This Agreement sets out the terms on which Tophatmonocle Corp. (“THM”) will make its website and services at https://tophat.com or at https://app.tophat.com (the “Website”) available to professors, contract instructors and other educators who have created an account with THM and agreed to these terms (“Contributors”) and who have authored, co-authored or developed one or more publications, study notes, texts or software applications (each item being “Contributor Products”) which Contributor wishes to have promoted, published and made available for purchase on the Website by THM subscribers (“THM Users”).

PLEASE READ THIS AGREEMENT CAREFULLY: BY CREATING AN ACCOUNT ON THE WEBSITE AND/OR SUBMITTING CONTENT TO THM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT WHICH CONSTITUTES A LEGAL CONTRACT BETWEEN YOU AND THM. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, PLEASE DO NOT PROVIDE ANY CONTRIBUTOR PRODUCTS OR USE ANY CONTRIBUTOR FEATURES OF THE WEBSITE.

1. Submission of and License to Contributor Products

1.1 In order to have Contributor Products included on the Website, and in consideration of the revenue share in Section 6 and THM making the Contributor Products available on the Website (subject to the terms of this Agreement), Contributors must:

(i) Create an account on the Website. All personal information of Contributor will be handled in accordance with THM’s privacy policy a copy of which is available at
https://tophat.com/legal/privacy/
and

(ii) Provide the Contributor Products in electronic copies to THM together with any related explanatory notes, disclaimers or descriptions for such content for display and licensed use on the Website, or in the case of software applications, a link or other reference source for the user to access the application after purchase.

1.2 Contributor also hereby:
(i) grants THM, its affiliates and contractual partners (“THM Parties”) a worldwide right and license to: (i) use, reproduce, distribute and display the Contributor Products on the Website and any other websites used by THM; (ii) use the Contributor Products for the purpose of marketing such content to users of the Website or any other websites used by THM including through the showing of previews of the text within the THM application to THM Users and professors who may wish to adopt such content as part of their course materials; (iii) to print and make copies of the Contributor Products for distribution to THM Users; (iv) to permit THM Users who are registered in a specific course that uses the Contributor Products to print a copy of the Contributor Products for their own use but not for redistribution to others; and (v) build landing pages which incorporate extracts of the Contributor Products to help market the Contributor Products. The THM Parties shall not remove any proprietary markings other indications of origin contained in the Contributor Products;
(ii) grants the THM Parties the right to sublicense the Contributor Products to THM Users for those THM Users’ review, academic use and not for resale and subject to any copying and distribution limitations agreed for the specific Contributor Products between THM and Contributor in writing; and
(iii) acknowledges and agrees that all Contributor Products will, at THM’s discretion, be visible on the Website to THM Users and made available for purchase by THM Users and for use by any professor as part of such professor’s course materials.

2. Author Representations and Warranties.
Contributor represents and warrants that:
(i) Contributor is the sole creator of the Contributor Products or, if a co-author or the provider of Contributor Products which incorporates third party works, that Contributor has the written consent, release, and/or permission of each and every copyright holder to enable inclusion and use of such Contributor Products in the manner contemplated by this Agreement;
(ii) use of the Contributor Products as contemplated under this Agreement does not and will not violate or infringe rights of any third party including, but not limited to, copyrights, trade secrets, trademarks, patents, moral rights, rights of publicity, or privacy, and does not libel anyone;
(iii) Contributor will not upload, record, publish, post, link to or otherwise use, transmit or distribute Contributor Products that: (1) advocates, promotes, incites, instructs assists or otherwise encourages violence or any illegal activities; (2) is materially false, misleading, or inaccurate; (3) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, hateful, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (4) constitutes fraud, misrepresentation or unlawful business practices; or (5) otherwise violates any law, statute, ordinance, or regulation, including without limitation the laws and regulations governing data protection or privacy For the sake of clarity subsection (1) and (3) shall be subject to a best of Contributor’s knowledge qualifier;
(iv) the Contributor Products has been prepared in a diligent manner and Contributor will, acting in good faith, only provide Contributor Products which is up to date and accurate as possible given the subject matter concerned and Contributor will use best efforts to update Contributor Products to ensure this warranty is met during the term of the Contributor Products being provided to THM Users on the Website;
(v) Contributor is not prohibited or restricted under any agreement or arrangement from receiving any revenue share in respect of the Contributor Products in accordance with the provisions of Section 6.1; and
(vi) any disclosures and consents required from academic institutions (including any financial interest in promoting the Website and THM services to end users at academic institutions) have been made and any necessary consents obtained prior to entering into this Agreement.

