Standard Terms and Conditions for Analytics Services

Last Update: March 31, 2022

These Standard Terms and Conditions for Analytics Services (“Terms and Conditions”) shall govern the provision of analytics services provided by Inmar Analytics, Inc, and its affiliates (collectively, “Inmar”) to the Client identified on an applicable Order Form (“Client”). Together, an Order Form and these Terms and Conditions may be referred to as an “Agreement”. For purposes of these Terms and Conditions, Inmar and Client each may be referred to herein as a “Party” or collectively as “Parties”. Capitalized terms herein not otherwise defined shall have the meaning as set forth in the applicable Order Form or Supplemental Terms and Conditions herein.

  1. Definitions. For purposes of these Terms and Conditions, the following definitions shall apply:
    1. “Affiliated Analytics” shall mean Inmar’s proprietary calculations or assertions based on or derived from licensed or proprietary data.
    2. “Authorized Users” shall mean the users within each Client company subject to the maximum number of licenses as indicated on an applicable Order Form.
    3. “Client” shall mean the client as set forth in an applicable Order Form.
    4. “Inmar Aggregated Data” shall mean Inmar’s proprietary aggregations of data, which may include data related to digital offer publication, coupon processing, rebate processing, or other promotional services that Inmar will use to provide the deliverables hereunder. Inmar Aggregated Data excludes Client Data.
    5. “Order Form” shall mean the form entitled Order Form for Products or Services as agreed to between Client and Inmar, under which Client submits an order for selected Products or Services.
    6. “License” shall mean any non-exclusive, non-transferable limited license granted by Inmar to Client hereunder to use the Affiliated Analytics or Products specified in an applicable Order Form.
    7. “Products” shall mean the data analytics and/or professional services as selected by Client pursuant to an applicable Order Form, and which are described more fully on the attached Product Addenda.
    8. “Subscription(s)” shall mean the subscription(s) purchased for Products as selected by Client on an applicable Order Form.
    9. “Subscription Add-On” shall mean additional functionality or customization features for Subscriptions which are non-standard, as defined and selected in an applicable Order Form.
       
  2. Conformity with Applicable Law. Client’s use of the Services, Products, third party platforms, and Affiliated Analytics, must in all cases comply with all applicable laws and regulations.
     
  3. Term, Termination and Post-Termination. The initial term of an applicable Order Form shall commence on the Order Form Effective Date, and continue for the period as established on an applicable Order Form (“Initial Term”). If an applicable Order Form provides for automatic renewal, at the end of the Initial Term, these Terms and Conditions shall be renewed automatically for one (1) year periods (each one (1) year period shall be defined as a “Renewal Term”) unless terminated in accordance with this Section. The Initial Term and all Renewal Terms, if any, are collectively referred to as the “Term”.

    Either Party may terminate these Terms and Conditions and an applicable Order Form upon written notice in the event of default by the other Party if such default continues beyond the period for cure provided in Section 13 (Default) hereunder. These Terms and Conditions and an applicable Order Form may be terminated, upon the expiration of the Initial Term or any Renewal Term, by either Party hereto provided that written notice is received by the non-terminating Party at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. If notice of termination is timely given in accordance with this Section, the obligations of Inmar and Client under these Terms and Conditions shall continue until the expiration of the Initial Term or the then-current Renewal Term in which such notice is given, at which time these Terms and Conditions and an applicable Order Form will terminate. Upon termination of these Terms and Conditions or an applicable Order Form, Client agrees to pay all undisputed outstanding invoices to Inmar. License Subscriptions are non-cancelable and non-refundable.
     
  4. Fees; Fee Adjustments; Expenses.
    1. Fees. Client agrees to pay Inmar the fees agreed to in an applicable Order Form. Such Order Form will become part of these Terms and Conditions and will incorporate all of its provisions. Unless agreed to otherwise in an applicable Order Form, Client agrees to pay Inmar invoices within thirty (30) days of the Inmar invoice date. Funds must be presented in U.S. currency. All invoices not paid by Client by the Inmar invoice date are subject to a past due charge of one and one-half percent (1½%) per month. In the event that any Inmar invoice is collected by or through an attorney or collections agent, Inmar shall be entitled to recover reasonable attorneys’ fees and the cost of collection.
    2. Fee Adjustments. Products and/or Services provided pursuant to an applicable Order Form may be subject to an annual price increase in an amount not to exceed five percent (5%) per year.
    3. Expenses. If applicable, Client shall reimburse Inmar for reasonable travel costs and expenses incurred.
       
