INMAR STANDARD TERMS AND CONDITIONS FOR PRODUCT AND TOOL SUBSCRIPTIONS AND ANALYTIC SERVICES

Terms and Conditions Prior to November 20, 2019

These Inmar Standard Terms and Conditions for Product and Tool Subscriptions and Analytic Services (“Terms”) shall govern the provision of data analytics services and/or behavioral analytical shopper research and consulting services.  For purposes of these Terms, Inmar and Client each may be referred to herein as a “Party” or collectively as “Parties”.

Services: Inmar Analytics, Inc., (“Inmar”), is a provider of data analytics and behavioral analytical shopper research and consulting services, specifically, product performance analysis relating to retail store environment (“Services”). Licensee is in the business of offering Manufacturers and Associations retail products. Inmar will provide Services in support of Licensee’s products or services relating to the analysis of sales of Licensee’s retail products.

For purposes of these Terms, the following definitions shall apply:

2.1     “Affiliated Analytics” shall mean any calculation or assertion using or based on licensed data, and are any outputs or assertions derived from Inmar data.

2.2    “Authorized Users” shall mean the users within each Licensee’s company as described in the Order.

2.3    “Client” shall mean either the Licensee as set forth in an applicable Insertion Order, or the entity for whom Inmar performs behavioral analytical shopper research and consulting services.

2.4    “Data” shall mean outputs from the web-tool or provided to the Licensee from Inmar.

2.5    “License” shall mean the authorization of a non-exclusive, non-transferable license granted by Inmar to Licensee to use and display the information specified in an applicable Order.

2.6    “Licensee” shall, for purposes of these Terms and in connection with the, mean the Licensee.

2.7    “Insertion Order” shall mean an order placed for Services as specified in an applicable Insertion Order form.

2.8    “Product” shall mean the selected online data tool or service (SuperStudy™ Web-tool, or Consumer Decision Tree Web-Tool).

2.9    “Tool” shall mean any subscribed data deliverable being delivered as a stand-alone document (either through Microsoft Excel or other non-web-enabled vehicle (i.e., Integrated Profitability Layer).

2.10   “Representatives” shall mean, collectively, the directors, officers, employees and representatives of a party.

2.11   “Subscription” shall mean the annual subscription purchased for either products or tools.

Term:  The Term of an applicable Insertion Order shall commence on the Subscription Start Date set forth therein, and shall end on the Subscription End Date set forth therein (the “Term”).  Any additional Subscription add-ons, modifications, or changes during the Term will be subject to a written addendum to an applicable Insertion Order or a separate Insertion Order, signed by both parties, and incorporated by reference, if applicable.  Either party may terminate an Insertion Order upon a breach of the other party’s obligations set forth in an Insertion Order if the breaching party is notified in writing and fails to cure the breach within ten (10) days’ notice of the alleged breach, and as otherwise stated herein.

Termination for Cause:  An Insertion Order may be terminated by a Party for cause immediately by written notice upon the occurrence of any of the following events: (a) if the other Party commits a material breach of its obligations under this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach;  (b) if Client fails to make any payment due to Inmar and such nonpayment continues for a period of ten (10) days after receipt of written notice from Inmar; or (c) if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding.

Fees and Invoicing:  Fees for an applicable Subscription or Services shall be set forth in an Insertion Order. Invoices are due and payable within thirty (30) days from date of invoice. Late payments shall be subject to a penalty of 1.5% interest per month. Funds must be presented in U.S. currency.  Any disputes regarding invoices must be communicated to Inmar within thirty (30) days of the date of invoice, or such invoice shall be deemed accurate.  Inmar License subscription is non-cancelable and non-refundable.  Licensee shall have the option to cancel the auto-renewing feature by contacting Inmar in writing at least sixty (60) days prior to its renewal date at cancel@willardbishop.com.

If applicable, fees for travel expenses and related costs (“Travel Expenses”) are primarily to cover such costs for Inmar for one (1) on-site visit to the Client location.  Any fees for additional expenses, beyond the expenses for the one (1) visit, will be agreed upon in advance and in writing between Client and Inmar, and billed to Client at actual costs. All Travel Expenses shall be subject to the review and approval of Client.

