Consulting Services Terms & Conditions
Last Updated: 2/22/2018
These Consulting Services Terms and Conditions ("Terms and Conditions") govern the provision of services by InContext Solutions, Inc. ("InContext") to Customer ("Services") and delivery of any deliverables ("Deliverables") as set forth in an Order Form agreed upon by the parties in writing.
- Services. Unless otherwise agreed in the applicable Order Form, the total cost and anticipated completion dates for any Services in an SOW are estimates. All work performed by InContext should be documented in an Order Form. Each Order Form shall establish the general nature of the Services to be performed, the estimated completion of the Services, the approximate number of hours, and the applicable hourly rate or fee, and any applicable dependencies including Customer requirements that must be met. If there is a conflict between this Agreement and the Order Form, these Terms and Conditions shall control unless otherwise expressly agreed by the parties in writing. Either party may propose changes in the scope of the Services, but neither party will be bound by any proposed change until both parties have agreed to that change in writing. These Terms and Conditions contemplate only the provision of Services; nothing in these Terms and Conditions grant Customer a license or right to any copyright, patent, technology, software, tools, algorithms, or any intellectual property right of InContext, all of which remain InContext's sole and exclusive property, except as expressly contemplated by these Terms and Conditions, if any.
- Project Management. Customer shall appoint an individual to receive progress reports and address problems that may arise in connection with the Services (the "Project Manager") and shall provide InContext in writing with the name and contact information for that Project Manager on the Order Form. The Project Manager and InContext shall develop administrative procedures to review performance of work as applicable.
- Customer's Cooperation. InContext's performance depends upon Customer's timely and effective cooperation in connection with the Services, including providing InContext with timely, complete and sufficient access to appropriate data, information, and appropriately skilled Customer personnel, and prompt responses to questions and requests as necessary for InContext to complete the Services. InContext will not be liable for any failure or delays in performing the Services, to the extent that the failure or delay is caused by Customer's failure to cooperate. InContext is entitled to and will rely upon the accuracy and completeness of data, material, and other information furnished by Customer, without any independent investigation or verification.
Customer content and other material provided by the Customer that is necessary for InContext to provide the Services ("Customer Materials") must conform to the relevant specifications provided by InContext. InContext may refuse, in its sole discretion, to utilize any Customer Materials if InContext in good faith determines that the Customer Materials or any portion fails to conform to the relevant specifications or could harm the reputation or goodwill of InContext. Customer grants InContext all necessary rights to the Customer Materials to perform the Services under this Agreement. Such Customer Materials may consist of uploaded market research parameters and test questions to the extent permitted by an active subscription to ShopperMX™ Sales Indicator, separately purchased on a ShopperMX™ and Electronic Content Order Form, provided there are licensed tests remaining under such subscription.
- Scheduling. InContext will try to accommodate work schedule requests of Customer to the extent commercially practicable. InContext reserves the right to change such schedule for any Services if InContext personnel are unable to perform scheduled Services because of illness, resignation, weather, or other causes beyond InContext's reasonable control. InContext will make commercially reasonable efforts to replace any such personnel within a reasonable time in order to limit impact on the schedule.
- Cancellation or Rescheduling of Services.
- Cancellation of Order Form. Customer may cancel all or part of any Order Form upon ten (10) business days advance written notice. Upon cancellation of Services in progress, Customer will pay all fees and expenses for work performed through the effective cancellation date (partially completed fixed fee engagements will be prorated) as well as reasonable costs directly related to Customer's cancellation (such as early termination of lodging arrangements or air travel change fees). If Customer terminates Services with less than ten (10) business days notice Customer will also pay a cancellation fee equal to the total daily rates for InContext personnel assigned to the canceled Services for every day that the actual cancellation was less than the required ten (10) business days.
