PLEASE READ THIS AGREEMENT CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, BINDING ARBITRATION AGREEMENT, AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS AS DETAILED IN SECTION 13
This Talent Member Agreement (this "Agreement") governs the access and use of Torc's platform located at www.opentorc.com and related software and services (collectively, the "Services") by you and your Designees (as defined below), as applicable. By signing up for, accessing or using the Services, you are agreeing, either in your individual capacity as an independent consultant or on behalf of the legal entity you represent, as applicable ("you" or "Talent Member"), to enter into a legally binding contract between you, on the one hand, and Torc, LLC, on the other hand ("Torc") as of the date of such first access or use of the Services (the "Effective Date"). You and Torc are sometimes referred to herein individually as a "Party" and together as the "Parties." You represent and warrant that you are at least eighteen (18) years old, and if you agree to this Agreement on behalf of a legal entity, you further represent and warrant to Torc that (a) you have the authority to bind such entity and any representatives it allows to access and use the Services or provide Talent Member Services (as defined below) via the Services to this Agreement, (b) such entity is responsible for any breach of this Agreement by any of its representatives, and (c) "you" and "your" as used herein (except for in this paragraph) will refer and apply to such entity and the persons that access the Services on its behalf. If you do not have such authority to bind, if you do not agree to this Agreement in their entirety, or if you are not at least eighteen (18) years old, you must not use or authorize any use of the Services.
Torc may revise this Agreement from time to time, in which case the new Agreement will supersede prior versions. If Torc makes any material changes to this Agreement, as determined by Torc in its sole discretion, Torc will provide you with prior notice through the Services or by sending you an email to the email address you have registered with Torc. Your continued use of the Services after the effective date of any such revision constitutes your acceptance of the revised Agreement.
Subject to compliance by you and your Designees, as applicable, with this Agreement, Torc hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Services for your internal business purposes only in accordance with this Agreement and subject to the limitations and restrictions contained herein. Torc reserves any and all rights not expressly granted to you pursuant to this Agreement. The limited rights granted to you to access and use the Services do not constitute the sale of or license to any software program or other intellectual property. Torc may change or modify the Services in its sole discretion, including adding or removing features or functions, from time to time.
"Designee" shall mean an individual authorized by you to use the Services. You are responsible for compliance with the terms and conditions of this Agreement by your Designees and for any and all (a) acts or omissions of your Designees with respect to the Services and (b) activities that occur under any of your Designee's Accounts (as defined below). The actions of your Designees with respect to the Services shall be binding on you.
(a) To access and use the Services as a Talent Member (as defined below), you and your Designees, as applicable, must register for a Talent Member account ("Account") with a username and password. You and your Designees, as applicable, are responsible for ensuring the security of any Account and agree not to share your or any Designee's username or password. You authorize Torc to assume that any individual using the Services with your Designee's username and password is authorized to act for you. You must notify Torc at firstname.lastname@example.org immediately if you suspect that a password has been lost or stolen, if you suspect or become aware of any unauthorized use of your or an Designee's Account, or if the security of the Services has been otherwise compromised.
(b) In the event that an Designee grants permission to another individual to access the Services under his or her Account, you represent and warrant that (i) such individual shall be authorized to act on your behalf, (ii) you shall be financially and legally responsible for said individual's acts and omissions, including, if applicable, entering into binding contracts on your behalf, and (iii) you shall be responsible and liable for any act or omission of any individual provided such permissions, including without limitation entering into binding contracts on your behalf.
(c) You and all your Designees, as applicable, must create a user profile ("Profile"), which may be shown to other users of the Services unless you modify your, or an Designee modifies his or her, Profile privacy settings within the Services. You and your Designees, as applicable, agree to provide true, accurate and complete Profile information and all other fields and forms within the Services and to update any Profile information to maintain its truthfulness, accuracy and completeness. You and your Designees, as applicable, agree not to provide any false or misleading Profile information, including without limitation, information about identity, location, or skills, and to correct any such information that is or becomes false or misleading. Torc reserves the right to validate your and your Designee's Account and Profile information at any time. In addition to complying with the terms of this Agreement, you and your Designees, as applicable, agree to the Torc Code of Conduct which is hereby incorporated into this Agreement.
