Subscription Terms and Conditions

ShopperMX™ and Electronic Content

Last Updated: 3/12/2014

These ShopperMX™ Subscription Terms and Conditions are applicable to your access and use of the InContext Solutions, Inc. (“InContext”) ShopperMX™ software platform (“ShopperMX”) and any virtual environments and 3D templates identified on the applicable Order Form (“InCxt Content”), subject to the use limitations set forth in an Order Form signed by you (or a representative of the company you represent). 

By accepting these Terms and Conditions or otherwise accessing or using ShopperMX™ or InCxt Content in any way, you are agreeing to the below terms on behalf of yourself and the company that you represent (“Company” or “You”), and you represent to InContext that you have the right and authority to (1) accept these Terms and Conditions on behalf of the Company you represent and (2) legally bind the Company to these Terms and Conditions.  These Terms and Conditions incorporate the InContext Order Form signed by You and expressly supersede the terms of any Company purchase order or similar document.  These Terms and Conditions, together with the Order Form and Acceptable Use Policy are the entire agreement governing Your use of and access to ShopperMX™ and InCxt Content.

If You do not agree to these Terms and Conditions or do not have the authority to legally bind Your Company, You may not accept or attempt to accept these Terms and Conditions on behalf of the Company and may not access ShopperMX™ or InCxt Content.

InContext may update these Terms and Conditions from time to time and will notify You in advance of any such modifications.  In the event You or Your Authorized Users access ShopperMX™ or InCxt Content following such updates, You are agreeing to such modifications. 

1. Access and Use of ShopperMX™ and InCxt Content

Subject to payment of any fees required by the Order Form and Your compliance with these Terms and Conditions, InContext grants You a limited, non-transferable, non-sublicensable, non-exclusive license to access and use ShopperMX™ and any virtual environments and 3D objects identified on the applicable Order Form (“InCxt Content”) solely for Your internal business purposes for the subscription term identified on Your Order Form.  This license will permit You to designate Company employees (“Authorized Users”) to access ShopperMX™ and any applicable InCxt Content on behalf of the Company, subject to the use limits identified in the Order Form.

You may purchase additional access for extra ShopperMX™ Authorized Users during a subscription term at the then-current price, prorated for the remaining portion of the subscription terms.  Any added subscriptions for extra Authorized Users expire on the same date as the underlying subscriptions.  Authorized Users must agree to comply with the Acceptable Use Policy each time at login as the Acceptable Use Policy also governs access to and use of ShopperMX™ and InCxt Content. You are solely responsible for selecting Your Authorized Users and for all acts and omissions of Your Authorized Users, including without limitation compliance with these Terms and Conditions and the Acceptable Use Policy. 

Authorized Users may choose to upload certain Company data via ShopperMX™ for use within ShopperMX™ (“Company Data”).  You and Your Authorized Users are solely responsible for the accuracy and integrity of all Company Data.  You may not upload or transmit any Company Data unless Company has authorized such upload or transmission to ShopperMX™.  By uploading or transmitting any Company Data, You represent that You have the right and authority on behalf of Company to do so.  InContext reserves the right to remove any Company Data that it deems problematic or that otherwise violates these Terms and Conditions or the Acceptable Use Policy.  In the event the Order Form identifies any Authorized Users with read-only access to ShopperMX™, such users will only have read-only access to ShopperMX™ and its content and will not be permitted to add or edit Company Data.

InCxt Content may only be used in connection with ShopperMX™ (if applicable) and with other services that may be provided by InContext pursuant to a separate consulting services agreement.  InCxt Content may not be used for any other purpose or shared with any third party for any purpose except as expressly contemplated by these Terms and Conditions.

Access to ShopperMX™ may also include access to the ShopperMX™ Sales Indicator if designated on the applicable Order Form, which will allow You to upload Your own market research parameters and test questions for use in a specified number of market research tests as designated on the Order Form, which tests will be conducted by InContext pursuant to a separate consulting services engagement.  You are solely responsible for such content and any test results that are generated by such content, for which InContext shall have no liability as such content is provided by You and outside of InContext’s control. 

