Updated as of August 8, 2023
Top Hat and Institution are entering into this Agreement either (a) to establish an approved or exclusive partnership program (“Partner Program”) whereby Top Hat may market Products (as defined below) to Institution Users (as defined below) for an agreed-upon price, or (b) to provide for Institution’s direct purchase of Licenses (as defined below) for Users or Professional Services (as defined below).
1.1 “Applicable Law”: means the law of the state or province in which Institution is located.
1.2 “Approved Partner”: means an Institution that has approved the use of the Products in courses taught at the Institution.
1.3 “Confidential Information”: means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms and conditions of this Agreement, Order Forms, Partner Program Forms, Institution Data, Student Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; (d) is received from a third party without breach of any obligation owed to the Disclosing Party; or (e) is required to be disclosed by Applicable Law or legal proceedings.
1.4 “Content”: means the interactive educational content (a) either (i) owned by Top Hat under the Top Hat brands, including without limitation Top Hat and Aktiv, or (ii) licensed to Top Hat by a third-party content partner, an Institution User, or an Institution, and (b) made available to Users on the Platform or as printed material.
1.5 “Content License”: means a license granted to a User to access and use Content as further described in the Order Form(s).
1.6 “Deliverables”: means any deliverables identified in an Order Form to be delivered in connection with Top Hat’s provision of Professional Services.
1.7 “Effective Date”: means: (a) if Institution has executed a Partner Program Form, the effective date of such Partner Program Form; and (b) if Institution has executed one or more Order Forms, the effective date of the first Order Form entered into by Institution.
1.8 “Exclusive Partner”: means an Institution that has designated Top Hat as the sole and exclusive provider of student-engagement and interactive-content platform products for use in courses at the Institution.
1.9 “Fees”: means the fees set forth in an Order Form Institution agrees to pay for Licenses for Institution Users and Student Users and, if applicable, Professional Services. Top Hat reserves the right to change the fees for Licenses and Professional Services at any time and from time to time; if Institution agrees to such changed fees, Institution and Top Hat shall execute an Order Form setting forth such changed fees.
1.10 “Institution Data”: means (a) Confidential Information relating to the Institution’s relationship with Top Hat as set forth in this Agreement and Order Forms, and (b) Institution User Data.
1.11 “Institution User”: means a User who is an employee or contractor of Institution (including, but not limited to, professors, lecturers, teaching assistants, and academic administrators).
1.13 “License”: means a Platform License and/or a Content License, as further described in the Order Form(s).
1.14 “Malicious Code”: means (a) any code, program, or sub-program the knowing or intended purpose or effect of which is to damage or maliciously interfere with the operation of a computer system containing the code, program, or sub-program, or to halt, disable, or interfere with the operation of the software, code, program, or sub-program, itself, or (b) any device, method, or token that permits any person to circumvent without authorization the normal security of any software or system containing the code.
1.15 “Order Form”: means the Top Hat-issued order form executed by Institution and Top Hat for the purchase of (a) Licenses and (b) Professional Services by Institution. For the purposes of clarity, “Order Form” does not include purchase orders, order forms, or terms and conditions issued by Institution.
1.16 “Partner Program Form”: means either an Approved Partner program form or Exclusive Partner program form executed by Institution and Top Hat.
1.17 “Platform License”: means a license granted to a User to use the Platform as further described in the Order Form(s).
1.18 “Platform”: means the student-engagement and interactive-instruction platforms (whether the desktop or mobile version) offered by Top Hat under the Top Hat brands, including without limitation Top Hat and Aktiv.
1.20 “Products”: means the Platform and Content, as further described in the Order Form(s).
1.21 “Professional Services”: means the professional services offered by Top Hat from time to time, as further described in the Order Form(s).
1.23 “Student User”: means a User who is a student enrolled at Institution.
1.25 “Top Hat”: means: (a) Tophatmonocle (US) Corp., a Delaware corporation, for Institutions located in the United States of America (doing business as Aktiv); (b) Top Hat (AUS) Pty Ltd., an Australian corporation, for Institutions located in Australia or New Zealand; and (c) Tophatmonocle Corp., a Canadian corporation, for Institutions located outside of the United States of America, Australia, or New Zealand.
1.26 “User”: means any individual (a) for whom Institution has purchased a License, or (b) who purchases a License pursuant to a Partner Program.
1.27 “User Account”: means the account each User is required to create in order to access and use the Products.
2. Approved and Exclusive Partnerships: If Institution has elected to designate Top Hat as an Approved Partner or Exclusive Partner, Institution and Top Hat shall execute the appropriate Partner Program Form that will set forth the fees that Top Hat shall charge for the purchase of Licenses by Student Users. If a department, school, or other unit at Institution elects to purchase Licenses directly as part of the Partner Program, such department, school, or other unit shall execute an Order Form, which shall be issued pursuant to and governed by this Agreement. For Users who purchase Licenses directly from Top Hat as part of the Partner Program, no Order Form shall be required and such purchases shall be governed by the Terms of Service. Top Hat acknowledges and agrees that Institution may have a policy providing that its instructors have the right to choose the in-class technology and content they use in their courses, including products offered by Top Hat’s competitors (“Competitive Products”). If Institution has such a policy, it agrees that it shall not encourage or centrally support the use of Competitive Products.
