Terms and Conditions

BY SIGNING THE PROJECT SPONSORSHIP AGREEMENT AS PART OF THE ORDERING PROCESS, SPONSOR AGREES TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING SPONSOR’S USE OF SURCLE’S SERVICES (“SERVICES” AS FURTHER DEFINED BELOW).

1. DEFINITIONS. As used herein:

1.1 “Project” means as indicated on the Order Form.

1.2 “Crowdsourcing Project” means a Project selected as “Crowdsourcing” on the Order Form and which, if selected, is subject to Challenge Agreement attached as Exhibit A.

1.3 “Matchmaking Project” means a Project selected as “Matchmaking” on the Order Form and which, if selected, is subject to Matchmaking Project Agreement attached as Exhibit C.

1.4 “Marketplace Project” means a Project selected as “Marketplace” on the Order Form and which, if selected, is subject to Marketplace Project Agreement attached as Exhibit D.

1.5 “Services” means those services as indicated in the Order Form and as may be agreed upon by the parties from time to time.

1.6 “Sponsor” means the party entering into an Order Form with Surcle.

1.7 “Order Form” means an ordering document entered into by Surcle and Sponsor, which is incorporated into this Agreement, and specifies the Project Type and Services to be provided by Surcle and the Fees related thereto.

1.8 “Site” or “Website” means the website at www.surcle.io, and to the extent the Services include White-Label Customized Platform, Sponsor’s custom URL within the domain name ____________________

1.9 “Submission” means as defined in the relevant one of the Challenge Agreement (Exh A), Matchmaking Project Agreement (Exh. C) or Marketplace Project Agreement (Exh. D).

1.10 “Submitter” means an individual, group of individuals or legal entity registered with the Site and which makes a Submission.

1.11 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, software, know-how and other trade secret rights, and all other intellectual property rights, and derivatives thereof.

1.12 “Sponsor Account” means an online account with a unique account name and password as accessed by a Moderator to provide Sponsor with the ability to access Moderator Tools.

1.13 “Sponsor Content” means content in various media (such as text, video and/or images) uploaded to the Site by Sponsor related to Sponsor and/or the Project.

1.14 “Project Content” means that content related to the Project that includes Sponsor Content that is made available to Submitters via the Site.

1.15 “Moderator” means an individual appointed by Sponsor to access a Sponsor Account.

1.16 “Moderator Tools” means functionality made available to a moderator that may be used to allow uploading of Sponsor Content, allow editing of Sponsor Content to create Project Content, access controls to affect Submitters’ ability to access to Project Content and to upload Submissions, view Submissions, view Sponsor Account information and activity, and access other features of the Site that Surcle may make available to Sponsor from time to time.

1.17 “Submitter Account” means an online account with a unique account name and password for accessing the Project Content through the Site and uploading Submissions.

1.18 “Bid” means a Submission by a Submitter in connection with a Marketplace Project proposing a statement of work (SOW) along with a quote to perform services that will deliver an envisioned solution consistent with the Marketplace Project Agreement.

1.19 “Challenge” means an incentivized competition in connection with a Crowdsourcing Project and that which is the subject of the Challenge Agreement (Exh. A).

1.20 “Challenge Agreement” means that agreement to be entered into between Sponsor and those Submitters related to the Challenge (the form of which is attached hereto as Exhibit A if selected in the Order Form).

1.21 “Challenge Rules” means those “Challenge Rules” defined in the Challenge Agreement.

1.22 “Challenge Funnel” means the ability to create multiple different stage sets within Sponsor’s industry of interest that can each be selected when creating a Challenge to ensure Sponsor has the correct workflow for Sponsor’s specific use case.

1.23 “Matchmaking Project Agreement” means that agreement to be entered into between Sponsor and Surcle related to the Matchmaking Project (the form of which is attached hereto as Exhibit C if selected in the Order Form).

1.24 “Marketplace Project Agreement” means that agreement to be entered into between Sponsor and those Submitters related to the Marketplace Project (the form of which is attached hereto as Exhibit D if selected in the Order Form).