Intellectual Property.  Each party shall own and continue to own all rights it may have in intellectual property developed, invented, gathered, or created by it before or during the Term of this Agreement.  Except for the license grant set forth in the immediately succeeding paragraph, this Agreement shall not be construed to grant to either party any right, title, or interest in any intellectual property rights owned by the other party.  Without limiting the foregoing, all intellectual property rights, title, and interest in the methodology, technology, and know-how that Inmar uses to perform the Services under this Agreement, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar.

License Grant.  In the event Client is purchasing a Subscription, Inmar grants to Licensee a non-exclusive, non-transferable license to use and display the Data specified in the Order, subject to the limitations contained in this Agreement and such Order. Inmar retains all ownership rights (including copyrights and other intellectual property rights) in the Services, in any form, and Licensees obtain only such rights as are explicitly granted in this Agreement and such Order.  Inmar grants to each Licensee a non-exclusive, non-transferable license to use the Data and Affiliated Analytics, by channel, in accordance with the terms and conditions set forth herein. Upon expiration of the License, Licensee no longer has the right to continued use of the Product, Data or Affiliated Analytics.  Licensee also no longer has the right to utilize Inmar data in proprietary or third-party tool for ongoing use. Rights to Use is based on active product and channel Subscription (i.e., Grocery Consumer Decision Tree versus eComm Consumer Decision Tree). The Services are available only for Authorized Users within each Licensee’s company as described in the Order and may not be shared with other persons or entities. An Authorized User is authorized by a Licensee to access the Services during the term of this Agreement and according to the terms of the Order, either online via http://superstudy.willardbishop.com  or after the Data has been downloaded in accordance with the terms of this Agreement. Use of Subscription materials in any way breaching these Terms will result in termination of access to the web-tool.

Data Usage. Data collected or generated by Inmar in the performance of the Services and held by Inmar in a form that is identifiable to Client shall be and shall remain the property of Client (“Client Data”).  Inmar shall have a perpetual, royalty-free, non-exclusive license to use Client Data to perform the Services, and to aggregate, or otherwise manipulate, or create derivative works from, Client Data in a form that is not identifiable to Client.

Copyrights; Other Proprietary Rights.  Data is proprietary, and are copyrighted works of Inmar, Inc., and its affiliates.  Data comprises of:  (i) works of original authorship, including compiled Data containing Inmar or its affiliates’ selection, arrangement and coordination and expression of such Data or pre-existing material it has created, gathered or assembled; (ii) trade secret and other Confidential Data, including information that derives value or potential value from not being readily known or available; and (iii) information that has been created, developed and maintained by Inmar or its affiliates at great expense, such that misappropriation or unauthorized use by others for commercial gain would unfairly and/or irreparably harm Inmar and its affiliates or reduce Inmar or its affiliates’ incentive to create, develop and maintain such information. Licensee will not commit or permit any act or omission that would contest or impair Inmar or any affiliate’s proprietary and intellectual property rights in Data or that would cause the Data to infringe the proprietary or intellectual property rights of a third party. Licensee will reproduce Inmar or its affiliate’s copyright and proprietary rights legend on all copies of Data.

Licensee will not use any trademark, service mark or trade name of Inmar or any of Inmar affiliated companies or publish any press releases regarding this Agreement or any order. Licensee shall not disclose the negotiated pricing or terms of this Agreement, or any order, to any third party.

Inmar represents and warrants to Licensee that, to Inmar’s knowledge, the Data, when used in accordance with this Agreement, does not violate any existing, U.S. copyrights, patents, trademarks, or other intellectual property rights of any third party, as of the effective date of the applicable Order. The foregoing warranty does not apply to the extent Licensee modifies the Data in any way or combines the Data with material from third parties.

Licensee shall implement and maintain security measures with respect to the Data in Licensee’s possession that effectively restrict access to Data only to Authorized Users with a need to know, and protect Data from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Licensee employs to safeguard its most confidential information. Licensee shall supply Inmar with a description of such security measures at Inmar’s request. In the event of an actual or suspected breach of such security measures, Licensee shall notify Inmar within 24 hours.

