HAVE ANY DISPUTES DECIDED THROUGH INDIVIDUAL ARBITRATION.
10.5 The decision of the arbitrator will be a final and binding resolution of the dispute. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1–16. Judgment upon the award may be entered in any court having jurisdiction.
10.6 You agree that any claim you may have arising out of or related to your relationship with Licensor must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
 
 

11. NOTICES. Notices permitted or required under this EULA will be deemed to have been given on the date actually received when personally delivered or when sent by electronically confirmed facsimile or email followed by written confirmation sent by mail as provided herein, or three (3) business days after mailing if mailed by registered or certified U.S. mail, return receipt requested. All official or legal notices to be given by Licensor to You may be made via any of the foregoing, or additionally via posting to the Viewer or via email to any current email address Licensor has on file. The notice address for either party may be changed by giving notice as provided herein.

12. GOVERNING LAW. The interpretation of the rights and obligations of the parties under this EULA, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Illinois, U.S.A. as such laws apply to contracts between Illinois residents performed entirely within Illinois and without regard to any conflicts of laws provisions. Each party agrees that it will only bring any action or proceeding arising from or relating to this EULA exclusively in the state or federal courts with jurisdiction over Chicago, Illinois and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Licensor.

13. CALIFORNIA USERS. Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254. 14. GENERAL. This EULA is the complete and exclusive understanding and agreement regarding the Viewer, and supersedes any oral or written proposal, agreement or other communication between Licensor and You, regarding Your access to and use of the Viewer. Except as expressly set forth in this EULA, this EULA may be amended or modified only by a writing signed by both parties. All waivers under this EULA must be in writing. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this EULA is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit, arbitration or proceeding arising from or related to this EULA will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this EULA nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Licensor. Any assignment in violation of the foregoing will be null and void. Licensor may freely assign this EULA or any of its rights hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or a joint venture, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This EULA is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this EULA, and this EULA supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this EULA.

Last Updated: 3/18/2016