Client Platform Access Agreement

Date of Last Revision: April 24, 2019

Notice: this Client Platform Access Agreement is a substantial revision from the prior Toptal on-line agreement entitled ”Client Services Terms of Service“ and replaces such prior agreement in its entirety. Please read it carefully to acquaint yourself with your rights and obligations for using the Client Platform portions of https://www.toptal.com.

1. Toptal Properties: Description of Platform and Matching Service. Toptal, LLC (“Toptal” or “we”) provides a network (“Network”) of independent contractors who provide software engineering or other professional services (each a “Talent” and the services they provide, the “Talent Services”). The “Platform” includes (a) Toptal’s web site located at https://www.toptal.com (the “Site”), (b) Toptal’s technology platform designed to find and connect Talent to those in need of development, engineering, and other professional services offered by or through Toptal (the “Platform”), and (c) all software, data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively, the “Content”). Any new features added to or augmenting the Platform are also subject to this Client Platform Access Agreement (“CPAA”). The “Matching Services” involve using any and all features, functions, and Content of the Platform that enable clients to identify, review, contact, and otherwise take steps to engage Talent, as well as Toptal’s work in assisting you (“you” or “Client”) in identifying, reviewing, contacting, and taking steps to engage Talent. The Matching Services do not include any work performed by Talent. For ease of reference, the Site, Network, Platform, identities or descriptions of Talent and Talent services, the Matching Services, Other Content, Toptal’s Proprietary Information, and any other Toptal products or services are collectively referred to in this CPAA as “Toptal Properties.” “Toptal Properties” include all such elements as a whole, as well as individual elements and portions thereof. Nothing in this CPAA obligates: (1) you to engage any particular Talent for any work, (2) Toptal to provide you or any Client with Matching Services, or (3) Toptal to identify Talent for your particular needs.

2. Acceptance of Terms.

2.1. Acceptance and Legally Binding Agreement. Toptal provides the Toptal Properties to you through the Site and the Platform, subject to this CPAA. By accepting this CPAA or by accessing or using any portion of the Toptal Properties, you acknowledge that you have read, understood, and agree to be bound by this CPAA. You further acknowledge that this CPAA is a contract between you and Toptal, even though it is electronic and is not physically signed by you and Toptal, and it governs your use of the Toptal Properties. If you are entering into this CPAA on behalf of a company, business or other legal entity (“Client Entity”), you represent that you have the authority to contractually bind such Client Entity to this CPAA, in which case the terms “you” or “your” or “Client” will refer to such Client Entity. IF YOU DO NOT HAVE SUCH AUTHORITY TO CONTRACTUALLY BIND SUCH CLIENT ENTITY TO THIS CPAA, OR IF YOU DO NOT AGREE WITH THIS CPAA, YOU MUST NOT ACCEPT THIS CPAA AND YOU MAY NOT ACCESS OR USE THE TOPTAL PROPERTIES.

2.2. CPAA Updates. Toptal reserves the right, at its sole discretion, to change or modify portions of this CPAA at any time. Toptal will post the changes to this CPAA on the Site and will indicate at the top of this page the date these terms were last revised. It is your responsibility to check the CPAA periodically for changes. Your continued use of any of the Toptal Properties after the date any such changes become effective constitutes your acceptance of the new or revised CPAA.

2.3. Registering Your Account. As part of the registration process, you will identify a user name and password for your Account (“Account”). You are solely responsible for maintaining the confidentiality of your user name and password and for any authorized or unauthorized use of the same. You also agree to provide Toptal truthful, accurate, and complete information in all interactions with Toptal via any of the Toptal Properties.

3. Restrictions on Your Use of Toptal Proprietary Information.

3.1. Confidentiality. All business, technical or financial information disclosed by Toptal via the Toptal Properties, including without limitation, the Site, Platform, or Matching Service, is the “Proprietary Information” of Toptal. Proprietary Information also includes, but is not limited to, the rates of each Talent in the Network. You will hold in confidence and not disclose to others any Proprietary Information. You will also not use Proprietary Information for any purposes other than evaluation of Toptal, Talent and Talent Services as an existing or prospective client of Toptal. However, you will not be obligated under this Section 3.1 with respect to information that you can document is or becomes readily publicly available without restriction and through no fault of you (i.e., information that Toptal makes generally available to the public on the Site without requiring acceptance of this CPAA or a similar obligation of confidentiality). You may make disclosures of Proprietary Information required by law or court order provided that you give Toptal advance written notice. When you have completed your use of the Platform or Matching Service, or if you have not used the Platform or Matching Service in 12 months, you will destroy all items and copies containing or embodying Proprietary Information.