The Services are available only to legal entities and individuals who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. By creating an Account or authorizing Designees to create an Account, you represent and warrant that you and your Designees are not prohibited or limited in any way from acting as a Talent Member on the Services or from performing Talent Member Services for a Client with whom you enter into an Engagement Document (as defined below) or with respect to an Engagement (as defined below) for which you are engaged through the Services by (a) any contract (e.g., employment, consulting, confidentiality or non-disclosure agreements), (b) your current employer's policies or codes of conduct if you are employed, (c) any similar policies or obligations that limit your conduct in any way, or (d) any rule of conduct applicable to your profession or industry or any similar laws, rules or regulations. Further, to the extent your ability to provide Talent Member Services is limited in any way, you represent and warrant that you have obtained all necessary consents or waivers (e.g., the consent of your employer, any company or organization for which you have consulted, or any affiliated academic or government organization) to offer your Talent Member Services as a Talent Member via the Services. Notwithstanding the foregoing, Torc may determine your or your Designee's eligibility to create an Account on the Services in its sole discretion.
You agree, on your behalf and on behalf of your Designees, that: (a) you and your Designees will not use the Services if you are not fully able and legally competent to agree to this Agreement; (b) you and your Designees will only use the Services in full compliance with all applicable laws and this Agreement; and (c) you and your Designees will not use the Services for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct. Further, except as specifically permitted herein or approved in advance in writing by Torc, you agree that you will not, directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner; (ii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services or any part thereof in any form or manner or by any means; (iii) harvest or scrape any content or data from the Services; (iv) remove or alter any copyright or other proprietary rights notice or restrictive rights legend contained or included in the Services; (v) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services (except as and only to the extent any foregoing restriction is prohibited by applicable law); (vi) utilize the Services to (A) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or (B) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts agents or programs; (vii) circumvent any functionality that controls access to or otherwise protects the Services; or (viii) permit an Designee or your agents or any other third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a material breach of this Agreement and a violation of the rights of Torc and its licensors.
"Content" means any data, content or other materials you or your Designees, as applicable, upload, post, publish, submit, send, store or display within the Services, including any work product related to Talent Member Services provided to Clients. You are solely responsible for all of your Content, and you and your Designees agree not to upload any Content prohibited by applicable law or the restrictions in this Section. You hereby grant Torc a worldwide, non-exclusive, royalty-free, fully- paid license to access, use, reproduce, modify, transmit, display, index, aggregate, process and store the Content as necessary for purposes of the provision and operation of the Services and Account management.
You represent and warrant that: (a) you own or have a valid license to all Content; (b) you have all necessary consents, authorizations and/or legal permissions required to permit the processing of Content under this Agreement; and (c) none of your Content: (i) constitutes "protected health information" under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended from time to time ("HIPAA"); (ii) is subject to the International Traffic in Arms Regulations maintained by the Department of State; (iii) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (iv) constitutes material, non-public information, the disclosure of which would be in violation of any securities laws; (v) contains software viruses or any other computer code, files or programs that interrupts, destroys or limits the functionality of any computer software or hardware or telecommunications equipment; (vi) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail", "spam", "chain letters", "pyramid schemes", "contests", "sweepstakes", or any other form of solicitation; (vii) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (viii) in the sole judgment of Torc, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Torc or its users to any harm or liability of any kind. Torc has the right, but not the obligation, to monitor your use of the Services and your Content to determine your compliance with this Agreement.
Torc will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to your Content, in accordance with industry standards. Torc will not access, view, or process your Content except (a) as provided in this Agreement; (b) as authorized or instructed by you; (c) as required to perform its obligations under this Agreement; or (d) as required by applicable law. Torc reserves the right to delete your Content associated with an Engagement within thirty (30) days after the end of such Engagement. Torc has no other obligations with respect to your Content. Notwithstanding the foregoing, you acknowledge and agree that Torc may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any of your Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Torc, its affiliates, officers, employees, representatives and agents, as well as Services users or the general public.
You acknowledge and agree that Content that is published on the Services will be available to other users of the Services ("Shared Content"). Shared Content includes (a) profiles published on the Services and (b) comments, reviews, ratings, indicators of satisfaction, and other feedback (including composite and compiled feedback) left by you or other users of the Services (collectively, "User Reviews"). Torc is not legally responsible for any User Reviews posted or made available on the Services by you or any other users. Torc reserves the right, but is not obligated, to remove posted User Reviews or information that, in Torc's sole judgment, violates this Agreement or negatively affects the Services, diminishes the integrity of the User Review system or otherwise is inconsistent with the business interests of Torc. You hereby grant Torc a worldwide, non- exclusive, perpetual, royalty-free, fully-paid license to access, use, reproduce, modify, transmit, display, index, aggregate, process and store the User Reviews you leave about other users of the Services for purposes of the provision, operation and improvement of the Services.
Torc and its suppliers monitor and collect data and information related to your use of the Services, and you acknowledge and agree that Torc owns the aggregated and statistical data generated from the provision, operation or use of the Services ("Aggregated Data"), provided that Torc's use of the Aggregated Data shall not directly or indirectly reveal your identity.
