Oh, Shift! Workshop Kit
Oh, Shift! Workshop Kit
Designed for non-profits and for-profits alike, the Oh, shift! Workshop Kit provides everything you need to successfully plan and deliver powerful workshops or training programs to your staff, clients and leadership.
It’s an out-of-the-box system complete with all planning and execution material. You’ll save time and stress normally spent preparing material, and your participants will be exposed to life-changing tools that work.
Once licensed, you will receive your Facilitator Binder, Unique Digital Access Code and other goodies in the mail within 7-10 business days.
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Oh Shift! Workshop Kit License AGREEMENT
This Oh, Shift! Workshop Kit License Agreement (the “Agreement”) describes the terms and conditions of participation in the licensed facilitator program offered by Powerhouse, Inc. (herein “Company”). By accepting this Agreement, including by clicking a box or executing a form, you agree to the terms of this Agreement. If you are entering this agreement on behalf of an entity, you represent that you have authority to bind the entity and it’s Affiliates. If you do not have such authority or do not agree to these terms, do not accept this Agreement.
Jennifer Powers is the author and creator of Oh, shift!, a best-selling book and method, which teaches readers, listeners and students to make serious shifts. Jennifer Powers has taken the Oh, shift! message further by creating a six-module series to empower shift heads to present seminars, tele-classes, workshops, retreats and group coaching programs. These select shift heads™, including You, are trusted with the power to share the shift and, through this Agreement, are granted access to six life-changing modules, to special websites, and to a community of fellow facilitators. This Agreement describes in detail the privileges and limitations of being a licensed facilitator.
“Company,” “We,” “Our,” and “Us” means Powerhouse, Inc., an Oregon corporation.
“Facilitator,” “You” and “Your” means you, if you are a sole proprietor, or the company or other legal entity for which you are accepting the Agreement and the Affiliates of that company or entity.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Oh, shift! Site” means ohshift.com and any successor or related site.
TERMS AND CONDITIONS
1.1 Grant and Scope of License
(a) Subject to the terms and conditions of this Agreement, which incorporates by reference the Oh, shift! Workshop Kit, during the Term, Company grants to You and You accept a limited, revocable, non-exclusive, non- transferable, non-assignable, non-delegable, and non-sub-licensable license to use the Oh, shift! name, trademarks, service marks or logos designated in writing by Company (“Licensed Marks”) and the latest Oh, shift! teaching and training materials, all subject to copyright, and as noted in the “Oh, shift! Workshop Kit” or on the Oh, shift! Site (the “Licensed Materials”), hereto solely for the following purposes (“Licensed Uses”):
(i) to market and promote workshops, trainings, coaching sessions and seminars based on Oh, shift!;
(ii) as an element of combined branding, including Facilitator’s name and trademarks along with Licensed Marks;
(iii) in connection with teaching, coaching, training and community events utilizing the Oh, shift! method as described in the Oh, shift! Workshop Kit;
(iv) in connection with certain course, workshop, lecture, coaching and related services consistent with the principles of Oh, shift!; in all cases, such services limited to the license level and any specific certification that You, Your owners, employees or contractors have obtained (collectively, the “Licensed Services”);
(v) in connection with the advertising, marketing, sale and rendering of Licensed Services, including flyers and business cards promoting the Licensed Services (collectively, “Promotional Materials”). Permitted use of the Licensed Marks or Licensed Materials in Promotional Materials is limited to materials which use Your name, and shall not include Promotional Materials that use only the Jennifer Powers name, Oh, shift! name, Licensed Marks or any other Company trademark, trade name, service mark, name or logo or use, display or promote the name, logo, trademark, trade name, service mark, insignia or similar element of any individual, entity or third party without prior written permission in each instance, which permission may be granted or withheld in Our sole and absolute discretion. Promotional Materials expressly exclude a line of merchandise, apparel or hard goods and You shall not, directly or indirectly, and shall not facilitate, license, sub-license, encourage or permit others to, develop, design, market, sell or exploit a line of apparel or hard goods or other merchandise using the Oh, shift! name, Licensed