Talent Platform Access Agreement

Notice: Section 8 of this Talent Platform Access Agreement (“TPAA”) is being updated to reflect new sanctions. This TPAA replaces the prior Developer Terms of Service agreement or any prior TPAA in its entirety. Please read this TPAA carefully to acquaint yourself with the provisions that apply to your access to and use of the Talent Platform portions of www.toptal.com.

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1. Acceptance and Legally Binding Effect of Talent Platform Access Agreement (“TPAA”)

By accepting this TPAA or by accessing or using any portion of the Toptal Properties, you acknowledge that you have read, understood, and agree to be legally bound by this TPAA in its entirety.

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2. TPAA Updates

Toptal reserves the right, at its sole discretion, to change or modify portions of the TPAA at any time. Toptal will post any changes to the TPAA on the Site and will indicate at the top of the TPAA page the date these terms were last revised.It is your responsibility to check the TPAA 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 TPAA.

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3. Platform Description, Purpose and Related Toptal Properties.

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 http://www.toptal.com (the “Site”), (b) Toptal’s technology platform(the “Platform”) designed for Talent to apply and be considered by Toptal to join Toptal’s Talent network to potentially be matched to Toptal’s customers (each a “Client”) who need Talent Services; and (c) all software, data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively, the “Content.” The Platform enables Talent to work collaboratively with Toptal to manage providing any Talent Services to Clients, and to otherwise use the related features and functions that Toptal may make available to its Talent from time to time (the “Platform Purpose”) pursuant to your then-applicable agreement that you may enter into with Toptal regarding such Talent Services (“Talent Agreement”). Any new features added to or augmenting the Platform are also subject to the TPAA. For ease of reference, the Site, Network, Platform, identities or descriptions of Clients, other Content, Toptal’s Proprietary Information, and any other Toptal products or services are collectively referred to in this TPAA (as defined below) as “Toptal Properties.” “Toptal Properties” include all such elements as a whole, as well as individual elements and portions thereof. Nothing in this TPAA obligates: (1) you to apply or to agree to become Toptal Talent for any Client work or (2) Toptal to accept or engage you as Talent, or try to match you to any Client or provide any other services to you.

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4. Restrictions on Your Use of Toptal Proprietary Information; Confidentiality.

All business, technical or financial information disclosed by Toptal, LLC (“Toptal”) via the Toptal Properties, including without limitation, the Site, Platform, and non-public information about how Toptal selects Talent (e.g., interview process, questions and methods) or matches Talent to Clients is the “Proprietary Information” of Toptal. Proprietary Information also includes, but is not limited to, your rates in the Network and the rates of other 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 the Platform Purpose as an existing or prospective Talent. However, you will not be obligated under this Section 4 with respect to information that you can document is or becomes readily publicly available without restriction and through no fault of you (e.g., information that Toptal makes generally available to the public on the Site without requiring acceptance of this TPAA 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 if you have not used the Platform or provided any Talent Services to a Client in 12 months, you will destroy all items and copies containing or embodying Proprietary Information.

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5. Authorization to Access and Use Toptal Properties; Legally Binding Effect.

(a) Subject to your compliance with this TPAA, you may access and use the Toptal Properties solely for the Platform Purpose, including downloading, displaying and printing limited portions of the Content (other than software) but only to the limited extent necessary and consistent with the Platform Purpose. (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 except to the limited extent permitted in Subsection 5(a) above, but provided that you do not modify such Content in any other way and you keep intact all copyright, trademark, and other proprietary notices. 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 or Platform by any means other than through the interface that is provided by Toptal to access the same.

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6. Ownership and Additional Restrictions.

6.1 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 (e.g., 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). You may not upload viruses, spyware, or any other malicious software or code to Toptal or any Client of Toptal. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Toptal on or through the Toptal Properties or any service offered on or through the Toptal Properties. Toptal reserves the right to take any lawful measures to prevent any prohibited activity.

6.2. 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.

6.3. 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, or Platform.