The Services provides a venue, via Torc's platform available at www.opentorc.com, for you to meet and offer your professional or consulting services ("Talent Member Services") as an individual independent consultant or consulting firm to those individuals or organizations who are in the market for such Talent Member Services ("Clients") for engagement-based work ("Engagements").
As a Talent Member, you acknowledge and agree that the relationship established under this Agreement between you and Torc is that of an independent contractor. You agree that this Agreement will not be construed as creating a joint venture, partnership, franchise, agency or employment relationship between Torc and you or any of your Designees; (b) Torc does not, in any way, supervise, direct, or control your performance of Talent Member Services; and (c) neither you nor any of your Designees, principals, employees or agents (if applicable) shall be entitled to participate in or receive any compensation or benefits from Torc that Torc provides or makes available to its employees pursuant to legal requirements or otherwise, including, without limitation, workers' compensation insurance, travel accident insurance, medical/dental insurance, life insurance, short-term and/or state disability insurance or benefits, long-term disability insurance, holiday pay, sick pay, paid vacation, bonuses, salary continuation pay, leaves of absence (paid or unpaid), pension plan benefits, retire savings plan benefits or lease vehicle benefits. You are solely responsible for: (i) compensating any of your Designees, principals, employees and agents who provide any services to Torc or Client on your behalf, including, without limitation, wages and employee benefits; (ii) reporting to all applicable government agencies all amounts paid to such Designees, principals, employees and agents; (iii) withholding and paying all payroll taxes including, without limitation, unemployment insurance, Federal Insurance Contributions Act and Federal Unemployment Tax Act; and (iv) complying with all applicable laws with respect to your Designees, principals, employees and agents including, without limitation, those requiring and regulating workers' compensation insurance, reporting of independent contractors, issuance of Forms W-2 and 1099, the Immigration Reform Control Act, and equal employment opportunity laws.
"Engagement Document" means the scoping and/or instructional document mutually agreed upon by Torc and its Client for the purpose of engaging Talent Members for a particular Engagement. Engagement Documents may contain additional legal or other requirements than those that are found in this Talent Member Agreement. In the event of a conflict between the Talent Member Agreement and the Engagement Document, the Engagement Document governs.
Each Engagement Document will be presented to you prior to providing Talent Member Services in connection with each Engagement. By agreeing to provide any Talent Member Services to a Client in connection with an Engagement, you hereby agree to the terms of the corresponding Engagement Document and will comply with all requirements and follow all instructions contained in such Engagement Document.
You understand and agree that, as a condition of an Engagement with a Client, you and your employees or subcontractors performing Talent Member Services may be subject to certain compliance screenings such as a background check screening, drug screening and worker classification evaluation. To the extent any such screenings are required, you and your Designees, as applicable, agree to provide true, accurate and complete information related to such screenings.
For a period of twelve (12) months from the later of the date on which (a) you first identify a Client or are first identified by Client from the Services or (b) you complete your last Engagement with a Client (such period, the "Non-Circumvention Period"), you will use the Services as your exclusive method to bid for Talent Member Services, directly or indirectly, with that Client and/or that Clients' business entity or arising out of your relationship with that Client and/or that Client's business entity. Furthermore, during the Non-Circumvention Period, you shall not encourage, solicit or accept complete or partial payment for Talent Member Services outside of the Services, or otherwise circumvent either (i) Torc's contractual relationships with the Client or with you, or (ii) the Services' payment methods. Any violation of the foregoing restrictions is a material breach of this Agreement. By way of illustration and not limitation of the foregoing, within the Non-Circumvention Period, you will not: (A) submit proposals to, deliver services to, invoice or receive payments or other consideration, from any Clients for whom you have performed services or been introduced to through the Services except via the Services and in accordance with this Agreement; (B) contact a Client outside of the Services in order to secure an Engagement that the Client has posted on the Services; or (C) invoice or report on the Services an amount lower than that actually agreed to by you through the Services. Upon expiration of the Non-Circumvention Period, you are free to deal directly with the applicable Client independently from this Agreement.
YOU WILL NOTIFY TORC IMMEDIATELY IF A CLIENT SUGGESTS MAKING PAYMENTS TO YOU OUTSIDE OF THE SERVICES WITHIN THE NON CIRCUMVENTION PERIOD. In the event a Client desires to engage you outside of the Services within the non-circumvention period, Torc may release you from the obligations of this Section 3 in exchange for and in consideration of a placement fee payable to Torc by Client in an amount mutually agreed between Torc and Client.
You will set an hourly rate (or range of hourly rates if applicable) on the Services and that rate will be used by Torc to match you with Clients for potential Engagements. For each Engagement initiated on the Services, Torc collects the fees and amounts owed by the Client to Torc, and Torc will pay you based on the hourly rate set on the Services by you (and agreed to by Torc) for that Engagement.
