TERMS & CONDITIONS
VERSION DATE: SEPTEMBER 8, 2009
1. 1. Parties and Description of the Services
Napkinlabs.com, is a web site that lets users such as yourself (“Innovators”) submit ideas, comments or Ideas (collectively “Ideas”) regarding a problem or project (“Project”) that Napkin Labs, Inc., a Delaware corporation, or its affiliates (which are referred to as "Napkin Labs", "us", "we" or "the Company"), has posted on the Website (defined below). Often the Website will allow the Napkin Labs community of Innovators (the "Network") to interact, question, comment, propose problems, suggestions and/or ideas (such interaction, questions, comments, problems, suggestions and/or ideas is collectively referred to as “Ideas”). The Projects will usually be based on topics that a customer (“Customer”) of the Company has requested us to post for submission of Ideas. The Ideas may be commercialized, produced and sold by Napkin Labs, the Customer, or others.
The NapkinLabs.com web site and its associated services (the "Services") may be found at the domain and its related subdomains found at www.napkinlabs.com (that website and any successor website or other NapkinLabs website, is referred to as the "Website").
PLEASE READ THIS AGREEMENT CAREFULLY AS IT HAS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU MAY BE TRANSFERRING OWNERSHIP OF VALUABLE INTELLECTUAL PROPERTY RIGHTS TO NAPKIN LABS OR OTHERS. BY CLICKING “I AGREE” (BELOW) AND PRESSING THE SUBMIT BUTTON (BELOW) YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS ("Agreement").
We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice, provided, that those changes will only have prospective effect unless they are solely to: (i) reasonably and in good faith clarify an ambiguous term; (ii) reasonably and in good faith cause the terms of this Agreement to be enforceable according to its intent; or (iii) comply with a law, rule, regulation, court or arbitrator order, or code (“Law”). If we make changes, we will post the changes to this Agreement on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Website after any such changes constitutes your acceptance of the amended Agreement. If you do not agree to abide by this or any future or amended Agreement, do not use or access (or continue to use or access) the Website or the Services. It is your responsibility to regularly check the Website to determine if there have been changes to this Agreement and to review such changes.
You may not use the Website until you have created a user account and we have either asked you to join the Service or have notified you that we have accepted the opening of your user account. We may reject your user account opening or continuance for any reason or no reason. You are considered an Innovator for purposes of the Company enforcing rights against you whether or not your user account opening is accepted. However, if your user account opening is not accepted, you do not have any rights under this Agreement and you should not submit any Ideas. If you do submit any Ideas even though your account has not been accepted, the Company owns title to all the Ideas as described in the Section named “Title to Purchased Ideas and License to Unpurchased Ideas” below.
Participation in the Website is void where prohibited. Any registration by, use of, or access to the Website by anyone under 18 is forbidden. By using the Service or the Website, you represent and warrant that you are 18 or older, that this Agreement is binding on you.
Capitalized words used in this Agreement are defined terms.
1. 2. Treatment of Ideas
You acknowledge that: (i) by using the Website you will have access to Ideas provided by other Innovators and possibly information provided by the Company, a Customer, or others, and (ii) information on the Website (other than Ideas provided by you) may be provided under license by others. The Company may or may not pre-screen Ideas submitted by Innovators to the Website. You acknowledge that relative to you, the Company, Customers, and other Innovators may have rights in their respective Ideas and other information under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred to you and may not be used by you. You accept full responsibility and liability for your use of any Ideas in violation of any rights of others, and will promptly notify us if you use any Ideas in violation of the rights of others. You agree that your creation or submission of any Ideas is not in any way based upon any expectation of any specific level of compensation from the Company, Customers, or any other Innovators.
The Company and Customers have no obligation to use an Idea, continue any Project, commercialize any Idea, operate the Website in a particular fashion, allow a posting on the Website, continue its business, or return any Ideas. The Company may sell or license any Idea to any other person ((a “person” includes natural individuals, corporations, trusts, governmental bodies, and other enterprises, entities, agencies, or associations) , or reuse it for another reason or Project. In addition, sometimes we will take the Ideas and distill, refine or otherwise deal with them before delivering them to the Customer.
1. 3. Payments and Time for Payments.
Innovators are not paid anything by the Customer and the Customer has no liability to the Innovator. The Company will pay Inventor’s Payment Amounts at or within a few days of the end of each calendar quarter. If the Company has notified you of the amount of your Innovator’s Payment Amount less than 30 days before the end of a calendar quarter, the payment will be made in the next calendar quarter. The Company will pay on that schedule both to assure that the Customer has paid the Company (and the Company does not have to pay Innovators more than the Customer pays the Company if the Customer fails to fulfill its payment obligations to the Company) and to allow time for the Customer or others to become comfortable the Innovator’s Ideas do not infringe on the rights of others. If the Company believes there is infringement, lack of title, or a breach of this Agreement with respect to any Idea contribution by an Innovator, Company may withhold payment concerning the Project and any related Ideas submitted by any Innovator until that concern is resolved to the Company’s satisfaction. However, the Company, the Customer, and others do not have any obligation to review whether such infringement exists or the Innovator has a right to transfer title to the Idea, and a failure to assert a claim for infringement or lack of title before final payment is not a waiver of any claims.
The term “Innovator’s Payment Amount” means the amount the Company determines to remit to the Innovator for their contribution of Ideas towards the ultimate product delivered by the Company to the Customer. Each posting for a Project may contain information about how much in the aggregate may be paid to all Innovators for the particular Project, including whether there is a specific minimum percentage of the revenues the Customer pays the Company that the Company will pay Innovators and whether there are any milestones that must be met before any Innovator Payment Amounts will be paid.. We recommend you read this information before submitting Ideas as such information is hereby incorporated into this Agreement and binding upon you.