3. Direct Institution Purchases:
3.1 Product Licenses: Institution shall execute an Order Form for the purchase of Licenses, and Top Hat shall issue Licenses to and make the Products available to the Users for the license periods set forth in the applicable Order Form and pursuant to the Terms of Service. In the event Institution requires additional Licenses, the parties shall execute an additional Order Form. Institution acknowledges and agrees that: (a) each User shall be required to accept the Terms of Service when creating a User Account and the Terms of Service shall govern each User’s use of the Products; and (b) User Accounts are for use by designated Users only and cannot be shared or used by more than one User and may not be transferred to new Users. Top Hat acknowledges and agrees that Institution may have an agreement with a third-party bookstore (“Bookstore”) designated by Institution as Institution’s exclusive buyer and seller of all required, recommended, or suggested course materials and course supplies, including books, textbook rentals, and materials published or distributed electronically and/or through learning management systems (“Bookstore Agreement”). If applicable, Top Hat shall comply with the Bookstore Agreement as directed by Institution in the provision of the Licenses.
3.2 Professional Services: Institution may execute an Order Form for the purchase of Professional Services, and Top Hat shall provide the Professional Services set forth in the Order Form. Top Hat warrants that: (a) it and each of its employees, contractors, consultants, and subcontractors, if any, that it uses to provide and perform Professional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the services in accordance with the Order Form; and (b) the Professional Services will be performed for and delivered to Institution in a good, diligent, workmanlike manner in accordance with industry standards. Top Hat’s ability to successfully perform the Professional Services is dependent upon Institution’s provision of timely information, access to resources, and participation. If through no fault or delay of Institution the Professional Services do not conform to the foregoing warranty, and Institution notifies Top Hat within sixty (60) days of Top Hat’s delivery of the Professional Services, Institution may require Top Hat to re-perform the non-conforming portions of the Professional Services. Institution hereby grants Top Hat permission to incorporate Institution’s trademarks and logos and Institution Confidential Information in any Deliverables solely for the purpose of providing the Professional Services to Institution. Top Hat hereby provides Institution with a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for Institution’s internal operations in connection with its authorized use of the Professional Services.
5 Representations and Warranties:
5.1 Top Hat represents and warrants: (a) it has the authority to enter into this Agreement and Order Forms, and provide the Products and, if applicable, the Professional Services; (b) the Platform has been designed in accordance with the accessibility guidelines established by Website Content Accessibility Guidelines 2.1 to comply with Section 508 of the Rehabilitation Act and the Americans with Disabilities Act, with any known exception listed in public VPAT documents available at https://www.tophat.com/company/legal/accessibility-top-hat/. Top Hat will make commercially reasonable efforts to respond to and remedy any such exceptions at the written request of Institution; and (c) the Products will not contain or transmit to Institution any Malicious Code (except for any Malicious Code contained in User or Institution-uploaded materials or otherwise originating from Institution or a User).
5.2 Institution represents and warrants: (a) it has the authority to enter into this Agreement and Order Forms; (b) it owns all rights, title, and interest in and to, or has a license to provide to Top Hat, all Institution Data; (c) it is authorized to use Institution Data; and (d) it has all necessary consents required to share any Student Data with Top Hat to enable Top Hat to provide the Products and, if applicable, the Professional Services.
6. Fees: Institution shall pay Top Hat the Fees within 30 days following receipt of invoice. Fees are payable in United States dollars, unless otherwise expressly set forth in the Order Form. Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes“). Institution is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Top Hat’s net income or property. If Top Hat has the legal obligation to pay or collect Taxes for which Institution is responsible under this section, the appropriate amount shall be invoiced to and paid by Institution, unless Institution provides Top Hat with a valid tax exemption certificate authorized by the appropriate taxing authority. Institution shall send such certificate to email@example.com; Institution acknowledges and agrees that until such time as Top Hat receives such certificate it shall continue to invoice Institution for such Taxes and Institution shall pay such Taxes. Once in any 12-month period during the Term, Institution may inspect such financial records and information as related to the Order Forms upon no less than 14-days prior written and at Institution’s sole cost. If Institution’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Top Hat reserves the right to suspend the Licenses and, if applicable, Professional Services until such amounts are paid in full.