3.2. Non-Solicit. During all periods of your access to or use of the Platform or Matching Service and for twelve (12) months after each such access or use (collectively, all such periods are referred to as the “Non-Solicit Period”), you will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services (excluding services performed pursuant to a Sourced Talent Agreement signed by both you and Toptal) any Talent whom you become aware of in connection with your interaction with Toptal. You also agree that you will not refer such Talent directly to parent, sibling, or other affiliated companies.

4. General Conditions/Access and Use.

4.1. Authorization to Access and Use Toptal Properties. (a) Subject to your compliance with this CPAA and the provisions hereof, you may access or use the Toptal Properties solely for the purpose of your evaluation of Toptal, Talent and Toptal’s products and services as an existing or prospective Client of Toptal. (b) You will not: (i) allow any competitor of Toptal to use or access the Toptal Properties, (ii) use or access the Toptal Properties to develop or enhance any product or service, or (iii) copy any ideas, features, functions or graphics of the Toptal Properties. You are not permitted to access or use the Toptal Properties for public comment unless authorized in writing by Toptal. You are also not permitted to copy, modify, frame, repost, publicly perform or display, sell, reproduce, distribute, or create derivative works of the Toptal Properties. You may only link to the Site or Platform, or any portion thereof, as expressly permitted by Toptal. You agree not to access the Site, Platform, or Matching Service by any means other than through the interface that is provided by Toptal to access the same, except that you may download, display, and print portions of the Content other than any software, but only to the minimum extent necessary and consistent with the purpose of your access and use of the Toptal Properties under this CPAA, and provided further that you do not modify such Content in any way and you keep intact all copyright, trademark, and other proprietary notices.

4.2. Ownership and Restrictions. All rights, title and interest in and to the Toptal Properties will remain with and belong exclusively to Toptal. You will not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Toptal Properties available to any third party, (b) use the Toptal Properties in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Toptal Properties or their related components, or (c) modify, adapt or hack the Toptal Properties to, or try to, gain unauthorized access to the Toptal Properties or related systems or networks (i.e., circumvent any encryption or other security measures, gain access to any source code or any other underlying form of technology or information, and gain access to any part of the Toptal Properties, or any other products or services of Toptal that are not readily made available to the general public or to you using your own account name and password as instructed by Toptal).

4.3. Responsibility for Your Data. You are solely responsible for all data, information and other content, that you upload, post, or otherwise provide or store (hereafter “post(ing)”) in connection with or relating to the Site, Network, Platform, or Matching Service.

4.4. Limiting Access To Your Account. Toptal may access your Account in order to respond to your requests for technical support or to verify compliance with your obligations to Toptal, comply with law, or to maintain and improve its own systems. Toptal may, at its option, provide email or other online account support.

4.5. Reservation of Rights. Toptal and its licensors each own and retain their respective rights in and to all logos, company names, marks, trademarks, copyrights, trade secrets, know-how, patents and patent applications that are used or embodied in or otherwise related to the Toptal Properties. Toptal grants no other rights or licenses (implied, by estoppel, or otherwise) whatsoever to you under this CPAA.

5. Use of Intellectual Property.

5.1. Rights in User Content. By posting your information and other content (“User Content”) on or through the Toptal Properties, you grant Toptal a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform User Content in connection with the Toptal Properties. Toptal has the right, but not the obligation, to monitor the Toptal Properties and User Content. Toptal may remove or disable any User Content at any time for any reason, or for no reason at all.

5.2. Unsecured Transmission of User Content. You understand that the operation of the Site and Platform, including User Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Toptal’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Toptal Properties. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of User Content. Toptal will have no liability to you for any unauthorized access or use of any of User Content, or any corruption, deletion, destruction or loss of any of User Content.

5.3. Feedback. You may submit ideas, suggestions, or comments (“Feedback”) regarding the Toptal Properties or Toptal’s business, products or services. By submitting any Feedback, you acknowledge and agree that (a) your Feedback is provided by you voluntarily and Toptal may, without any obligations or limitation, use and exploit such Feedback in any manner and for any purpose, (b) you will not seek and are not entitled to any money or other form of compensation, consideration, or attribution with respect to your Feedback regardless of whether Toptal considered or used your Feedback in any manner, and (c) your Feedback is not the confidential or proprietary information of you or any third party.

