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Any failure or delay in the performance by either party of their obligations hereunder shall not be a breach of this Agreement if such failure or delay arises out of or results primarily from fire, storm, flood, earthquake or other acts of God, explosions, wars, insurrections, strikes, work stoppages or slowdowns, epidemic or quarantine restrictions, unforeseen equipment failure or inability to obtain essential raw materials despite commercially reasonable best efforts to do so (the occurrence of any of the foregoing shall be an “Event of Force Majeure”).
Either party may request changes to this Agreement, in writing, however, the receiving party will have thirty (30) days to respond.
Sawtooth will audit, compose, recommend, and review all ad & landing page copy in compliance with online’s policies and procedures. Sawtooth will work closely with Client to ensure messaging is correct to Client’s audience and brand. Client is aware that, despite Sawtooth’s experience, best practices, and precautions, Sawtooth does not and can not know every advertising platform (Facebook, Instagram, Google, Youtube, etc) and/or state and federal regulatory agency’s rules and regulations. Unilateral restrictions or bans may be handed down from these entities, which are outside of Sawtooth’s control, and for which Sawtooth will not be responsible.
Sawtooth may launch offers across other platforms, including but not limited to, Facebook, Google search, Google Display Network, YouTube, and others as agreed upon by both Parties.
Each of Client and Sawtooth agrees that it will take all steps reasonably necessary, at its own expense, including designating key individuals to perform its obligations hereunder, conducting periodic meetings of all such key individuals and others, as necessary, to fully cooperate with all reasonable requests for assistance, and to take such further steps and execute such further documents as may be reasonably necessary.
The parties will make diligent efforts through their respective key individuals to identify the causes of any problems in the Services and to make adjustments, in an equitable fashion, in order to address and resolve such problems, including the substitution or modification of the Services and the corresponding compensation therefore. Any grievances will be discussed directly between owners and managers, and not with support staff.
6.1 OWNERSHIP
6.1.1 Ownership of Work Product.
Sawtooth agrees, under the laws of corporate authorship, that it is commissioned by Client to produce marketing and advertising creative content, and all copyright and ownership rights are retained by Client, and also acknowledges that all creative content, images, logos, trademarks, slogans, artwork, written materials, drawings, photograph, graphic material, film, music, or any other creative content media produced, that is created specifically for Client by Sawtooth, and is specific to Client’s brand, under this agreement, and accepted by Client, as provided in 10.1.2 below (collectively the “Work Product”) are the property of Client.
Client agrees and acknowledges that all intellectual property such as trademarks, copyrights, workflows, technology, processes and procedures, licenses and all other intellectual property or other materials that are subject to copyright, trademark, patent, or similar protection, used in connection with the services provided to Client by Sawtooth under this agreement (collectively the “Intellectual Product”) are the exclusive property of Sawtooth .
To the extent any of the Work Product is licensed to Sawtooth by a third party for Sawtooth ’s exclusive use and enjoyment, Sawtooth shall retain all rights, title, and interest in and to the licensed portion of the Work Product (e.g. fonts and stock photos) and to any modifications or improvements made thereto and may use such Work Product as part of its services to other parties. It is understood that Sawtooth may, on occasion, license materials from third parties for inclusion in Work Product.
In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license described in section 6.1.2 below and does not belong to Client.
Sawtooth will keep Client informed of any such limitations by third parties. Sawtooth may use any stock photo accounts provided by Client.
6.1.2. Acceptance of and Grant of License to Work Product.
After review of Sawtooth’s work, Client shall provide Sawtooth with written acceptance of the work. Client acknowledges that the fees charged by Sawtooth for this work, as outlined in Exhibits or (Scope of Work), were specifically calculated based on the usage contemplated by Client.
Client grants Sawtooth a limited, non-exclusive right to use the Work Product but only for the uses associated with the projects described in any estimate or written project description agreed to by the parties, and only in the event the following conditions are met:
No license shall be granted for Work Product that does not meet the two foregoing conditions and Client shall return such Work Product to Sawtooth within 30 days.
Live files will not be provided to Client under any circumstances unless Sawtooth receives satisfactory information determined in Sawtooth ‘s sole discretion that sufficient licenses and other necessary rights have been obtained by Client in order that no third party intellectual property rights will be violated or impaired in any way.
iii. Any such termination shall be in addition to any other rights or remedies available at law or in equity to the terminating party.
Upon termination of this Agreement for any reason, Client shall, within ten (10) days of such termination and in accordance with any instruction provided by Sawtooth, return to Sawtooth any and all tangible Sawtooth property that has come into Client’s possession, including all copies thereof and any notes, memoranda, and other documents of other media relating thereto.