By the very nature of a Project and Ideas, it is not possible for the Company to precisely value each contribution made by an Innovator. In addition, there is no assurance the payment an Innovator will receive will bear any relationship to the true value of the Idea, how much time and effort the Innovator has spent, or other factors. Further, the Company will make payments based on its base compensation paid to it by a Customer. If the Company has an arrangement to receive contingent payments from a Customer, for example based on the success of the product or service in the market place, the Company does not expect the payments to the Innovator will include any of those contingent payments. There is no guarantee that you will ever receive any payments or actual compensation in connection with participating on the Website or providing Ideas. We make no representations or warranties (and hereby disclaim any such express or implied warranties) regarding any payments that may be earned in connection with use of the Website or the Service.
The Company will decide on the payments to be made to each Innovator within 30 days after the end of a Project, or a phase of the Project if the Website so specifies. The Website will state when a Project or Phase will end, and that date may change from time to time (the final date is the “End Date”). If within 45 days after the End Date you have not received notice that you are to receive an Innovator’s Payment Amount, but you believe you should receive one, you will notify the Company within 60 days after the End Date of that fact or you may not later assert a right to payment.
You are responsible for all taxes due on any payments made to you in connection with your participation on the Website. The Company will be under no obligation to make any payments to you unless you have properly completed the information required in the registration process, including any information regarding taxes. You agree you are not an employee of the Company and the Company does not have to pay or reserve any withholding taxes, FICA, FUTA, workers compensation fund, or other payments which it may have to make if you were an employee. You are not entitled to any Company benefits of any type. You are not a partner or joint venturer with the Company. If the Company believes it has an obligation to make tax, trust fund or similar payments to a governmental body in respect of payments to you, it may do so and deduct the amount from the amount paid to you.
1. 4. Fees.
Company has the right to charge you a fee for certain aspects or services provided by the Website. These fees and charges are described on the Website, and in the event you elect to use paid aspects of the Service, you agree to the pricing, payment and billing policies applicable to such fees and charges as posted from time to time on the Website. Company has the right to deduct any unpaid fees from any Innovator’s Payment Amount.
1. 5. Sign-Up Information; Account Security.
You represent, warrant and covenant that you have and will (i) provide accurate, current and complete information about you as may be prompted by any registration forms on the Website ("Sign-Up Information"); (ii) maintain the security of your password and identification; (iii) maintain and promptly update the Sign-Up Information, and any other identifying information you provide to the Company, to keep it accurate, current and complete; (iv) be responsible for all use of your account and for any actions that take place using your account; and (v) promptly notify the Company if you fail to do any of these things.
1. 6. License Granted Company for Unpurchased Ideas; Transfer of Title to Company for Purchased Ideas.
Whenever you post an Idea on the Website, you hereby automatically grant to the Company a royalty-free, worldwide, fully paid-up, transferrable, sublicensable, divisible, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, arrange, rearrange, display, transmit, market, sell, offer for sale, manufacture, import, prepare derivative works based on, distribute throughout the world (in any medium now known or hereafter created), publicize, and otherwise utilize or exploit in any fashion with your Idea including any and all Intellectual Property Rights (defined below) pertaining thereto. If the Company only obtains a non-exclusive license from you, you do not owe the Company any money for your own use or exploitation of the Ideas or account for any payments you receive, and similarly the Company does not need to pay over or account to you. This foregoing non-exclusive license is granted even if you do not receive an Innovators Payment Amount. In this Agreement the term “Intellectual Property Rights” means all statutory (whether state, United States Federal, or non-United States Law) and common law intellectual property rights of any kind, related to a work of authorship, recording, idea, discovery, invention, creation formula, algorithm, development or improvement, whether or not reduced to practice and whether or not patentable or protectable under any statute, including, without limitation, any and all trademark, service mark, mask work, copyright, rights of paternity, integrity, disclosure and withdrawal (sometimes referred to as “moral rights”), and patent and industrial rights.
Notwithstanding the foregoing, if you receive an Innovators Payment Amount of over $100 for an Idea, you hereby irrevocably and perpetually assign without further action by you, and agree to deliver such additional assignments or other instruments of transfer as may be reasonably requested by the Company, all of your right, title and interest in and to the Idea (and any related concepts, ideas, improvements and/or modifications thereto) including without limitation, all related Intellectual Property Rights and the right to sue and settle any past, present and future infringement of any such rights. If for any reason such assignment is not fully effective (by law or otherwise) , you hereby grant a license to Company in the Idea under the terms of the above paragraph, except that the license is exclusive. To the extent such Idea or related Intellectual Property Rights cannot be assigned or licensed, by law or otherwise, you hereby waive enforcement of such rights against Company, its successors, assigns and licensees. You further agree that you will not make any claims against the Company or any third party who is assigned or licensed rights in such Idea by the Company, based on any allegations that any activities by the Company or such third party infringe your (or anyone else's) Intellectual Property Rights in the Idea. You further represent, warrant and covenant that in connection with any such assignment you reserve no (and are unaware of any other party having any) rights whatsoever with respect to such Ideas and related Intellectual Property Rights and the Company will have the right to enforce all Intellectual Property Rights in the Idea against you and all other persons with respect to any subsequent use by you of such Idea. You will not claim that the amount of the Innovators Payment Amount was less than a fair amount or that it was not adequate.
You will assist the Company in perfecting, maintaining, enforcing and defending its rights in Ideas it obtains from you, including without limitation, signing patent applications, patent assignments, copyright registrations, giving testimony and the like. If the Company requests you to do these things and it will take more than two hours, Company will pay you your “market rate” (but not more than $50.00 per hour) for your reasonably time spent on such activities.