2. SERVICES

2.1 Subject to the terms of this Agreement, Surcle will use commercially reasonable efforts to provide Sponsor the Services.

2.2 As part of the registration process, Sponsor shall designate one or more Moderators.  Each Moderator shall be assigned “Sponsor Account” privileges.  Sponsor through a Moderator may upload Sponsor Content to the Site using a Sponsor Account.

2.3 Challenge Hosting on Surcle.io.  Challenge Hosting on Surcle.io is available for Crowdsourcing Projects, which may include a purse option and/or a non-cash-considerations option, and shall encompass the following Services:

2.4 White-Label Customized Platform. White-Label Customized Platform is available only for Crowdsourcing Projects, and shall encompass the following Services:

2.4.1 Additional terms and conditions apply for web-based community users, Challenges and Challenge Funnels (attached hereto as Exhibit B).

2.5 Challenge Management on Surcle.io.  Challenge Management on Surcle.io is offered in connection with Crowdsourcing Projects if selected by the Sponsor, and shall, if selected, encompass the following Services:

2.6 Matchmaking.  Matchmaking Projects shall encompass the following services:

2.7 Marketplace.   Marketplace subscription shall encompass the following services:

2.8 Innovation Consultation.   Innovation Consultation shall encompass the following services:

2.9 In the event of a conflict between the terms of this Agreement and the relevant one of the Challenge Agreement (Exh A), Matchmaking Project Agreement (Exh. C) or Marketplace Project Agreement (Exh. D) (collectively, the “Project Agreements”), the terms of this Agreement shall govern.

2.10 Each Submitter is a party with the Sponsor in the relevant one of the Project Agreements.  Although not a party to the Project Agreements, Surcle is a beneficiary of at least some of the rights and responsibilities set forth in the Project Agreements. Sponsor agrees to not modify any term of any Project Agreement in any detrimental manner to Surcle that affects Surcle’s benefits under the Project Agreement without express written consent of Surcle.

2.11 Subject to the terms and conditions of this Agreement, Surcle grants to Sponsor, exercisable by and through its Administrators, a limited, non-exclusive, royalty-free, revocable (for breach), nontransferable, and non-sublicensable, right and license during the Term of this Agreement to access the Site for the purpose of creating a Sponsor Account, and provisioning access to the Site and the Project Content by Submitters.  In all of its activities under this Agreement, Sponsor assumes full responsibility for its Moderator’s compliance with the terms and conditions of this Agreement.

2.12 Submitters may access the Project Content by logging into the Site through their respective Accounts.  Sponsor acting through its Moderators and Submitters shall be subject to the applicable terms and conditions of the Site.  In the event of a conflict between the terms of this Agreement and the applicable terms and conditions of the Site, the terms of this Agreement shall govern.

3. SPONSOR RESTRICTIONS AND RESPONSIBILITIES

3.1 Restrictions.  Except as provided herein, Sponsor will not, and will not encourage or create functionality for its Moderators or other third parties to:

(a) permit a third party to use the Services, access, upload, generate, or maintain content or information on the Site;

(b) reverse engineer or access the Services or the Site in order to (i) discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or the Site, (ii) build a competitive product or service, (iii) build a product or service using similar ideas, features, functions or graphics of the Services or the Site, or (iv) copy any ideas, features, functions or graphics of the Services or the Site;

(c) attempt to gain unauthorized access to the Services, the Site or its related systems or networks;

(d) use the Services or the Site for any business other than as in relation to the Project;

(e) interfere or attempt to interfere in any manner with the proper working of the Services or the Site, including sending or storing material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

(f) abuse, defraud, harass, or otherwise violate the legal rights (e.g., privacy) of others;

(g) use the Services or the Site in any manner or for any purpose that violates any law or regulation, or any right of any third party, including but not limited to Intellectual Property Rights, rights of privacy, or rights of publicity, or in any manner inconsistent with this Agreement; or

(h) seek to enter a business relationship with any Submitter in circumvention of Sponsor’s obligations under the terms and purpose of this Agreement.

