ONE BACK ZEBRA TERMS AND CONDITIONS
This agreement of terms and conditions (the “Agreement”) is made by and between One Back Zebra LLC, an Oregon limited liability company (“OBZ”), and any users (“Client”) of OBZ’s products or services (the “Services”).
1. Ownership of Services Result. OBZ’s Services are not works-made-for-hire and OBZ shall retain all right, title and interest in and to any and all results of the Services, including ideas, concepts, business plans, strategic relationships, other intellectual property, and other results, whether tangible or intangible, and all associated records.
2. Nondisclosure of Confidential Information.
a. Definition of Confidential Information. “Confidential Information” means all non-public information about OBZ, or non-public information that OBZ designates as being confidential, or which, under the circumstances surrounding disclosure, should be treated as confidential. Confidential Information includes, without limitation, in any and all formats, forms and mediums (including hard copy, electronic and other forms), all OBZ instructional material used or developed for use throughout the duration of the Services offered including but not limited to plans, maps, product and product planning information, equipment specifications, equipment components, design and production methods, all technical and non-technical information including patentable or patented information, copyrighted or copyrightable works, trademarks, trade secrets, techniques, sketches, drawings, models, inventions, know-how, secret processes, and formulae, software and related documentation, including, without limitation, source or object codes for such software, OBZ marketing and business data, methods, strategies, plans and materials, and any agreements, records, and reports concerning them, the identities, talents, skills, and compensation of OBZ principals and employees, as well as any information received from others, such as from OBZ clients, including client information protected by the U.S. Health Insurance Portability and Accountability Act of 1996, that OBZ is obligated to treat as confidential. Confidential Information shall include all information Client has obtained from OBZ or OBZ clients at any time, including prior to the effective date of this Agreement. Except as provided for above, Confidential Information shall not include information that Client can conclusively establish (i) entered or subsequently enters the public domain without Client’s breach of any obligation owed to OBZ; or (ii) became known to Client from a source other than OBZ other than by the breach of an obligation of confidentiality owed to OBZ.
b. Ownership. All Confidential Information is the sole property of OBZ, or OBZ’s assigns. OBZ or OBZ’s assigns shall be the sole and exclusive owner and author of all patents, trademarks, copyrights, trade secrets and other rights in the Confidential Information. Client hereby assigns to OBZ all rights, title and interest Client may have or acquire in the Confidential Information. At all times, both during the term of this Agreement and after the Termination Date, Client will keep in confidence and trust all Confidential Information, and will not use or disclose any Confidential Information or anything directly relating to Confidential Information without the written consent of OBZ.
c. Agreement Not to Disclose. Client shall not, at any time or in any manner or form, directly or indirectly disclose, make available or communicate to any individual, company, agency or other entity any Confidential Information. Confidential Information may not be disclosed, reproduced, summarized or distributed except as expressly allowed in this Agreement or as authorized by OBZ.
d. No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of OBZ, nor shall this Agreement grant the Client any rights in or to OBZ’s Confidential Information, except the limited right to use the Confidential Information in connection with the Services.
e. Rights and Remedies. Client shall notify OBZ immediately upon discovery of any unauthorized use or disclosure of Confidential Information and will reasonably cooperate with OBZ to help OBZ regain possession of the Confidential Information and prevent its further unauthorized use or disclosure and prevent further breach. If served with subpoena or other compulsory judicial or administrative process calling for production of Confidential Information, Client shall immediately notify OBZ to take such action as OBZ deems necessary to protect its interests.
3. Disclaimer of Warranties and Limitation of Liability. OBZ makes no representation or warranties as to the Services, whether express or implied, including without limitation merchantability, fitness for a particular purpose, non-infringement, or freedom from errors. CLIENT HEREBY AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, OBZ disclaims any and all responsibility and liability of any kind for the Services or the use by any ENTITY, including liability for any damages, whether indirect, incidental, special, consequential, exemplary or punitive. Specifically, and without limitation, OBZ does not guarantee or certify the accuracy, completeness, or timeliness of information provided in connection with the Services. In the event the foregoing disclaimer of warranties and limitation of liability is defective or unenforceable in any respect, the CLIENT agrees that OBZ’S liability, if any, whether in tort, contract or otherwise, for all causes shall not exceed in the aggregate $100.
