1. Confidential Information

1. Confidential Information.  The parties acknowledge that it may be necessary for each of them to disclose or make available to each other information and materials in hard copy, digital or electronic form that is confidential, including, without limitation, trade secrets, discoveries, ideas, concepts, methodologies, software, plans, techniques, models, data, data sources, documentation, research, development, processes, procedures, marketing techniques and materials, marketing and development plans, purchasing information, price lists, cost and pricing policies and financial information (collectively the “Confidential Information”).  Information will not be considered to be Confidential Information if it:  (a) is already, or otherwise becomes, publicly known by third parties as a result of no act or omission of the receiving party; (b) is lawfully received, after disclosure hereunder, from a third-party having the right to disseminate the information without restriction in disclosure; or (c) can be shown by the receiving party to have been independently developed by such party prior to the execution of this Agreement.

2. Non-Disclosure.  During the term of this Agreement and for three years thereafter, each of the parties agrees:  (a) to use commercially reasonable efforts to protect the Confidential Information of the other party from unauthorized use or disclosure and to use at least the same degree of care with regard thereto as it uses to protect its own Confidential Information of a like nature; and (b) to use and reproduce the Confidential Information of the other party only for the purposes contemplated by this Agreement.  Notwithstanding the foregoing, it is understood that DetailPage shall be free to use any ideas, concepts, know-how and techniques it learns or obtains in connection with the performance of the Services within the scope of its regular business operations, except to the extent that they contain specific or identifiable elements unique to Client or its operations.

3. Injunctive Relief.  The parties agree that any breach by either party or any of its officers, directors, managers, employees, contractors or agents, of any provisions of this Section may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies available at law or in equity.

4. Judicial/Legal Request.  If either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, it shall provide prompt notice to the other of such receipt.  The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to that extent permitted by law; provided, however, that the receiving party shall use reasonable efforts to minimize such disclosure and to obtain an assurance that the judicial/subpoena recipient shall accord confidential treatment to the Confidential Information. 

2. Ownership of Intellectual Property

1. Client Data.  Client shall at all times be and remain the sole and exclusive owner of all Client data including any information that Client may input into any report manually or through API. Detail Page acknowledges and agrees that such data is confidential.  DetailPage shall not acquire any right or interest in Client’s data. 

2. DetailPage Property.  As between DetailPage and Client, DetailPage shall at all times be and remain the sole and exclusive owner of all patents, processes, software, code, files, technology, templates, forms, scripting, trade secrets and know-how of DetailPage, including without limitation any of such items that may be created by DetailPage in connection with the performance of the Services, including any Deliverables (as defined below) (collectively, the “DetailPage Property”).  To the extent Client acquires any right, title or interest in any DetailPage Property (except in the case of the license granted in subsection (b) below), Client hereby assigns and conveys all such right, title and interest therein to DetailPage.  Except as expressly authorized in this Agreement, Client will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile or disassemble the DetailPage Property.

3. Grant of License.    Subject to the terms and conditions set forth in this Agreement, including but not limited to the restrictions set forth in subsection (c) below, DetailPage hereby grants to Client a personal, non-exclusive, non-transferable, royalty-free, perpetual and non-revocable license to use any reports or other deliverables provided to Client, excluding any reports that use Client information or data, by DetailPage with respect to the Services (“Deliverables”), solely for Client’s marketing or other such business operations, provided that in no case shall such operations include service bureau use, outsourcing, renting, or time-sharing the Services or Deliverables.

4. Limitation on Disclosure of Deliverables.  Client agrees that all Deliverables provided by DetailPage hereunder shall be deemed to be Confidential Information of DetailPage (except to the extent they contain data provided by Client) and shall be used solely for Client’s marketing or other such business operations, provided that in no case shall such operations include service bureau use, outsourcing, renting, or time-sharing the Services or the associated Deliverables.  Client further agrees not to disclose such Deliverables to any third party except as expressly authorized in a separate Third Party Access Agreement provided by DetailPage.  Without limiting the generality of the foregoing, disclosing information to any agency, data provider, or manufacturer is expressly prohibited unless authorized by DetailPage via written agreement.

3. Indemnification

1. Client Indemnification.  Client agrees to defend, indemnify and hold harmless DetailPage and its employees, managers, directors, officers, principals, owners and agents from and against any claims, demands, loss, damage or expenses (including attorneys’ fees) that arise out of or relate to:  (a) Client’s misuse or modification of the Deliverables provided by DetailPage; or (b) the use of the information, specifications or materials provided by Client in connection with the Services. 