Except as otherwise stated herein, Torc is solely responsible for paying you the amounts owed to you pursuant to an Engagement, and Torc or a third-party service provider will pay such funds to you pursuant to the applicable agreement governing the Engagement. You are responsible for requesting payment in connection with an Engagement through the Services (including submitting timesheets, invoices and supporting documentation, collectively the "Payment Request") in a timely manner and in accordance with the applicable Engagement Document or other instructions set forth in the Services. Payment of Engagement fees payable to you by Torc or a third party service provider shall be made to you within two weeks following Client acceptance of your Payment Request submitted through the Services.
Notwithstanding the foregoing, if the payment date falls on a bank holiday or any other day when banks are closed, then such payment shall be made to you on the following business day when banks are open.
For the avoidance of any doubt, Torc shall not make any payments to you without such Client approval of your Payment Request through the Services. Nonetheless, upon such approval by Client, Torc shall owe such payment to you regardless of whether Torc receives payment from the Client for amounts owed by Client to Torc under the applicable agreement governing the Engagement. Unless otherwise agreed upon in the Services or applicable Engagement Document, all payments to you shall be made in United States dollars, and you shall be responsible for bearing the cost of any exchange rate fluctuations or transaction fees. In cases of fraud, abuse or violation of this Agreement, Torc reserves the right to set off against any amounts due to you via the Services any damages or costs Torc incurs as a result of such fraud, abuse or violation. Notwithstanding the foregoing, in the event that you are classified as an employee with respect to an Engagement resulting from a compliance evaluation required by a Client or by Torc, you may be required to become an employee of a third-party payrolling provider in order to provide Talent Member Services. If you become an employee of a third-party payrolling provider, then such payrolling provider will be responsible for making payments to you and payments will be made in accordance with such payrolling provider's processes and timelines. If you start performing Talent Member Services before you have a fully-executed Engagement Document or other applicable agreement governing an Engagement and before you have completed all compliance requirements, you acknowledge that you may not be paid for Talent Member Services performed.
You acknowledge and agree that you are solely responsible for (a) all tax liability associated with payments received from Torc in connection with an Engagement; (b) determining whether you are required by applicable law to issue any particular invoices for Talent Member fees and for issuing any invoices so required; and (c) determining whether you are required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to Talent Member fees and remitting any such taxes or charges to the appropriate authorities, as necessary. Notwithstanding the foregoing, prior to being paid in accordance with Section 4.2, Torc may require that you must submit to the Services (or to the third party vendor that Torc designates) a 1099-K form (if you are based in the United States) or such other U.S. or foreign tax forms required to determine, remit and withhold any taxes or similar levies applicable to Talent Member fees. Torc may also require that you submit such additional documentation (such as residence or identification documentation) to the Services (or to the third party vendor that Torc designates) reasonably requested by Torc or its third party designee to determine the applicability and/or necessity of various U.S. or foreign tax forms.
To the extent Talent Member is an organization that designates or appoints End Users to utilize the Services, Talent Member shall be solely responsible and liable for any employment related taxes, social security payments, insurance premiums or other employment benefits or contributions required by law respecting Talent Members performance of the Talent Member Services or receipt of the fee by Talent Member, or both (including any interest or penalties incurred in respect of such payments).
You represent and warrant that any information or tax forms provided by you in connection with Torc's (or its third party vendor's) intent to comply with applicable tax laws is accurate and complete, and you will indemnify Torc for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest) based on your failure to comply with the obligations of this Section 4.3.
Talent Member shall indemnify and keep indemnified Torc for all time on demand from and against any and all costs, claims, penalties, liabilities and expenses incurred in respect of income tax, social security or other contributions due by Talent Member in relation to the provision of the Services.
During the term of this Agreement, and for a period of two (2) years thereafter, you will keep complete and accurate books and records sufficient to verify compliance or non- compliance with this Agreement and the terms of any Engagement Document or other applicable agreement governing an Engagement. You will, upon at least ten (10) business days prior written request by Torc (a "Review Request"), make available to Torc and its auditors such books and records and provide reasonable cooperation to the extent necessary to verify the accuracy of the amounts owed and charged pursuant to this Agreement and the terms of any Engagement Document or other applicable agreement governing an Engagement.
For the purposes of this Agreement, the following terms are defined as follows:
"Intellectual Property Rights" means any and all existing and future intellectual or industrial property rights in and to any Work Product (whether registered or unregistered) including all existing and future patents, copyrights, design rights, database rights, trade marks, semi-conductor topography rights, plant varieties rights, Internet rights/domain names, know-how and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing in and to any Work Product.