Unless transferred pursuant to section 6.1, the product of all work performed under this Agreement, including, without limitation, reports, drawings, computer programs, data, devices or models, shall be the property of Sawtooth or its nominees, and Sawtooth or its nominees shall have the sole right to use, sell, license, publish or otherwise disseminate or transfer rights of such work products.
It is stipulated and agreed that during the term of this Agreement, Client and Sawtooth will be in a position to become acquainted with each other’s confidential, privileged and proprietary information including, without limitation, identities of suppliers, expenses, pricing techniques and strategies, profits and product line profitability information, existing and future product information, research and development programs, specifications for products, software designs, know-how, trade secrets and other intellectual property, business plans and records, customer names, lists, files and other customer information, budget and financial information and the goals and objectives of the other party, methods, practices and techniques for promoting and marketing products, personnel matters and other confidential processes, formulae or materials regarded by such party as privileged, proprietary or confidential (each parties’ respective confidential information is referred to herein as such party’s “Confidential Information”).
Client agrees that the Confidential Information of Sawtooth, and Sawtooth agrees that the Confidential Information of Client, is an integral and key part of the assets of each respective entity, and that the unauthorized use or disclosure of the other party’s Confidential Information would seriously damage the owner thereof in its business. Because of the above, Client and Sawtooth hereby agree that, during the term of this Agreement and thereafter:
9.1 Client ’ s Confidential Property
Except in the course of rendering the services contemplated by this Agreement, Sawtooth shall not disclose or cause to be disclosed to any third party (other than its employees, consultants and contractors rendering services or providing facilities or materials in connection with Sawtooth services to Client) any information of any type that is secret, concerns Client’s business and is not otherwise known outside of Client or its affiliates, including, but not limited to, such information contained in marketing timetables, projections, information and operation methods, specifications, know-how, techniques, manuals and the like, both written and unwritten (“Confidential Property”) which may be given or shown to Sawtooth or to which Sawtooth may be granted access by Client or its affiliates.
Confidential Property shall not include anything which (i) is approved for release pursuant to Client’s written authorization; (ii) is a matter of public information; (iii) is information previously known to Sawtooth which was not obtained from Client or in any improper manner; (iv) is information now in the public domain or which subsequently enters the public domain not as the result of Sawtooth ’s action or inaction; or (v) is information subsequently made available to a third party under no duty to Client to preserve its confidentiality.
Sawtooth agrees to take all reasonable measures to avoid any wrongful disclosures, and to exercise no less than the standard of care Sawtooth uses to safeguard its own trade secrets and other of its own Confidential Property.
Sawtooth shall advise each of its employees, consultants and contractors working on any of Client’s matters as to this obligation and shall use reasonable efforts to have them agree to comply with the requirements set forth in this paragraph.
9.1.2 Sawtooth’s Confidential Property
Sawtooth considers any information of any type that is secret, concerns Sawtooth ’s business, and is not otherwise known outside of Sawtooth or its subsidiaries or affiliates, and such information contained in marketing timetables, projections, information and operation methods, specifications, know-how, financial information, marketing strategies, techniques, methodologies, manuals and the like, both written and unwritten, to be its Confidential Property.
Client agrees to hold such Confidential Property in confidence, to take all reasonable measures to avoid any wrongful disclosures, and to exercise no less than the standard of care Client uses to safeguard its own trade secrets and other of its own Confidential Property. Client shall advise each of its employees, consultants and contractors working on any matters relating to Sawtooth as to this obligation and shall use reasonable efforts to have them agree to comply with the requirements set forth in this paragraph.
10.1 Specific Performance of Sawtooth
Client acknowledges that the subject matter of Sawtooth ’s services are of a special, unique and extraordinary character and that it would be difficult to impossible to value the damages rendered in the event of disclosure by Client to third parties and Client further acknowledges that a violation by Client of any of the restrictive covenants contained in this Agreement could cause irreparable injury to Sawtooth and that in such event money damages would not be readily calculable and that Sawtooth would not have an adequate remedy at law.
By reason thereof, Client agrees and consents that if it violates any of the provisions of this Agreement, in addition to any other rights and remedies available under this Agreement or otherwise, shall be entitled to an injunction to be issued by any tribunal of competent jurisdiction restraining Client from committing or continuing any violation of
this Agreement.