  5. 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 and the receiving Party shall be responsible for any breach of these confidentiality obligations due to any disclosure made by any such Parties. The term “Confidential Information” will mean all communications, documents, and other information, whether in written, oral, electronic, or other form, that any disclosing Party furnishes or otherwise discloses to a receiving Party in connection with an applicable Order Form, including, but not limited to, the existence of these Terms and Conditions, the existence of discussions between Inmar and Client, financial and business information, computer software, processes, pricing policies, product plans, designs, market research and analysis, costs, customer and supplier lists, strategies, forecasts, know-how, data, methodologies, concepts, trade secrets, inventions and ideas, and all other information disclosed by Inmar or Client pursuant to these Terms and Conditions. Any Confidential Information supplied by either party to the other party prior to the execution of an applicable Order Form and these Terms and Conditions shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available after an applicable Order Form and these Terms and Conditions. “Confidential information” shall not include information which (i) at the time of disclosure or thereafter is in the public domain or becomes generally known to the public through no fault of the receiving Party; (ii) was available to the receiving Party on a non-confidential basis from a source other than the disclosing Party, provided that such source was not known by the receiving Party to be bound by a confidentiality agreement with the disclosing Party; (iii) is known to the receiving Party (as evidenced by its written records) prior to receipt thereof from the disclosing Party; or (iv) is required to be disclosed by a court of competent jurisdiction or by law, provided that the disclosing Party is given prior written notice of such disclosure (to the extent legally permitted). Each Party shall, upon request, 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 four (4) years following expiration or termination of an Order Form.
     
  6. License Grant. Inmar will provide Client a limited, non-exclusive, non-transferable License to use Products, subject to the limitations contained in the Agreement and the First Amendment. Inmar retains all ownership rights (including copyrights and other intellectual property rights) in the Products and Inmar Aggregated Data, in any form, and Client obtains only such rights as are explicitly granted in the Agreement and the First Amendment. Client agrees (i) that it will not, except as otherwise provided herein, resell or redistribute any deliverables, and (ii) to limit its use of deliverables to the direct marketing of Client’s products and services, or otherwise for internal use only.. The Products are available only for Authorized Users within Client's company as described in an applicable Order Form and may not be shared with other persons or entities. An Authorized User is authorized by Client to access the Products during the Term, and in accordance with the terms of an applicable Order Form. Upon expiration of an applicable Order Form, Client no longer has the right to continued use of the Affiliated Analytics or Products.
     
  7. Third-Party Data. Inmar will work with Client, third-party service providers, and internal staff to collect and process information and data from third-party service providers for Inmar's use in connection with Products or Services selected by Client on an applicable Order Form (“Third Party Data”). Client should provide proper approvals and authorizations for Inmar to use Third Party Data. Client and Inmar will execute non-disclosures and third-party agreements as required by third-party service providers for Inmar access and use of such Third Party Data on Client’s behalf.
     
  8. 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 set forth on an applicable Order Form. Except for the license grant set forth in Section 6 (License Grant), these Terms and Conditions 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 these Terms and Conditions, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar.
     
  9. Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS, 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 THESE TERMS AND CONDITIONS, THE SERVICES PROVIDED BY INMAR ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING REASONABLE 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.
     
  10. Limitation. Unless otherwise limited herein, the liability of either Party under these Terms and Conditions, an applicable Order Form and/or applicable Supplemental Terms or otherwise, regardless of the form of claim or action, will not exceed the amounts actually paid by Client to Inmar for Services provided by Inmar pursuant to these Terms and Conditions in the prior twelve (12) month period for applicable Services or Products selected pursuant to an applicable Order Form.
     
  11. Indemnification. Except as 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 or relate to acts or omissions of the Indemnitor in the performance of these Terms and Conditions 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 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.
     
  12. Insurance. Each Party agrees throughout the term of an Order Form to maintain in full force and effect commercial general liability, umbrella 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 Order Form.
     
  13. Default. Any breach of these Terms and Conditions that is not cured within thirty (30) days of receipt of written notice from the non-breaching Party will constitute default of these Terms and Conditions by the breaching Party. Failure of Client to make any payment due to Inmar shall constitute default by Client if such non-payment 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 that Party.
     