InContext will use commercially reasonable efforts to make ShopperMX™ and InCxt Content available during regular business hours, 8:00 a.m. to 8:00 p.m. Central Standard Time, Monday through Friday, but excluding holidays recognized by InContext.  InContext will strive to make any updates to ShopperMX™ and InCxt Content outside these hours.

You are solely responsible for any use of ShopperMX™ and InCxt Content in connection with a user name or password issued to You or an Authorized User.  You will use commercially reasonable efforts to maintain the confidentiality of all user names and passwords.  You will promptly notify InContext if You believe a user name or password has been compromised or if You become aware of any authorized access to or use of ShopperMX™ or InCxt Content. 

Your access (and/or any individual Authorized User’s access) to ShopperMX™ and InCxt Content may be suspended at any time in the event of a suspected breach of these Terms and Conditions or such access presents any security or other risk to InContext or any third party.

2. Restrictions on Use

You may not:

(i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of ShopperMX™ or InCxt Content;

(ii) copy, modify, adapt, translate, resell, frame, mirror, distribute, tamper with or create derivative works of ShopperMX™ or InCxt Content or publish any benchmarks regarding the same;

 (iii) use or make ShopperMX™ or InCxt Content available on a “service bureau” basis, rent, lease, lend, resell, transfer, sublicense or allow any parties to use (or benefit from the use of) ShopperMX™ or InCxt Content;

(iv) remove or modify any proprietary marking or restrictive legends placed on ShopperMX™ or InCxt Content or any of its files or documentation;

(v) use or attempt to use any device, software or routine to interrupt or interfere with the proper operation of ShopperMX™ or InCxt Content or use either in any manner that could damage, disable, overburden, or impair any service, data, account or network;

(v) falsify any protocol or email header information (e.g., “spoofing”);

(vi) use manual or electric means to avoid any use limitations placed on ShopperMXTM or InCxt Content such as access and storage restrictions;

(vii) use ShopperMX™ or InCxt Content in violation of any applicable law, regulation, government order or decree or use either for any purpose that is unlawful or in order to violate the rights of others;

(viii) use ShopperMX™ or InCxt Content in excess of Your permitted usage limitations or attempt to circumvent any technical limitations or otherwise attempt to gain unauthorized access to InContext or any service, data, account or network that is not intentionally made available to you by InContext or probe, perform a denial of service attack, scan, test vulnerabilities of or otherwise breach the security or authentication measures of ShopperMX™ or InCxt Content;

(ix) use ShopperMX™ to transmit or store any information or data that is infringing, libelous, defamatory, obscene, abusive or otherwise unlawful or objectionable;

(x) use ShopperMX™ to transmit or store any viruses, spam, cancelbots, mail bomb, time bombs, backdoors, trapdoors, worms, Trojan horses, or any other malware or malicious code; or

(xi) allow any third party, including any of Your Authorized Users, to do any of the above.

 3. Ownership

As between You and InContext, InContext and its licensors are the sole owners of ShopperMX™ and InCxt Content, including all related copyrights and other intellectual property rights.  You have no rights with respect to ShopperMX™ or InCxt Content other than those expressly granted under these Terms and Conditions.  InContext retains all right, title and interest in and to ShopperMX™ and InCxt Content and all technologies and intellectual property developed or acquired by InContext prior to, during or after a relationship with Company (and whether or not such is used by Company or in connection with the performance of services for Company) including without limitation software code, platforms, environments, digital or other images, concepts, inventions, ideas, patent rights, know-how, aggregated data, trademarks, copyrights, service marks, trade secrets, trade names, designs, products, equipment, compositions, specifications, samples, models, work papers, writings, technology improvements, proprietary information, templates, processes, methods, methodologies, systems, derivative works and any other technologies or intellectual property rights related to the foregoing.

InContext may collect, aggregate and compile a variety of statistics and information about the behavior of Authorized Users accessing ShopperMX™ and InCxt Content (“Usage Data”) and may extract, compile, synthesize, and analyze such Usage Data and use the same on an aggregated and deidentified basis in InContext’s discretion.  InContext will have sole and exclusive title to all such Usage Data.

