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<br />v. 202207
<br />state and federal law. All information submitted by Carrot
<br />may be subject to disclosure pursuant to the Washington
<br />Public Records Act, except such portions for which Carrot
<br />requests and meets an exemption from disclosure consistent
<br />with state or federal law. Within the limits and discretion
<br />allowed by those laws, Customer will comply with this
<br />Section 9.
<br />9.5.2 If Customer receives a records request under the
<br />Washington Public Records Act that requests Confidential
<br />Information, then Customer shall give reasonable written
<br />notice to Carrot to allow Carrot to request non-disclosure.
<br />Customer may, in its sole discretion, use reasonable efforts
<br />to assist Carrot in requesting non-disclosure prior to
<br />disclosing any Confidential Information. Customer has no
<br />obligation to provide such notice for anything that is not
<br />Confidential Information. If Carrot desires that the
<br />Confidential Information not be disclosed, Carrot shall
<br />commence an action in Snohomish County Superior Court
<br />before the disclosure date. Customer has no obligation to
<br />advocate in any forum that any Confidential Information is
<br />not subject to disclosure under the Washington Public
<br />Records Act. Customer has no liability whatsoever to
<br />Carrot for the disclosure of any record when that disclosure
<br />is consistent with the Washington Public Records Act or
<br />with an order applying the Washington Public Records Act
<br />entered by the Snohomish County Superior Court or a
<br />Washington appellate court.
<br />9.6 Public Records. Customer will retain one (1)
<br />copy (or more, if required by applicable law) of any public
<br />records for the express purpose of complying with
<br />applicable public records and retention laws.
<br />10. INTELLECTUAL PROPERTY RIGHTS
<br />PROPRIETARY RIGHTS
<br />10.1. Intellectual Property Rights. “Intellectual
<br />Property Rights” means all worldwide intellectual property
<br />rights, including without limitation, copyrights, trademarks,
<br />service marks, trade secrets, know-how, inventions,
<br />patents, patent applications, moral rights and all other
<br />proprietary rights, whether registered or unregistered.
<br />10.2. Carrot’s Ownership Rights. As between the
<br />parties, Carrot shall retain all Intellectual Property Rights in
<br />and to the Carrot Platform, Member Services, Feedback,
<br />Open Enrollment Kits and associated materials including
<br />marketing materials, Carrot’s Confidential Information and
<br />any other proprietary information provided to Customer
<br />pursuant to the terms of this Agreement.
<br />10.3. Customer’s Ownership Rights. As between the
<br />parties, Customer shall retain all Intellectual Property
<br />Rights in and to the Customer’s Confidential Information
<br />(including all Customer Data).
<br />10.4. Feedback. If Customer provides Carrot with oral
<br />or written feedback, suggestions, or recommended changes
<br />about products and services, including without limitation,
<br />new features or functionality relating thereto, or any
<br />comments, questions, suggestions, or the like
<br />(“Feedback”), Carrot is free to use such Feedback
<br />irrespective of any other obligation or limitation between
<br />the parties governing such Feedback. Customer hereby
<br />assigns to Carrot on behalf of itself, and on behalf of its
<br />agents, all right, title, and interest in and to the Feedback,
<br />including any ideas, know-how, concepts, techniques, or
<br />other intellectual property rights contained therein, and
<br />agrees that Carrot is free to use such Feedback, without any
<br />attribution or compensation to any party, for any purpose
<br />whatsoever. Carrot is not required to use any Feedback.
<br />11. LIMITATIONS OF LIABILITY
<br />11.1. SUBJECT TO THE PROVISIONS OF
<br />SECTION 11.2, AND EXCEPT FOR (A) A PARTY’S
<br />GROSS NEGLIGENCE, OR WILLFUL, CRIMINAL OR
<br />FRAUDULENT MISCONDUCT; (B) CUSTOMER’S
<br />PAYMENT AND REIMBURSEMENT OBLIGATIONS,
<br />(C) EACH PARTY’S INDEMNIFICATION
<br />OBLIGATIONS, AND (D) A PARTY’S BREACH OF
<br />SECTION 2 (USE RIGHTS AND LICENSES) SECTION
<br />5 (DATA PROTECTION AND DATA PROTECTION
<br />LEGISLATION) OR SECTION 9 (CONFIDENTIALITY)
<br />, IN NO EVENT WILL EITHER PARTY BE LIABLE
<br />FOR: (1) ANY SPECIAL, INDIRECT, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES, INCLUDING LOST
<br />PROFITS, REVENUE, DATA OR DATA USE, ARISING
<br />OUT OF, RESULTING FROM, OR IN ANY WAY
<br />CONNECTED WITH THE PERFORMANCE OR
<br />BREACH OF THIS AGREEMENT, EVEN IF SUCH
<br />PARTY HAS BEEN ADVISED, KNEW OR SHOULD
<br />HAVE KNOWN OF THE POSSIBILITY OF SUCH
<br />DAMAGES; OR (2) ANY LIABILITY IN EXCESS OF
<br />THE AMOUNT PAID BY CUSTOMER TO CARROT
<br />UNDER THIS AGREEMENT FOR THE SERVICES
<br />GIVING RISE TO THE CLAIM IN THE TWELVE (12)
<br />MONTHS IMMEDIATELY PRECEDING THE FIRST
<br />OCCURRENCE GIVING RISE TO SUCH LIABILITY.
<br />11.2. NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY IN THE FOREGOING, EACH PARTY’S
<br />LIABILITY FOR A BREACH OF THE DATA
<br />PROTECTION TERMS SET FORTH IN SECTION 5
<br />(INCLUDING SECTION 9.2 TO THE EXTENT
<br />RELATING THERETO) WILL BE LIMITED TO TWO
<br />TIMES THE AMOUNT PAID BY CUSTOMER TO
<br />CARROT UNDER THIS AGREEMENT FOR THE
<br />SERVICES GIVING RISE TO THE CLAIM IN THE
<br />TWELVE (12) MONTHS IMMEDIATELY PRECEDING
<br />THE FIRST OCCURRENCE GIVING RISE TO SUCH
<br />LIABILITY.
<br />11.3. BOTH PARTIES ACKNOWLEDGE AND
<br />AGREE THAT THE AMOUNT STATED HEREIN
<br />REFLECTS THE ALLOCATION OF RISKS AND THE
<br />LIMITATIONS OF EITHER PARTY’S LIABILITY
<br />HEREUNDER. THE FOREGOING LIMITATIONS
<br />FORM AN ESSENTIAL BASIS FOR THIS
<br />AGREEMENT AND SHALL SURVIVE REGARDLESS
<br />OF THE FAILURE OF ANY REMEDY OF ITS
<br />ESSENTIAL PURPOSE.
<br />12. INDEMNITY
<br />12.1. Carrot Indemnity. Carrot will: (a) defend
<br />Customer and its affiliates, and its and their respective
<br />officers, directors, employees, agents, successors, and
<br />DocuSign Envelope ID: D630F73D-D64F-4694-A24A-FC8220069016
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