Marks, Licensed Materials or any trademark, trade name, service mark, logo or other intellectual property or proprietary rights of Company. You shall be solely responsible for obtaining all consents, licenses and other permissions which may be required for using any photographs, music, videos, sound effects, artwork or any other copyrighted, trademarked or other materials from third parties which are used by, distributed, publicly performed or displayed or included in or with Your website, location or business or Promotional Materials. Promotional Materials includes the taglines “sharing the shift,” “shift heads™,” “how to change your life with a little f’in shift” and others, provided that as above, You will only use these taglines in conjunction with the Your name—and not the taglines, Licensed Marks or Licensed Materials alone—so as to avoid conveying the impression that the Promotional Materials are from Company;
(vi) to resell Oh, shift! or other products that You purchase via the Oh, shift! Site, solely in accordance with the standards and subject to the terms described on the Oh, shift! Site. In no event shall You resell the work via online retailers such as Amazon.com, ebay.com or similar, or via retail business other than Facilitator’s own, or in any other way intended or likely to compete with Company’s own sales. Facilitator shall cease selling via any particular channel upon written request by Us;
(b) In order to use the Licensed Marks, You must conduct Licensed Services in accordance with the standards of quality noted in our “Oh, shift! Workshop Kit” or the Oh, shift! Site, which standards are incorporated herein by reference. In the event that You conduct specialized services distinct from the Licensed Services, You shall in no way imply that such services are approved, endorsed, sanctioned or promoted by Us. You shall not display, exhibit, distribute or otherwise use the Licensed Marks to promote, advertise, market, support or exploit any ancillary or other business(es) without the prior written permission of Company in each instance, which permission may be granted or withheld in Our sole and absolute discretion.
(c) You shall not use the Licensed Marks, Licensed Materials, or any of Our trademarks, trade names, service marks or logos owned, controlled or licensed by Us in Your business name or domain name.
(d) You shall not use the Licensed Marks, Licensed Materials, or any name and/or any trademarks, trade names, service marks or logos owned, controlled or licensed by Company in any manner other than as expressly provided for in this Agreement. We reserve the right to add, remove, modify, suspend, substitute or replace any Licensed Mark or Licensed Materials, in whole or in part, or any element or feature of the Licensed Services, in our sole and absolute discretion. All rights not specifically granted herein by Us are expressly reserved.
(e) You may not offer advanced Oh, shift! training or claim to be “certified,” or otherwise state or imply that You have special knowledge and understanding of the Oh, shift! method, unless You have completed a sanctioned training course, passed the applicable test offered by Us, and have written permission to do so.
(f) You shall have no right to prepare derivative works base on Licensed Materials other than as described within the Licensed Uses, and in no event shall You create derivative works that combine the Licensed Materials with commercially available materials in the field of self help, self improvement, or motivational speaking, unless such commercially available materials were authored by You or Your employees.
1.2 Form of Use
(a) You shall use the Licensed Marks and Licensed Materials only in forms approved by Us and shall comply with the Oh, shift! branding guidelines. You shall not create, display, promote, advertise, distribute or use, directly or indirectly, any derivative, modification or confusingly similar version of any Licensed Marks or any other Oh, shift! name, logo, trademark, trade name or service mark, in whole or in part. You shall include where appropriate the registered trademark designation ® or TM and a statement that the Licensed Marks are used under license from Powerhouse, Inc., and other proprietary notices as reasonably required by Us or by law. You shall comply with all applicable laws, rules and regulations pertaining to the proper use and designation of trademarks in each country or territory in which We use the Licensed Marks.
(b) We shall have the right to prohibit any use by You of the Licensed Marks or Licensed Materials in connection with Licensed Services or on Promotional Materials if We believe that the use of such materials by You will be damaging to or dilutive of the value of the Licensed Marks. You will immediately cease any use of the Licensed Marks or Licensed Materials at Our request.