7. Proprietary Rights: Except as otherwise provided herein: (a) Top Hat reserves all rights, title, and interest in and to the Products and, if applicable, the Professional Services and Deliverables, including, without limitation, all related intellectual property rights; and (b) Institution reserves all right, title, and interest in and to any Institution marks or Confidential Information incorporated into the Deliverables in connection with the provision of the Professional Services. Notwithstanding any other provision of this Agreement: (a) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Top Hat to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Institution, on the same terms as the Deliverables or as otherwise agreed by Institution; and (b) the term “Deliverables” shall not include the Tools. Tools are Top Hat Confidential Information. No other rights are granted to Institution hereunder other than as expressly set forth herein. Top Hat shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by Institution or Users relating to the Products and Professional Services.
8. Confidentiality: The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Institution acknowledges and agrees that Deliverables are Top Hat Confidential Information and Institution may not reverse engineer, decompile, disassemble, translate, copy, reproduce, display, publish, create derivative works of, assign, sell, lease, rent, license, sublicense or grant a security interest in all or any portion of the Deliverables. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the Receiving Party is compelled by applicable law, including without limitation state or federal freedom of information acts applicable to Institution, to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, 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 may be inadequate.
9. Disclaimers: EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3.2 AND 5 HEREOF, TOP HAT MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS PROVIDED HEREIN, THE PROFESSIONAL SERVICES, DELIVERABLES AND/OR TOOLS PROVIDED TO INSTITUTION ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ARE FOR COMMERCIAL USE ONLY.
10.1 Subject to this Agreement, Top Hat shall indemnify Institution against any damage (including reasonable attorneys’ fees) awarded to a third party against Institution by a court of competent jurisdiction in any proceedings made or brought against Institution by a third party alleging that the the Products or the Professional Services infringe the intellectual property rights of a third party (“IP Claims”). Such indemnification is condition on Institution (a) promptly giving written notice of each IP Claim to Top Hat; (b) giving Top Hat sole control of the defense and settlement of each IP Claim (provided that Top Hat may not settle or defend any IP Claim unless it unconditionally releases Institution of all liability); and (c) providing to Top Hat, at Top Hat’s cost, all reasonable assistance in respect to each IP Claim.
10.2 Except as prohibited by Applicable Law, Institution shall indemnify Top Hat against any damages (including reasonable attorneys’ fees) awarded to a third party against Top Hat by a court of competent jurisdiction in any proceedings made or brought against Top Hat by a third party arising from or related to this Agreement and attributable to the negligence of Institution or its officers or Institution Users when acting within the course and scope of their employment.
10.3 The obligations in Sections 10.1 and 10.2 do not extend to (a) any claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Products with other products, software or services not provided by Top Hat, (b) any claim related to any Institution Data, or (c) any claim related to any use or exercise of any other right in respect to the Products outside the scope of the rights granted in this Agreement.
11 Limitation of Liability
11.1 IN NO EVENT SHALL TOP HAT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY; PROVIDED, HOWEVER, THAT IF APPLICABLE LAW PROVIDES FOR A DIFFERENT LIMITATION OF LIABILITY FOR ALL CONTRACTS ENTERED INTO BY INSTITUTION, SUCH APPLICABLE LAW LIMITATION OF LIABILITY SHALL APPLY.
11.2 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.
12 Term & Termination
12.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for a term of three years following the Effective Date (the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed for additional one-year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least 60 days prior to the end of the Initial Term or any Renewal Term; provided, however, that in the case of any notice of non-renewal, this Agreement shall continue in effect until the termination of any then-current Order Forms. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term.”
12.2 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30-days prior written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3 Outstanding Fees. Termination shall not relieve Institution of the obligation to pay any Fees accrued or payable to Top Hat prior to the effective date of termination.
13 General Provisions:
13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Governing Law. If Institution is: (a) located in Canada, this Agreement shall be governed by and construed in accordance with the laws of the province of Ontario; (b) located in Australia or New Zealand, this Agreement shall be governed by and construed in accordance with the laws of New South Wales; and (c) located elsewhere, this Agreement shall be governed by and construed in accordance with the laws of the state of New York, in each of (a), (b), and (c) excluding any body of law governing conflicts of law. Notwithstanding the foregoing, if Applicable Law requires any contract to which Institution is a party to be governed by the laws of such state or province then this Agreement shall be governed by the laws of such state or province. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. In the event of a dispute arising out of or in connection with the terms of this Agreement between Institution and Top Hat, Institution agrees to attempt to settle the dispute by engaging in good faith negotiations with Top Hat in a process of mediation before commencing litigation, or, if required by Applicable Law, arbitration.
13.7 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including without limitation acts of God, wars, terrorism, riots, civil unrest, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labor problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, denial of service attacks, software or power systems not within a party’s possession or reasonable control (each, a “Force Majeure Event”); provided, however, that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
13.9 Conflicts. To the extent of any conflict or inconsistency between this Agreement and any purchase order, order form, terms and conditions, or other document issued by Institution, the terms of this Agreement and applicable Order Form shall prevail.
13.10 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 7 through 13.