As to purchased Ideas, you hereby irrevocably designate and appoint the Company and its officers and agents, as your agent and attorney-in-fact to act for and on your behalf and instead of you, to execute and file any documents, applications or related findings and to do all other lawfully permitted acts in furtherance of the purposes set forth above in this Agreement, including, without limitation, the perfection of assignment and the prosecution and issuance of patents, patent applications, copyright applications and registrations, trademark applications and registrations, or other rights in connection with such Ideas and improvements thereto with the same legal force and effect as if executed by you.
Company has the right to have the provisions of this Section specifically enforced by either the Company or any third party who is assigned or licensed rights in such Ideas by the Company, and any such third party is intended to be a third party beneficiary of this provision.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Idea; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Website, including without limitation any legal consequences relating to your or any other person's Intellectual Property Rights or Proprietary Information; and (iii) you represent and warrant that your Idea does not infringe on any rights of others including Intellectual Property rights, was not misappropriated from or assigned to another person, and (iv) you have the right to grant the licenses provided for herein and transfer the title to the Idea and related Intellectual Property Rights provided for herein.
The assignment by Innovator of title to Ideas and the related Intellectual Property Rights is not contingent on any particular amount (over $100) of Innovator’s Payment Amount being paid. If after the Company delivers notice to you of the amount of your Innovator’s Payment Amount, and the Company does not in fact pay that amount (except for amounts offset for obligations of the Innovator to the Company or because the Innovator has breached a representation or warranty in this Agreement), the transfer of title to the Idea and the related Intellectual Property Rights is void. If an Innovator believes the Company has not made such a payment and believes the transfer of title is void, the Innovator will notify the Company of that fact within 75 days after the Company notifies the Innovator of the amount of the Innovator’s Payment Amount or the Innovator is barred from asserting title did not pass. Further, within 15 days after delivery of that notice the Company may cure any default in making payment by tendering payment to the Innovator.
1. 7. Confidentiality;
We and our Customers will be providing information to you, on the understanding that such information will remain confidential. "Confidential Information" means any and all technical or business data, information or items (including third party data, information or items) in whatever form or medium, provided by Company or its Customers to you or posted on the Website by others (including without limitation, Ideas posted by other Innovators) regardless of whether such data, information or items are marked or identified as “Confidential”.
You will: (1) treat as confidential, and preserve the confidentiality of, all Confidential Information; (2) use the Confidential Information solely for generating Ideas solely to be posted on the Website; (3) not copy such Confidential Information unless specifically authorized by Company; (5) promptly return and/or destroy all Confidential Information at Company’s request; and (6) immediately notify Company upon discovery of any loss or unauthorized disclosure of any Confidential Information and use all reasonable efforts to retrieve such Confidential Information.
The confidentiality obligations imposed by this Agreement will not apply to any information that: (1) was already in your possession shown by documentation; (2) is or becomes publicly available through no fault of your own; (3) is obtained by you from a third person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed; or (4) information that is required to be disclosed pursuant to a valid judicial or administrative order, provided that you: (i) provide timely written notice of such order to Company and reasonably cooperates with any efforts by Company to contest or limit the scope of such order; and (ii) use all reasonable efforts to limit the disclosure of such Confidential Information and seek a protective order or an equivalent to protect the disclosure of such Confidential Information. Information will not be deemed to be within the foregoing exceptions merely because it is: embraced by more general information in the public domain or in the possession of the party receiving such information; or a combination of individual items of information that could be pieced together to reconstruct such combination from non-Confidential Information.
1. 8. Proper Use of Website; Prohibited Conduct
You agree you will not misuse the Website or the Service, or take other inappropriate actions whether or not concerning the Website, including (but not limited to) by: (i) using robots or transmitting viruses; (ii) posting any item that violates the rights of others; (iii) making misstatements about who you are or who you are affiliated with; (iv) allowing others to use the Website and Service; (v) contacting Customers directly for any reason whether or not through the medium of the Website; (vi) disclosing confidential information of a Customer or other person or the nature of Projects; (vii) using the Website or Service, or contact information you learn from the Website or Service, for your own advertising or spamming; (viii) posting any information or making any statements unrelated to the Project; (ix) contacting other Innovators to collaborate on a development or Project outside the Website and the Service or to form a competing business whether or not for profit(x) removing anythingfrom the Website or modifying it; (xi) taking any action that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (xii) modifying, adapting, reverse engineering, decompiling or attempting to discover the source code of the Website; (xiii) interfering with or disrupting the Website, Service or servers or networks connected to the Service, or disobeying any requirements, procedures, policies or regulations of networks connected to the Service; (xiv) attempting to gain access to any other Innovator's account or password; (xv) "stalking", abusing or attempting to abuse, or otherwise harassing another user; or (xvi) dealing with a Customer to “end run” the Company and cause the Company not to be fully involved with the Project or future Projects a Customer may otherwise engage the Company to perform.. The Company may use its subjective judgment as to any of the foregoing, and notwithstanding the foregoing specific list, any license we grant you under this Agreement, or other rights under this Agreement (other than the right to payments of Innovators Payment Amounts already declared by the Company) are revocable at any time by the Company without notice and with or without cause. A revocation of that license or those rights does not terminate any (i) license you have granted the Company, (ii) transfer by you of title to any Idea or Intellectual Property Right, or (iii) obligation to take future actions described under the Section named “Title to Purchased Ideas and License to Unpurchased Ideas”.
1. 9. Others Intellectual Property Rights; Let Us Know About Infringement.