(c) You shall comply with all applicable laws, rules and regulations (including, without limitation, truth in advertising) and obtain all appropriate government approvals necessary for Your use of the Licensed Marks or Licensed Materials and in connection with Your sale, provision, support, marketing, promotion, training, distribution and advertising of the services in connection with the Licensed Marks or Licensed Materials.
(d) You may maintain a website and such social media accounts (e.g., facebook, twitter, Pintrest, Instagram, Google+) consistent with promotion of the Licensed Services, provided however the URL or other resource identifier shall not use the Licensed Marks.
(e) You shall not use the Licensed Marks or Licensed Materials in connection with any activity that is illegal or that defames, ridicules or disparages Jennifer Powers, the Company, its founders, employees, agents, sponsors, licensors, licensees or other individual, entity or organization, or each of their products or services, or that otherwise damages the reputation for quality inherent in the Licensed Marks or Licensed Materials.
1.3 Ownership of Marks and Materials
(a) You acknowledge that You have no interest in the Licensed Marks or Licensed Materials other than the license granted under this Agreement and that Company shall remain the sole and exclusive owner of all right, title and interest in and to the Licensed Marks and Licensed Materials and all modifications, updates, improvements, derivative works and enhancements related thereto, whether made by You and whether during or after the Term. You hereby irrevocably assign, transfers, release and convey to Us, from the moment of its creation, all right, title and interest in and to any modification, enhancement, update improvement or derivative work related to or based on the Licensed Marks and Licensed Materials and all intellectual property rights embodied in or pertaining to any of the foregoing. You agree that Your use of the Licensed Marks and Licensed Materials and any goodwill in the Licensed Marks or Materials resulting from Your use will inure solely to Our benefit and will not create any right, title or interest for You in the Licensed Marks or Licensed Materials.
(b) We reserve the right to request that You alter any derivative works to ensure that they are significantly dissimilar from existing or newly developed works of Company, and to ensure that such derivate offerings do not reduce demand for the works or services of Company. If a suitable modification is not possible, We reserve the right to request that the You cease offering the derivate work, and You agree to cease upon request.
(c) You shall not do or cause to be done any act or thing contesting, opposing or challenging or in any way impairing or tending to impair any of Our right, title, and/or interest in or to the Licensed Marks or Licensed Materials (or any portion thereof) and/or any other marks, products, goods or services. In particular, You shall not register or attempt to register the Licensed Marks or Licensed Materials or any trademark, trade name, service mark or logo in any jurisdiction and will not oppose Our registration or use of the Licensed Marks or Licensed Materials, alone or with other words or designs, in any jurisdiction. You agree that upon the termination of this Agreement, You shall and hereby do assign, transfer, and convey to Us any trade rights, equities, good will, titles, or other rights, title or interest in and to the Oh, shift! Name that may have inured to or been obtained by You.
(d) You shall promptly notify Us should You learn of use by a third party of any mark that is identical, derivative of or confusingly similar to any of the Licensed Marks or Licensed Materials. You shall take no action with respect thereto except with the prior written authorization of Company. We may take such action as in our sole and absolute discretion we deem advisable for the protection of Our rights in the Licensed Marks or Licensed Materials. Only in such cases where We exercise Our rights to engage in legal action against a third party other than You, You shall cooperate fully to assist Us with any legal or equitable action taken by Us to protect Our rights in the Licensed Marks or Licensed Materials. In the event that We do take such action, You shall cooperate with Us in the procurement and maintenance of Our rights in Licensed Marks, Licensed Materials or intellectual property rights related to the Licensed Marks, Licensed Materials and Promotional Materials, and You shall sign all papers that We may deem necessary or desirable for vesting Us with all rights granted hereunder to Us throughout the world. In the event that You are unable or unwilling to obtain such a signature, You hereby irrevocably designate and appoint Us and Our duly authorized officers and agents as Your agents and attorneys-in-fact to execute and file any application and to do all other lawfully permitted acts to further the prosecution and issuance of trademarks or other intellectual property rights with the same legal force and effect as if executed by You or any of your agents or employees. You also waive and agree never to assert any moral rights or artist’s rights against Us with respect to any of the intellectual property rights described above. For the purposes of this Agreement, “moral rights” or “artist’s rights” means any right to (i) divulge the Licensed Marks or Licensed Materials to the public; (ii) retract the Licensed Marks or Licensed Materials from the public; (iii) claim authorship of the Licensed Marks or Licensed Materials; (iv) object to any distortion, mutilation or other modification of the Licensed Marks or Licensed Materials; or (v) any and all similar rights that affect ownership, control, or modification of the Licensed Marks or Licensed Materials, existing under judicial or statutory law of any country or jurisdiction in the world, or under any treaty regardless of whether or not such right is called or generally referred to as a moral or artist’s right.