10.1.2 Specific Performance of Client
By reciprocity, Sawtooth acknowledges that the subject matter of Client’s product(s), brand(s), and/or business(es) are of a special, unique and extraordinary character and that it would be difficult to impossible to value the damages rendered in the event of disclosure by Sawtooth to third parties and Sawtooth further acknowledges that a violation by Sawtooth of any of the restrictive covenants contained in this Agreement could cause irreparable injury to Client and that in such event money damages would not be readily calculable and that Client would not have an adequate remedy at law.
By reason thereof, Sawtooth agrees and consents that if it violates any of the provisions of this Agreement, in addition to any other rights and remedies available under this Agreement or otherwise, shall be entitled to an injunction to be issued by any tribunal of competent jurisdiction restraining Sawtooth from committing or continuing any violation of this Agreement.
If the receiving Party is required by law or by interrogatories,requests for information or documents, subpoena, civil investigative demand, or similar process to disclose any Confidential Information, such Party will provide the disclosing party with prompt, prior written notice of such request or requirement so that the disclosing Party may view a n appropriate protective order and/or the receiving Party’s compliance with the provisions of this Agreement.
For the purposes of this agreement, all advertising and marketing assets created during this agreement period will be owned by CLIENT. As CLIENT has final veto power on all content and marketing, they assert and maintain they have all rights to use, market, and profit from all content, product, and/or collateral materials delivered to Client from Sawtooth. Any objections from third parties will be between the third party and CLIENT, as CLIENT has ultimate say in product development and claims, and deployment and use of all marketing collateral created by Sawtooth. As the commissioning party, Client retains all rights to the creative content and deliverables stated in the Statement of Work.
Neither Party hereto may assign this Agreement or any rights hereunder to any other person, without the prior written consent of the other party hereto. This Agreement shall be binding upon and inure to the benefit of the successors of the parties hereto.
The failure of any party hereto to enforce, at any time, any of the provisions of this Agreement, shall in no way be construed to constitute a waiver of any such provision, nor in any way to affect the validity of this Agreement, or any part hereof, including the right of any party thereafter to enforce each and every provision. The waiver, by any party to this Agreement, of any breach or violation of any provision of this Agreement by the other party hereto shall not operate or be construed to be a waiver of any subsequent breach or violation thereof.
The terms and conditions of this Agreement are hereby deemed by the parties to be severable, and the invalidity or unenforceability of any one or more of the provisions of this Agreement shall not affect the validity and enforceability of the other provisions hereof.
16.1 Indemnification of Client by Sawtooth Enterprises LLC
Sawtooth shall indemnify, defend, and hold harmless CLIENT, its affiliates, and their respective directors, officers, employees, agents and representatives from and against any and all suits, actions, damages, costs, losses (including, without limitation, reasonable attorney’s fees), expenses, judgments, settlement costs, and other liabilities arising from (i) Any negligent or willful errors or omissions on the part of Sawtooth; or (ii) Any breach of this
Agreement by Sawtooth. These indemnification provisions shall be in effect during the term of this agreement. Sawtooth shall not have any liability after the termination of this agreement.
16.2 Indemnification of Sawtooth Enterprises LLC by Client
CLIENT agrees to cooperate fully with Sawtooth and provide it with information necessary to perform the services required under this Agreement, and to put forth its best efforts to avoid any claims, suits, investigations, or proceedings (collectively or individually, a “Claim”) against Sawtooth.
CLIENT shall indemnify, defend and hold harmless Sawtooth, its subsidiaries and affiliates, and their directors, officers, employees, agents, representatives, suppliers and vendors from and against any suits, actions, damages, costs, losses (including, without limitation, reasonable attorney’s fees), expenses, judgments, settlement costs, and other liabilities arising out of: (i) Assertions made regarding CLIENT or CLIENT’S competitors, or any of their products or services, in any advertising which Sawtooth may prepare for CLIENT and which CLIENT approves, in writing, before its publication or broadcast; or (ii) An advertising element which is furnished by CLIENT to Sawtooth and which allegedly violates the personal or property rights (including copyrights, trademarks or service marks) of anyone, or otherwise injures anyone; or (iii) Any alleged injury that a third party may attribute to CLIENT’s products or services; or (iv) Any negligent or willful errors or omissions on the part of CLIENT; or (v) Any breach of this Agreement by CLIENT. These indemnification provisions shall survive the termination of this Agreement.
