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TOPCODER CONNECT USER AGREEMENT

- Date of Last Revision: Oct 04, 2017 -

This User Agreement (the "Agreement") is a contract between you (referred to herein as "User") and Appirio Inc. and its affiliates, d/b/a Topcoder Inc. ("Topcoder") and applies to User's use and viewing of connect.topcoder.com and related sub-domains ("Topcoder Connect") and all services available through Topcoder Connect (the "Services"). By visiting Topcoder Connect or executing an Order Form (as defined below), User has accepted this Agreement and has agreed to be bound by the terms of this Agreement. Any Custom Software ordered (as defined below) or Services used through Topcoder Connect are also governed by these Terms. Topcoder may amend this Agreement at any time by posting a revised version on Topcoder Connect. The revised version will be effective at the time Topcoder posts it.

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    SERVICES AND SPECIFICATIONS.

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    1. Services and Deliverables. The Services may be purchased either on Topcoder Connect or pursuant to an Order Form entered into by you and Topcoder referencing this Agreement (an “Order Form”). Topcoder agrees to provide the Services ordered on Topcoder Connect or described in an Order Form (the "Deliverables").   All Services and Deliverables are created by launching Challenges (as defined below) using Topcoder's crowdsourcing platform, available at the topcoder.com website and online and mobile tools for engaging the Topcoder community through crowdsourced competitions (the “Platform”). For all Deliverables purchased under this Agreement, the crowdsourcing platform will be accessed by a “User Success Manager” which may be either a Topcoder representative or a Topcoder co-pilot, which is a member of Topcoder’s crowdsourcing community who has been directed to by Topcoder to carry out certain of the Services.
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    2. Process and Specifications for Online Orders. If ordering the Services and Deliverables online via Topcoder Connect (referred to as an “Online Order”): +
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      TOPCODER CONNECT USER AGREEMENT

      + Date of Last Revision: Oct 04, 2017 +

      This User Agreement (the "Agreement") is a contract between you (referred to herein as "User") and Appirio Inc. and its affiliates, d/b/a Topcoder Inc. ("Topcoder") and applies to User's use and viewing of connect.topcoder.com and related sub-domains ("Topcoder Connect") and all services available through Topcoder Connect (the "Services"). By visiting Topcoder Connect or executing an Order Form (as defined below), User has accepted this Agreement and has agreed to be bound by the terms of this Agreement. Any Custom Software ordered (as defined below) or Services used through Topcoder Connect are also governed by these Terms. Topcoder may amend this Agreement at any time by posting a revised version on Topcoder Connect. The revised version will be effective at the time Topcoder posts it.

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        SERVICES AND SPECIFICATIONS.

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        1. Services and Deliverables. The Services may be purchased either on Topcoder Connect or pursuant to an Order Form entered into by you and Topcoder referencing this Agreement (an “Order Form”). Topcoder agrees to provide the Services ordered on Topcoder Connect or described in an Order Form (the "Deliverables").   All Services and Deliverables are created by launching Challenges (as defined below) using Topcoder's crowdsourcing platform, available at the topcoder.com website and online and mobile tools for engaging the Topcoder community through crowdsourced competitions (the “Platform”). For all Deliverables purchased under this Agreement, the crowdsourcing platform will be accessed by a “User Success Manager” which may be either a Topcoder representative or a Topcoder co-pilot, which is a member of Topcoder’s crowdsourcing community who has been directed to by Topcoder to carry out certain of the Services.
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        2. Process and Specifications for Online Orders. If ordering the Services and Deliverables online via Topcoder Connect (referred to as an “Online Order”):
          • To utilize the Services, User has provided specifications with respect to the Deliverables in reasonable detail as prompted in several fields on webpages associated with Topcoder Connect where the User was requested to enter information regarding the intended Deliverable(s) (such information, the "Preliminary Specifications"). After payment of Project Fees (as defined below) associated with the Deliverable, a User Success Manager shall contact User to gather additional information regarding the Deliverables, as may be necessary in Topcoder's sole discretion. Topcoder and User shall mutually agree on a final set of specifications, which shall be referred to herein as the "Specifications". As part of this process, Topcoder may provide services to User on an hourly basis as may be mutually agreed by the parties.
          • To the extent the parties are not able to reach agreement on the Specifications, including, but not limited to situations where the information provided by User is insufficient to create Specifications or the Preliminary Specifications are outside the scope of the services described on Topcoder Connect, Topcoder shall refund to User any Project Fees paid by User (excluding fees associated with hourly services previously provided) and Topcoder shall have no further liability or obligations under this Agreement.
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        3. Services Purchased with an Order Form. If purchasing the Services and Deliverables via an Order Form (an “Order Form Purchase”), the Specifications are those mutually agreed upon specifications as described in the Order Form.
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        DEFINITIONS.