Registration data and other information about Licensee are subject to the Inmar Privacy Policy.

Disclaimers.  Though Inmar and its affiliates use extensive procedures to keep its database current and to promote data accuracy, Licensee acknowledges that the Data will contain a degree of error.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, INMAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED BY IT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT, THAT SUCH SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES PROVIDED BY INMAR ARE “AS IS” WITHOUT WARRANTY OF ANY KIND.  IN NO EVENT WILL INMAR BE LIABLE TO CLIENT FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY INMAR, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF INMAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS

Confidentiality: The Parties shall each keep confidential any Confidential Information, except that the receiving Party may disclose Confidential Information to its professional advisors and those persons who need to know such Confidential Information in connection with providing the Services, provided such parties are instructed to maintain the confidentiality of the Confidential Information. For purposes of an Insertion Order, the term “Confidential Information” will mean proprietary and confidential information belonging to a Party, including, without limitation, all documentation, specifications, surveys, design concepts, trade secrets, internal reports and communications; sales information, marketing information and promotional plans; the fees for Services; marketing techniques, marketing plans, mailing lists, purchasing information, price lists, pricing policies, quoting procedures, financial information, customer names, customer data, pricing strategies, and other materials or information relating to the manner in which such Party does business; and any other materials or information related to the business or activities of such Party which are not generally known to others engaged in similar businesses or activities. “Confidential information” shall not include information which (a) was already known to the receiving Party prior to the time that it is disclosed to such Party; (b) is in or has entered the public domain through no breach of an Insertion Order or other wrongful act of the receiving Party; (c) has been rightfully received from a third party without breach of an Insertion Order; (d) has been approved for release by the disclosing Party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing Party has been given reasonable notice of the pendency of such an order and the opportunity to contest it. Each Party shall promptly, as of the termination or expiration of an Insertion Order and upon request of the other Party, return to the other Party or destroy any such Confidential Information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof).

The obligations under this Section shall continue for two (2) years following expiration or termination of an Insertion Order.

Representations and Warranties:  Each Party hereby represents and warrants that:  (i) it is duly organized and validly existing under applicable law; (ii) it has the requisite power and authority to enter into, execute and deliver an Insertion Order, and to consummate the transactions contemplated by an Insertion Order in accordance with its terms; (iii) Upon execution, an Insertion Order will constitute a valid and binding obligation of such Party enforceable in accordance with its terms; (iv) Neither the execution of an Insertion Order, the performance of its obligations, nor the grant or exercise of the rights and licenses herein will conflict with or result in a breach or violation of any of the terms or provisions of any Insertion Order it may have with any other party; (iv) it has the right and authority to grant the rights and licenses for the materials provided for, and that the use of such materials pursuant to the terms of such grant or license will not violate any other party’s intellectual property rights or other rights, including but not limited to rights of privacy or publicity; (vi) it shall notify the other Party immediately in the event it becomes aware of any facts or circumstances that might constitute a violation of this representation; and (vii) it will comply with all applicable federal, state and local laws in the performance of obligations under an Insertion Order.

Limitation of Liability:  NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO AN INSERTION ORDER OR ANY INSERTION ORDER, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO THIRD-PARTY CLAIMS FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION UNDER AN INSERTION ORDER.

Insurance: Each Party agrees throughout the term of an Insertion Order to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error and omissions liability and professional liability insurance coverage in a reasonable amount, at its own expense.  Upon request, a Party shall furnish to the other a certificate of insurance evidencing the same upon execution of an Insertion Order.

Indemnification:

Except as otherwise limited herein, each party (the “Indemnitor”) agrees to defend, indemnify, and hold harmless the other party (the “Indemnitee”) and its officers, directors, and employees from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees), judgments, and liabilities (collectively, “Expenses”) that (i) are made against or incurred by the Indemnitee in connection with a third party claim and (ii) arise out of acts or omissions of the Indemnitor in the performance of this Agreement that constitute gross negligence or willful misconduct on the part of the Indemnitor, so long as such Expenses are not primarily caused by the Indemnitee, its officers, directors, or employees. The indemnification set forth in this Section is conditioned upon (a) the Indemnitee providing the Indemnitor prompt written notice of any claim or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, (b) the Indemnitee providing reasonable assistance and cooperation to enable the Indemnitor to defend the action or claim hereunder, and (c) the Indemnitee refraining from making prejudicial statements associated with such claim without the prior written consent of the Indemnitor.