16.3 Indemnity against Patent Claims
The CLIENT shall indemnify and hold harmless Sawtooth against any and all claims, suit or action, or any alleged violation or infringement of any patent rights as a result of assets provided by CLIENT, which may be made against Sawtooth by reason of the use in connection with, or as a part of, the performance of the work or the furnishing of materials hereunder, of anything which is now or may hereafter be covered by patent, copyright or trademark, and against all expense, including attorney’s fees, which Sawtooth may incur in defending or adjusting any such claim, suit or action.
CLIENT HEREBY UNCONDITIONALLY RELEASES AND FOREVER DISCHARGES ANY PERSONS, ENTITIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, PARTNERS, SHAREHOLDERS, SUCCESSORS, ASSIGNEES, PARENT OR SUBSIDIARY ENTITIES, REPRESENTATIVES, MEMBERS OR AFFILIATES RELATED IN ANY WAY TO THE SAWTOOTH COMPANY FROM ANY AND ALL ACTIONS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, CLAIMS DEMANDS (INCLUDING WITHOUT LIMITATION THOSE BASED ON NEGLIGENCE, GROSS NEGLIGENCE AND/OR PRODUCT LIABILITY, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OTHER DUTY OF CARE OWED UNDER APPLICABLE LAWS.
Either party may request that the parties submit any claim to non-binding arbitration under the rules of the American Arbitration Association. If, after the ruling by the arbitrator, either party elects to go forward with litigation, the party electing to go forward shall pay the statutory rate of interest on any award amount in excess of the arbitration award against them, if any, ultimately awarded by the court.
Sawtooth and CLIENT further agree that if any party finds it necessary to enforce this Agreement in court, the prevailing party is entitled to recover all reasonable costs, expenses and attorney’s fees incurred in enforcing the terms of this Agreement.
Client and Sawtooth are acting solely as independent contractors under this Agreement. It is expressly understood and agreed by the parties hereto that nothing in this Agreement, its provisions or transactions and relationships contemplated hereby shall constitute either party as the agent, employee, partner or legal representative of the other for any purpose whatsoever, nor shall either party hold itself out as such. Neither party to this Agreement shall have the authority to bind or commit the other party hereto in any manner or for any purpose whatsoever, except as may be expressly provided for herein, but rather each party shall at all times act and conduct itself in all respects and events as an independent contractor. This Agreement creates no relationships of joint venturers, partners, associates or principal and agent between the parties hereto.
If any paragraph, section, sentence, clause or phrase contained in this Agreement shall become illegal, null or void or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void against public policy, the remaining paragraphs, sections, sentences, clauses or phrases contained in the Agreement shall not be affected thereby.
21.1 OBLIGATIONS OF SAWTOOTH ENTERPRISES
Sawtooth agrees to provide the marketing, creative, and/or social media advertising services to Client specified in Exhibits or Scope of Work, attached hereto. All costs associated with services will be generated through Sawtooth ’s estimating system and approved by Client in writing, with additional responsibilities as mutually agreed upon, prior to commencement.
21.2 OBLIGATIONS OF Client
Client shall provide Sawtooth and its authorized employees and agents timely and reasonable access to its information and property for the purposes of Sawtooth ’s services, including but not limited to the following:
22.1 No Assignment of Obligations
Neither party may assign any of its respective obligations under this Agreement without the express written consent of the other Party.
22.2 Assignment of Owner’s Rights
Sawtooth may assign or sublicense all or any portion of Sawtooth’s rights under this Agreement to any third party, without the permission of Client.
Sawtooth will advise Client in writing of Sawtooth ’s obligations under applicable union codes or contracts relating to the use of the commercials produced by Sawtooth for Client, as such codes or contracts exist from time to time.
If any Claim is made or brought against Sawtooth because Client or its employees, agents or representatives have used such commercials without complying with such union codes or contracts in accordance with Sawtooth ’s advice to Client, Client shall indemnify, defend and hold harmless Sawtooth and its subsidiaries and affiliates, and their officers, directors, employees, agents and representatives against any loss they may sustain resulting from such Claim. Client’s duty under this paragraph attaches to all commercials produced by Sawtooth for Client pursuant to this Agreement, and will survive the termination of this Agreement.
This Agreement may be executed in counterparts in order to provide each party hereto with a fully executed original hereof. In that this Agreement was prepared as a result of negotiation and mutual agreement between the parties hereto; neither this Agreement nor any provision hereof shall be construed against either party hereto as the party who prepared this Agreement or any such provision. This Agreement, along with the Master, reflects the complete understanding of the parties as of the date hereof and constitutes their entire agreement regarding the subject matter hereof, all prior negotiations, representations and statements having been merged herein. This Agreement may be amended only by a written amendment between the parties hereto.