Company will own all Company Data and any reports Company is able to generate using ShopperMX™ functionality.

4. Services

InContext will provide You with the training services related to ShopperMX™ and InCxt Content as described in an Order Form and standard support.   Standard support services consist of InContext’s standard help desk support, which will be available during InContext’s regular business hours.  You may designate up to three (3) Authorized Users (“Administrators”) to contact the help desk.  All Authorized Users should direct questions to the Administrators who will first use commercially reasonable efforts to resolve the question before contacting the help desk.  Only Administrators may contact the help desk.  These Administrators will receive one (1) training session from InContext to be scheduled at a time mutually acceptable to both parties as further set out on the Order Form.  InContext has no obligation to respond to help desk requests from any Authorized User or other individual that is not an Administrator.  Any requested help desk services outside regular business hours or outside of standard help desk support may be provided by InContext pursuant to a separate written agreement and payment of additional fees. 

 InContext will not provide any consulting or development services under these Terms and Conditions.  All consulting and development services, which may include the development of additional environments or 3D tempates for Your use in connection with ShopperMX™ or other InContext services, and any additional training in excess of the training provided to Administrators will be provided under a separate consulting services agreement as agreed in writing by the parties. 

5. Back-up and Disaster Recovery

InContext will use commercially reasonable efforts to back up of any Company Data on a daily basis onto an electronic storage medium and will store all such backups in an environment that is separate from the location from which ShopperMX™ and InCxt Content is hosted.  InContext will maintain a disaster recovery plan that documents the procedures to follow in the event of disaster that is expected to result in an extended interruption in the Service. 

6. Access to Information. 

It is Company’s responsibility to provide InContext with complete, timely and accurate access to information, locations and personnel relevant to the performance of any services by InContext.  InContext will not be responsible for any consequences arising from Company’s failure to do so.  Such failures may also give rise to additional fees.  InContext is entitled to rely on the information that You, Your Authorized Users or any other of Company’s representatives provide and Company represents that such information is true, accurate and complete.  Company authorizes InContext to take instructions given in any manner (including oral and electronic instructions) in circumstances where InContext reasonably believes that the instructions have emanated from Company or any person with authority to act on Company’s behalf.

7. Access Requirements.  

ShopperMX™ and InCxt Content is hosted on servers that are controlled by InContext. The servers are running in a clustered environment, which means that multiple servers host ShopperMX™ and InCxt Content simultaneously.  Company must have a high speed Internet connection, and hardware and software that are compatible with ShopperMX™ and InCxt Content as provided by InContext.  InContext regularly upgrades and updates ShopperMX™ and InCxt Content as such upgrades and updates become available.

8. Compliance with Third Party Licenses. 

Access to ShopperMX™ and InCxt Content may require a license to the Visual Attention Service, which is subject to additional terms and conditions as made available here.  In additional, access to ShopperMX ™ and InCxt Content may require access to the Unity Web Player.  If you do not have the Unity Web Player installed locally, you will be redirected to Unity to download the Web Player pursuant to Unity’s standard practices and terms and conditions.

9. Feedback

Company may from time to time provide suggestions, comments for enhancements or functionality or other feedback to InContext with respect to the ShopperMX™ and InCxt Content and its related services (“Feedback”).  Company hereby grants InContext a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback, which license InContext may exercise in its discretion.

10. Fees

Access to ShopperMX™ and InCxt Content for the subscription term on the Order Form is contingent on receipt of the fees set forth in the applicable Order Form.  All payment obligations are non-cancelable and payments are nonrefundable.  Unless otherwise stated in the Order Form, payments for the full subscription term are due thirty (30) days from the date of the Order Form. Any unpaid balance not received within forty-five (45) days from the date of the Order From will incur interest at a rate of either 1.0% per month or the rate permitted by applicable law, whichever is higher.  In the event any fee is not paid when due, InContext may suspend all access to ShopperMX™ and InCxt Content until all amounts are paid in full.  You are responsible for paying any sales, use or value-added tax that may be generated as a result of Your access and receipt of ShopperMX™ and InCxt Content, excluding any taxes on InContext’s income. 