(e) YOU ACKNOWLEDGE AND AGREE THAT YOU ARE ONLY ENTITLED TO USE THE LICENSED MARKS AND LICENSED MATERIALS WHILE YOU ARE A FACILITATOR IN GOOD STANDING PURSUANT TO THIS AGREEMENT.
(f) Reserved Rights. Nothing herein in any way shall give You any right, title or interest in or to the Licensed Marks, Licensed Materials (or any portion thereof) and/or any other names, trademarks, trade names, service marks, logos, products, goods, services or any right to develop, license, sublicense, publish, perform, use, modify, create derivative works of, reproduce, distribute or exploit any of the foregoing. Our provision of any materials or equipment to You to use in connection with the Licensed Marks, Licensed Materials or Promotional Materials shall not imply a change of ownership therein, and all such materials and equipment shall remain Our property.
1.4 Good Will and Covenants
(a) You acknowledge that there is great value and good will associated with the Oh, shift! name (the “Oh, Shift! Name”), Licensed Marks, Licensed Materials and that the Oh, Shift! Name, Licensed Marks and Licensed Materials have a secondary meaning in the mind of the public. You shall use Your best efforts to preserve, protect, and enhance the good will and value in the Oh, Shift! Name, Licensed Marks and Licensed Materials.
In consideration for use of the Licensed Marks and Licensed Materials, You shall pay the amount shown on the Oh, shift! Site in US Dollars.
3. Facilitator’s Obligations
(a) You are solely responsible for and shall bear all costs and liabilities associated with Your facilities, the organization, programming, fees or dues, operation, publicity, marketing, promotion, advertising, equipping, supply, fundraising, funding, incorporation, legal affairs and all other aspects of business, including selection, compensation, monitoring and supervision of employees, contractors, staff members and coaches, training, supervision and monitoring of participants, clients, visitors and patrons, and carrying out the activities of the business in a proper, safe, professional and legal manner. You shall, at all times, be free to unilaterally establish Your own fees and dues and terms with respect to attendance, and advertise such prices and terms independently in advertisements. We and Our employees or agents shall have no authority to instruct You as to what Your fees or prices must be for Your events and courses, nor to interfere with Your independent establishment of fees or prices. You shall immediately notify Us if and when You are involved in any legal action or labor dispute in which We are involved, named or implicated in any way whatsoever.
(b) You shall obtain written assumption of risk and waivers of liability from any individual who uses or participates in the Licensed Services as offered by You. Such waivers shall be signed in advance of any use or participation in the Licensed Services, and shall release and hold harmless Company, and Our officers, affiliates, directors, agents, staff, volunteers, suppliers, licensors, licensees and employees from and against any and all actions, judgments, settlements, claims, liabilities, losses, damages, expenses, and costs (including court costs and attorney’s fees), including, without limitation, for any property damage, personal injury, or any other action, claim, liability, loss, damage or expense against You based on Your operation of Your business.
(d) You may maintain a website in a manner consistent with Section 1.2 of this agreement.
(f) You shall deliver to Us in writing, promptly upon learning thereof, notice of any litigation commenced or threatened against You or Us.