We respect the intellectual property rights of others and we contractually prohibit Innovators from uploading, posting or otherwise transmitting on the Website or via the Service any materials that violate another party's Intellectual Property Rights or that constitutes another person's Proprietary Information (and you represent, warrant and covenant that you will not do so). You will immediately notify us if you believe another person who is posting Ideas on the Website is infringing another person’s Intellectual Property Rights or has misappropriated an Idea from another person. You will not make a claim against us, or another Innovator or person, if they tell us they believe you are infringing another person’s rights or misappropriated another person’s intellectual property. If you learn you have done so, you will immediately notify us, and if you believe another person via activities related to the Website is infringing your Intellectual Property Rights or has misappropriated your Ideas, you will notify us immediately. You represent, warrant and covenant that another Innovator has not infringed upon or misappropriated your Idea by commenting on it, building on it, or modifying it, pursuant to the Service as that is the very concept behind the Service.
1. 10. Our Intellectual Property
Except as explicitly provided herein, we reserve and retain all title and other rights to our Website and the Services, including all Intellectual Property Rights. As between you and other persons providing information, or function, or appearance on the Website, you are not granted a license to that information, function or appearance by that person except as you may separately agree with that person or as specifically provided in this Agreement.
You may not use, reproduce, modify, arrange, rearrange, display, transmit, market, sell, offer for sale, manufacture, import, prepare derivative works based on, distribute anywhere inthe world (in any medium now known or hereafter created), publicize, and otherwise utilize or exploit in any fashion any Ideas found on the Website including the look and feel of the Website, without the consent of the holder of the related rights. You may use the Ideas and the Website solely for the purpose of providing Ideas related to a Project pursuant to the terms of this Agreement.
Provided that you are eligible for use of the Website, you are granted a limited license to access and use the Website and the Ideas and to download or print a copy of any portion of the Ideas to which you have properly gained access solely for your own personal use, in connection with participating on the Website, for a Project, prior to the End Date. You may not upload or republish Ideas on any medium or incorporate the information in any other database or compilation, except for your own Ideas which are not purchased by the Company as described herein, and any other use of the Ideas is strictly prohibited. Such license is subject to this Agreement and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Website or the Website Ideas other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes.
Unless explicitly stated herein, nothing in this Agreement will be construed as conferring to you any license to our or another’s Intellectual Property Rights. We, our Customers, and our licensors, retain all right, title and interest in our or their marks, inventions and other intellectual property related to or appearing on the Website and the Service. You are not granted a license to use those things.
1. 11. We Do Not Necessarily Monitor Innovator Postings.
Napkin Labs is not responsible or liable in any manner for any Idea posted on the Website or in connection with the Service. Although we provide rules for Innovator conduct and postings, we do not control and are not responsible for what Innovators post, transmit or share on the Website and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable Ideas you may encounter on the Website or in connection with any Idea or other posting. The Company is not responsible for the conduct, whether online or offline, of any Innovator or the Customer.
1. 12. Disputes Between Innovators.
You hereby release Napkin Labs (and Napkin Labs' shareholders, affiliates, directors, officers, subsidiaries, employees, owners and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Innovators or a Customer; including, without limitation, any claim that another Innovator infringes upon your Intellectual Property Rights or misappropriated your Ideas. You further understand and agree that: (i) Napkin Labs will have the right but not the obligation to resolve disputes between Innovators relating to the Service, and Napkin Labs' resolution of any particular dispute does not create an obligation to resolve any other dispute; (ii) Napkin Labs' resolution of such disputes will be final and non-appealable with respect to the Website, the grant of a license or title to Ideas and related Intellectual Property under this Agreement, or the allocation of any payments due to Innovators, but will have no other bearing on disputes between Innovators; and (iii) you hereby release Napkin Labs (and Napkin Labs' shareholders, affiliates, directors, officers, subsidiaries, employees, owners and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Napkin Labs' resolution of disputes relating to the Website or the Service.
For purposes of all waivers of claims in this Agreement, Innovator has read and specifically waives Section 1542 of the Civil Code of the State of California, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
We are not responsible for Customer use of any Ideas and we do not screen or otherwise assure that a Customer’s request for a Project does not violate Laws or rights of another person.
Napkin Labs generally does not regulate communications between Innovators or Innovators' interactions with the Service. As a result, Napkin Labs has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of Ideas provided by Innovators. Nonetheless, Napkin Labs reserves the right to monitor and/or limit anything posted by an Innovator to the Website, including Ideas..
1. 13. All Goods and Services are Provided "as is" Without Express or Implied Warranties.
NAPKIN LABS PROVIDES THE WEBSITE, THE SERVICE, YOUR ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, BY SAMPLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the Service, the Website or your account, and you understand that you are not entitled to make any claim based on Napkin Labs' failure to provide any of the foregoing..
Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.
1. 14. Napkin Labs' Liability To You Is Expressly Limited, To The Extent Allowable Under Applicable Law.
IN NO EVENT SHALL NAPKIN LABS OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OWNERS, LENDERS, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE OR THE WEBSITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL NAPKIN LABS' CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE THOUSAND DOLLARS (U.S. $1,000), PROVIDED THAT THE LIABILITY FOR A FAILURE TO PAY A INNOVATOR’S PAYMENT AMOUNT THAT HAS BEEN DECLARED BY THE COMPANY IS THE AMOUNT OF THAT DECLARED INNOVATOR’S PAYMENT AMOUNT.
The Company is not liable to you if any information provided by others or Ideas on the Website (i) is not accurate or complete, (ii) is illegally provided, or (iii) infringes rights of others.
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you.
1. 15. Indemnification by You.
You hereby agree to defend, indemnify and hold harmless Napkin Labs, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, owners, customers, suppliers, licensees, distributors, successors and assigns, and other Innovators, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of this Agreement by you, from your use of the Service, and any claims by third parties that your activity on or related to the Website or Ideas infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.
1. 16. Privacy Policy.