11. Term and Termination.  

The Order Form will specify the subscription term for Your access to ShopperMX™ and InCxt Content.   Your subscription to ShopperMX™ and InCxt Content  will automatically renew for additional one (1) year terms following the conclusion of the initial subscription term upon your payment in full of the renewal invoice provided by InContext at least 30 days prior to the start of the new term.  In the event You fail to pay the renewal invoice when due, your access to ShopperMX™ and InCxt Content will expire upon the conclusion of the subscription term as specified in the Order Form.    Either party may terminate these Terms and Conditions (a) immediately if the other party breaches these Terms or fails to fulfill its obligations in accordance with the terms of these Terms, and such failure continues for thirty (30) business days after notice is provided by the non-breaching party, except in the event of Your failure to pay which must be cured within ten (10) business days or (b) upon any insolvency or suspension of the other Party’s operations or any petitions filed or proceeding made by or against the other Party under any state, federal or other applicable law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors or other similar proceedings. Upon termination of these Terms and Conditions, (i) You will no longer have access to ShopperMX™ or InCxt Content, (ii) any outstanding fees, charges or other payments due to InContext will be immediately due and payable, (iii) upon Your written request within thirty (30) days of the effective date of any termination or expiration, InContext will provide a copy of all Company Data in electronic format pursuant to InContext’s standard processes, and (iv) You must destroy all Confidential Information of InContext and certify in writing to InContext that You have done so.  Following the 30-day period set forth in (iii), InContext has no obligations to maintain Your Company Data or make it available to You.

12. Warranties and Disclaimers

Each party represents that it has validly entered into these Terms and Conditions and has the legal power to do so.  You further warrant that You will use ShopperMX™ and InCxt Content in compliance with all applicable laws, rules, and regulations.  InContext further warrants that it will not materially decrease the security of the Company Data or the functionality of ShopperMX™ during Company’s subscription term.  In the event of a breach of this warranty by InContext, Company may terminate these Terms and Conditions according to Section 11, provided Company will not be liable for any fees for the remainder of the subscription term, which is Company’s sole and exclusive remedy for any such breach. InContext has no responsibility for any breach of this warranty as a result of misuse of ShopperMX™ or InCxt Content or Your negligence, misconduct or breach of these Terms and Conditions.

THE EXPRESS WARRANTIES IN THESE TERMS ARE IN LIEU OF, AND INCONTEXT DISCLAIMS (ON BEHALF OF ITSELF AND ALL THIRD PARTY LICENSORS), ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATED TO THESE TERMS, 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 INCONTEXT IS AWARE OF ANY SUCH PURPOSE).  NEITHER INCONTEXT NOR ANY THIRD PARTY SOFTWARE SUPPLIER MAKES ANY REPRESENTATION OR WARRANTY THAT COMPANY’S USE OF ANY SERVICE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

INFORMATION TRANSMITTED AND RECEIVED THROUGH THE INTERNET CANNOT BE EXPECTED TO REMAIN CONFIDENTIAL, AND INCONTEXT DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY AND NON-CORRUPTION OF ANY INFORMATION SO TRANSMITTED, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.  INCONTEXT SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENCES WHATSOEVER OF COMPANY’S CONNECTION TO OR USE OF THE INTERNET, AND INCONTEXT SHALL NOT BE RESPONSIBLE FOR ANY USE BY COMPANY OR ITS AUTHORIZED USERS OF ANY INTERNET CONNECTION IN VIOLATION OF ANY RULE, LAW OR REGULATION.

13. Limitation of Liability. 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR LIABILITY ARISING FROM SECTION 15, INCONTEXT’S TOTAL LIABILITY FOR ANY BREACH OF THIS AGREEMENT OR ANY USE OF SHOPPERMX™ OR InCxt CONTENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO INCONTEXT BY COMPANY FOR TWELVE (12) MONTHS OF SERVICES.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS, OR FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS) RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY.