3. Review Rights.
Except for professional services provided by THM, THM does not pre-approve, vet or review any content on the Website. However, THM reserves the right, but has no obligation, to screen Contributor Products at any time to review, flag, filter, modify, refuse or remove any or all Contributor Products or not publish or otherwise distribute Contributor Products to THM Users at any time. THM may also remove Contributor Products with no liability to Contributors or any third party. Reasons for such review and/or removal may include receipt of copyright infringement notices or complaints from third parties about all or part of any Contributor Products.

4. Changes to Contributor Products; Professional Services.
(i) Contributor acknowledges that THM Users are mostly students in tertiary education and accordingly, use of the Contributor Products will be relied on by THM Users in their scholastic and educational pursuits. Accordingly, Contributor shall provide at least 30 days prior notice of intention to withdraw any Contributor Products from the Website in order to update such material or to replace such material with content of a similar quality and type in the event that any Contributor Products is infringing, or reasonably thought to be infringing or out of date by Contributor. On request from THM, Contributor will also review any Contributor Products with a view to updating, revising or modifying such Contributor Products if any person has identified valid discrepancies, errors or content infringements to Contributor, THM or any THM User.
(ii) Contributor may request professional services such as graphic design and copying editing for or in relation to Contributor Products by submitting a written request outlining the Contributor’s requirements. THM will review the request and will provide Contributor with a response either indicating that specific requests cannot be actioned or providing a quote for the estimate cost of the work together with other applicable terms that affect performance of the work. Once the quote is approved by the Contributor (email confirmation shall suffice), THM will perform or have the services performed by its contractors in a workmanlike, professional manner to meet the agreed service description in the written quote. As specified in an Order Form, THM may either invoice Contributor for the professional services which must be paid within 30 days of the invoice date, or THM may elect to set-off the cost of the services against Contributor’s commission for Contributor Products and deduct such amounts prior to paying the balance of the commission owed for Contributor Products to Contributor (any shortfalls may be invoiced).

5. Reservation of Rights.
Contributor is solely responsible for the Contributor Products, including the accuracy, quality, integrity and legality of such Content, the means by which Contributor acquires, uses and transfers the Contributor Products, the means by which Contributor uploads the content onto the Website, and making and keeping backup copies of Contributor Products. Contributor retains all its right, title and interest in and to the Contributor Products which are not expressly granted to THM under this Agreement. THM will ensure that an appropriate attribution is provided in relation to the Contributor Products displayed on the Website.

6. Payment Terms.

6.1 Revenue Share. Contributors will be entitled to the revenue share on licensing of Contributor Products to THM Users which revenue share will be agreed with THM in an order form or other document containing commercial terms relating to the revenue share. Contributor shall not be entitled to any advance payments

6.2 Returns/Refunds. In the event that THM has to reimburse or refund a THM User for the purchase of Contributor Products which fails to meet the requirements of this Agreement or has to be withdrawn due to infringement, inaccuracy or any other reason, THM shall be entitled to reimbursement of the value of the THM User’s (or other third party’s) subscription fees for the Contributor Products. THM reserves the right to set-off any refunds under this Section against revenue owed to Contributor under Section 6.1.

6.3 Revenue Share Restrictions: If Contributor is prohibited or restricted under any agreement or arrangement with a third party from receiving any revenue share in respect of the Contributor Products in accordance with the provisions of this Section 6.1 then Contributor shall notify THM on the creation of their Account or as soon as practicable thereafter. THM may, at its discretion, agree an alternate arrangement with Contributor in lieu of such Revenue Share arrangement.

6.4 Taxes: Unless otherwise stated, the fees and royalties payable under this Agreement do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including sales, value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”).  Contractor is responsible for paying all Taxes associated with its activities under this Agreement, excluding taxes based on THM’s net income.  If THM has a legal obligation to pay or collect Taxes for which Contractor is responsible under this section (including without limitation any withholding tax), the appropriate amount shall be deducted from any amount paid to Contractor.  If it is subsequently determined that Taxes should have been paid in respect to any of fees and/or royalties under this Agreement, then Contractor shall be liable for any such amounts and (in THM’s discretion) shall pay THM for the equivalent amount that THM is required to pay to the applicable tax/revenue/enforcement authorities.

7. Term and Termination.
This Agreement will come into effect from the date of acceptance and will continue in full force and effect unless or until terminated in any of the following ways:
(i) On provision of at least 30 days prior written notice at any time for convenience from one party to the other;
(ii) Immediately on provision of written notice to Contributor in the event any claim of infringement in relation to the Contributor Products arises or any complaint or other matter raised by THM Users or third parties which THM considers serious in relation to the Contributor Products or Contributor and which could have a material adverse impact on the reputation of THM, the Website and/or THM services; or
(iii) On provision of written notice of material breach to the other party, which breach remains uncured after 10 days of written notice to cure the same.