The personal information you provide to us during registration is used for the Company's internal purposes only. However, we may provide our Customer the name and contact information of persons who provided a certain Idea or contributed to the development of an Idea. Napkin Labs also uses the information it collects to learn what you like and to improve the Service. Napkin Labs will not give any of your personal information to any third party without your express approval except: as reasonably necessary to fulfill your service request, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to comply with tax and other applicable law including money laundering or anti-terrorism laws; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; or as otherwise necessary to protect the Company, its agents and other users of the Service. Napkin Labs does not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. Napkin Labs can (and you authorize Napkin Labs to) disclose any information about you to private entities, law enforcement agencies or government officials, as Napkin Labs, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. You agree that Napkin Labs may communicate with you via email and any similar technology for any purpose relating to the Website. You acknowledge and agree that Napkin Labs, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Service. The Company may share general, demographic, or aggregated information with third parties about its Innovators and their Ideas and Website usage, but that information will not include or be linked to any personal identifiable information without your consent.
We may request your permission to give your name and/or qualifications to a Customer or potential Customer.
You agree we may give our Customers, potential Customers, or others, general demographic information on the numbers, qualifications, history, education levels, and activity levels of Innovator groups, but will not provide information that is specific to a particular Innovator or that specifically identifies you, except as provided in this Section.
1. 17. Dispute Resolution; Governing Law; Venue and Jurisdiction.
The laws of the state of Colorado and United States Federal law govern this Agreement, without giving effect to any principles of conflicts of laws that would result in application of another law. You agree that any action arising out of or related to this Agreement, Ideas, the Website or the Service, will be submitted to arbitration in Boulder or Denver, Colorado. Arbitration under this Agreement will be conducted under the commercial arbitration rules of the American Arbitration Association. The arbitrator shall apply the substantive law of the state of Colorado and United States Federal law. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction, and may be appealed to a court only as permitted by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.).
Notwithstanding the foregoing, Napkin Labs may seek preliminary or temporary injunctive relief (which will remain in effect until the entering into of a binding, non-appealable, enforceable arbitration award as provided immediately above) to enforce the terms of this Agreement or enforce its intellectual property rights, in any state or federal court in the state of Colorado, or such other venue as it may select where you have significant contacts or reside, and you consent to exclusive jurisdiction and venue in such courts.
1. 18. Payment Transfers.
Napkin Labs or its affiliates will generally process all payments to be made to Innovators through PayPal (the "Payment Service"), but reserves the right to pay by written check. Payments to Innovators made through the Payment Service may be disbursed only in accordance with the terms outlined below. When Innovators register with the Website, Innovators will provide to the Company the Innovator’s name and e-mail address. If the Innovator’s name and e-mail address are not correct, the Innovator may not receive payment. Innovators may not share an e-mail address. Innovators will receive a payment notification via e-mail (“Payment Notification”). To claim their payment amount, Innovators must click the link received in the Payment Notification. An Innovator may be asked to sign up for a PayPal account and consent to certain PayPal terms and conditions. An Innovator must consent to any terms and conditions requested by PayPal prior to receiving payment. Payments will be made in U.S. currency, unless otherwise requested by Innovator and agreed to by the Company. Napkin Labs is not responsible for any changes or adjustments in currency exchange rates, and each Innovator agrees that Napkin Labs’ determinations of any currency exchange rate will be final and binding. Interest will not be paid on any payment amount. Funds will only be disbursed in compliance with PayPal terms and conditions and applicable laws and regulations, including without limitation the United States Patriot Act and the regulations of the Office of Foreign Assets Control.
The Company will not be liable if the Company or PayPal is not able to complete a transaction for any reason, including, but not limited to: (i) if any system or equipment was not working properly and you knew or had been advised about the breakdown before you initiated the transaction; (ii) if circumstances beyond the Company’s and/or PayPal’s control (such as, but not limited to, power outages, fire, flood, mechanical or systems failure) prevent the proper execution of the transaction; (iii) if your transaction is intercepted by legal process or other encumbrances restricting transfer, or your participation in the Website or PayPal has been terminated or suspended for security purposes; (iv) if the Company is unable to confirm your identity or have reason to believe that the transfer requested is unauthorized; or (v) if you have not provided us with correct, current and complete payment information. The Company is not liable for any damages resulting from your relationship with PayPal or any information disclosed to PayPal by an Innovator.
If you believe that any payment transaction initiated by Napkin Labs (or PayPal) is erroneous, or if you need more information about any such transaction, you should contact Napkin Labs as soon as possible.
1. 19. General Provisions.
The Website and the Service is controlled and operated by Napkin Labs from its offices within the United States of America. The Company makes no representation that any aspect of the Service is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable local laws. You will comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Service and its use. The Company's failure to act with respect to a breach by you or others does not waive Napkin Labs' right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Napkin Labs under this Agreement will beis effective unless delivered in a writing signed (which may include email signature) by an officer of the Company. All or any of Napkin Labs' rights and obligations under this Agreement may be assigned by it, including, but limited, to a subsequent owner or operator of the Website and/or the Service in a merger, acquisition or sale of any or all of the Company's assets. We may assign any or all of our rights and obligations to one or more persons. You will not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of the Company, and any attempt to do so is void. No default, delay or failure to perform on the part of Napkin Labs will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Napkin Labs. Even if the exact task is not set forth in this Agreement, you will take such reasonable further actions as are reasonably necessary to accomplish the purposes of your obligations under this Agreement.
Except as explicitly providing in this Agreement, nothing contained in this Agreement will be construed as creating a relationship between the parties of partners, joint venturers, or agents, and neither party has the power to bind the other to any contract or commitment.
If any part of this Agreement is for any reason declared invalid or unenforceable, such decision will not affect the validity of any remaining portion of the Agreement, which will remain in full force and effect. In such an event, the parties will promptly substitute for the invalid provision a valid and enforceable provision which most closely approximates the intent and economic effect of the invalid provision.