  14. Notices. Any notice required or permitted by an applicable Order Form 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 on an applicable Order Form 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.
  15. Miscellaneous.
    1. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure of performance of these Terms and Conditions if such delay or failure is caused by weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, acts of terrorism, civil disturbance, or any cause beyond the control of a Party (each an “Event of Force Majeure”). If a delay or failure of performance by Inmar is caused by an Event of Force Majeure, an affected Party shall notify the other Party and shall be released without any liability from its performance under these Terms and Conditions to the extent and for the period of time that such performance is prevented by the Event of Force Majeure.
    2. Governing Law and Jurisdiction. These Terms, and an applicable Order Form, 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. The parties hereto irrevocably agree that any legal action or proceeding with respect to this Order Form shall be brought exclusively in the courts in the State of North Carolina, and further agree to submit to the jurisdiction and venue of such courts.
    3. Reduction of Statute of Limitation. No action arising out of these Terms and Conditions may be brought by either Party more than one (1) year after the date on which the cause of action has accrued.
    4. Entire Agreement/Amendment. These Terms and Conditions, an applicable Order Form, and schedules, if any, shall constitute the entire agreement between the Parties with respect to the subject matter hereunder. No amendment or modification hereof shall be valid unless in writing and signed by a duly authorized representative(s) of both Parties.
    5. Relationship. Inmar shall act as an independent contractor in the performance of Services provided for herein and nothing herein shall be construed to create the relationship of principal and agent, master and servant, or a partnership or joint venture between Inmar and Client.
    6. Assignment/Binding Effect. 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, either Party may assign an Order Form to a purchaser of substantially all of the assets of such Party.
    7. Waiver. Failure of either Party to enforce a specific provision of these Terms and Conditions shall not constitute a waiver of such provision or of any other provision of these Terms and Conditions. No waiver of any of the provisions of these Terms and Conditions shall be deemed to be or shall constitute a waiver of any other provision of these Terms and Conditions, whether or not similar, nor shall any waiver by either Party of any default hereunder constitute a waiver of subsequent defaults of the same or different kind. No waiver of any provision of these Terms and Conditions shall be binding on the Parties hereto unless it is executed in writing by the Party making the waiver.
    8. Severability. If any term or condition of these Terms and Conditions or an applicable Order Form are 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 and Conditions or an applicable Order Form, unless enforcing the balance of the Order Form would deprive either Party of a fundamental benefit of its bargain.

End of Terms

Products Addenda

The following describes the Products which may be selected by Client on an applicable Order Form are described as follows:

Analytics On Demand

A visualization platform built to enhance consumer promotion productivity and increase the speed at which insights are gained and communicated. Delivers fast, state-of-the-art visual analytics providing improved speed to insights. Promotion analytics to identify gaps vs best in class performance. 24/7 web-based access, with automated email delivery of dashboards.

Promotion Pro Package includes access to four workbooks including: coupon settlement, Digital, Rebates, and Advanced Coupon Settlement. The Advanced coupon settlement workbook includes a more sophisticated level of data that will lead to new insights.

Consumer Decision Tree

Consumer Decision Trees (CDT) On-Demand is the industry's first cloud-based consumer decision tree system that is available 24/7. CDTs On-Demand captures purchase behaviors from nearly 2,000 stores across the U.S. and key purchase data from 1.5 billion transactions. Utilizing this data, the tool enables manufacturers to identify and rank product attributes based on each attribute's influence on a purchasing decision. CDTs can be created by channel (brick-and-mortar and/or eCommerce), region, or store cluster. CDTs can also be created for specific accounts with the appropriate permissions and requisite data. CDTs On-Demand is a subscription-based tool with unlimited access to the categories defined in the service agreement order form.

Mix-Master™ Efficient Assortment Tool

Mix-Master is a menu-driven assortment tool with an intuitive interface that enables users to quickly and efficiently optimize assortment based on a number of variables including sales, movement, and profitability (adjusted gross margins).

Mix-Master is great for retailers with limited data sets, providing users with the ability to weight results based on category roles. Results can also be weighted by sales and movement, as well as by adjusted gross margin, with the addition of the Profit Integration Tool.

Reset Analyzer

Reset Analyzer helps retail operators understand the true costs of each re-merchandising activity to improve decision making. Reset Analyzer identifies the cost (activity-based costing methodology) to execute shelf changes using 55 labor and cost inputs across the following three areas:

  • HQ Planning & Scheduling - from planning and schematic develop to assembling the reset packages.
  • In-Store Execution - from drive time to reviewing store changes
  • HQ Follow-Up - From reviewing store recap sheets to centralizing the equipment and fixtures. Outputs include Activity Reporting by ABC and hours. Reports roll-up from each individual SKU.

Standard Terms and Conditions for Analytics Services (v. 1 - Nov 20 2019)