4. Nature of Relationship – Independent Contractor
The parties to this Agreement are independent, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or the power to bind the other party in any respect whatsoever. You shall be solely responsible for payment of all compensation for such personnel and all related taxes and benefits. It is Your responsibility to avoid any confusion regarding whether Your personnel are employees or subcontractors of You or Us. You agree to accept exclusive liability for complying with all applicable state, local and federal laws and any and all laws of the country of Your residence, as applicable, including, without limitation, obligations such as payment of taxes. You hereby agree to indemnify and defend Us against any and all such taxes, payments and obligations, including penalties and interest. NEITHER YOU NOR ANY OF YOUR AGENTS OR EMPLOYEES SHALL PASS ON ANY EXPRESS OR IMPLIED WARRANTY ON BEHALF OF US TO ANY THIRD PARTIES.
5. Term, Termination, and Renewal
(a) This Agreement is terminable at will by either party. Either party may terminate this Agreement without cause, for any reason or no reason, and without intervention of the courts upon sixty (60) days written notice to the other party. In the event of the termination of this Agreement by Us without cause, We will return a prorated portion of the Fee.
(b) The Agreement may also be terminated by Us upon written notice to You for any of the following and an opportunity to cure within 30 days of notice of default if You:
(i) File or has filed by or against You or Your principals a petition under any section or chapter of the United States Bankruptcy Code or similar law of any other jurisdiction; an assignment by You for the benefit of creditors; or any appointment of, or an application for the appointment of, a receiver, trustee, controller or custodian for all or part of Your assets; provided however, You shall have 60 days to obtain dismissal of any involuntary bankruptcy, receivership or similar court appointed control;
(ii) Refuse or fail to perform any of Your obligations or covenants under this Agreement or breach Your obligations to either Us or another facilitator or Company licensee;
(iii) Publicly denounce, slander, defame or denigrate Company or Our officers, principals, or agents either orally, visually or in writing (including through digital or electronic means or methods);
(iv) Make or made any misrepresentations or omission relating to this Agreement, the license granted herein or in connection with the Oh, shift! licensee processes;
(v) Engage in or persist in conduct that would reflect unfavorably upon Us, the Licensed Marks Licensed Materials or upon the operation and reputation of Our business, including, without limitation, conviction of a felony or any other criminal act, conduct or misconduct that would raise a substantial question about the Your fitness or ability to coach or train others or be in business with Us, including conduct that results in excessive customer complaints; or
(vi) Fail to comply with any applicable law, rule or regulation.
(c) In the event of any termination or expiration of this Agreement, You shall discontinue immediately all use of the Licensed Marks and Licensed Materials. Sections 1.3(a), 1.3(b), 8, 9, 10, 11 and 12 shall survive any expiration or termination of this Agreement.
(d) The right of either party to terminate this Agreement shall not be affected in any way by its waiver of or failure to take action with respect to any previous default. The rights and remedies provided to Company under this Agreement will not be exclusive and will be in addition to all other rights and remedies available at law or in equity.
6. Not Assignable by Facilitator
Neither this Agreement nor any rights under this Agreement may be granted, assigned, delegated, sublicensed or otherwise transferred by You, in whole or in part, whether voluntarily or by operation of law, by way of sale of assets, merger or consolidation, or change of control of Facilitator (or personnel operating Facilitator) without the prior written consent of Company, which consent may be granted or withheld in Our sole and absolute discretion. Any attempted or purported assignment without such required consent shall be void and a material breach of this Agreement. We may grant, assign or sublicense this Agreement or any of its rights or obligations herein in Our sole and absolute discretion. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
7. Facilitator Representation and Warranties; Disclaimers
(a) You represent, warrant and agree that:
(i) You have all necessary rights and authority to execute and deliver this Agreement and perform Your obligations hereunder and to grant to Us all rights purported to be granted herein, and nothing contained in this Agreement or in the performance of this Agreement will place You in breach of any other contract or obligation.