We may assign to a Customer a right to enforce some or all our rights against you for breaches of this Agreement. Among other things this means a Customer can directly sue you for breaching the obligations to maintain the confidentiality of its information. A Customer may elect to enforce these rights in an arbitration conducted pursuant to the arbitration provisions of this Agreement or enforce its rights in a court.
This Agreement sets forth the entire understanding and agreement between you and Napkin Labs with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. There are no third party beneficiaries of this Agreement.
This Agreement will continue until terminated by either you or us upon written notice. The following sections survive the expiration or termination of this Agreement: 2, 3, 5-10, 12-19.
If you fail to bring any claim for breach of this Agreement by the Company within one year of the alleged breach, you agree that such claim may not be brought.
The Website is owned by us and you do not have any rights in it.
Napkin Labs has the right, but not the obligation, to remove any Ideas, data, or other information (including your Ideas or accountant information) in whole or in part at any time for any reason or no reason, with or without notice and without any liability of any kind.
Napkin Labs reserves the right to interrupt the operation of the Website with or without prior notice for any reason or no reason. Napkin Labs will not be liable for any interruption of the Website, delay or failure to perform. Napkin Labs has the right at any time for any reason or no reason to change and/or eliminate all or any part of the Website, the Service, or a Project, as it sees fit in its sole discretion.
Napkin Labs may give notice to you by means of a general notice on our Website, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. You will email all notices given by you to us at legalnotice@napkinlabs.com.
I understand and agree that by creating a profile on napkinlabs.com/thelab, napkinlabs.ning.com or thelab.napkinlabs.com that I am providing an electronic signature and entering into a legally binding agreement, the equivalent of a signed, written contract, the terms and conditions of which are set forth above.
1. 1. Parties and Description of the Services
Napkinlabs.com, is a web site that lets users such as yourself (“Innovators”) submit ideas, comments or Ideas (collectively “Ideas”) regarding a problem or project (“Project”) that Napkin Labs, Inc., a Delaware corporation, or its affiliates (which are referred to as "Napkin Labs", "us", "we" or "the Company"), has posted on the Website (defined below). Often the Website will allow the Napkin Labs community of Innovators (the "Network") to interact, question, comment, propose problems, suggestions and/or ideas (such interaction, questions, comments, problems, suggestions and/or ideas is collectively referred to as “Ideas”). The Projects will usually be based on topics that a customer (“Customer”) of the Company has requested us to post for submission of Ideas. The Ideas may be commercialized, produced and sold by Napkin Labs, the Customer, or others.
The NapkinLabs.com web site and its associated services (the "Services") may be found at the domain and its related subdomains found at www.napkinlabs.com (that website and any successor website or other NapkinLabs website, is referred to as the "Website").
PLEASE READ THIS AGREEMENT CAREFULLY AS IT HAS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU MAY BE TRANSFERRING OWNERSHIP OF VALUABLE INTELLECTUAL PROPERTY RIGHTS TO NAPKIN LABS OR OTHERS. BY CLICKING “I AGREE” (BELOW) AND PRESSING THE SUBMIT BUTTON (BELOW) YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS ("Agreement").
We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice, provided, that those changes will only have prospective effect unless they are solely to: (i) reasonably and in good faith clarify an ambiguous term; (ii) reasonably and in good faith cause the terms of this Agreement to be enforceable according to its intent; or (iii) comply with a law, rule, regulation, court or arbitrator order, or code (“Law”). If we make changes, we will post the changes to this Agreement on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Website after any such changes constitutes your acceptance of the amended Agreement. If you do not agree to abide by this or any future or amended Agreement, do not use or access (or continue to use or access) the Website or the Services. It is your responsibility to regularly check the Website to determine if there have been changes to this Agreement and to review such changes.
You may not use the Website until you have created a user account and we have either asked you to join the Service or have notified you that we have accepted the opening of your user account. We may reject your user account opening or continuance for any reason or no reason. You are considered an Innovator for purposes of the Company enforcing rights against you whether or not your user account opening is accepted. However, if your user account opening is not accepted, you do not have any rights under this Agreement and you should not submit any Ideas. If you do submit any Ideas even though your account has not been accepted, the Company owns title to all the Ideas as described in the Section named “Title to Purchased Ideas and License to Unpurchased Ideas” below.
Participation in the Website is void where prohibited. Any registration by, use of, or access to the Website by anyone under 18 is forbidden. By using the Service or the Website, you represent and warrant that you are 18 or older, that this Agreement is binding on you.
Capitalized words used in this Agreement are defined terms.
1. 2. Treatment of Ideas
You acknowledge that: (i) by using the Website you will have access to Ideas provided by other Innovators and possibly information provided by the Company, a Customer, or others, and (ii) information on the Website (other than Ideas provided by you) may be provided under license by others. The Company may or may not pre-screen Ideas submitted by Innovators to the Website. You acknowledge that relative to you, the Company, Customers, and other Innovators may have rights in their respective Ideas and other information under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred to you and may not be used by you. You accept full responsibility and liability for your use of any Ideas in violation of any rights of others, and will promptly notify us if you use any Ideas in violation of the rights of others. You agree that your creation or submission of any Ideas is not in any way based upon any expectation of any specific level of compensation from the Company, Customers, or any other Innovators.
The Company and Customers have no obligation to use an Idea, continue any Project, commercialize any Idea, operate the Website in a particular fashion, allow a posting on the Website, continue its business, or return any Ideas. The Company may sell or license any Idea to any other person ((a “person” includes natural individuals, corporations, trusts, governmental bodies, and other enterprises, entities, agencies, or associations) , or reuse it for another reason or Project. In addition, sometimes we will take the Ideas and distill, refine or otherwise deal with them before delivering them to the Customer.
1. 3. Payments and Time for Payments.