3.2 Surcle may monitor Sponsor’s use of the Services and the Site and may prohibit any use of the Services or the Site it believes may be (or alleged to be) in violation of the foregoing.  Surcle reserves the right to deny access to the Services and the Site to any Moderators deemed to be in violation of the terms of this Agreement.  Sponsor represents, covenants, and warrants that Sponsor will use the Services and the Site only in compliance with this Agreement, Surcle’s standard published policies then in effect, and all applicable laws and regulations.

4. CONFIDENTIALITY; INTELLECTUAL PROPERTY RIGHTS

4.1 Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Proprietary Information” of the Disclosing Party).  Proprietary Information of Surcle includes non-public information regarding features, functionality and performance of the Services and the Site.  Proprietary Information may also include the Submission such as when the Sponsor seeks to secure patent rights in the Submission that is selected as the Winning Entry of a Crowdsourcing Project, or certain information about Submitters.  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by its prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 As between Surcle and Sponsor, Sponsor shall own all right, title and interest in and to the Sponsor Content, and all Intellectual Property Rights related thereto.  During the Term of this Agrement, Sponsor grants to Surcle a license to use, perform, reproduce, distribute, display, and prepare derivative works the Sponsor Content to provide the Services and to promote the Services, the Site and Surcle.

4.3 As between Surcle and Sponsor, Surcle shall own and retain all right, title and interest in and to (a) the Services and the Site, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all Intellectual Property Rights related to any of the foregoing.  No rights or licenses are granted with respect to the forgoing except as expressly set forth herein.

4.4 Notwithstanding anything to the contrary, Surcle shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, the Site, and related systems and technologies, and Surcle will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Surcle offerings, and (ii) disclose such data solely in aggregate or other de-identified form with respect to specific Submitters in connection with Surcle’s business.

4.5 Sponsor, including any of its Moderators, may decide to send Surcle unsolicited ideas, including ideas for improvements to the Services, new promotions, products, services, applications, technologies or processes or other ideas (collectively, “Feedback”).  Sponsor agrees that by submitting Feedback to Surcle, including any concepts, know-how or ideas, Sponsor hereby grants to Surcle a perpetual, worldwide, non-exclusive, royalty- free, sublicensable and transferable license to use, reproduce, distribute, sell, exploit, prepare derivative works of and display the Feedback for Surcle’s (and any successor’s) business, including without limitation, for promoting and redistributing part or all of the Feedback (and derivative works thereof) in any media formats and through any media channels whether now known or hereafter developed, without payment or accounting to Sponsor, its Administrators or others. Surcle is under no obligation to evaluate, review, or use any Feedback.

5. PAYMENT OF FEES

5.1 With respect to any Fees set forth in the Order Form, within ten (10) days of execution of this Agreement, Sponsor will pay Surcle the then applicable fees described in the Order Form in accordance with the terms therein (“Fees”).  However, with respect to any Fees indicated as “Monthly”, such Fees shall be due within ten (10) days of the first of each month.  With respect to any Fees calculated as a percent of a contract value, such Fees shall be due within ten (10) days of execution of the associated contract.

5.2 Surcle is not obligated to provide or to continue to provide any Services or access to the Site (including to Administrators and Submitters) until such payment of Fees.

5.3 Surcle reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Sponsor (which may be sent by email).

5.4 All Fees paid to Surcle shall be non-refundable.  Sponsor shall be responsible for all taxes, duties, assessments and the like associated with any transactions other than taxes based on Surcle’s own income.

6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is effective as of the Effective Date and continues through the initial service term as specified in the Order Form (“Initial Service Term”), and any renewal periods (collectively, the “Term”).  In the case of any monthly subscription-based Services (such as the White-label Customized Platform or Marketplace call for bids), the terms shall be automatically renewed for successive one (1) year periods, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.  To the extent that the Initial Service Term is not specified in the Order Form, such Initial Service Term shall be one (1) year.