During the term of this agreement, and for a period of five (5) years immediately thereafter, Client agrees not to solicit any employee or independent contractor of the Company, nor shall Client induce any other employee or independent contractor associated with the Company to terminate or breach an employment, contractual or other relationship with the Company.
Sawtooth Media Group is a marketing agency that offers marketing and creative services. Sawtooth reserves the right to offer these services, products, content and creative work to whomever it so chooses, with no obligation or exclusivity to any Party, whether actively engaged in work, or not, during the term of this agreement and in turpitude, except those stated in 6.1.1 that are assigned to Client.
SAWTOOTH ENTERPRISES, LLC
TERMS and CONDITIONS
FOR ADVANCED RETARGETING CODE (ARC) CUSTOMERS ONLY
In connection with this Agreement, Sawtooth will provide (a) identity resolution of visitors to Customer’s website designated in the questionnaire provided by Sawtooth (“Site Visitors”), and (b) after installing the smart pixel designated by Sawtooth and uploading the applicable data to Sawtooth (“Customer Data”), Sawtooth will map Customer’s uploaded data to Sawtooth’s identity graph to track and monitor the identified contacts for response to ads and/or website visits, (a) and (b), collectively the (“Subscription Services”). The data resulting from the Subscription Services will be provided to Customer, as requested by Customer, on a daily basis inside the Sawtooth portal which can also be downloaded in a CSV format or such other format as the Parties may agree to in writing (the “Data Product”). As part of the Subscription Services and subject to Sawtooth’s availability, Sawtooth will: (i) provide Customer with up two (2) hours of onboarding training at Customer’s discretion and preferred pace; (ii) be available to Customer for one thirty (30) minute video conference; (iii) use reasonable efforts to provide Customer with ad-hoc calls with Customers Sawtooth success manager; and (iv) use reasonable efforts to provide other general support via email as coordinated through Customer’s Sawtooth success manager.
Sawtooth owns all right, title, and interest, including, without limitation, all intellectual property rights, to the Data Product, general advice, materials created or developed for, or otherwise provided to, Customer (whether developed solely by Sawtooth and/or Sawtooth personnel or created or developed jointly with Customer or its personnel or agents) in the course of performing Services for Customer under this Agreement, but excluding any Customer Confidential Information and Customer Data (the “Deliverable(s)”). Subject to Customer’s payment of all fees due to Sawtooth and compliance with this Agreement, Sawtooth hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable, worldwide, revocable license to use such Deliverables during the Term solely for its own, internal business use (the “License”). During the Term and thereafter, Sawtooth may terminate or suspend the License in the event Customer: (a) breaches any provision of this Agreement; or (b) misuses any Deliverable(s). Customer retains all ownership rights in its Confidential Information and any other information or data provided to Sawtooth. Except as prohibited by Section 8, Sawtooth retains all rights to use its skill, knowledge, experience, and know-how, including, without limitation, ideas, concepts, and techniques, whether developed prior to, independently of, or in the course of performing the Services hereunder. Nothing in this Agreement shall preclude Sawtooth from using any general information, ideas, concepts, know-how, techniques, methodologies, processes, skills or expertise derived from performing the Services or providing any work product or deliverable.
Customer must not do or attempt to do, or permit others to do, any of the following: (a) modify, port, adapt or create derivative works of the Services or any Deliverables; (b) reverse compile, reverse assemble, disassemble or print the any Deliverable’s source code or object code or other runtime objects or files or otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Deliverables; (c) rent, lease, distribute (or redistribute), provide or otherwise make available the Deliverables, in any form, to any third party (including in any service bureau or similar environment); (d) defeat, disable or circumvent any protection mechanism related to the Deliverables; (e) use the Deliverables to process the data of clients of a third party (whether on an outsourcing, service bureau, or other basis); (f) using the Deliverables or otherwise procuring the Services to build competitive products or services; or (g) publish, distribute or redistribute (whether or not for a fee), or sell any Deliverable to any individual or entity outside of Customer’s own entity. In addition, Customer shall not violate or attempt to violate the security of Sawtooth’s networks or servers, including, without limitation, (x) accessing data not intended for Customer; (y) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempting to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing.
4.1. Term. This Agreement will be effective as of the Effective Date and shall remain in effect for so long as there is an active subscription between the Parties (the “Term”). Each subscription shall renew in accordance with its terms unless terminated in accordance with this Agreement.
4.2. Termination for Cause. This Agreement and/or any subscription may be terminated immediately upon written notice by the non-breaching Party if the breach is not capable of being cured or, if capable of being cured, is not cured within thirty (30) days after receipt of written notice.