8. Effect of Termination.
Irrespective of the reason for termination of this Agreement, the license to access and use Contributor Products as described in Section 1 will continue until termination of the last subscription term purchased by a THM User prior to the effective date of termination termination (any printed copies shall survive in perpetuity). During such period, Contributor will not have the right to remove the Contributor Products or prevent any THM User with a valid subscription from accessing and using such Contributor Products.

9. Indemnification.
Contributor shall indemnify and hold harmless THM and its affiliates, directors, officers, employees, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any breach by Contributors of the representations and warranties hereunder. THM reserves the right to control the defense of any claim for which THM is entitled to indemnification under this Section 9. In such event, Contributor shall provide THM with such cooperation as is reasonably requested by THM at Contributor’s own expense.

10. Promotional Rights.

10.1 Attributions. Contributor agrees that THM may make Contributor’s name and at least one current method of contact for publication on the Website to enable THM Users to contact Contributor with questions. Contributor agrees to keep such contact information up to date at all times.

10.2 Linking to the Website. Contributor may link to our Website’s home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

11. Additional Terms for App Providers.
App providers may make educational software applications available for purchase or access by users of the Website. In order to do so, app owners must have a THM account and comply with the requirements of Contributors in this Agreement. Contributors of software applications must specify the method by which users can access the app and the period of time (if applicable) for which they can access and use the applications. THM takes no responsibility whatsoever for the functioning, availability or content of any app and the Contributor acknowledges and agrees that Contributor will adhere to any settlement terms agreed by THM with a user, including the terms in Section 6.2 which apply to refunds of application purchases. Contributor shall provide appropriate support, maintenance and security for any data transmitted to and from Contributor’s application including having appropriate organization and technical safeguards in place and a privacy policy compliant with applicable law to cover any collect, use, storage and disclosure of user data, which terms shall in no event be less protective than the terms THM has on the Website for users.

12. LIMITATION OF LIABILITY.

12.1 THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR ANY GUARANTEE OF MINIMUM REVENUE, THAT THE WEBSITE OR THE SERVICES WILL MEET REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THM DISCLAIMS ANY AND ALL SUCH WARRANTIES.

12.2 THM, ITS affiliates, employees, agents and licensors are not liable for incidental, indirect, consequential, special, punitive, or exemplary damages of any kind, including, without limitation, lost revenues or profits, loss of business or loss of data, in any way related to thIS AGREEMENT, Our Website or for any claim, loss or injury based on errors, omissions, interruptions or other inaccuracies in Our exercise of Our rights hereunder (including, without limitation, as a result of breach of any warranty or other provision of these Terms), even if THM have been advised of the possibility of such damages.

13. Changes to this Agreement and the Website and Services.
THM retains the right to determine the content, appearance, design, functionality and all other aspects of the Website (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, including product descriptions, and other aspects of the Website and the services and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, any of the Contributor Products in its sole discretion. THM reserves the right to make changes to this Agreement which will be notified to all Contributors by email or through the Website.

14. Status.
Each party is an independent contractor operating a separately established business, and that neither party is the partner or legal representative of the other, nor does either party have the authority to bind the other to any legal obligation. Neither party will be liable to the other in connection with any termination, expiration, or non-renewal of this Agreement for any indemnity, reimbursement, or damages on account of loss of clientele and/or prospective profit, or for any compensation for anticipated sales, or on account of expenditures, investments, or other commitments made in connection with this Agreement, carrying out the parties’ obligations hereunder, or otherwise

15. General Provisions.
Each party will comply fully with all applicable federal, provincial and/or state and local laws and regulations relating to its obligations under this Agreement. Contributors shall not assign this Agreement or any rights and obligations hereunder to any third party without the express prior written consent of THM. If any provision of this Agreement is held invalid by any law, rule, order or regulation of any government, or by the final determination of a court of competent jurisdiction, such invalidity will not affect the enforceability of any other provisions not held to be invalid. The provisions of this Agreement shall be interpreted to carry out the intent of the parties to the fullest extent permitted by law. This Agreement and any disputes arising under it shall be governed by the laws of the Province of Ontario, Canada. All notices of any kind shall be in writing and shall be delivered to THM’s registered address and in the case of Contributors, to the account details held on file for Contributors. This Agreement constitutes the entire agreement of the parties as to the subject matter hereof and supersedes any and all prior oral or written memoranda, understandings and agreements.

Last Updated: February 15, 2018

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