01.

Technology-Enabled Services and Crowdsourcing Agreement

(For Technology-Enabled Services and Crowdsourcing to be Provided by Appirio Inc.)

This Technology-Enabled Services and Crowdsourcing Agreement (the “Agreement”) sets forth terms under which Appirio Inc. (“Appirio”) shall provide the customer identified below (“Customer”) with certain services described on Statement(s) of Work and is effective as of the date set forth below (the “Effective Date”).

1. Services

Appirio agrees to provide the technology-enabled and crowdsourcing services described in the Statement(s) of Work that reference this Agreement (“Services”). Deliverables provided to Customer as part of the Services will be set forth on a Statement of Work (“Deliverables”). The parties may execute additional Statements of Work describing Services and Deliverables, which will become part of this Agreement upon execution. Customer agrees to provide Appirio with reasonable access to Customer materials, resources, personnel, equipment or facilities to the extent such access is necessary for the performance of Services. To the extent that Customer does not provide the foregoing access required for Appirio to perform the Services, Appirio shall be excused from performance until such items are provided.

2. Changes to Scope of Services

If Customer desires to change a Statement of Work, Customer will submit a written request to Appirio detailing the proposed changes. If Appirio wishes to accommodate such changes, Appirio shall prepare an amendment to the Statement of Work detailing the changes, any fee adjustments required as a result of such changes, any adjustments to the delivery schedule required as a result of such changes, and any other adjustments (a “Change Order”). If the Change Order is agreeable to Customer, both parties will execute the Change Order.

3. Payment

Customer will pay Appirio the amounts and at the times set forth on the applicable Statement of Work. Customer agrees to reimburse Appirio for pre-approved travel and expenses incurred in the performance of the Services. Appirio will invoice Customer for expenses incurred and will provide copies of receipts for which charges are incurred. Except as set forth in this Agreement, all payments are non-refundable and, except as set forth in the Statement of Work, shall be made in U.S. dollars within fifteen (15) days from the date of Appirio’s invoice. Customer will be responsible for all taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Appirio). Any late payments shall be subject to a service charge of 1.5% per month of the amount due, plus actual costs of collection, or the maximum amount allowed by law, whichever is less. All rates will increase 5% on each anniversary of the Effective Date.

4. Term and Termination

This Agreement remains in effect until terminated in accordance with this Section 4. Either party may terminate this Agreement at any time when there is no Statement of Work then in effect by giving the other party thirty (30) days written notice. Either party may terminate this Agreement or any Statement of Work 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). Following termination, Sections 5 (Ownership and License), 8 (Limitation of Liability), 9 (Confidential Information), 10 (Export Compliance) and 11 (Miscellaneous) will survive. Section 3 (Payment) will survive with respect to payments earned prior to termination.

5. Ownership and License

5.1. Background Materials. Customer hereby grants Appirio a limited right to use any Customer pre-existing materials (tangible or intangible) provided to Appirio in connection with the Services (the “Customer Materials”) solely for the purpose of performing the Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials, which shall be Confidential Information of Customer, as set forth more fully in Section 9. Appirio hereby grants Customer a perpetual license to use any Appirio pre-existing materials, including but not limited to know-how, libraries, assets, tools, techniques, expertise, whether tangible or intangible, provided to Customer in connection with the Services or Deliverables (the “Appirio Materials”), solely for the purpose of Customer’s use of the Services and Deliverables. Appirio owns and will retain ownership (including all intellectual property rights) in the Appirio Materials, which shall be Confidential Information of Appirio, as set forth more fully in Section 9.

5.2. Deliverables. Subject to (a) full payment of fees set forth on an applicable Statement of Work, and (b) Sections 5.1 and 5.2, Customer owns and will retain ownership (including all intellectual property rights) in and to the Deliverables. Customer hereby grants Appirio an irrevocable, perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, sub-licensable license to use, copy, combine, modify, make derivative works of, distribute, publicly display, and sell the Deliverables. For the avoidance of doubt, the parties acknowledge that to the extent the Deliverables consist of software applications designed to be operated on or accessed through a third-party platform (such as, but not limited to, salesforce.com, Workday, or Google), then Customer is solely responsible for obtaining license rights to access such platform.

6. Crowdsourcing Platform, Challenges and Software

6.1 Definitions. The following definitions shall be applicable to licenses to Appirio’s crowdsourcing platform and related Services:

  • Challenge: An online innovation competition run exclusively on the Crowdsourcing Platform utilizing the Crowdsourcing Community.
  • Custom Software: Other than software components from Appirio’s catalog ordered by Customer and Third-Party Software (as defined below), Deliverables that result from Challenge submissions for which consideration has been paid to the contestant and delivered to Customer under this Agreement. Non-winning Challenge submissions, the Crowdsourcing Platform, tools or documentation shall not be deemed to be included in the Custom Software.
  • Crowdsourcing Community: Members of Appirio’s global development community. For the avoidance of doubt, members of the Crowdsourcing Community are not subcontractors or agents of Appirio.
  • Crowdsourcing Platform: Appirio’s crowdsourcing platform available at http://www.topcoder.com website and online and mobile tools for engaging the Crowdsourcing Community through Challenges. Notwithstanding any other provision of this Agreement or any Statement of Work, the Crowdsourcing Platform shall never be a Deliverable.