4.3. Effect of Termination Notice. Termination or expiration of the Agreement by Customer will also terminate (a) any then-current subscriptions unless otherwise agreed by the Parties, and (b) the License.
4.4. Obligations on Termination. Upon any termination or expiration of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) subject to the final sentence of this Section 4.4, within thirty (30) days of the termination or expiration of this Agreement, delete the other Party’s Confidential Information from its computer storage or any other media; (iii) return to the other Party or, at the other Party’s option, destroy, all tangible copies of such Party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and owing hereunder. Notwithstanding the foregoing, neither Party will be required to delete any Confidential Information of the other Party that may reside in any automated backup files or to the extent such Party is required to maintain any such Confidential Information for audit purposes or to comply with applicable law, provided that such Confidential Information will continue to be subject to the confidentiality obligations of this Agreement notwithstanding the termination or expiration of this Agreement.
5.1. Services. The fees for the Services will be set forth by the pricing options listed on the Sawtooth website. Unless otherwise set forth in a separate Agreement, fees for subscription services will be due upon the Effective Date and each thirty (30) days thereafter. All amounts due hereunder will be paid electronically and paid in US Dollars.
5.2. Taxes. Customer will be responsible for applicable excise, sales and use or other taxes as required by law on Services provided by Sawtooth to Customer under this Agreement. Sawtooth will pay all taxes collected from Customer to the appropriate tax authority. If Sawtooth fails to properly invoice Customer for applicable taxes on the original invoice for goods and services, Customer will not be responsible for payment of such taxes to Sawtooth, and instead, will remit all such taxes directly to the applicable tax authority.
5.3. Refund Policy. Except as expressly provided herein, all payments under this Agreement will be irrevocable, non-refundable, and non-creditable.
6.1. Sawtooth Representations and Warranties; Disclaimer. Sawtooth warrants and covenants that the Services will be performed in a professional and workmanlike manner. Sawtooth DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
6.2. Customer Representations and Warranties. Customer represents, warrants, and covenants that: (a) it is a validly organized entity under the laws of the jurisdiction of its incorporation and has the authority to enter into this Agreement; (b) it has all right, power, and authority necessary to enter into this Agreement, perform its obligations hereunder and grant the rights it grants to Sawtooth hereunder, including, without limitation, that it has obtained all legally and contractually required right and/or permission to provide information and/or data to Sawtooth as necessary for Sawtooth to provide the Services; and (c) its performance of this Agreement, and Sawtooth’s exercise of its rights under this Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound or any applicable law, rule, or regulation.
7.1. Disclosure. The Parties acknowledge that, in the course of performance of this Agreement, one Party (“Disclosing Party”) may find it necessary to disclose or permit access to Confidential Information to the other Party (“Receiving Party”) and its personnel for the purposes agreed under this Agreement. “Confidential Information” means information and technical data derived from or disclosed to a Receiving Party by the Disclosing Party or its employees, vendors, customers, representatives, affiliates, agents and other independent contractors during the performance of obligations under this Agreement and which is not generally known to the public, including the Disclosing Party’s and its affiliates’ customers or competitors. Examples of Confidential Information include, without limitation, business plans, specifications, designs, methods, processes, ideas, concepts, drawings, software, pricing, operational plans and know-how, employee information, shareholder information, vendor information, customer information, and consumer information whether disclosed in oral, written, graphic or machine-readable form, or in forms otherwise embodying or displaying such information, but exclude Customer Data.
7.2. Confidential Treatment. Confidential Information disclosed to a Receiving Party will be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party for the Term of the Agreement and for two (2) years thereafter. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care.
7.3. Allowances and Exceptions. Notwithstanding anything to the contrary in this Section 8, Confidential Information may be disclosed by a Receiving Party: (a) to its employees, agents, and consultants who require it in connection with such Party’s obligations under this Agreement and who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party’s obligations under this Agreement; (b) to the Receiving Party’s auditors, outside counsel, accountants and other similar business advisors, or in connection with an assignment or transfer permitted without consent under Section 11.7; and (c) to the extent required by law, provided that: (i) the Receiving Party provides the Disclosing Party with sufficient advance notice of such disclosure requirement or obligation to permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (ii) Receiving Party limits the release of the Confidential Information to the greatest extent possible under the circumstances. Obligations under this Section 8 will not apply to information which: (1) was publicly available prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes publicly available before any wrongful act of the Receiving Party or its employee or agent; (2) was in the possession of the Receiving Party without breach of any obligation hereunder prior to receipt from the Disclosing Party; (3) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; (4) is developed by the Receiving Party independent of the Disclosing Party’s Confidential Information; or (5) has previously been disclosed by the Disclosing Party to third parties without obligation of secrecy.