- Rescheduling of Services. Customer may request that previously scheduled Services be rescheduled upon ten (10) business days advance written notice at no cost, other than any reasonable costs directly related to rescheduling (such as lodging cancellation charges or air travel change fees). InContext will make reasonable efforts to accommodate Customer's requested dates but InContext's ability to reschedule Services is dependent upon the availability of InContext personnel. If the rescheduling request is made with less than ten (10) business days notice, Customer will also pay a rescheduling fee equal to the total daily rates for InContext personnel assigned to the rescheduled Services for every day that the actual request to reschedule was less than required ten (10) business days.
- Fees and Expenses. Hourly rates or fees for Consulting Services performed shall be set forth in the applicable Order Form, but if not specified Customer shall pay InContext on a time and materials basis at InContext's then-current hourly rates. Unless otherwise agreed in writing in the Order Form, the minimum labor charge for any single day is eight hours. Billable amounts incurred in excess of eight hours per day will be billed at the standard, straight-time hourly rate. Estimated fees for Services under this Agreement do not include travel or other expenses, which will be invoiced to and reimbursed by Customer at InContext's cost. Customer agrees that InContext is not obligated to provide a credit for or reimbursement to Customer for frequent flyer miles, hotel "points", commissions, rebates, fees or other consideration as a result of relationships with travel service providers, alliance companies, software, hardware, and other vendors. Unless otherwise stated in the Order Form, invoices are due thirty (30) days from the date of the invoice. Any unpaid balance not received within forty-five (45) days from the date of the invoice 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 provision of all Services and Deliverables until all amounts are paid in full. Customer is responsible for paying any sales, use or value-added tax that may be generated as a result of the Services or Deliverables excluding any taxes on InContext's income. All payment obligations are non-cancelable and payments are nonrefundable.
- Training-related Services and Supplies. Customer will make available at its cost a physical location in which training classes can be performed, shall provide computer equipment for any individuals being trained, shall provide visual display/projection equipment, internet access and other training session related materials and supplies Alternatively and upon prior written request, InContext will provide projection equipment for an additional charge.
- Customizations. If set forth in an Order Form, Customer specific customizations may be developed for the use of Customer and will conform to the version of the Services identified in the applicable Order Form as of the time of development. Customizations are not covered by any standard software support; if Customer requires support for customizations, such support will be the subject of an Order Form and charged at an additional fee. Future improvements or updates to the standard InContext software or services may require modification to customizations, which will be separately agreed upon by the parties pursuant to an Order From. Customer will need to request a review to determine how its Customer specific customization(s) may be impacted by any software or services update.
- Termination. Either party may terminate this Agreement in the event of a material breach by the other party that remains uncured for thirty (30) days following written notice of the breach. The termination rights set forth in this Section may be exercised without penalty or other obligation on the part of the terminating party and are without prejudice to any other rights or remedies the terminating party may have under this Agreement or at law or in equity.
- Warranties and Disclaimers. Each party represents that it has validly entered into these Terms and Conditions and has the legal power to do so. Customer further warrants that it will use all Services and Deliverables in compliance with all applicable laws, rules and regulations.
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 CUSTOMER'S USE OF ANY SERVICE OR DELIVERABLE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ALSO UNDERSTANDS AND AGREES THAT THE RESULTS OF ANY MARKET RESEARCH SERVICES ARE OUTSIDE OF INCONTEXT'S CONTROL AND AS A RESULT INCONTEXT CANNOT BE RESPONSIBLE FOR THE SAME.
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 CUSTOMER'S CONNECTION TO OR USE OF THE INTERNET, AND INCONTEXT SHALL NOT BE RESPONSIBLE FOR ANY USE BY CUSTOMER OR ITS AUTHORIZED USERS OF ANY INTERNET CONNECTION IN VIOLATION OF ANY RULE, LAW OR REGULATION.
- Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCONTEXT'S TOTAL LIABILITY FOR ANY BREACH OF THIS AGREEMENT OR ANY SERVICES OR DELIVERABLES WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO INCONTEXT BY CUSTOMER IN THE PREVIOUS TWELVE (12) MONTHS UNDER THE CONSULTING SERVICES ORDER FORM GIVING RISE TO THE DAMAGE. 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.
