9.1. Confidential Information. Client now owns and will hereafter develop, compile and own certain proprietary techniques, trade secrets, and confidential information which have great value in its business (together the “Client Information”). Client will be disclosing Client Information to Alloy during Alloy's rendering of Services. Client Information includes not only information disclosed by Client, but also information developed or learned by Alloy during Alloy's rendering of Services. Client Information is to be broadly defined and includes all information which has or could have commercial value or other utility in the business in which Client is engaged or contemplates engaging or the unauthorized disclosure of which could be detrimental to the interests of Client, whether or not such information is identified by Client. By way of example and without limitation, Client Information includes any and all information concerning discoveries, developments, designs, improvements, inventions, formulas, processes, techniques, know-how, data, research techniques, customer and supplier lists, marketing, sales or other financial or business information, scripts, and all derivatives, improvements and enhancements to any of the above. Client Information also includes like third-party information which is in Client's possession under an obligation of confidential treatment.
9.2. Protection of Client Information. Alloy agrees that at all times during or subsequent to the performance of Services, Alloy will keep confidential and not divulge, communicate, or use Client Information, except for Alloy's own use during the term of this Agreement to the extent necessary to render Services. Alloy further agrees not to cause the transmission, removal or transport of tangible embodiments of, or electronic files containing, Client Information from Client's principal place of business, without prior written approval of Client.
9.3. Exceptions. Alloy's obligations with respect to any portion of the Client Information as set forth above shall not apply when Alloy can document that (i) it was in the public domain at the time it was communicated to Alloy by Client; (ii) it entered the public domain subsequent to the time it was communicated to Alloy by Client through no fault of Alloy; (iii) it was in Alloy's possession free of any obligation of confidence at the time it was communicated to Alloy by Client; or (iv) it was rightfully communicated to Alloy free of any obligation of confidence subsequent to the time it was communicated to Alloy by Client.
9.4. Client Property. All materials, including without limitation documents, drawings, drafts, notes, designs, computer media, electronic files and lists, including all additions to, deletions from, alterations of, and revisions in the foregoing (together the “Materials”), which are furnished to Alloy by Client or which are developed in the process of rendering Services, or embody or relate to the Services, or the Client Information, are the property of Client, and shall be returned by Alloy to Client promptly at Client's request together with any copies thereof, and in any event promptly upon expiration or termination of this Agreement for any reason. Alloy is granted no rights in or to such Materials or Client Information, except as necessary to fulfill its obligations under this Agreement. Alloy shall not use or disclose the Materials or Client Information to any third party.
10. Indemnities.
10.1. Client Indemnity. Client shall indemnify, defend, and hold harmless Alloy, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “Alloy Indemnitee”) from and against any and all Loss incurred by an Alloy Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any Alloy Indemnitee with respect to any advertising, branding, research or other products or services which Alloy prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to Alloy including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to Alloy to be included in any Assets or media placements; (iii) the use of any materials or data provided or created by Alloy and changed by Client or its agents or used in a manner different from that agreed by the parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Assets or the Marks by Client, Client’s designees, licensees, distributors, franchisees or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (ix) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by Alloy pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
10.2. Alloy Indemnity. Alloy shall indemnify, defend, and hold harmless Client, the Client Affiliates, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from and against any and all Loss incurred by a Client Indemnitee based upon or arising out of any Claim made or brought against Client arising out of the production or dissemination of materials produced hereunder that involve (i) libel, slander, defamation, copyright infringement, right of publicity and/or invasion of right of privacy arising out of work created by Alloy and in final form (i.e., ready to be disseminated to the public); or (ii) damage to or destruction of personal property, injury to or death of any person directly attributable to or arising out of Alloy's negligence or willful misconduct in connection with the performance of the Services hereunder.
LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS (excluding direct damages for Alloy's anticipated fees), BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR SHALL ALLOY'S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO ALLOY IN ACCORDANCE WITH THE APPLICABLE SOW.
11. Ownership and Licenses.
11.1. Work Product. All Assets developed or prepared by Alloy or its employees or Subcontractors for Client hereunder that are subject to copyright, trademark, patent, or similar protection shall become the property of Client and deemed “Work Product” provided that (i) the Assets are produced in final form (i.e., ready to be disseminated to the public) by Alloy for Client within six (6) months of being proposed by Alloy and (ii) Client has paid to Alloy all fees and costs associated with creating and, where applicable, producing the Assets. All title and interest to Work Product shall vest in Client as “works made for hire” within the meaning of the United States Copyright Act. To the extent that the title to any such Work Product may not, by operation of law or otherwise, vest in Client as a work made for hire or any such Work Product may not be considered a work made for hire, all right, title and interest therein is hereby irrevocably assigned by Alloy to Client.
11.2. Alloy Assets. Notwithstanding any other provision of this Agreement, Alloy shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or developed by Alloy or its licensors, and regardless of whether incorporated in any Work Product, (i) prior to the Effective Date; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-site specific and unrelated to the “look and feel” of the Assets or other deliverable, in connection with the Services (or partially in connection with the Services) (together the “Alloy Assets”). Subject to fulfillment of Client’s payment obligations hereunder, Alloy hereby grants Client a worldwide, perpetual, irrevocable, royalty-free, nonexclusive license, with right to sublicense (but only for the benefit of Client or its permitted successors or assigns), to use Alloy Assets actually incorporated into Work Product pursuant to this Agreement as necessary for or in connection with the use, management and maintenance of such Work Product, provided that Client shall not have the right to publish or distribute any Alloy Assets other than as part of such Work Product or to create derivative works of Alloy Assets.
11.3. Alloy's Intellectual Property That Is Not Work Product. During the term of this Agreement, Alloy might use intellectual property that Alloy owns or has licensed from a third party, but that does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, copy, scripts, type fonts, properly-licensed stock photos, and web application tools, including apps. Alloy is not giving the Client this background IP. However, under this Agreement, Alloy is granting the Client a right to use the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide at no additional cost, but it cannot transfer its rights to the background IP. The Client cannot sell or license the background IP separately from its products or services. Alloy reserves the right to revoke this grant for any or all background IP upon termination of this Agreement.