"Open Source Software" means any "open source" code (as defined by the Open Source Initiative), "free" code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.
"Pre-Existing Intellectual Property" means any proprietary methodologies, tools, models, software, procedures, documentation, know-how, processes, trade secrets, inventions, or works of authorship that have already been conceived or developed by Talent Member before Talent Member renders any Talent Member Services under this Agreement.
"Third Party Materials" means any code, libraries, programs, software, documentation or other intellectual property of any type which is not created solely by Talent Member.
"Work Product" means all inventions, discoveries, designs, developments, methods, modifications, improvements, ideas, products, processes, algorithms, databases, computer programs, formulae, techniques, know-how, trade secrets, graphics or images, and audio or visual works and other works of authorship, whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by you for a Client in the course of an Engagement.
The Services' "look and feel" (e.g., text, graphics, images, logos), proprietary content and software code, information and other materials are protected under intellectual property laws. You acknowledge and agree that Torc and/or its licensors own all right, title and interest in and to the Services (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Any and all improvements, updates, modifications or enhancements, whether made, created or developed by Torc or otherwise relating to the Services (collectively, "Revisions"), are and will remain the property of Torc. Upon creation, all Revisions become the sole and exclusive property of Torc.
Any and all suggestions for correction, change, enhancement, improvement and modification to the Services (collectively "Feedback") are and will remain the property of Torc. For the avoidance of doubt, Feedback does not include User Reviews. Torc may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Torc any and all right, title and interest that you may have in and to any and all Feedback.
Talent Member must immediately disclose to Torc and Client all Work Product and all Intellectual Property Rights. Both the Work Product and the Intellectual Property Rights will belong to and be the absolute property of Torc or any other person Torc may nominate. Talent Member hereby assigns and agrees to assign all Intellectual Property Rights and any other rights, title and interest in and to the Work Product to Torc.
Talent Member shall, promptly on request by Torc (during Talent Member's engagement or after its termination) and at the expense of Torc (or a Client, as applicable):
(a) apply or join with Torc in applying for any Intellectual Property Rights or other protection or registration ("Protection") in the U.S. and in any other part of the world for, or in relation to, any Work Product;
(b) execute all instruments and do all things necessary for vesting all Intellectual Property Rights or Protection when obtained and all right, title and interest to and in the same absolutely and as sole beneficial owner in Torc or other person as Torc may nominate; and
(c) sign and execute any documents and do any acts reasonably required by Torc in connection with any proceedings in respect of any applications and any publication or application for revocation of any Intellectual Property Rights or Protection.
Talent Member hereby irrevocably appoints Torc to be Talent Member's attorney and in Talent Member's name and on Talent Member's behalf to execute any such act and to sign all deeds and documents and generally to use Talent Member's name for the purpose of giving to Torc the full benefit of this section. Talent Member agrees that, with respect to any third parties, a certificate signed by any duly authorized officer of Torc that any act or deed or document falls within the authority hereby conferred shall be conclusive evidence that this is the case.
Talent Member shall not use any Pre-Existing Intellectual Property in connection with an Engagement unless Talent Member (i) has specifically identified such Pre-Existing Intellectual Property in the applicable Engagement Document (or Client has otherwise agreed in writing to such Pre-Existing Intellectual Property) and (ii) has the right to use such Pre-Existing Intellectual Property for Torc's (and Torc's licensees', including its Clients') benefit and to issue the licenses set forth in this section.
If Talent Member incorporates any Pre-Existing Intellectual Property into any Work Product or furnishes any Pre- Existing Intellectual Property in conjunction with any Work Product, Talent Member hereby grants Torc a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to: (i) make, have made, sell, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, and disclose the Pre-Existing Intellectual Property or products and services using the Pre-Existing Intellectual Property in conjunction with the use of the Work Product and (ii) authorize or sublicense others from time to time to do any or all of the foregoing.
Talent Member shall not incorporate any Third Party Materials into any Work Product, furnish any Third Party Materials into any Work Product, furnish any Third Party Materials in conjunction with any Work Product, or develop any Work Product in a manner that requires Torc to use any Third Party Materials in order to use such Work Product, unless Talent Member (i) has specifically identified such Third Party Materials in the applicable Engagement Document or otherwise obtained Torc's prior written consent and (ii) has obtained a license for Torc's (and Torc's licensees') benefit which is as extensive as the license set forth in Section 7.5(b) below ("Third Party Materials License").
The obligations set forth in Section 5.7.1 with respect to Third Party Materials apply to any use of Open Source Software in connection with any Work Product (excluding the obligation to obtain a Third Party Materials License unless otherwise specified in the applicable Engagement Document). If Torc approves use by Talent Member of any Open Source Software in connection with any Work Product, Talent Member shall include documentation with each such Work Product identifying any and all Open Source Software that is included in such Work Product and provide Torc a copy of the applicable license prior to inclusion.