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        For the purposes of this Agreement, the following capitalized terms have the meanings assigned to them in this Section 2. Any capitalized terms used in this Agreement but not otherwise defined in this Section shall have the meanings assigned to them elsewhere in this Agreement.

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        1. “Project Fees”: The fees associated with the Services and the creation of the Deliverables as either specified on Topcoder Connect (or as may be further mutually agreed between the parties with respect to an Online Order) or mutually agreed in an Order Form.
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        2. “Challenge”: An online innovation competition run exclusively on the Platform (as defined below) utilizing the Topcoder Community. Challenges may also be referred to as "Competitions" or "Contests."
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        3. “Effective Date”: For Online Orders, the Effective Date is the date that User registers to use Topcoder Connect and pays Project Fees associated therewith. For Order Form Purchases, the Effective Date is the date listed on the Order Form as the “Effective Date.”
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        4. “Topcoder Community”: Members of Topcoder’s global development community
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        THE PLATFORM.

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        Using Topcoder Connect allows User to utilize the Topcoder Community indirectly through the User Success Manager only. To the extent User desires to access the Topcoder Platform and/or launch Challenges directly, User must enter into a separate agreement with Topcoder to purchase challenges and/or a subscription for such services. Contact Topcoder by email to support@topcoder.com for more details about subscription pricing and fees associated with Challenges when utilized with a subscription.

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        TITLE AND OWNERSHIP.

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        1. Title to the Platform. Topcoder retains all right, title and interest in and to the Platform, tools and associated documentation or materials. Any use of the Platform, tools or associated documentation or materials 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 work-in-progress. User shall retain Topcoder's copyright notices and authorship credits in the Platform, tools and associated documentation or materials.
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        2. Submissions. For design Challenges, Challenge submissions may be provided to, or otherwise made available to, User for User review and selection of a winning Challenge submission. User shall select one (1) winning design Challenge submission (the "Winning Submission") and shall notify the User Success Manager promptly of such Winning Submission. For all other types of Challenges (other than design Challenges), the Winning Submission shall be the submission with the highest score based on Topcoder’s standard community review and scoring processes. Unless otherwise agreed to by the parties pursuant to this Section 4.2, User acknowledges and agrees that it will obtain rights solely in and to the Winning Submission, as further described in Section 7.2, and no other Challenge submissions. The rights in and to any Challenge submissions other than the Winning Submission shall be retained by the member of the Topcoder Community who submitted such Challenge submission and, for the purposes of this Agreement, such Challenge submissions shall be deemed to be Topcoder Confidential Information. Upon mutual agreement of the parties, User may purchase more than one (1) Challenge submission and Topcoder shall invoice User for such additional payment necessary to purchase such additional Challenge submission(s), and upon Topcoder's receipt of such payment, such purchased additional Challenge submission(s) shall also be deemed to be Winning Submissions.
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        PAYMENT.

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        All Project Fees are due and payable fifteen (15) days from the date of invoice. User is responsible for paying all Project Fees in a timely manner and for providing Topcoder with a valid payment method for all Project Fees. The parties understand and acknowledge that Topcoder is under no obligation to provide any Services or deliver any Deliverables until the Project Fees are paid in full, using the payment method Topcoder determines to be acceptable as described on Topcoder Connect and/or any invoices issued in relation thereto or pursuant to an Order Form. User agrees that Topcoder may charge the payment method provided by User for all Project Fees and User represents and warrants that User has the legal right to use any credit cards or other payment means used to initiate any transaction. User agrees to pay all charges incurred by User at the prices in effect when such charges are incurred. User will also be responsible for paying any applicable taxes relating to User's purchases. Except as explicitly set forth in Section 1 or Section 10.1, all Project Fees are final and non-refundable.

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        TERM AND TERMINATION.

