This Seat License Agreement (the “Agreement”) is entered into between Topcoder, Inc. (“[topcoder]”) and the [topcoder] contest sponsor identified below (“Customer”) listed on an Order Form, and is effective as of the Effective Date.
a. Authorized Seat License Holder: A Customer employee designated in writing by Customer as authorized by Customer to access and utilize the Seat License (as defined below) on behalf of Customer. Customer may transfer a Seat License from an Authorized Seat License Holder to another employee, from time to time, upon five (5) days prior written notice to [topcoder]. The number of Authorized Seat License Holders is set forth on an Order Form.
b. Competition: An online innovation competition run exclusively on the [topcoder] Platform (as defined below) utilizing the [topcoder] Community.
c. Effective Date. The Effective Date is the start date designated on the Order Form.
d. Order Form: A [topcoder] form entered into by the parties issued pursuant to this Agreement and which sets forth Customer’s orders with respect to Seat Licenses and [topcoder] services.
e. Seat License. The ability for a designated employee of Customer to initiate Competitions among members of the [topcoder] Community using [topcoder]’s web site and/or mobile application tools for the sole benefit of Customer.
f. [topcoder] Community: Members of [topcoder]’s global development community.
g. [topcoder] Platform. The http://www.topcoder.com website and online and mobile tools for engaging the [topcoder] development community through Competitions.
2. [topcoder] Platform
a. Right To Access Platform. Subject to full payment of fees set forth on the Order Form and this Agreement, during the Term (as defined below), [topcoder] will grant Customer’s Authorized Seat License Holder(s) access to use the [topcoder] Platform for the benefit of Customer.
b. Seat Licenses. Customer will provide [topcoder] with the name, title, contact information, and [topcoder] username for each Authorized Seat License Holder. Each Authorized Seat License Holder will have a unique [topcoder] username which shall be used to log into the [topcoder] Platform. No person other than the Authorized Seat License Holder may access the [topcoder] Platform using this username. Access by anyone other than the designated Authorized Seat License Holder using that username shall constitute a breach of this Agreement and, notwithstanding any other provision of this Agreement, [topcoder] may immediately terminate this Agreement (and any Order Form then in effect) upon such occurrence.
c. Title. [topcoder] retains all right, title and interest in and to the [topcoder] Platform, tools and associated documentation or materials. Any use of the [topcoder] Platform beyond the scope of the rights expressly granted in this Agreement is prohibited and shall constitute a breach of this Agreement, pursuant to which [topcoder] may immediately terminate this Agreement (and any Order Form then in effect). Customer shall retain [topcoder]’s copyright notices and authorship credits in the [topcoder] Platform, tools and associated documentation or materials.
The Platform Seat License fee is set forth on the Order Form (“Seat License Fee”). There are additional fees associated with the launch of each Competition, which may include any one or more of the following: (a) the “Launch Bundle” as set forth on the Order Form (and such fees associated with the Launch Bundle, the “Launch Bundle Fees”); (b) fees associated with the launch of individual challenges (the “Challenge Fees”); and (c) fees for [topcoder] resources (e.g., technical architect) or catalog access set forth on the Order Form (“Expert Services Fees”). Upon execution of each Order Form, Customer will be invoiced for: (x) the Seat License Fee in its entirety, (y) Launch Bundle Fees and Challenge Fees (as applicable) in an amount equal to the lesser of $100,000 and half of the Challenge Budget (or Challenge Fees, as applicable) set forth in the Order Form and (z) all Expert Services Fees set forth on the Order Form. All remaining fees shall be invoiced twice monthly, as incurred. All payments are non-refundable and shall be made in U.S. dollars within fifteen (15) days from the date of [topcoder] invoice. Customer will be responsible for all taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of [topcoder]). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due, plus any actual costs of collection, or the maximum amount allowed by law, whichever is less. If payment is not received when due, [topcoder] may suspend Customer’s Authorized Seat License Holders from further access to the [topcoder] Platform. Customer will reimburse [topcoder] for pre-approved travel and expenses incurred in the performance of services under this Agreement (and applicable Order Form).
4. Term and Termination
This Agreement will begin on the Effective Date and will continue unless terminated as set forth in this section (“Term”). Either party may terminate this Agreement at any time when there is no Order Form then in effect by giving the other party thirty (30) days written notice. Either party may terminate this Agreement or an Order Form if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Section 3 (Payment), Section 4 (Term and Termination), Section 6 (Confidential Information), Section 7 (Limitation of Liability), and Section 9 (General) of this Agreement shall survive any termination or expiration hereof.
5. [topcoder] Competitions and Software
a. Competition Guidelines. [topcoder] will conduct Competitions for Customer on the [topcoder] Platform among members of the [topcoder] Community as reasonably requested by Customer’s Authorized Seat License Holders, using the [topcoder] Platform tools. Customer shall approve the cost for each Competition or set of Competitions prior to the launch of such Competition(s). [topcoder] shall have the right to review all Competition documents (e.g., specifications, contest rules and requirements, prizes, etc.) and may require such changes as [topcoder] deems necessary in [topcoder]’s sole discretion to maintain the integrity of Competitions and the Platform.
b. Custom Software. Subject to payment in full of all fees, [topcoder] does hereby assign and agrees to assign to Customer all rights (including moral rights), title and interest to work product, other than Licensed Software and Third-Party Software (each, as defined below), resultant of Competition submissions for which consideration has been paid to the contestant and delivered to Customer under this Agreement (“Custom Software”). Under no circumstances shall the [topcoder] Platform, tools or documentation be deemed to be included in the Custom Software.