4. Indemnification. Client agrees to indemnify and hold harmless OBZ (including its affiliates and its and their respective principals, officers, directors, shareholders, partners, members, managers, employees, and volunteers) from and against, and pay or reimburse OBZ and such other indemnified persons for, any and all actions, claims, demands, proceedings, investigations, inquiries, liabilities, obligations, fines, deficiencies, costs (including reasonable attorney fees), expenses, royalties, losses and damages (whether or not resulting from third party claims) relating to or arising out of (i) the execution, delivery or existence of this Agreement; (ii) the performance (or lack of) by Client or OBZ of this Agreement; (iii) the negligence or willful misconduct of Client or its personnel; (iv) the bodily injury, death, or damage to tangible property sustained while OBZ develops or implements the Services; or (v) the bodily injury, death, or damage to tangible property sustained in any and all subsequent events for which the Services rendered purport to prepare Client for. Client shall reimburse OBZ and any other indemnified person for out-of-pocket expenses and reasonable legal and accounting expenses incurred by it in connection with or relating to investigating, preparing to defend, defending, asserting or prosecuting any actions, claims or other proceedings (including any investigation or inquiry) as defined above (whether or not such indemnified person is a named party in such proceeding).
a. Notices. Any notice or consent required or permitted by this Agreement shall be in writing. All notices shall be deemed to have been given: (i) when personally delivered to a party or a party’s address; (ii) forty-eight (48) hours after deposit in the United States Mail, first class postage prepaid by certified mail, return receipt requested; (iii) upon successful facsimile or electronic mail transmission, and addressed to either party’s primary business address or at such other address either party may in writing designate below.
b. Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and shall not inure to the benefit of any third party.
c. Successors and Assigns. Neither party may assign or transfer its obligations under this Agreement without the other party’s prior written consent. This Agreement shall be for the benefit of both parties’ successors and assigns.
d. Dispute Resolution. Any dispute under this Agreement that cannot be resolved amicably by the parties shall be referred to and resolved by arbitration, under the rules of the Arbitration Service of Portland, Inc. (“ASP”), and pursuant to the requirements of this section. A sole arbitrator in Multnomah County in the State of Oregon shall conduct the arbitration. The arbitrator shall be appointed by agreement of the parties; in the event that the parties fail to agree upon the appointment of the arbitrator within thirty (30) days after a notice of arbitration is given by either party to the other, then the arbitrator shall be elected and appointed at the request of either party by the ASP. The decision of the arbitrator shall be final and binding on the parties. Judgment on the award or any other final or interim decision rendered by the tribunal may be entered, registered or filed for enforcement purposes in any court located in Multnomah County in the State of Oregon and each party hereby submits itself to the jurisdiction of such courts. Either party may apply to the arbitrator to seek injunctive relief prior to when the award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court located in the county where such arbitration shall be (or is being) conducted, any interim or provisional relief that is necessary to protect the rights of that party, pending the appointment of the arbitrator (or pending the arbitrator’s determination of the merits of the controversy).
e. Attorneys’ Fees. If any arbitration, action, suit, or proceeding is instituted to interpret, enforce, or rescind this Agreement, or otherwise in connection with the subject matter of this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney's fees and other fees, costs, and expenses of every kind incurred in connection with the arbitration, action, suit, or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
f. Governing Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Oregon, without giving effect to the principles of conflict of laws.
g. Injunctive Relief. If Client breaches any term or provision of this Agreement, Client acknowledges and agrees that OBZ property, personal rights or property rights or interests will suffer irreparable harm, and provisional process, injunctive and other equitable relief shall issue on a prima facie showing that Client has breached such term or provision of this Agreement. However, the foregoing shall not be construed as prohibiting OBZ from pursuing any other remedies at law or in equity for such breach, including the recovery of damages. No posting of bond or other undertaking shall be necessary in any action by OBZ to obtain injunctive and/or other equitable relief.
h. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.