1. Confidential and Proprietary. Stelter acknowledges that its employees and agents will be exposed to certain information, related to Client and its activities that Client may designate as confidential or proprietary, including but not limited to financial information, trade secrets, donor names, membership and other mailing lists (“Confidential Information”). Confidential Information does not include information that is available, or becomes available, to the public through no fault of Stelter, was in Stelter’s possession prior to disclosure by Client, was received by Stelter from a third party with the legal right to disclose the information, or was independently developed by Stelter. If Stelter is required by a judicial or governmental authority to disclose Confidential Information, it will inform Client of the request prior to the disclosure. Stelter will not, and agrees to inform its agents and employees not, to use or disclose, or to cause to be used or disclosed, at any time any Confidential Information, except as may be required to perform this contract or specifically authorized by Client in writing. Any and all such uses of Confidential Information shall be subject to advance review and approval by Client. All Confidential Information will be returned to Client or destroyed upon Client’s request.
2. Ownership of Copyrighted Materials. Stelter Content: All material including text, graphics, illustrations, photographs and designs made, conceived or developed by Stelter before, during or after the term of this contract for the non-exclusive use of Client, is the sole property of Stelter (“Stelter Content”). Stelter maintains all rights, title and interest including, but not limited to copyright rights in the Stelter Content. Client is granted a non-exclusive use of the Stelter Content in the materials prepared by Stelter pursuant to this contract. Distribution of Stelter Content (other than the “Royalty Free Content Library” if applicable, as defined in the Description of Services at www.stelter.com/services) through any other medium is prohibited without the prior express written consent of Stelter. Client agrees not to remove or alter Stelter legal disclaimers and copyright notices from any Stelter Content. Nothing in this contract will be construed as the transfer of any ownership right in the Stelter Content to Client. Client Content: All content including logos, text, graphics, illustrations, photographs and designs made, conceived or developed by Client before, during or after the term of this contract for use in the deliverables of this contract is the sole property of Client (“Client Content”). Client maintains all rights, title and interest including, but not limited to copyright rights in the Client Content. Nothing in this contract will be construed as the transfer of any ownership right in the Client Content to Stelter.
3. Compliance with Federal Tax Laws. Stelter warrants that to its knowledge the content provided by Stelter during the term of this contract is in compliance with applicable federal tax laws. Stelter makes no warranty that the content is in compliance with any other laws. Stelter is under no obligation to notify Client of any future change in applicable federal tax law.
4. Indemnification. Stelter agrees to indemnify, defend and hold harmless Client, and its representative officers, directors, employees, agents, successors and assigns against any and all damages, liabilities, losses, costs and expenses, including reasonable attorneys’ fees, costs and other expenses, arising out of a claim that the Stelter Content infringes or violates the copyright, trademark or other intellectual property rights of a third party or as a direct result of the gross negligence or willful misconduct of Stelter.
5. Limitation of Liability. Except as expressly stated in these Terms, Stelter disclaims any and all representations and warranties of any kind (including any implied or statutory warranties of fitness for a particular purpose, merchantability, non-infringement, service levels or warranties arising out of a course of dealing or performance of trade usage) with respect to the Stelter Content or deliverables provided under this contract. Stelter is not liable to Client for any loss of income or profits, or any damages, costs or expenses of any nature arising out of or relating to the Stelter Content or deliverables provided under this contract, even if it has been apprised of the possibility of such losses or damages. Client’s sole remedy for the failure of Stelter to perform the services in accordance with this contract is the re-performance of those services at Stelter’s expense. Client acknowledges that Client has the ultimate responsibility for errors and omissions in the materials provided by Client. Client also acknowledges that Stelter has the authority to proof Client Content and require alterations in the event of legal misstatements. To the extent that Stelter is responsible for any error or omission in any materials, Client’s claim for damages is limited to correcting the content in question.
Notwithstanding the foregoing, Stelter’s entire liability for any damages under this contract, regardless of form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed the aggregate amount paid to Stelter by Client under this contract.
6. Independent Contractor Status. Nothing in this agreement shall create any employment, joint venture, agency, or partnership relationship between the parties. Stelter acknowledges that it is an independent contractor and solely responsible for complying with all laws, including all taxes on payments from Client. Stelter is responsible for its own and hereby waives any claims it may have for: benefits, workers compensation, and insurance; Stelter agrees to indemnify and hold Client harmless from any liabilities, claims, or actions relating to employment taxes or benefits.
7. Governing Law and Venue. This contract shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this contract shall be governed by, the laws of the State of Iowa, without giving effect to provisions thereof regarding choice of law. Each party hereto irrevocably submits to the jurisdiction of any state or federal court in Polk County, Iowa, and each party hereby agrees that all suits, actions and proceedings brought by such party hereunder shall be brought only in any state or federal court in Polk County, Iowa.
8. Gift Illustrator Purchases, If Applicable. Client shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Gift Illustrator application available to any third party, interfere with or disrupt the integrity or performance of the application or the data contained therein; or attempt to gain unauthorized access to the application or its related systems or networks. The Stelter Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Gift Illustrator application or any new programs, upgrades, modifications or enhancements developed in connection with it. The Stelter Company hereby grants Client a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes the Gift Illustrator application.