6.2 Upon any material breach or default by either party, the non-breaching party shall have the right to terminate this Agreement and the rights and license granted here under by thirty (30) days written notice to the breaching party.  Such termination shall become effective unless the breaching party has cured any such breach or default prior to the expiration of the thirty (30) day period.

6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTIES AND DISCLAIMERS

7.1 Surcle shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Surcle or by third-party providers, or because of other causes beyond Surcle’s reasonable control, but Surcle shall use reasonable efforts to provide advance notice in writing (including by e-mail of any scheduled service disruption).  HOWEVER, SURCLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND SURCLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.2 Surcle may from time to time provide certain sample agreements for possible use between the Sponsor and the Submitter.  By way of example and not limitation, these sample agreements may include assignment documents and intellectual property agreements.  HOWEVER, SURCLE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THESE SAMPLE AGREEMENTS.  THE SAMPLE AGREEMENTS ARE PROVIDED “AS IS” AND SURCLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  Sponsor may use their own agreements which define the rights and responsibilities between Sponsor and Submitter.  Sponsor bears the entire responsibility to retain independent legal advice to review and revise any sample agreement provided by Surcle or to provide a suitable agreement.

7.3 Sponsor represents and warrants it has the legal power and authority to enter into this Agreement and the rights to allow Surcle to use the Sponsor Content to provide the Services.

8. INDEMNITY

8.1 Surcle shall indemnify, defend, and hold harmless Sponsor, its officers, employees and agents and their respective successors, heirs and assigns against all liability, demand, damage, loss, or expense, including attorney’s fees and costs, incurred by or imposed upon them in connection with any claims, suits, actions, demands or judgments to the extent that the same is based upon a claim of infringement by the Services of any Intellectual Property Rights of any third party, provided Surcle is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Surcle will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Surcle, (ii) made in whole or in part in accordance with Sponsor’s specifications, (iii) that are modified after delivery by Surcle, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Sponsor continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Sponsor’s use of the Services is not strictly in accordance with this Agreement.

8.2 Sponsor shall indemnify, defend and hold harmless Surcle, its officers, employees and agents and their respective successors, heirs and assigns against all liability, demand, damage, loss, or expense, including attorney’s fees and costs, incurred by or imposed upon them in connection with any claims, suits, actions, demands or judgments to the extent that the same is based upon a claim that: (i) if true, would constitute a breach of any of Sponsor’s representations, warranties, or obligations here under; or (ii) arises out of the gross negligence or willful misconduct of Sponsor or any of its employees or agents, or any Submitters.

9. LIMITATION OF LIABILITY

SURCLE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO LICENSORS AND TECHNOLOGY VENDORS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SURCLE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY SPONSOR TO SURCLE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SURCLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. MISCELLANEOUS

This Agreement shall be binding upon and inure to the respective benefit of each party’s respective heirs, legal representatives, successors, and assigns.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Sponsor except with Surcle’s prior written consent.  Surcle may transfer and assign any of its rights and obligations under this Agreement without consent, provided written notice is provided to Sponsor.  Except as expressly provided herein, neither party may use the name, trade name, trademark, domain name, or other designation of the other party in connection with any products, promotion, marketing, press release or advertising without the prior written consent of the other party.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.  This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the parties hereto.  This Agreement shall be construed and enforced in accordance with the laws of the State of California.  Any action or proceeding brought by any of the parties against the other arising out of or relating to this Agreement shall be brought exclusively in a court of competent jurisdiction, located within the county of Orange, California, and the parties hereby consent to the in person jurisdiction of such courts for purposes of any such action or proceeding.  If any action or proceeding is brought to enforce the terms of this Agreement the prevailing party in such action or proceeding shall be entitled to recover its costs and reasonable attorneys’ fees incurred, whether or not suit is prosecuted to judgment.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.