Innovators are not paid anything by the Customer and the Customer has no liability to the Innovator. The Company will pay Inventor’s Payment Amounts at or within a few days of the end of each calendar quarter. If the Company has notified you of the amount of your Innovator’s Payment Amount less than 30 days before the end of a calendar quarter, the payment will be made in the next calendar quarter. The Company will pay on that schedule both to assure that the Customer has paid the Company (and the Company does not have to pay Innovators more than the Customer pays the Company if the Customer fails to fulfill its payment obligations to the Company) and to allow time for the Customer or others to become comfortable the Innovator’s Ideas do not infringe on the rights of others. If the Company believes there is infringement, lack of title, or a breach of this Agreement with respect to any Idea contribution by an Innovator, Company may withhold payment concerning the Project and any related Ideas submitted by any Innovator until that concern is resolved to the Company’s satisfaction. However, the Company, the Customer, and others do not have any obligation to review whether such infringement exists or the Innovator has a right to transfer title to the Idea, and a failure to assert a claim for infringement or lack of title before final payment is not a waiver of any claims.
The term “Innovator’s Payment Amount” means the amount the Company determines to remit to the Innovator for their contribution of Ideas towards the ultimate product delivered by the Company to the Customer. Each posting for a Project may contain information about how much in the aggregate may be paid to all Innovators for the particular Project, including whether there is a specific minimum percentage of the revenues the Customer pays the Company that the Company will pay Innovators and whether there are any milestones that must be met before any Innovator Payment Amounts will be paid.. We recommend you read this information before submitting Ideas as such information is hereby incorporated into this Agreement and binding upon you.
By the very nature of a Project and Ideas, it is not possible for the Company to precisely value each contribution made by an Innovator. In addition, there is no assurance the payment an Innovator will receive will bear any relationship to the true value of the Idea, how much time and effort the Innovator has spent, or other factors. Further, the Company will make payments based on its base compensation paid to it by a Customer. If the Company has an arrangement to receive contingent payments from a Customer, for example based on the success of the product or service in the market place, the Company does not expect the payments to the Innovator will include any of those contingent payments. There is no guarantee that you will ever receive any payments or actual compensation in connection with participating on the Website or providing Ideas. We make no representations or warranties (and hereby disclaim any such express or implied warranties) regarding any payments that may be earned in connection with use of the Website or the Service.
The Company will decide on the payments to be made to each Innovator within 30 days after the end of a Project, or a phase of the Project if the Website so specifies. The Website will state when a Project or Phase will end, and that date may change from time to time (the final date is the “End Date”). If within 45 days after the End Date you have not received notice that you are to receive an Innovator’s Payment Amount, but you believe you should receive one, you will notify the Company within 60 days after the End Date of that fact or you may not later assert a right to payment.
You are responsible for all taxes due on any payments made to you in connection with your participation on the Website. The Company will be under no obligation to make any payments to you unless you have properly completed the information required in the registration process, including any information regarding taxes. You agree you are not an employee of the Company and the Company does not have to pay or reserve any withholding taxes, FICA, FUTA, workers compensation fund, or other payments which it may have to make if you were an employee. You are not entitled to any Company benefits of any type. You are not a partner or joint venturer with the Company. If the Company believes it has an obligation to make tax, trust fund or similar payments to a governmental body in respect of payments to you, it may do so and deduct the amount from the amount paid to you.
1. 4. Fees.
Company has the right to charge you a fee for certain aspects or services provided by the Website. These fees and charges are described on the Website, and in the event you elect to use paid aspects of the Service, you agree to the pricing, payment and billing policies applicable to such fees and charges as posted from time to time on the Website. Company has the right to deduct any unpaid fees from any Innovator’s Payment Amount.
1. 5. Sign-Up Information; Account Security.
You represent, warrant and covenant that you have and will (i) provide accurate, current and complete information about you as may be prompted by any registration forms on the Website ("Sign-Up Information"); (ii) maintain the security of your password and identification; (iii) maintain and promptly update the Sign-Up Information, and any other identifying information you provide to the Company, to keep it accurate, current and complete; (iv) be responsible for all use of your account and for any actions that take place using your account; and (v) promptly notify the Company if you fail to do any of these things.
1. 6. License Granted Company for Unpurchased Ideas; Transfer of Title to Company for Purchased Ideas.
Whenever you post an Idea on the Website, you hereby automatically grant to the Company a royalty-free, worldwide, fully paid-up, transferrable, sublicensable, divisible, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, arrange, rearrange, display, transmit, market, sell, offer for sale, manufacture, import, prepare derivative works based on, distribute throughout the world (in any medium now known or hereafter created), publicize, and otherwise utilize or exploit in any fashion with your Idea including any and all Intellectual Property Rights (defined below) pertaining thereto. If the Company only obtains a non-exclusive license from you, you do not owe the Company any money for your own use or exploitation of the Ideas or account for any payments you receive, and similarly the Company does not need to pay over or account to you. This foregoing non-exclusive license is granted even if you do not receive an Innovators Payment Amount. In this Agreement the term “Intellectual Property Rights” means all statutory (whether state, United States Federal, or non-United States Law) and common law intellectual property rights of any kind, related to a work of authorship, recording, idea, discovery, invention, creation formula, algorithm, development or improvement, whether or not reduced to practice and whether or not patentable or protectable under any statute, including, without limitation, any and all trademark, service mark, mask work, copyright, rights of paternity, integrity, disclosure and withdrawal (sometimes referred to as “moral rights”), and patent and industrial rights.