(ii) You are solely responsible for and shall pay all sums due to any and all parties engaged by You who are entitled to receive compensation, payment or any other fees in connection with Your business, premises and programs.
(iii) There is no demand, claim, suit, action, arbitration or other proceeding pending or threatened which questions or challenges the ability or right for You to enter into this Agreement or to perform any of Your obligations hereunder or which might affect Our rights under the terms of this Agreement, nor does there exist any reasonable basis for any such demand, claim, suit, action, arbitration or other proceeding.
(iv) You are financially sound and fiscally capable of performing Your obligations, and any material change in such status shall be immediately communicated in writing to Us.
(v) Nothing that You provide, uses, publish, display, perform, distribute, copy, create or license related to the Licensed Marks, Licensed Materials or Promotional Materials shall infringe an intellectual property, proprietary or personal right or any other common law or statutory right of any party or defame, impinge upon the right to privacy or the right to publicity of any person or entity.
(vi) You and your agents, independent contractors and employees shall comply with all applicable laws, rules and regulations.
Each party acknowledges and agrees that the Licensed Marks and Licensed Materials and any other information or materials licensed, made available or provided to You by Us hereunder are licensed or provided on an “as is” basis. EXCEPT AS EXPRESSLY DESCRIBED IN THIS AGREEMENT, WE DO NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE LICENSED MARKS, LICENSED SERVICES OR ANY MATTER WHATSOEVER. EXCEPT AS EXPRESSLY DESCRIBED IN THIS SECTION, ANY AND ALL WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED BY COMPANY. YOU SHALL NOT HAVE THE RIGHT TO MAKE OR PASS ON, AND SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER YOU NOR ANY OF YOUR AGENTS OR EMPLOYEES SHALL PASS ON, ANY EXPRESS OR IMPLIED WARRANTY ON BEHALF OF COMPANY TO ANY THIRD PARTIES. WITHOUT LIMITING THE FOREGOING, WE DO NOT ENSURE CONTINUOUS, ERROR-FREE, BUG-FREE, SECURE OR VIRUS-FREE OPERATION OF ANY COMPANY WEBSITE OR ANY PART OR FEATURE THEREOF OR CONTINUED OPERATION OR AVAILABILITY OF ANY GIVEN CERTIFICATION, LESSON OR TRAINING PROGRAM, THE FACILITATOR PROGRAM OR ANY FEATURE OR PART THEREOF.
THE SUCCESS OF COMPANY, THE FACILITATOR PROGRAM, AND THE LICENSED SERVICES DEPENDS ON NUMEROUS FACTORS BEYOND OUR CONTROL. YOU THEREFORE ACKNOWLEDGE AND AGREE THAT USE OF THE FACILITATOR PROGRAM, LICENSED SERVICES AND LICENSED MARKS ARE SPECULATIVE, WE DO NOT MAKE ANY, AND EXPRESSLY DISCLAIM ALL, REPRESENTATIONS AND WARRANTIES AS TO THE PROFITS, REVENUES OR POTENTIAL SUCCESS OF ANY OH, SHIFT! PROGRAM, LICENSED SERVICES, LICENSED MARKS OR FACILITATOR PROGRAM OR BUSINESS AND NO LIABILITY SHALL BE IMPOSED UPON US BASED ON ANY CLAIM THAT (I) MORE SALES, RECEIPTS OR REVENUE COULD HAVE BEEN MADE OR EARNED AND/OR (II) BETTER PRICES OR TERMS COULD HAVE BEEN OBTAINED. WE ARE NOT OBLIGATED TO CONTINUE THE MARKETING, ADVERTISING, PROMOTION, SALE, LICENSE, OPERATION, SUPPORT OR USE OF THE OH, SHIFT! WEBSITES, LICENSED SERVICES, LICENSED MARKS, FACILITATOR PROGRAM, CERTIFICATIONS, SEMINARS OR COURSES, OR OTHER OH, SHIFT! COURSE RELATED EVENTS, SUBJECT MATTER EXPERT PROGRAM OR SEMINARS, OR CONTINUE THE USE OF ANY PARTICULAR ELEMENT OF ANY OF THE FOREGOING.