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

6.5. 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 TPAA.

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7. Use of Intellectual Property.

7.1. 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.

7.2. 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.

7.3. 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.

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8. 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; (d) you are not a national of, you do not reside in, and, if accepted as a Toptal Talent, you will not reside in or work from any Prohibited Region, and (e) you are not identified on any Prohibited List. “Prohibited Regions” means any country or region with respect to which U.S. law prohibits transactions, including the payment of funds or the export, re-export, or transfer of items, services, or technology, including but not necessarily limited to Iran, Cuba, Syria, North Korea, and the Crimea, Donetsk, and Luhansk regions of Ukraine, and other Russia-controlled regions of Ukraine covered by applicable sanctions. “Prohibited List” includes the Specially Designated Nationals and Consolidated Sanctions Lists (maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury); the Denied Persons, Entity, and Unverified Lists (maintained by the Bureau of Industry and Security, U.S. Department of Commerce); and the Consolidated List of sanctions designations by the United Nations, European Union and United Kingdom. You shall notify Toptal immediately if your status under this Section 8 changes. This Agreement will terminate immediately upon any non-compliance with this Section 8.

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9. Termination of Access and TPAA.

Toptal may, in its sole discretion and without prior notice, terminate your access to the Toptal Properties and/or block your future access to the Toptal Properties if we determine that you have violated any terms of this TPAA or other agreements or guidelines which may be associated with your use of the Toptal Properties. Further, Toptal may, in its sole discretion and without prior notice, terminate or suspend your access to the Toptal Properties, for cause, which includes, but is not limited to: (1) requests by law enforcement or other government agencies, (2) discontinuance or material modification of the Site or any service offered on or through the Site, or (3)unexpected technical issues or problems. This TPAA applies and remains in effect until the earlier of (a) you no longer are using or accessing the Toptal Properties on an ongoing basis and (b) your agreement with Toptal for providing services to Toptal’s clients (if you and Toptal have entered into such agreement) has been terminated by you or us for any reason or no reason, 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 TPAA: 1, 3, 4, 5(b), 6 - 14.

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10. NO WARRANTIES AND DISCLAIMER BY TOPTAL.

THE TOPTAL PROPERTIES, AND PARTICULARLY THE SITE, PLATFORM, 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 TPAA.

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11. LIMITED LIABILITY.

11.1. Exclusion of Damages and Limitation of Liability. Toptal does not charge fees for you to access and use the Toptal Properties pursuant to this TPAA. As consideration for your free access and use of the Toptal Properties pursuant to this TPAA, 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 TPAA, INCLUDING WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SITE, PLATFORM, 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 TPAA WILL IN NO EVENT EXCEED USD$10.00.

11.2. 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.

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12. Dispute Resolution; Jury Waiver

THIS TPAA 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 TPAA 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 13.

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13. Miscellaneous.

This TPAA, together with Toptal’s Privacy Policy constitute the entire agreement between the parties. In accordance with Section 14, your applicable Talent Agreement will take precedence over and will govern over any inconsistent or conflicting terms in this TPAA with respect to the subject matter of the 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 your Talent Agreement and the provisions of this TPAA will apply thereto. No waiver, change, or modification to this TPAA 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 both contact@toptal.com and legal@toptal.com. 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 4, 5 and 6.1 to avoid harm that cannot adequately be remedied by monetary damages. The section and subsection headings used in this TPAA are for convenience only and will not be used in interpreting this TPAA. In the event that any provision of this TPAA 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 TPAA will otherwise remain in full force and effect and enforceable.

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14. Applicable Agreements.

Toptal Talent perform Talent Services for Clients pursuant to Talent Agreements separate from this TPAA. Your access or use of the Toptal Properties always, however, will be governed by the then-current TPAA. If you are accepted into Toptal’s Network, Toptal’s identification of potential engagements and Clients for you, our business operations and relationship with respect to you as a Talent, as well as all your work providing the Talent Services to Clients will always be governed by your applicable Talent Agreement with Toptal.

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