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        This Agreement will begin on the Effective Date and will continue unless terminated as set forth in this Agreement ("Term"). Either party may terminate this Agreement 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 5 (Payment), Section 6 (Term and Termination), Section 8 (Confidential Information), Section 9 (Limitation of Liability), and Section 13 (General) of this Agreement shall survive any termination or expiration hereof.

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        CROWDSOURCING CHALLENGES AND SOFTWARE.

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        1. Challenges. Topcoder will conduct Challenges for User on the Platform among members of the Topcoder Community using the Platform tools to provide the Services. Topcoder shall have final control over all Challenge documents (e.g., specifications, contest rules and requirements, prizes, etc.).
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        2. Custom Software. Subject to payment in full of all Project Fees, Topcoder does hereby assign and agrees to assign to User all right, title and interest to work product, other than Licensed Software and Third-Party Software (each, as defined below), resultant of the Winning Submission (the "Custom Software"). Under no circumstances shall the Platform, tools or documentation be deemed to be included in the Custom Software.
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        3. Third-Party Software. If the Specifications (as mutually agreed by the parties) provide for the Custom Software to interface with, accompany, or include software or material not developed by Topcoder or its affiliates, 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 User's permission. User shall bear all license fees and other expenses, if any, applicable to such Third-Party Software.
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        4. Export Compliance. Regardless of whether User is a U.S.-based entity, User 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. User warrants that it is not named on any U.S. government denied-party list.
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        CONFIDENTIAL INFORMATION.

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        1. Confidential Information. "Confidential Information" means information which provided by either party under this Agreement (in such capacity, the "Disclosing Party") to the other party (in such capacity, the "Receiving Party") 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, User names and other technical, financial or commercial information and intellectual property. For the avoidance of doubt, the Platform, tools and associated documentation or materials, and any other information that Topcoder provides to User hereunder that should reasonably be known to be confidential, shall constitute Topcoder's Confidential Information. Expect as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
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        2. 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 Challenge); and (b) is required by law, court order or a governmental agency to be disclosed
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        3. Title and License to User's Confidential Information. All right, title, and ownership to Confidential Information provided by User hereunder, including the Preliminary Specifications, remains with User. User represents that it has all rights in the Confidential Information necessary to include it in a Challenge. User hereby grants to Topcoder a license to use such Confidential Information provided by User solely for the purposes of providing the Services, including conducting the applicable Challenges.
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        4. Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
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        5. Confidentiality on the Platform. User acknowledges and agrees that members of the Topcoder Community are not bound by the confidentiality obligations under this Section 8 and User acknowledges that any Specifications, information contained in an Order Form or other information that the Topcoder Community is provided in connection with the Services (except for personally identifiable information or payment information) is not Confidential Information.
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        LIMITATION OF LIABILITY.

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        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 USER EXCEED THE PROJECT FEES PAID BY USER TO TOPCODER. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 8 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE

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        WARRANTY.

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        1. Limited Warranty. For a period of ten (10) days from the provision of the Challenge submissions to the User, Topcoder warrants that the Custom Software will materially conform to the Specifications. If the Custom Software does not materially conform to the Specifications, User shall, within ten (10) days from the provision of the Challenge submissions to the Customer, notify Topcoder in writing of and adequately describe any such non-conformance, and User's exclusive remedy and Topcoder's sole obligation shall be to, at Topcoder' sole discretion, either (1) investigate the errors and use commercially reasonable efforts to bring the Custom Software into material conformance with the Specifications; or (2) refund or credit the Project Fees paid 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 Specifications.
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        2. Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE REMEDIES AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING TOPCODER CONNECT, THE SERVICES AND THE DELIVERABLES, 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 USER OR TO ANY OTHER PARTY. The parties acknowledge and agree that the Project 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 Project Fees charged.
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        ACCOUNT.

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        User may set up an account in connection with the use of Topcoder Connect. User may not use a third party's account without permission. When setting up an account, User must supply accurate and complete information. User is solely responsibility for its account and everything that happens on its account. User shall protect its account log-in information and User shall report any unauthorized use of its account to Topcoder immediately. User may not transfer its account to any third party. Topcoder is not liable for any damages or losses caused by someone using User's account without User's permission.

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        PRIVACY.