7.4. Remedies. If the Receiving Party or its personnel has disclosed, or is threatening to disclose, any Confidential Information in breach of this Agreement, the Disclosing Party will be entitled to seek an injunction to prevent the Receiving Party personnel from disclosing Confidential Information, or to prevent the Receiving Party personnel from providing any services to any third party to whom such Confidential Information has been or may be disclosed. The Disclosing Party will not be prohibited by this provision from pursuing other remedies.
Sawtooth shall implement and maintain reasonable information security measures and policies intended to safeguard the security of Customer Data. By providing Customer Data to Sawtooth, Customer grants Sawtooth the nonexclusive, worldwide, transferable right, on a royalty-free basis, to possess, store, use, copy, distribute and process Customer Data solely for the purposes of fulfilling Sawtooth’s obligations and/or exercising Sawtooth’s rights hereunder. This right may be sublicensed only to third parties directly or indirectly assisting Sawtooth in providing the Services or otherwise fulfilling Sawtooth’s obligations hereunder. For avoidance of doubt, the Parties acknowledge and agree that unauthorized access to or loss of Customer Data shall not constitute a breach by Sawtooth of its confidentiality obligations under this Agreement. Customer is responsible for the security of its own computer and IT systems.
9.1. Mutual Indemnification Obligations. Each Party (the “Indemnifying Party”) will indemnify, defend and hold the other Party, its directors, officers, employees and agents (collectively, the “Indemnified Party”) harmless against: (a) claims by employees, agents or subcontractors of the Indemnifying Party for personal injury, death, or property damage sustained by such employees, agents or subcontractors while performing Services pursuant to this Agreement; or (b) third party claims arising out of or in connection with the Indemnifying Party’s breach of its warranties and representations hereunder; provided, however, that if there is also fault on the part of the Indemnified Party or any entity or individual acting on behalf of such Indemnified Party, the foregoing indemnification will be on a comparative fault basis.
9.2. IP Infringement Indemnification. Subject to the limitations of liability in Section 10.4, Sawtooth shall indemnify and hold harmless Customer, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Customer against, pay any final judgments awarded against Customer, and pay Customer’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on Sawtooth’s alleged infringement of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party under the laws of the United States arising out of the Data Product, unless and except to the extent that such infringement is caused by (a) modification of the Data Product by anyone other than Sawtooth, (b) Sawtooth’s compliance with Customer’s unique specification or instructions, (c) Sawtooth’s use of trademarks, Customer Confidential Information, Customer Data, or other materials supplied by Customer, (d) use of any Data Product in connection or in combination with equipment, devices, or software not provided by Sawtooth (but only to the extent that such Data Product alone would not have infringed); or (e) the use of any Data Product other than as permitted under this Agreement or in a manner for which it was not intended.
9.3. Notice of Claim. The indemnified Party will provide the indemnifying Party with prompt notice of any claim for which indemnification will be sought hereunder and will cooperate in all reasonable respects with the indemnifying Party in connection with any such claim, at the indemnifying Party’s expense. The indemnifying Party will defend the indemnified Party at the indemnified Party’s request, provided that failure to give notice will not relieve indemnifying Party of its obligations under this Section 9. The indemnifying Party will be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing, except that any settlement for other than money damages will be subject to the approval of the indemnified Party, which approval will not be unreasonably withheld.