Default.  Any breach of the terms of these Terms that are not cured within thirty (30) days of receipt of written notice from the non-breaching party will constitute default of the Agreement by the breaching party. Failure of Client to make any payment due to Inmar shall constitute default by Client if such nonpayment continues for a period of ten (10) days after receipt of written notice from Inmar.  Insolvency, receivership, bankruptcy, or any similar proceeding initiated against either party will constitute default by such party

Notices:   Any notice required or permitted by this Insertion Order shall be in writing and shall be sent by  a recognized commercial overnight courier, or mailed by registered or certified mail, return receipt requested, addressed to the other Party as set forth below or to such other contact, address, as may be provided in writing by either Party hereunder. Additionally, as to Inmar, a copy shall be sent to: Inmar, Inc., 1 W. 4th St., Suite 500, Winston-Salem, North Carolina 27101, Attn: General Counsel.

Dispute Resolution:  In the event of a dispute between the Parties relating to an Insertion Order, the Parties will attempt to resolve such matter by good faith negotiations within thirty (30) days or, if mutually agreed by the Parties, a longer period of time.  If the Parties cannot resolve the dispute during the 30-day time period, the Parties will participate in good faith in at least one mediation session with a licensed mediator during the subsequent 30-day period. If the Parties cannot resolve the dispute for any reason, including but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, either Party may submit that dispute to the American Arbitration Association (“AAA”) for resolution. The Parties agree that each will bear its own costs and fees (including attorney’s fees) associated therewith, except that the parties shall share equally the costs of the arbitration as charged by AAA. There shall be three arbitrators, with one to be chosen by each Party and the third selected by the chosen arbitrators. The arbitration shall take place at Inmar’s principal offices in Winston-Salem, North Carolina. The decision of the arbitrators shall be final and binding on the Parties and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any arbitration award shall include attorney’s fees for the prevailing party.

Miscellaneous:

1. Entire Insertion Order/Amendment. These Terms, and an applicable Insertion Order, shall constitute the entire agreement between the Parties with respect to subject matter hereunder. No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of both Parties.
2. Force Majeure. A Party shall not be considered in default of an Insertion Order or liable for fees, costs and/or damages, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, transportation delays, government action or other cause beyond the reasonable control of that Party. Each Party will promptly notify the other Party of the occurrence of any Force Majeure that may affect its performance under the Insertion Order.
3. Governing Law. These Terms, and an applicable Insertion Order, shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to conflict of law principles, and shall benefit and be binding upon the Parties hereto and their respective successors and assigns.
4. Severability. If any term or condition of These Terms or an the Insertion Order is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of These Terms or an Insertion Order, unless enforcing the balance of the Insertion Order would deprive either Party of a fundamental benefit of its bargain.
5. Relationship of the Parties. Inmar shall perform its obligations under these Terms or an Insertion Order as an independent contractor. Nothing contained herein shall place the Parties in the relationship of partners, joint venturers, principal-agent, or employer-employee nor shall either Party have any right to obligate or bind the other in any manner whatsoever.
6. Assignment. Except as specifically permitted herein, a Party’s obligations may not be assigned without the prior written consent of the other Party, such consent not to be unreasonably withheld. Any assignment without such consent shall be void upon written notice. Notwithstanding the foregoing, Client may assign an Insertion Order to a purchaser of substantially all of the assets of Client, and either Party may assign an Insertion Order to an Affiliate upon written notice to the other Party.
7. Survival. The Parties’ obligations under Fees and Invoicing, License Grant, Confidentiality, Representations and Warranties, Limitation of Liability, Indemnification, Dispute Resolution and this Section, Miscellaneous, each shall survive the termination of an Insertion Order.

END OF TERMS