6. Your Representations and Warranties. You represent and warrant to Toptal that (a) you own all User Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Toptal to use the same as permitted in this Agreement) in connection with the Toptal Properties; (b) User Content and other activities in connection with the Toptal Properties, and Toptal’s exercise of all rights and licenses granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does User Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (c) you are eighteen (18) years of age or older.

7. Termination. The CPAA applies and remains in effect until you no longer are using or accessing the Toptal Properties, provided however that all provisions of a continuing nature including, without limitation, those set forth in the following sections will survive the termination of this CPAA: 2.3, 3, 4.1(b), 4.2, 4.4, 4.5, and 5 - 12.

8. NO WARRANTIES AND DISCLAIMER BY TOPTAL. THE TOPTAL PROPERTIES, AND PARTICULARLY THE SITE, PLATFORM, MATCHING SERVICES, CONTENT, PROPRIETARY INFORMATION AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TOPTAL EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT TOPTAL DOES NOT WARRANT THAT YOUR ACCESS OR USE OR BOTH OF THE TOPTAL PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND TOPTAL DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TOPTAL PROPERTIES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM TOPTAL OR THROUGH THE TOPTAL PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS CPAA.

9. LIMITED LIABILITY.

9.1 Exclusion of Damages and Limitation of Liability. Toptal does not charge fees for you to access and use the Toptal Properties pursuant to this CPAA. As consideration for your free access and use of the Toptal Properties pursuant to this CPAA, you further agree that TOPTAL WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS CPAA, INCLUDING WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SITE, PLATFORM, MATCHING SERVICES, CONTENT, PROPRIETARY INFORMATION, OR ANY INTERRUPTION OR DISRUPTION OF SUCH USE, EVEN IF TOPTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE). THE AGGREGATE LIABILITY OF TOPTAL WITH REGARD TO THIS CPAA WILL IN NO EVENT EXCEED USD$1.00.

9.2. Jurisdictional Limitations. Some states and other jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, TOPTAL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10. Dispute Resolution; Jury Waiver. THIS CPAA IS MADE UNDER, AND WILL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between or among any of the parties, whether arising out of this CPAA or otherwise, each of the parties irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Wilmington, Delaware; (b) WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY; and (c) consents to service of process by first class certified mail, return receipt requested, postage prepared, to the address at which such party is to receive notice in accordance with Section 11.

11. Miscellaneous. This CPAA, together with Toptal’s Privacy Policy constitute the entire agreement between the parties. In accordance with Section 12, a Sourced Talent Agreement will take precedence over and will govern over any inconsistent or conflicting terms in this CPAA, with respect to the Matching Services and the other subject matter of the Sourced Talent Agreement. For clarification your access to and use of the Site, Platform, and Content provided through the Site or Platform is not part of the subject matter of the Sourced Talent Agreement and the provisions of this CPAA will apply thereto. The failure of Toptal to exercise or enforce any right or provision of this CPAA will not be a waiver of that right. No waiver, change, or modification to this CPAA will be effective unless in writing signed by both parties. Any notices to Toptal in connection with this agreement will be made by email transmitted to [email protected] provided that you also send a copy of such notice via nationally recognized carrier to Toptal, LLC, 2810 N. Church St, #36879 Wilmington, Delaware 19802-4447, Attn: Contract Administration. Notices to you will be made by email or regular mail and will be deemed to have been duly given when sent by Toptal to the email or mailing address associated with your account. You agree that Toptal is entitled to seek injunctive and other equitable relief to enforce your obligations in Sections 3, 4.1(b) and 4.2. to avoid harm that cannot adequately be remedied by monetary damages. The section and subsection headings used in this CPAA are for convenience only and will not be used in interpreting this CPAA. In the event that any provision of this CPAA will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this CPAA will otherwise remain in full force and effect and enforceable.

12. Applicable Agreements. Toptal Talent perform services pursuant to Talent Services agreements that Clients and Toptal enter into separate from this CPAA (“Sourced Talent Agreements”). Your access or use of the Toptal Properties other than Matching Services always will be governed by the then-current CPAA. Your access and use of Matching Services also will be governed by the then-current CPAA, unless you are accessing and using the Matching Services while you are a party to an active Sourced Talent Agreement, in which case your access and use of the Matching Services will be governed solely by the Sourced Talent Agreement in connection with which you are accessing and using the Matching Services.

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