6.2 Crowdsourcing License. Subject to full payment of fees set forth on an applicable Statement of Work, Appirio shall grant Customer’s employees access to use the Crowdsourcing Platform in accordance with the applicable Statement of Work. Customer will provide Appirio with the name, title, contact information, and Crowdsourcing Platform username for each employee of Customer that will have access to the Crowdsourcing Platform. Each such Customer employee will have a unique Crowdsourcing Platform username which shall be used to log into the Crowdsourcing Platform and no other person other than each such Customer employee may access the Crowdsourcing Platform using that employee’s username. Access by anyone other than the Customer employee under a specific Customer employee’s username shall constitute a breach of this Agreement and, notwithstanding any other provision of this Agreement, Appirio may immediately terminate this Agreement (and any Statement of Work then in effect) upon such occurrence. If Appirio believes that Customer has used the Crowdsourcing Platform outside the scope of this Agreement, upon reasonable notice, Appirio may conduct an audit of Customer’s use during Customer’s normal business hours.

6.3 Challenge Guidelines. Appirio will, as applicable, conduct or facilitate Challenges for Customer on the Crowdsourcing Platform as set forth in a Statement of Work. Customer shall approve the prize money and other costs associated with each Challenge or set of Challenges prior to the launch of such Challenge(s). Appirio shall have the right to review all Challenge documents (e.g., specifications, contest rules and requirements, prizes, etc.) and may require such changes as it deems necessary in its sole discretion to maintain the integrity of Challenges and the Crowdsourcing Platform. Customer may purchase more than one Challenge submission. Customer shall retain Appirio’s copyright notices and authorship credits in the Crowdsourcing Platform, tools and associated documentation or materials.

6.4 Third-Party Software. If Customer requests that a Challenge and/or the Custom Software interface with, accompany, or include software or material not developed by Appirio, 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 under this Agreement. Third-Party Software shall accompany or be included in Custom Software only with Customer’s permission. Customer shall bear all license fees and other expenses, if any, applicable to such Third-Party Software.

7. Limited Warranty

Appirio will perform the Services in a professional and workmanlike manner. Appirio will, as its sole liability for failure to meet this warranty: (a) re-perform the non-conforming Services or (b) re-deliver the non-conforming Deliverables at no additional cost to Customer if notified of the non-conformity within ten (10) days of delivery of the applicable Service or Deliverable or, if Appirio determines such remedies to be impracticable, (c) terminate the applicable Statement of Work and refund the portion of fees attributable to such non-conforming Services or Deliverables. EXCEPT FOR THE FOREGOING WARRANTY, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND APPIRIO EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. Limitation of Liability

NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APPIRIO’S LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER TO APPIRIO IN THE LAST TWELVE MONTHS UNDER THE APPLICABLE STATEMENT OF WORK. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PREVIOUS SENTENCE SHALL NOT APPLY WITH RESPECT TO ANY CLAIM ARISING UNDER SECTION 5 (OWNERSHIP AND LICENSE) OR SECTION 9 (CONFIDENTIAL INFORMATION). 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.

9. Confidential Information

9.1 Definition. Each party agrees that all code, inventions, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, business plans, marketing plans, customer names and other technical, financial or commercial information and intellectual property a party obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. For the avoidance of doubt, the terms of this Agreement, the Crowdsourcing Platform, and Appirio tools and associated documentation or materials provided as part of the Services shall constitute Appirio’s Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.

9.2 Exceptions. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). 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.

10. Export Compliance

Customer acknowledges that the Deliverables may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not remove or export from the United States or allow the export or re-export of any part of the Deliverables in violation of any U.S. export law or regulation or to a U.S.-embargoed country. Customer warrants that it is not named on any U.S. government denied-party list.

11. Miscellaneous

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 Appirio may assign this Agreement to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or part of Appirio’s assets or voting securities. Any notice, report, approval or consent required or permitted under this Agreement will be to the address specified above. Any waiver by either party of any breach of this Agreement, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. For the duration of this Agreement and for twelve (12) months thereafter, Customer shall not solicit for employment any persons employed or otherwise engaged by Appirio, whether or not such individual had direct interaction with Customer hereunder; the foregoing restriction includes, but is not limited to, persons who are Appirio employees, contractors or agents; for purposes of the foregoing restriction solicitations and advertisements directed to the general public will not be deemed solicitations hereunder. 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. Any new terms or changes introduced in any purchase order, order acknowledgement, security-access form, facility-access form, invoice, click-wrap or click through agreement or other document other than a mutually executed written amendment to this Agreement which specifically references this Agreement are void and of no force or effect. A party’s acknowledgement of receipt of such document, performance of services, payment or acceptance of payment shall not constitute agreement to any terms other than those set forth in this Agreement. Additionally, any such document entered into by an employee or representative of a party in his or her individual capacity is null and void and shall not in any way bind either party. 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.

Technology-Enabled Services and Crowdsourcing Agreement (1.2)