Notwithstanding the foregoing, Talent Member shall not provide as part of any Work Product, or otherwise use in connection with the Talent Member Services, any software which contains any Open Source Software which is licensed under the "General Public License," "LGPL," "AGPL," or any other license which could (i) compromise or interfere in any way with Torc's intellectual property rights or (ii) require Torc to publicly release, distribute or license the source code to any Work Product, to any Torc software, or to any of Torc's customers' or clients' software, (iii) require that any disclosure, distribution or license of any Work Product, any Torc software, or any of Torc's customers' or clients' software be at no charge, or (iv) require that any other licensee of any Work Product, any Torc software, or any of Torc's customers' or clients' software be permitted to modify, make derivative works of, reverse-engineer or redistribute such Work Product or software.
As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party") in connection with this Agreement, whether orally or in writing, relating to the business and affairs of the Disclosing Party that is either designated as confidential or that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Confidential Information shall include, without limitation, (a) the identity of Clients; (b) information about Engagements; (c) information about any actual or potential business, investment or trading decisions, or transactions of any Client; (d) the terms and conditions in all Engagement Documents or other agreements executed with Clients or Torc; (e) your Content (excluding Shared Content); and (f) any other non-public or proprietary information of Torc or Clients. Confidential Information shall not include any information that: (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is or becomes available to the Receiving Party on a non-confidential basis from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without access to, use of, or reliance upon the Disclosing Party's Confidential Information.
The confidentiality obligations and use limitations set forth in this Section 6 shall remain in effect for a period of three (3) years from the disclosure of the Confidential Information; provided that all trade secrets shall remain subject to the terms hereof for as long as they are classified as such under applicable law. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, contractors, subcontractors, agents and/or representatives who have a need to know such Confidential Information and who are bound to protect such Confidential Information under substantially similar terms as required hereby, or to legal, financial or other professional advisors who are providing professional services to the Receiving Party subject to obligations of confidentiality. In addition, without the Disclosing Party's written permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party other than in connection with fulfilling the obligations or exercising the rights of the Receiving Party under this Agreement (including, without limitation, as may be necessary to support or defend a claim arising under this Agreement). Neither Party may engage in any purchasing or selling of securities based on any Confidential Information or any material, non-public information and may not communicate any such information to any person or entity when it is reasonably foreseeable that such person is likely to purchase or sell securities based on such information.
If the Receiving Party is required by law, court order or other legal, governmental or judiciary process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such required disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party undertakes to obtain a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions hereof, the Receiving Party will disclose only such Confidential Information as is legally required to be disclosed.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party's execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not and will not violate (i) the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound or (ii) any applicable law or regulation.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TORC MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TORC AND ITS SUPPLIERS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICES ARE PROVIDED "AS IS" AND NEITHER TORC NOR ITS SUPPLIERS WARRANT THAT ALL ERRORS OR DEFECTS CAN BE CORRECTED, OR THAT PROVISION AND OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
You hereby represent and warrant that:
You will perform the Talent Member Services in a timely, professional and workmanlike manner and with a degree of quality equal to or higher than applicable industry standards for similar services. In addition, all Talent Member Services and Work Product shall conform in all material respects with the description set forth in the Engagement Document.
The Talent Member Services and all Work Product shall be free of any: (i) viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; (ii) software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the software without the knowledge of Torc and Open Source Software, except as expressly authorized by Torc in writing in accordance with Section 5.7 (Third Party Materials and Open Source Software) or by Client in accordance with an Engagement Document.
All Work Product is and will be your original work except for any Third Party Materials and Pre-Existing Intellectual Property incorporated therein as approved under Section 5.7 (Third Party Materials and Open Source Software) or 5.6 (Pre-Existing Intellectual Property), as applicable. Neither the Work Product nor any element thereof will (i) infringe the intellectual property rights of any third party or (ii) be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments. You will not incorporate into any Work Product any confidential information of any other person or entity in violation of this Agreement or an Engagement Document.
You represent and warrant to Torc that you are an independent contractor. You shall perform services on behalf of Torc in the capacity of independent contractor, and not as an employee, worker, partner, agent or joint venture partner of Torc. You shall not have any right or power whatsoever to contract on behalf of Torc in any way in relation to third parties and will not hold yourself out as having such authority unless specifically authorized to do so. You are supplying the Talent Member Services to each Client as part of your business undertaking.