14. Confidentiality.  

Except as otherwise provided in these Terms and Conditions or with the consent of the other party, each party (as a “Receiving Party”) agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning the other party (the “Disclosing Party”) that is provided by or on behalf of the Disclosing Party to the Receiving Party, and which Disclosing Party considers or maintains as confidential or which Receiving Party should reasonably understand to be confidential (“Confidential Information”), shall remain strictly confidential and secret using the same manners and methods that the Receiving Party uses to protect its own confidential information of a similar nature, but at least reasonable manners and methods.  Except as may be otherwise set forth in these Terms and Conditions, Receiving Party may not utilize, directly or indirectly, the Disclosing Party’s Confidential Information for its own business purposes or for any other purpose except and solely to the extent that any such information is or becomes generally known or available to the public through a source or sources other than the Disclosing Party or Receiving Party. Notwithstanding the foregoing, the Receiving Party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis or to those of its employees, contractors or other personnel who have a need to know in order to complete the Receiving Party’s obligations under these Terms and Conditions and who are bound by similar confidentiality obligations, and (c) otherwise as required by applicable law, rule, regulation, or legal process, provided the Receiving Party provides the Disclosing Party with notice as soon as practicable to allow the Disclosing Party an opportunity to respond to such requirement and prevent such disclosure and provided further that such required disclosure does not relieve Receiving Party of its confidentiality obligations with respect to any other party.  Except as to the confidentiality of trade secrets, these confidentiality restrictions and obligations will terminate five (5) years after the expiration or termination of these Terms and Conditions.

15. Indemnification

InContext, at its own expense, will defend and hold harmless Company from any third party claim, allegation, lawsuit or demand and indemnify Company from any damages finally awarded or any settlement finally agreed to in settlement of such claim to the extent arising from or related to a claim alleging that Company’s use of ShopperMX™ in accordance with these Terms and Conditions infringes any third party copyright or misappropriates any third party trade secrets (“Infringement Claim”).  If an Infringement Claim arises, InContext will, at its option and its own expense (a) procure for Company a license to use such technology; (b) modify the Software, or any part thereof, so that it does not infringe on any third party’s claimed rights; provided, however, that such modifications will not prevent such software or any part thereof, from performing their present and intended functions; and/or (c) provide Company with substitute or replacement Software, and a right to use the same, provided that such will perform the intended functions.  THIS SECTION STATES INCONTEXT’S ENTIRE LIABILITY AND COMPANY’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIM UNDER THESE TERMS AND CONDITIONS.

Company, at its own expense, will indemnify, and hold harmless InContext from any and all costs, expenses, damages, liabilities, fees and fines (including without limitation reasonable attorneys’ fees and costs) incurred as a result of any third party claim, allegation, lawsuit or demand and defend InContext from any such claim, allegation, lawsuit or demand to the extent arising from or related to a claim arising from InContext’s use or receipt of Company Data as provided by Company or its Authorized Users, Company’s breach of these Terms and Conditions or Company’s misuse of ShopperMX™ or InCxt Content or violation of law. 

Upon receipt of prompt notice of a claim, the indemnifying party will have the right to assume control of such defense, but will not settle any claim without the prior written approval of the indemnified party, which approval will not be unreasonably withheld. The indemnified party also will have the right to participate in such defense, and to be kept adequately informed of all developments and strategies related to such defense.

16. Personnel.  

InContext may use or subcontract with third parties to provide ShopperMX™, InCxt Content and any related services.   InContext will provide, at its sole expense, the InContext personnel necessary to provide Services to Company under these Terms (“Personnel”).  InContext will be responsible for:  (i) selecting and hiring Personnel in compliance with all applicable laws; (ii) paying the Personnel’s wages and other benefits in accordance with applicable laws; paying or withholding all required payroll taxes and mandated insurance premiums; and (iii) fulfilling InContext’s obligations with respect to unemployment compensation.

17. Independent Contractor.  

The relationship with Company is that of an independent contractor and nothing in these Terms, an Order Form, or related to InContext’s performance of any obligation hereunder will be construed to create an employee relationship between Company and InContext or any of InContext’s employees. InContext is solely responsible for any and all liabilities of its employees for their performance under these Terms and further is responsible for any and all taxes imposed upon InContext, including FICA, FUTA, unemployment taxes, worker’s compensation coverage and other liabilities incurred as the employer providing products, services and/or deliverables pursuant to these Terms.  Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties.