c. Third-Party Software. If Customer requests that a Competition and/or the Custom Software interface with, accompany, or include software or material not developed by [topcoder], including any open source software (“Third-Party Software”), any such Third-Party Software shall be subject to its own terms and conditions, and shall not be considered part of the Custom Software or the Licensed Software under this Agreement. Third-Party Software shall accompany or be included in Custom Software only with Customer’s permission. Customer shall bear all license fees and other expenses, if any, applicable to such Third-Party Software. Customer may purchase more than one Competition submission.
d. Licensed Software. Customer may order software components from [topcoder]’s catalog, available to Customer upon its request, to accelerate development of Customer’s software programs (“Licensed Software”). Any Licensed Software is licensed subject to the [topcoder] Software Component License, at http://www.topcoder.com/download/misc/Catalog_Software_License.pdf.
e. Usage Audit. If [topcoder] believes that Customer has used a Seat License or the [topcoder] Platform outside the scope of this Agreement, upon reasonable notice, [topcoder] may conduct an audit of Customer’s use during Customer’s normal business hours. [topcoder] will comply with reasonable security requirements of Customer while conducting such audit.
f. Export Compliance. Regardless of whether Customer is a U.S.-based entity, Customer shall not export or re-export any of the Custom Software, Third-Party Software or Licensed Software (in whole or in part) to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, and any other applicable statute, regulation, or government order. Customer warrants that it is not named on any U.S. government denied-party list.
6. Confidential Information
a. Confidential Information. “Confidential Information” means information which provided by either party under this Agreement which is proprietary, trade secret and/or confidential, including, but not limited to, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, business plans, marketing plans, customer names and other technical, financial or commercial information and intellectual property. For the avoidance of doubt, the [topcoder] Platform, tools and associated documentation or materials, and any other information that [topcoder] provides to Customer hereunder that should reasonably be known to be confidential, shall constitute [topcoder]’s Confidential Information.
b. Competition Confidentiality Agreement. If a Competition contains Confidential Information, Customer shall identify that Competition as requiring the then-current version of the Competition Nondisclosure Agreement (“Competition NDA”) in the “[topcoder] Direct tool” available on the [topcoder] Platform, and [topcoder] will use reasonable commercial efforts to require all members of the [topcoder] Community who seek to participate in such Competition to have an executed Competition NDA on file prior to participation and shall use commercially reasonable efforts to enforce the Competition NDA upon Customer’s reasonable written request.
c. Exceptions. These confidentiality obligations shall not apply to any Confidential Information which: (a) is generally known to the public at the time of disclosure or later becomes so generally known (including Confidential Information which is disclosed as part of a competition where a Competition NDA is not required); and (b) is required by law, court order or a governmental agency to be disclosed.
d. Title and License to Customer’s Confidential Information. All right, title, and ownership to Confidential Information provided by Customer hereunder remains with Customer. Customer represents that it has all rights in the Confidential Information necessary to include it in a Competition. Customer hereby grants to [topcoder] a license to use such Confidential Information provided by Customer solely for the purposes of the applicable Competitions.
7. Limitation of Liability
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL [TOPCODER]’S LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER TO [TOPCODER] IN THE LAST TWELVE MONTHS UNDER THE APPLICABLE ORDER FORM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 7 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
a. Limited Warranty. For a period of 30 days from the completion of the Competition in which Custom Software is developed as a result of the Competition, [topcoder] warrants that the Custom Software will function materially as described in the specification documentation used in the Competition. If Custom Software that results from a Competition is not developed materially as described in the applicable specification documentation, Customer shall, within ten (10) days from the completion of the applicable Competition, notify [topcoder] in writing of and adequately describe any such material non-conformance, and Customer’s exclusive remedy and [topcoder]‘s sole obligation shall be to, at [topcoder]’s sole discretion, either (1) investigate the errors and use commercially reasonable efforts to bring the Custom Software into material conformance with the applicable documentation; or (2) refund or credit the fees invoiced for that Custom Software. The warranty set forth in this section does not apply to Custom Software that have been modified, damaged or operated contrary to the applicable documentation.
b. Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE REMEDIES AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. [topcoder] MAKES NO OTHER WARRANTY OF ANY KIND TO CUSTOMER OR TO ANY OTHER PARTY. The parties acknowledge and agree that the fees charged by [topcoder] under this Agreement reflect the allocation of risks provided by the foregoing warranty, the limitations of liability, and other terms set forth in this Agreement, and any modification of the allocation of risks would affect the fees charged.
Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement without the advance written consent of the other party, except that [topcoder] may assign this Agreement to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or part of [topcoder]’s assets or voting securities. Any notice, report, approval or consent required or permitted under this Agreement will be to the address specified above. Any waiver by either party of any breach of this Agreement, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Neither party shall be liable to the other for any delay of failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of California without regard to its conflicts of laws provisions. The jurisdiction and venue for actions related to this Agreement shall be the state and federal courts located in San Francisco County, California and both parties hereby submit to the personal jurisdiction of such courts. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties authorized to bind the parties. No provision of any purchase order or other business form (including but not limited to security access forms of any kind) employed by either party will supersede the terms and conditions of this Agreement, and any such document shall be for administrative purposes only and shall have no legal effect. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.