9.4. Limitation of Liability. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 10.1 AND 10.2, DAMAGES ARISING FROM CUSTOMER’S BREACH OF SECTION 4, AND DAMAGES ARISING AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY, THEIR SHAREHOLDERS, AFFILIATES, PARENT COMPANIES, CONTROLLING COMPANIES, PRINCIPALS, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR A THIRD PARTY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES, OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DATA, AND OPPORTUNITY COSTS). EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.1, DAMAGES ARISING FROM CUSTOMER’S BREACH OF SECTION 4, OR DAMAGES ARISING AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY, THEIR SHAREHOLDERS, AFFILIATES, PARENT COMPANIES, CONTROLLING COMPANIES, PRINCIPALS, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR A THIRD PARTY FOR ANY ACTIONS, DAMAGES, CLAIMS, LIABILITIES, COSTS, EXPENSES, OR LOSSES IN ANY WAY RISING OUT OF OR RELATING TO THE SERVICES UNDER AN APPLICABLE Agreement FOR AN AGGREGATE AMOUNT IN EXCESS OF THE FEES PAID BY CUSTOMER TO Sawtooth UNDER THE APPLICABLE Agreement UNDER WHICH LIABILITY AROSE IN THE SIX (6) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, Sawtooth WILL NOT BE LIABLE IN RESPECT OF (A) ANY DECISION MADE BY CUSTOMER AS A RESULT OF THE PERFORMANCE BY Sawtooth OF THE SERVICES PROVIDED UNDER ANY Agreement OR (B) CUSTOMER’S MISUSE OF THE PERFORMED SERVICES, INTELLECTUAL PROPERTY OR OTHER DATA PROVIDED BY Sawtooth IN CONNECTION WITH THE SERVICES. THE PROVISIONS OF THIS SECTION 10.4 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.
10.1. Relationship of Parties. It is understood by the Parties that Sawtooth is an independent contractor with respect to Customer, and that neither this Agreement, nor any Agreement forms a partnership, joint venture or employment relationship between the Parties. Customer recognizes that Sawtooth may be or become engaged to perform services that are similar to the Services for other parties, including parties in Customer’s market area or with which Customer or its affiliates compete. Nothing in this Agreement or any Agreement precludes Sawtooth or any of its personnel from being engaged by any other party, including a competitor of Customer, for any purpose or in any manner.
10.2. Attorneys’ Fees. In any suit or proceeding relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and will survive and not be merged into any such judgment.
10.3. Force Majeure. No Party will be liable for the failure to perform or delay in the performance of its obligations under this Agreement, except for payment obligations, to the extent such failure or delay is caused by or results from a force majeure event and the occurrence of such force majeure event(s) is reasonably provable. A “Force Majeure Event” means an event caused by a circumstance beyond a Party’s reasonable control, including, but not limited to: natural catastrophes, war, public power outages, civil unrest, terrorism, labor strikes or shortages (strikes and other labor unrest that affect only a Party, a Party’s financial hardship, an increase in prices, or a change of law will not constitute an excusable delay), and governmental action, provided that the delay or failure to perform cannot reasonably be circumvented by the non-performing Party through the use of other means. If a Party delays its performance or is unable to perform under this Agreement due to a Force Majeure Event, it will immediately notify the other Party and will also promptly notify the other Party when the Force Majeure Event (or its impact on such Party) has been abated.
10.4. Notices. All notices required or permitted under this Agreement will be in writing and will be deemed delivered if delivered in person or by overnight courier service to the addresses set forth above. Such address may be changed by either Party by providing written notice to the other in the manner set forth above.
10.5. Amendment. This Agreement may only be modified or amended through a tangible writing signed by both Parties.
10.6. Construction. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provisions will be deemed to be written, construed and enforced as so limited.
10.7. Assignment and Subcontracting. Customer will not, directly or indirectly, by assignment or change of control or otherwise, transfer this Agreement or any of its rights or obligations hereunder or under any Agreement without the prior written consent of Sawtooth. Sawtooth will have the right to assign its rights and obligations hereunder to: (a) a Sawtooth affiliate or (b) in connection with any change of control, merger, acquisition, or other transaction involving the sale of all or substantially all of Sawtooth’s assets without Customer’s consent. This Agreement will inure to the benefit of and bind the permitted successors and assigns of the Parties. Assignments made in violation of this Section 11.7 will be null and void. Sawtooth may subcontract its obligations under this Agreement without restriction.
10.8. No Waiver of Contractual Right. The failure of either Party to enforce any provision of this Agreement will not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. A waiver or consent given on one occasion is effective only in that instance and will not be construed as a bar to or waiver of any other right on any other occasion.
10.9. Execution in Counterparts and by Electronic Means. This Agreement may be executed in counterparts and by electronic means (facsimile, electronic signatures, or digital image delivered by email) and the Parties agree that such electronic means and delivery shall have the same force and effect as delivery of an original document with original signatures.
10.10. Compliance With laws. Both Parties will comply with all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements in effect now and at any time during the Term that relate to its performance under this Agreement.
10.11. Survival. Sections 3, 5, 6.1, 6.2, 8, 10.2 and 10.11 will survive any termination of this Agreement.
Sawtooth: SAWTOOTH ENTERPRISES, LLC
Attn: Kayla Coats
1740 East Fairview Ave, #303, Meridian, ID 83642
No UPS deliveries accepted
This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of Idaho.