- 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.
InContext, at its own expense, will defend and hold harmless Customer from any third party claim, allegation, lawsuit or demand and indemnify Customer 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 property damage, bodily harm or death as a result of InContext's negligence or willful misconduct in the performance of the Services.
Customer, 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 Customer's use of Services or Deliverables once provided by InContext, InContext's use of Customer Materials, Customer's breach of this Agreement or Customer's 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.
- Personnel. InContext may use or subcontract with third parties to provide Services and Deliverables. InContext will provide, at its sole expense, the InContext personnel necessary to provide Services to Customer 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.
- Independent Contractor. The relationship with Customer is that of an independent contractor and nothing in these Terms and Conditions, an Order Form, or related to InContext’s performance of any obligation hereunder will be construed to create an employee relationship between Customer 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.
- Unlawful Harassment. The parties recognize that they each have obligations to their own employees under applicable law to prevent and correct sexual harassment or harassment based on other protected characteristics. The parties further recognize that they are required to take steps to investigate and address allegations of harassment, even where the alleged harassment arises from the alleged conduct of the employees, consultants, agents, or subcontractors of the other party. Accordingly, the parties agree that where any employee of one party alleges harassment based on any protected characteristic by any employee, consultant, agent, or subcontractor of the other party, the parties will work cooperatively to fully investigate the allegations, and the party who employs or controls the individual(s) accused of such harassment will, to the extent warranted by the investigation, take reasonable and appropriate steps to address the situation and to prevent its recurrence (which may include, but not be limited to, training, counseling, disciplining, reassigning, or terminating employees, consultants, agents, or subcontractors). If any Party believes that its employees are subject to harassment based on any protected characteristic, by any employee, consultant, agent, or subcontractor of the other party, the party whose employee is the subject of the alleged harassment may fully or partially suspend performance of the Agreement for up to 120 days (“Suspension Period”). To the extent that the Agreement is fully or partially suspended and, during the Suspension Period, the parties are either unable to resolve the situation to their mutual satisfaction or to prevent its reoccurrence, either party on 10 days’ prior written notice may terminate the Agreement immediately after the Suspension Period has ended
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).
- 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. Customer 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.
- Assignment. These Terms may not be assigned, in whole or in part, by Customer without the advance written consent of InContext, which will not be unreasonably withheld.
- Entire Agreement. These Terms and Conditions and the Order Form 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 and Conditions will not be varied except in writing, signed by the parties. Except as otherwise explicitly provided in these Terms and Conditions, the provisions of these Terms and Conditions will control and prevail over any conflicting provisions in any proposal, Customer purchase order, acceptance notice or other document attached hereto and/or related to the subject matter of these Terms and Conditions.
- Force Majeure. No delay in or failure of performance by either party under these Terms and Conditions 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 Customer nor InContext will be liable in any way for failure to perform their respective obligations in respect of any matter (save for Customer’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.
- Headings and Captions. The descriptive headings of the articles, sections and subsections of these Terms and Conditions are for convenience only and do not constitute a part of these Terms.
- No Waiver. The parties may not waive any provision of these Terms and Conditions 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 and Conditions 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 and Conditions prejudice the right of that party to take any action in the future to enforce any provisions hereunder.
- Publicity. Neither party will issue any public materials that refer to the other party or these Terms and Conditions without the other party’s prior consent, provided, however, that InContext may list Customer as a client and use Customer’s name and logo on InContext’s website, on publicly available customer lists, in media releases and in connection with regulatory filings.
- Severability. If any provision of these Terms and Conditions 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 and Conditions one or more provisions as similar in terms and effect as may be legal, valid and enforceable under applicable law.
- 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.
- Binding Nature. All terms and conditions of these Terms and Conditions will be binding upon and will inure to the benefit of the parties to these Terms and Conditions and their respective successors and permitted assigns.
- Remedies. In the event of a breach or threatened breach by Customer 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.
- 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.
Last Updated: 2/22/2018