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        User agrees to comply with all terms of the Topcoder Privacy Policy available at http://www.topcoder.com/community/how-it-works/privacy-policy/

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        GENERAL USE OF TOPCODER CONNECT AND SERVICES.

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        Except as expressly authorized hereunder, Topcoder Connect and content therein may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without Topcoder's prior written authorization. Topcoder reserves the right to alter or discontinue Topcoder Connect and Services, in whole or in part, at any time in Topcoder's sole discretion. Topcoder Connect is not intended for use by children under the age of 13. Parental permission is required to use this Website if the User has not reached the age of majority in the User's jurisdiction of primary residence and citizenship. The User must be at least 18 years old and have reached the age of majority in such User's jurisdiction of primary residence and citizenship to make any purchases from Topcoder Connect. Subject to and conditioned upon User's compliance with this Agreement, Topcoder grants User a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use Topcoder Connect, including any images, text, graphics, sounds, data, links and other materials incorporated therein solely as made available by Topcoder and solely for User's own personal purposes. Except as expressly authorized by this Agreement, User may not use, reproduce, distribute, modify, transmit or publicly display any portion of Topcoder Connect or create derivative works of any portion Topcoder Connect without Topcoder's written consent. While using Topcoder Connect and the Services, User agrees not to:

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        • Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
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        • Restrict or inhibit any other user from using Topcoder Connect or the Services, including, without limitation, by means of "hacking" or defacing any portion of Topcoder Connect;
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        • Violate any applicable laws or regulations;
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        • Upload to, transmit through, or display on Topcoder Connect or via communications related to the Services (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
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        • Engage in spamming;
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        • Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
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        • Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our Sites and Apps; and
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        • Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of Topcoder Connect.
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        • If User fails to comply with the above rules, such failure will constitute a violation of this Agreement, and, in addition to any other rights or remedies Topcoder may have, Topcoder may immediately terminate User's access to and use of Topcoder Connect and related Services.
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        GENERAL.

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        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 sent to Topcoder at c/o Appirio Inc., 201 South Capitol Avenue Ste. 1100, Indianapolis, Indiana 46225, Attention: General Counsel, Email: gc@appirio.com or to User at the contact information provided by User through Topcoder Connect or in an Order Form. 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. In the event of any inconsistency between this Agreement and the Privacy Policy on Topcoder Connect, the terms of this Agreement shall control. 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.

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    3. Services Purchased with an Order Form. If purchasing the Services and Deliverables via an Order Form (an “Order Form Purchase”), the Specifications are those mutually agreed upon specifications as described in the Order Form.
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    DEFINITIONS.

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    For the purposes of this Agreement, the following capitalized terms have the meanings assigned to them in this Section 2. Any capitalized terms used in this Agreement but not otherwise defined in this Section shall have the meanings assigned to them elsewhere in this Agreement.

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    1. “Project Fees”: The fees associated with the Services and the creation of the Deliverables as either specified on Topcoder Connect (or as may be further mutually agreed between the parties with respect to an Online Order) or mutually agreed in an Order Form.
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    2. “Challenge”: An online innovation competition run exclusively on the Platform (as defined below) utilizing the Topcoder Community. Challenges may also be referred to as "Competitions" or "Contests."
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    3. “Effective Date”: For Online Orders, the Effective Date is the date that User registers to use Topcoder Connect and pays Project Fees associated therewith. For Order Form Purchases, the Effective Date is the date listed on the Order Form as the “Effective Date.”
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    4. “Topcoder Community”: Members of Topcoder’s global development community
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    THE PLATFORM.

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    Using Topcoder Connect allows User to utilize the Topcoder Community indirectly through the User Success Manager only. To the extent User desires to access the Topcoder Platform and/or launch Challenges directly, User must enter into a separate agreement with Topcoder to purchase challenges and/or a subscription for such services. Contact Topcoder by email to support@topcoder.com for more details about subscription pricing and fees associated with Challenges when utilized with a subscription.

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    TITLE AND OWNERSHIP.