2. DetailPage Indemnification.  DetailPage agrees to defend, indemnify and hold harmless Client and its employees, managers, directors, officers, principals, owners and agents from and against any claims, demands, loss, damage or expenses (including attorneys’ fees) that arise out of or relate to the gross negligence or willful misconduct of DetailPage, its employees and agents in connection with the Services performed hereunder.

4. Limitation on Liability. Except with respect to any breach of the Parties’ respective obligations hereof, (i) in no event shall either Party be liable for consequential, incidental, indirect or punitive loss, damage or expenses (including but not limited to business interruption, lost business, or lost savings) even if it has been advised of their possible existence, and (ii) the Parties cumulative liability for any loss or damages arising out of or relating to this Agreement, including the use of any Deliverables and indemnification, shall not exceed the Costs paid to DetailPage hereunder in the 12 months preceding the claim. The allocations of liability in this represent the agreed and bargained-for understanding of the Parties and DetailPage’s compensation for the Services reflects such allocations.

5. Trademarks.  Client hereby grants to DetailPage a limited non-exclusive, non-transferrable, royalty-free license to use Client’s trademarks, service marks, trade names, logos or other commercial or product designations (collectively, “Marks”) in DetailPage’s marketing materials if previously agreed to by Client.  Client may terminate DetailPage’s right to use the Marks, in whole or in part, by providing written notice to DetailPage for any reason and at any time including if the usage of such Marks does not adhere to Client’s then-current written policies provided to DetailPage regarding the use of the Marks.

6. Governing Law; Venue.  This Agreement will be governed by the law of the State of Utah, without reference to its conflicts of law rules or the Convention on Contracts for the International Sale of Goods. The parties irrevocably consent to exclusive jurisdiction of Salt Lake County, Utah for disputes arising out of this Agreement.

7. Force Majeure.  Either party shall be excused from performance and shall not be liable for any delay in whole or in part, caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors or suppliers including, but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God, or shortage of labor or fuel or raw materials.

8. Scope of Services; Standard of Performance.  DetailPage will provide Client data reporting for the items listed in deliverables section related to Client’s business on the www.Amazon.com domain (the “Services”). Reporting is contingent on continued subscription by Client to Amazon’s data reporting on Vendor and or Seller Central with required access provided to DetailPage. Failure by Client to maintain this service or changes in service content will not negate payment of Costs for the term of this Agreement.  DetailPage warrants that it will perform the Services in a professional and workmanlike manner.

9. Taxes.  In addition to the fees payable hereunder, Client shall be responsible for paying any applicable sales, use, excise, consumption, services, withholding, value added, or similar taxes or assessments, including any interest and penalties from any related deficiency, imposed upon the Services rendered or any deliverables provided hereunder, by any federal, state, or local government authority, exclusive of any taxes based upon DetailPage’s income or payroll.  The parties shall cooperate in good faith to minimize such tax liabilities to the extent legally permissible. The prices are exclusive of value added tax.

10. Disclaimer of Warranties.  THE WARRANTIES CONCERNING THE SERVICES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE SERVICES OR THE DELIVERABLES PROVIDED BY DetailPage, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 

11. Severability; Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.  The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.  No failure or delay by either party at any time to enforce any provision of this Agreement or exercise any right or remedy hereunder shall be construed as a waiver or relinquishment of any such provision, right or remedy; and the Agreement and all provisions thereof shall remain in full force and effect notwithstanding any such failure or delay.

12. Assignment.  Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to an affiliate of such party or to a successor in interest to substantially all of the business of that party to which this Agreement relates. 

13. No Third Party Benefit.  The provisions of this Agreement are for the sole benefit of the parties hereto.  This Agreement confers no rights, benefits, or claims upon any person or entity not a party hereto.

14. Independent Contractors.  The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Neither party shall have the power to obligate or bind the other party.  Personnel supplied by DetailPage shall work exclusively for DetailPage and shall not, for any purpose, be considered employees or agents of Client.  DetailPage shall be solely responsible for the supervision, direction and control, compensation, benefits and taxes of its personnel.

15. Set-off, Deductions and Withholdings. Client shall not be entitled to assert any credit, set-off or counterclaim against any payment obligations (or part thereof) due to DetailPage hereunder (except undisputed amounts payable to Client by DetailPage and due for payment by the due date of payment of the amount due to DetailPage). All amounts payable to DetailPage under this Agreement shall be paid in full without any withholding or deduction on account of any taxes, duties, levies or charges, unless Client is required by law to make such deduction or withholding.  If any such withholding or deduction is required in connection with the delivery of the Services or any deliverables or in connection with the payment of any of the fees, Client shall, when making the payment to which the withholding or deduction relates, pay to DetailPage such additional amount as will ensure that (after the deduction or withholding) DetailPage receives the same total amount that it would have received if no such withholding or deduction had been required.