3. Intellectual Property Rights.
3.1 Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, (collectively "Intellectual Property") therein. Subject to and in accordance with the terms and conditions of this Agreement, Client grants Service Provider a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use Client's Intellectual Property solely to the extent necessary to provide the Services to Client.
3.2 In the course of providing the Services, Service Provider will be using certain pre-existing materials consisting of documents and materials of Service Provider, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by Service Provider prior to the commencement or independently of this Agreement (collectively, the "Pre-Existing Materials"). Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Service Provider hereby grants Client a perpetual, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise required in connection with Client's receipt or use of the Services. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
3.3 In the course of providing the Services, Service Provider will be using certain third-party materials consisting of documents, data, content, or specifications of third parties, and components or software (including the program called Simpli.fi) that are not proprietary to Service Provider (collectively, the "Third-Party Materials" or “Media”). Client shall have a limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Services. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, estoppel, or otherwise.
6.1 Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Service Provider Indemnified Party"), from and against any and all judgments, settlements, fees, costs and expenses (“Losses”) arising out of or resulting from any third-party Claim or direct Claim. Herein, a “Claim” includes allegations of:
(a) material breach by Client of any representation, warranty, covenant, or other obligations set forth in this Agreement;
(b) gross negligence or more culpable act or omission of Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and
(c) that any Client Materials or Client Intellectual Property or Service Provider's receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party arising under the laws of the United States.
6.2 Service Provider Indemnification Obligations. Service Provider shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, "Client Indemnified Party"), from and against any and all Losses, arising out or resulting from any third-party Claim or direct Claim alleging:
(a) material breach by Service Provider of any representation, warranty, covenant or other obligation set forth in this Agreement;
(b) gross negligence or more culpable act or omission of Service Provider Indemnifying Party (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(c) that any of the Services or Client's receipt or use thereof infringes any Intellectual Property of a third party arising under the laws of the United States.
6.3 Exceptions and Limitations on Indemnification.
(a) Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from the other Party's:
(i) willful or reckless or negligent acts or omissions; or
(ii) bad faith failure to materially comply with any of its material obligations set forth in this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, Client shall have no obligations to indemnify or defend Service Provider or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
(i) any instruction, information, designs, specifications, or other materials provided by Service Provider in writing to Client;
(ii) Service Provider's use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Service Provider or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or
(iii) any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any person other than Client.
(c) Notwithstanding anything to the contrary in this Agreement, Service Provider shall have no obligations to indemnify or defend Client against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
(i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Service Provider;
(ii) Client's use of the deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the deliverables or Intellectual Property of Service Provider not so combined; or
(iii) any modifications or changes made to the deliverables by or on behalf of any person other than Service Provider.
6.4 Indemnification Procedures. A party seeking indemnification under this Section 6 (the "Indemnified Party") shall give the Party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
7. Limitation of Liability.
7.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION,OR LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION, OR LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED TEN (10) TIMES THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8. Confidentiality. Any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor or permitted assign of a Party shall be collectively called "Representatives." From time to time during the Term, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property (as defined in paragraph 3.1 herein), trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party's written request, the Receiving Party and its Representatives shall, promptly return all Confidential Information and copies thereof that it has received under this Agreement.
11.1 Entire Agreement. This Agreement, including the related schedules attached hereto, any Addendum to this Agreement, and any invoice issued by Service Provider, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.2 Survival. Subject to the limitations and other provisions of this Agreement any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination.
11.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Any Notice given hereunder by either party to the other must be in writing and may be made (1) by personal delivery (including overnight delivery services), (2) by registered or certified U.S. mail, postage prepaid, return receipt requested, or (3) by email, and shall be deemed to be given on the earlier of either: (a) the date of actual receipt or refusal thereof by the intended recipient, (b) the date of confirmed receipt by return email message sent by the recipient to the sender to the email address provided as above, or (c) if by U.S. mail, the seventh (7th) day next following the date mailed.
11.4 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.5 Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
11.6 Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.7 Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
11.8 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.9 [Intentionally left blank.]
11.10 Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Service Provider is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
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