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    1. Title to the Platform. Topcoder retains all right, title and interest in and to the Platform, tools and associated documentation or materials. Any use of the Platform, tools or associated documentation or materials 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 work-in-progress. User shall retain Topcoder's copyright notices and authorship credits in the Platform, tools and associated documentation or materials.
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    2. Submissions. For design Challenges, Challenge submissions may be provided to, or otherwise made available to, User for User review and selection of a winning Challenge submission. User shall select one (1) winning design Challenge submission (the "Winning Submission") and shall notify the User Success Manager promptly of such Winning Submission. For all other types of Challenges (other than design Challenges), the Winning Submission shall be the submission with the highest score based on Topcoder’s standard community review and scoring processes. Unless otherwise agreed to by the parties pursuant to this Section 4.2, User acknowledges and agrees that it will obtain rights solely in and to the Winning Submission, as further described in Section 7.2, and no other Challenge submissions. The rights in and to any Challenge submissions other than the Winning Submission shall be retained by the member of the Topcoder Community who submitted such Challenge submission and, for the purposes of this Agreement, such Challenge submissions shall be deemed to be Topcoder Confidential Information. Upon mutual agreement of the parties, User may purchase more than one (1) Challenge submission and Topcoder shall invoice User for such additional payment necessary to purchase such additional Challenge submission(s), and upon Topcoder's receipt of such payment, such purchased additional Challenge submission(s) shall also be deemed to be Winning Submissions.
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    PAYMENT.

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    All Project Fees are due and payable fifteen (15) days from the date of invoice. User is responsible for paying all Project Fees in a timely manner and for providing Topcoder with a valid payment method for all Project Fees. The parties understand and acknowledge that Topcoder is under no obligation to provide any Services or deliver any Deliverables until the Project Fees are paid in full, using the payment method Topcoder determines to be acceptable as described on Topcoder Connect and/or any invoices issued in relation thereto or pursuant to an Order Form. User agrees that Topcoder may charge the payment method provided by User for all Project Fees and User represents and warrants that User has the legal right to use any credit cards or other payment means used to initiate any transaction. User agrees to pay all charges incurred by User at the prices in effect when such charges are incurred. User will also be responsible for paying any applicable taxes relating to User's purchases. Except as explicitly set forth in Section 1 or Section 10.1, all Project Fees are final and non-refundable.

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    TERM AND TERMINATION.

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    This Agreement will begin on the Effective Date and will continue unless terminated as set forth in this Agreement ("Term"). Either party may terminate this Agreement 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 5 (Payment), Section 6 (Term and Termination), Section 8 (Confidential Information), Section 9 (Limitation of Liability), and Section 13 (General) of this Agreement shall survive any termination or expiration hereof.

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    CROWDSOURCING CHALLENGES AND SOFTWARE.

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    1. Challenges. Topcoder will conduct Challenges for User on the Platform among members of the Topcoder Community using the Platform tools to provide the Services. Topcoder shall have final control over all Challenge documents (e.g., specifications, contest rules and requirements, prizes, etc.).
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    2. Custom Software. Subject to payment in full of all Project Fees, Topcoder does hereby assign and agrees to assign to User all right, title and interest to work product, other than Licensed Software and Third-Party Software (each, as defined below), resultant of the Winning Submission (the "Custom Software"). Under no circumstances shall the Platform, tools or documentation be deemed to be included in the Custom Software.
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    3. Third-Party Software. If the Specifications (as mutually agreed by the parties) provide for the Custom Software to interface with, accompany, or include software or material not developed by Topcoder or its affiliates, 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 User's permission. User shall bear all license fees and other expenses, if any, applicable to such Third-Party Software.
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    4. Export Compliance. Regardless of whether User is a U.S.-based entity, User 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. User warrants that it is not named on any U.S. government denied-party list.
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    CONFIDENTIAL INFORMATION.

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    1. Confidential Information. "Confidential Information" means information which provided by either party under this Agreement (in such capacity, the "Disclosing Party") to the other party (in such capacity, the "Receiving Party") 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, User names and other technical, financial or commercial information and intellectual property. For the avoidance of doubt, the Platform, tools and associated documentation or materials, and any other information that Topcoder provides to User hereunder that should reasonably be known to be confidential, shall constitute Topcoder's Confidential Information. Expect as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
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    2. 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 Challenge); and (b) is required by law, court order or a governmental agency to be disclosed
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    3. Title and License to User's Confidential Information. All right, title, and ownership to Confidential Information provided by User hereunder, including the Preliminary Specifications, remains with User. User represents that it has all rights in the Confidential Information necessary to include it in a Challenge. User hereby grants to Topcoder a license to use such Confidential Information provided by User solely for the purposes of providing the Services, including conducting the applicable Challenges.
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    4. Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
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    5. Confidentiality on the Platform. User acknowledges and agrees that members of the Topcoder Community are not bound by the confidentiality obligations under this Section 8 and User acknowledges that any Specifications, information contained in an Order Form or other information that the Topcoder Community is provided in connection with the Services (except for personally identifiable information or payment information) is not Confidential Information.
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    LIMITATION OF LIABILITY.