8. Limits on Liability
With respect to this Agreement, except in the case of Facilitator as set forth in Section 10 (Indemnification) and, in the case of Facilitator, a breach of Section 1.1 (grant and scope of license) or Section 7(a) (Facilitator representations and warranties), in no event shall You or We be liable to each other or any third party for any indirect, special or consequential damages including on account of expenditures, investments, leases or commitments made in connection with the activities or goodwill of either party, lost revenue, profits, lost data and the like arising out of or in connection with this Agreement or its termination, whether for breach of warranty or any obligation arising therefrom or otherwise, whether liability is asserted in contract or tort (including negligence and strict product liability), and irrespective of whether the parties have advised or been advised of the possibility of such losses or damages. THE TOTAL LIABILITY OF COMPANY SHALL BE LIMITED TO THE FEES PAID BY YOU TO US UNDER THIS AGREEMENT. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, AND IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
You shall indemnify, defend at Our request, and hold harmless Company and Our subsidiaries and affiliated entities, and each of their respective officers, affiliates, directors, agents and employees (collectively, a “Company Party”) from and against any and all actions, claims, liabilities, judgments, settlements, losses, damages, expenses, and costs (including court costs, expert witnesses and attorney’s fees), arising from or related to any third party claim, suit or proceeding brought against any Company Party which arises from or is related to: (a) Your breach or alleged breach of any of Your representations, warranties or covenants in this Agreement or breaching any of Your obligations described herein (b) infringement or misappropriation by You of any intellectual property, personal or proprietary right of any third party; (c) property damage, personal injury or death based on Your negligence, recklessness, willful misconduct, acts or omissions; or (d) any other actions, claims, liabilities, losses, damages, expenses and costs arising out of Your operation of Your business or related to Your relationship with Us. You may not settle any pending or threatened proceeding in a manner which admits wrongdoing by Us and/or without obtaining an unconditional release of Company from all such liability on claims that are the subject matter of such proceeding.
10.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party as evidenced by contemporaneous written records.
10.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
10.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; (b) sent by certified mail; (c) sent by overnight courier, in each case properly posted and fully prepaid to the appropriate address on file; or (d) by fax or email, or other electronic transmission, so long as receipt is acknowledged. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, one day after delivery to an overnight air courier service, or the date receipt is confirmed in the case of electronic transmission.
Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
This Agreement (including the Attachments and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions. We may amend this Agreement at any time in Our sole discretion. If and when the parties renew the Agreement for a given Extended Term, such amendments shall be effective upon such renewal date.
11.5 Governing Law and Arbitration
With respect to any claim arising out of or related to this Agreement, the parties agree to submit any dispute to binding arbitration administered by a single arbitrator with the American Arbitration Association in accordance with its Commercial arbitration rules including optional rules for Emergency Measures of Protection, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The parties shall attempt to agree on the selection of a single arbitrator, however if the parties cannot agree an arbitrator will be appointed as provided in the AAA Commercial Arbitration Rules. The place of arbitration shall be Portland, Oregon. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Oregon, without reference to its choice of law principles. The United Nations Convention on contracts for the International Sales of Goods shall not apply.
11.6 Equitable Relief
You acknowledge and agree that any breach of Your obligations under this Agreement will result in irreparable harm to Us, the extent of which would be difficult to ascertain and for which cannot be reasonably or adequately compensated in damages. Accordingly, You agree that, in addition to any other remedies to which We may be entitled, in the event of a breach by You or any of Your employees or subcontractors of this Agreement, We will be entitled to seek injunctive and/or equitable relief to prevent a breach or threatened breach of any or all of the provisions of this Agreement and to secure enforcement thereof, in addition to any other relief or award to which We may be entitled.