18. Non-Solicitation. 

The parties agree not to solicit or endeavor to solicit in any way the services of any of the other party’s staff member with whom the party had dealings in connection with an engagement until at least twelve (12) months after such dealings.  Nothing contained herein will prohibit either party from employing (i) an employee who initiates discussions with the party without direct or indirect solicitation from the party, or (ii) an employee who responds to a general advertisement for employment (whether or not made by a professional search firm).

19. Governing Law and Forum. 

These Terms will be governed by, and construed in accordance with, the laws of the State of Illinois without regard to conflict of law principles.  Company agrees that any claim it files against InContext or any InContext individual will be adjudicated in the applicable state or federal court of competent in Chicago, Illinois, and that such court will have exclusive jurisdiction in relation to any such claim.

20. Assignment

These Terms may not be assigned, in whole or in part, by Company without the advance written consent of Company, which will not be unreasonably withheld. 

21. Audit. 

Company will permit InContext or its agents to access and review, with reasonable notice during normal business hours, the records and books of account of Company to confirm compliance with the terms of these Terms.  If any audit reveals access in excess of the subscription limits in the applicable Order Form, InContext will issue a new Order Form to cover the additional usage along with an invoice to reimburse InContext for the costs associated with the audit. 

22. Entire Agreement. 

These Terms, the Order Form, the below third party terms, and the Acceptable Use Policy are 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.  These Terms will not be varied except in writing, signed by the parties.  Except as otherwise explicitly provided in these Terms, the provisions of these Terms will control and prevail over any conflicting provisions in any proposal, Company purchase order, acceptance notice or other document attached hereto and/or related to the subject matter of these Terms.

23. Force Majeure

No delay in or failure of performance by either party under these Terms will be considered to be 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 affected.  Neither Company nor InContext will be liable in any way for failure to perform their respective obligations in respect of any matter (save for Company’s 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. Headings and Captions. 

The descriptive headings of the articles, sections and subsections of these Terms are for convenience only and do not constitute a part of these Terms.

25. No Waiver.

The parties may not waive any provision of these Terms in whole or in part, except pursuant to a writing executed by both parties. The failure of either party to enforce at any time any of the provisions of these Terms will not be construed to be a continuing waiver of any provisions hereunder, nor will the failure by either party to strictly enforce any provision of these Terms prejudice the right of that party to take any action in the future to enforce any provisions hereunder.

26. Publicity

Neither party will issue any public materials that refer to the other party or these Terms without the other party’s prior consent, provided, however, that InContext may list Company as a client and use Company’s name and logo on InContext’s website, on publicly available customer lists, in media releases and in connection with regulatory filings.

27. Severability.

If any provision of these Terms is determined to be illegal, invalid or unenforceable by a competent court or tribunal, the validity and enforceability of the remaining provisions will not be affected and, in lieu of such illegal, invalid or unenforceable provision, there will be added as part of these Terms one or more provisions as similar in terms and effect as may be legal, valid and enforceable under applicable law.

28. Notices

Notices permitted or required under these Terms 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.  The notice address for each party is on the signature page of these Terms, and may be changed by giving notice as provided herein. 

29. Binding Nature. 

 All terms and conditions of these Terms will be binding upon and will inure to the benefit of the parties to these Terms and their respective successors and permitted assigns.

30. Remedies.   

In the event of a breach or threatened breach by Company of Section 1, 2, 3 or 14 or a breach or threatened breach by InContext of Section 3 or 14, the parties understand and agree that such a breach would cause irreparable harm to the non-breaching party, which harm would not be sufficiently remedied by an award of damages, such that the non-breaching party may seek injunctive relief in a court of competent jurisdiction without the posting of a bond, proof of damages or other similar requirement. 

31. Survival

The parties’ rights and obligations, which by their nature would continue beyond the expiration or termination of these Terms and Conditions, including but not limited to those regarding indemnification, compliance with laws, and confidentiality, will survive any termination or expiration of these Terms and Conditions. 

These Terms and Conditions were last updated on 3/12/2014