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    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 USER EXCEED THE PROJECT FEES PAID BY USER TO TOPCODER. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 8 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE

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  10. +

    WARRANTY.

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    1. Limited Warranty. For a period of ten (10) days from the provision of the Challenge submissions to the User, Topcoder warrants that the Custom Software will materially conform to the Specifications. If the Custom Software does not materially conform to the Specifications, User shall, within ten (10) days from the provision of the Challenge submissions to the Customer, notify Topcoder in writing of and adequately describe any such non-conformance, and User's exclusive remedy and Topcoder's sole obligation shall be to, at Topcoder' sole discretion, either (1) investigate the errors and use commercially reasonable efforts to bring the Custom Software into material conformance with the Specifications; or (2) refund or credit the Project Fees paid 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 Specifications.
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    2. Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE REMEDIES AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING TOPCODER CONNECT, THE SERVICES AND THE DELIVERABLES, 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 USER OR TO ANY OTHER PARTY. The parties acknowledge and agree that the Project 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 Project Fees charged.
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  11. +

    ACCOUNT.

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    User may set up an account in connection with the use of Topcoder Connect. User may not use a third party's account without permission. When setting up an account, User must supply accurate and complete information. User is solely responsibility for its account and everything that happens on its account. User shall protect its account log-in information and User shall report any unauthorized use of its account to Topcoder immediately. User may not transfer its account to any third party. Topcoder is not liable for any damages or losses caused by someone using User's account without User's permission.

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    PRIVACY.

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    User agrees to comply with all terms of the Topcoder Privacy Policy available at http://www.topcoder.com/community/how-it-works/privacy-policy/

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  13. +

    GENERAL USE OF TOPCODER CONNECT AND SERVICES.

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    Except as expressly authorized hereunder, Topcoder Connect and content therein may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without Topcoder's prior written authorization. Topcoder reserves the right to alter or discontinue Topcoder Connect and Services, in whole or in part, at any time in Topcoder's sole discretion. Topcoder Connect is not intended for use by children under the age of 13. Parental permission is required to use this Website if the User has not reached the age of majority in the User's jurisdiction of primary residence and citizenship. The User must be at least 18 years old and have reached the age of majority in such User's jurisdiction of primary residence and citizenship to make any purchases from Topcoder Connect. Subject to and conditioned upon User's compliance with this Agreement, Topcoder grants User a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use Topcoder Connect, including any images, text, graphics, sounds, data, links and other materials incorporated therein solely as made available by Topcoder and solely for User's own personal purposes. Except as expressly authorized by this Agreement, User may not use, reproduce, distribute, modify, transmit or publicly display any portion of Topcoder Connect or create derivative works of any portion Topcoder Connect without Topcoder's written consent. While using Topcoder Connect and the Services, User agrees not to:

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    • Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
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    • Restrict or inhibit any other user from using Topcoder Connect or the Services, including, without limitation, by means of "hacking" or defacing any portion of Topcoder Connect;
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    • Violate any applicable laws or regulations;
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    • Upload to, transmit through, or display on Topcoder Connect or via communications related to the Services (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
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    • Engage in spamming;
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    • Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
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    • Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our Sites and Apps; and
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    • Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of Topcoder Connect.
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    • If User fails to comply with the above rules, such failure will constitute a violation of this Agreement, and, in addition to any other rights or remedies Topcoder may have, Topcoder may immediately terminate User's access to and use of Topcoder Connect and related Services.
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  14. +

    GENERAL.

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    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 sent to Topcoder at c/o Appirio Inc., 201 South Capitol Avenue Ste. 1100, Indianapolis, Indiana 46225, Attention: General Counsel, Email: gc@appirio.com or to User at the contact information provided by User through Topcoder Connect or in an Order Form. 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. In the event of any inconsistency between this Agreement and the Privacy Policy on Topcoder Connect, the terms of this Agreement shall control. 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.

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