You shall, without charge, correct any non-conformity, defect or malfunction in any Talent Member Services reported by Torc or Client within thirty (30) days of receipt of notice from Torc or Client, or if you are unable to make the Work Product operate as warranted within such 30-day period, then Torc or Client may terminate immediately the applicable Engagement, and you shall refund to Torc all fees paid for such defective Talent Member Services within 10 days of termination. The remedies set forth in this Section 7.2.5 shall be non-exclusive.
Access, if any, to Client's computer, telecommunication or other information systems (including computers, networks, voice mail, etc.) ("Systems") is granted solely to provide the Talent Member Services in accordance with an applicable Engagement Document, and is limited to those specific Systems, time periods, and personnel designated by Client in accordance with the Engagement Document or otherwise instructed by Client or Torc. Access is subject to business control and all applicable policies, laws and regulations. Talent Member will abide by all information protection or data privacy policies of Client, and all applicable laws and regulations. Any access to or use of any Systems except as expressly authorized is expressly prohibited. Without limiting the foregoing, Talent Member warrants that it has and will use adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. In particular, Talent Member represents and warrants that it has administrative, technical, and physical safeguards consistent with industry standards to monitor its own systems and protect any Client data (or Client's customer data) against anticipated threats or hazards regarding: security, confidentiality, or integrity; unauthorized or accidental destruction, loss, alteration, or use; and unauthorized access or acquisition. Upon reasonable notice, Torc or Client may audit Talent Member to verify Talent Member's compliance with these obligations.
Solely to the extent Client determines it is necessary for Talent Member to have access to certain Client software or tools ("Client Software") in order to perform the Talent Member Services, subject to the terms and conditions of this Agreement and any applicable Engagement Document, Talent Member is granted a non-exclusive, non-transferable, non-sublicensable, royalty-free license, to use the Client Software specified in an Engagement Document solely for the performance of the Talent Member Services. Talent Member will not use any of the trade secrets, algorithms, inventions, or technology revealed or embodied by the Client Software except as necessary to perform the Talent Member Services. No right is granted by this Agreement for the use of any Client Software directly or indirectly by others. Talent Member may not sublicense or otherwise transfer, by contract, operation of law, or otherwise, any of the rights granted to Talent Member herein. All rights not expressly licensed herein are reserved by the owner of such software.
Each party shall perform all of its obligations under this Agreement in compliance at all times with all applicable laws, including, but not limited to, those relating to privacy and data protection. Talent Member shall additionally comply with all regulations, policies and guidelines of Torc and Clients to whom Talent Member provides Talent Member Services. Talent Member represents and warrants that Talent Member will comply with all laws and regulations applicable to the access and processing of personally identifiable information and/or data, such as the California Consumer Privacy Act of 2018, the California Privacy Rights Act of 2020, and the European Union's General Data Protection Regulation (Regulation (EU) 2016/679 and successor regulations), including the European Commission's Standard Contractual Clauses regarding the transfer of personal data to controllers and processors as applicable. To the extent Talent Member will be processing any personally identifiable information, Talent Member agrees to be bound by a data processing addendum separately entered into by the parties, and in the absence of such data processing addendum, Talent Member agrees to be bound by all laws and requirements applicable to the processing of personally identifiable information in the jurisdiction from which the personally identifiable information originates.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL TORC BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR INDIRECT OR SIMILAR LOSSES OR DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, COSTS OR DAMAGES DUE TO LOSS OF PROFITS, BUSINESS OPPORTUNITIES, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR THE LOSS OR COST OF RECREATING ANY DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT OR OTHERWISE, EVEN IF TORC WAS ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF TORC TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS REMITTED TO YOU BY TORC DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY
You agree to indemnify and hold harmless Torc and its affiliates, officers, directors, employees, representatives and agents from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to: (a) your use of the Services; (b) any Talent Member Services you provide; (c) your Content; (d) your violation of this Agreement; and (e) the Work Product violating (or having violated) the intellectual property rights of a third party.
Subject to your obligation to complete Talent Member Services for which you are engaged, you have the right to cancel your Account at any time upon notice to Torc, and Torc has the unlimited right, but not the obligation, to suspend, revoke or terminate your or your Designee's Account and/or access to the Services at any time and for any reason, including, without limitation, if: (a) you or your Designees, as applicable, violate this Agreement; (b) Torc suspects or becomes aware that you or your Designees, as applicable, have provided false or misleading information to Torc or a Client; or (c) Torc believes, in its sole discretion, that your or your Designee's actions, as applicable, (i) may cause legal liability for Torc or other users of the Services, (ii) may be contrary to the interests of the Services or its users, or (iii) may involve illicit or illegal activity. If your or your Designee's Account is temporarily or permanently closed, you and your Designees may not use the Services under the same Account or a different Account or reregister under a new Account without Torc's prior written consent. Subject to any terms specified in an Engagement Document, Torc may terminate your Account, this Agreement, any Engagement or Engagement Document at any time for any reason or no reason at all without notice.
Cancellation or termination of your Account shall not affect (a) any liabilities or obligations of either Party arising before such cancellation or termination or out of the events causing such cancellation or termination, or (b) any damages or other remedies to which a Party may be entitled under this Agreement or any agreement governing an Engagement, at law or in equity, arising from any breaches of such liabilities or obligations. Except as otherwise required by law or as otherwise set forth in this Agreement, upon cancellation or termination of your Account, you will no longer have access to your Content on the Services and your Content may be deleted for which Torc will have no liability whatsoever. Torc may retain some or all of your Account information and Content as required by law. For the avoidance of any doubt, cancellation or termination of your Account does not automatically terminate or otherwise impact any Engagement, Engagement Document or other agreement governing an Engagement in force at such time. In the event there are any ongoing Engagements at the time of cancellation or termination of your Account, this Agreement will continue to apply and be in effect until all Engagements have been completed or otherwise terminated pursuant to the terms of the applicable agreement governing the Engagement. For the avoidance of any doubt, cancellation or termination of your Account does not relieve you of your obligations with respect to the Non-Circumvention Period set forth in Section 3.5.
Sections 1.3, 2.1, 2.3, 2.4, 3.1, 3.2, 3.5, 4.3, 4.4 and 5 through 14 of this Agreement will survive any termination or expiration hereof.
Except in the case either Party is seeking equitable relief, you agree that in the event of any dispute between you and Torc, you will first contact us and make a good faith sustained effort to resolve the dispute amicably and efficiently.
Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 11.1, except for disputes relating to the infringement of Torc's intellectual property rights or the access or use of the Services in violation of this Agreement (a "Claim"), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in Suffolk County, Massachusetts if your Claims qualify.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes. These rules can be found on the AAA website at www.adr.org.
To begin an arbitration proceeding, you must send Torc a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to Torc at the following email address: email@example.com. Torc will send any notice of dispute to you at the email address you have registered with us.
The arbitration will be conducted, at the option of the Party seeking relief, by telephone, online, or based solely on written submissions.
If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA's Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, Torc will pay all other AAA and arbitrator's fees and expenses.
To the fullest extent permitted by applicable law, you and Torc each agree that any proceeding to resolve a Claim will be conducted only in the respective party's individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action ("Class Action"). If for any reason a Claim proceeds in court rather than in arbitration, you and Torc each waive any right to a jury trial. You and Torc expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 11) be instituted more than one (1) year after the cause of action arose.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Torc each agree to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts, and you and Torc each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
If you do not want to arbitrate disputes with Torc and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first date you access or use the Services.
You may not assign this Agreement or any of your rights or obligations hereunder without Torc's prior written consent. Torc may freely assign this Agreement. Any attempted assignment or transfer in violation of this Section 12.1 will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the Parties.
You acknowledge that the Services, or portion thereof, may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws ("Export Control Laws"). You and your Designees, as applicable, may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable Export Control Laws. You represent and warrant that (a) you and your Designees, as applicable, are not citizens of, or located within, a country or territory that is subject to U.S. or other sovereign country trade sanctions or other significant trade restrictions and that you and your Designees, as applicable, will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) you and your Designees, as applicable, are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce's Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (c) that no Content created or submitted by you or your Designees, as applicable, is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
The Services may include links to third-party websites or content. You are responsible for deciding if you want to access or use third-party websites or content that link from the Services. You agree that Torc is not responsible for third-party content or information provided on third-party websites. Third-party websites have their own legal terms and privacy policies, and you may be giving others permission to use your information in way Torc would not. Torc has no control over, is not responsible for and does not endorse any such websites or content, and Torc will have no liability for any damages or losses you incur by visiting or using such third-party websites or content.
Neither you nor Torc will be liable for any delay or failure to perform its obligations under this Agreement due to any cause beyond your or Torc's reasonable control, including labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism, or war.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the state of Delaware, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
You consent to the use of electronic means to deliver any notices pursuant to this Agreement. Notices will be given: (a) by Torc via email (in each case to the email address that you provided when registering for your Account); (b) a reasonably prominent posting on the Services; or (c) by you via email to email@example.com.
The failure or delay of either Party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that Party's right to later enforce or exercise it, unless such Party issues an express written waiver, signed by a duly authorized representative of each Party.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the Parties.
This Agreement and any exhibits or schedules incorporated herein by reference set forth the entire agreement and understanding of the Parties relating to the subject matter herein and cancels and supersedes all prior discussions, agreements, understandings, statements, proposals, representations, warranties and other communications, whether written or oral, between the Parties.