Notwithstanding the foregoing, if you receive an Innovators Payment Amount of over $100 for an Idea, you hereby irrevocably and perpetually assign without further action by you, and agree to deliver such additional assignments or other instruments of transfer as may be reasonably requested by the Company, all of your right, title and interest in and to the Idea (and any related concepts, ideas, improvements and/or modifications thereto) including without limitation, all related Intellectual Property Rights and the right to sue and settle any past, present and future infringement of any such rights. If for any reason such assignment is not fully effective (by law or otherwise) , you hereby grant a license to Company in the Idea under the terms of the above paragraph, except that the license is exclusive. To the extent such Idea or related Intellectual Property Rights cannot be assigned or licensed, by law or otherwise, you hereby waive enforcement of such rights against Company, its successors, assigns and licensees. You further agree that you will not make any claims against the Company or any third party who is assigned or licensed rights in such Idea by the Company, based on any allegations that any activities by the Company or such third party infringe your (or anyone else's) Intellectual Property Rights in the Idea. You further represent, warrant and covenant that in connection with any such assignment you reserve no (and are unaware of any other party having any) rights whatsoever with respect to such Ideas and related Intellectual Property Rights and the Company will have the right to enforce all Intellectual Property Rights in the Idea against you and all other persons with respect to any subsequent use by you of such Idea. You will not claim that the amount of the Innovators Payment Amount was less than a fair amount or that it was not adequate.
You will assist the Company in perfecting, maintaining, enforcing and defending its rights in Ideas it obtains from you, including without limitation, signing patent applications, patent assignments, copyright registrations, giving testimony and the like. If the Company requests you to do these things and it will take more than two hours, Company will pay you your “market rate” (but not more than $50.00 per hour) for your reasonably time spent on such activities.
As to purchased Ideas, you hereby irrevocably designate and appoint the Company and its officers and agents, as your agent and attorney-in-fact to act for and on your behalf and instead of you, to execute and file any documents, applications or related findings and to do all other lawfully permitted acts in furtherance of the purposes set forth above in this Agreement, including, without limitation, the perfection of assignment and the prosecution and issuance of patents, patent applications, copyright applications and registrations, trademark applications and registrations, or other rights in connection with such Ideas and improvements thereto with the same legal force and effect as if executed by you.
Company has the right to have the provisions of this Section specifically enforced by either the Company or any third party who is assigned or licensed rights in such Ideas by the Company, and any such third party is intended to be a third party beneficiary of this provision.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Idea; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Website, including without limitation any legal consequences relating to your or any other person's Intellectual Property Rights or Proprietary Information; and (iii) you represent and warrant that your Idea does not infringe on any rights of others including Intellectual Property rights, was not misappropriated from or assigned to another person, and (iv) you have the right to grant the licenses provided for herein and transfer the title to the Idea and related Intellectual Property Rights provided for herein.
The assignment by Innovator of title to Ideas and the related Intellectual Property Rights is not contingent on any particular amount (over $100) of Innovator’s Payment Amount being paid. If after the Company delivers notice to you of the amount of your Innovator’s Payment Amount, and the Company does not in fact pay that amount (except for amounts offset for obligations of the Innovator to the Company or because the Innovator has breached a representation or warranty in this Agreement), the transfer of title to the Idea and the related Intellectual Property Rights is void. If an Innovator believes the Company has not made such a payment and believes the transfer of title is void, the Innovator will notify the Company of that fact within 75 days after the Company notifies the Innovator of the amount of the Innovator’s Payment Amount or the Innovator is barred from asserting title did not pass. Further, within 15 days after delivery of that notice the Company may cure any default in making payment by tendering payment to the Innovator.
1. 7. Confidentiality;
We and our Customers will be providing information to you, on the understanding that such information will remain confidential. "Confidential Information" means any and all technical or business data, information or items (including third party data, information or items) in whatever form or medium, provided by Company or its Customers to you or posted on the Website by others (including without limitation, Ideas posted by other Innovators) regardless of whether such data, information or items are marked or identified as “Confidential”.
You will: (1) treat as confidential, and preserve the confidentiality of, all Confidential Information; (2) use the Confidential Information solely for generating Ideas solely to be posted on the Website; (3) not copy such Confidential Information unless specifically authorized by Company; (5) promptly return and/or destroy all Confidential Information at Company’s request; and (6) immediately notify Company upon discovery of any loss or unauthorized disclosure of any Confidential Information and use all reasonable efforts to retrieve such Confidential Information.
The confidentiality obligations imposed by this Agreement will not apply to any information that: (1) was already in your possession shown by documentation; (2) is or becomes publicly available through no fault of your own; (3) is obtained by you from a third person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed; or (4) information that is required to be disclosed pursuant to a valid judicial or administrative order, provided that you: (i) provide timely written notice of such order to Company and reasonably cooperates with any efforts by Company to contest or limit the scope of such order; and (ii) use all reasonable efforts to limit the disclosure of such Confidential Information and seek a protective order or an equivalent to protect the disclosure of such Confidential Information. Information will not be deemed to be within the foregoing exceptions merely because it is: embraced by more general information in the public domain or in the possession of the party receiving such information; or a combination of individual items of information that could be pieced together to reconstruct such combination from non-Confidential Information.
1. 8. Proper Use of Website; Prohibited Conduct
You agree you will not misuse the Website or the Service, or take other inappropriate actions whether or not concerning the Website, including (but not limited to) by: (i) using robots or transmitting viruses; (ii) posting any item that violates the rights of others; (iii) making misstatements about who you are or who you are affiliated with; (iv) allowing others to use the Website and Service; (v) contacting Customers directly for any reason whether or not through the medium of the Website; (vi) disclosing confidential information of a Customer or other person or the nature of Projects; (vii) using the Website or Service, or contact information you learn from the Website or Service, for your own advertising or spamming; (viii) posting any information or making any statements unrelated to the Project; (ix) contacting other Innovators to collaborate on a development or Project outside the Website and the Service or to form a competing business whether or not for profit(x) removing anythingfrom the Website or modifying it; (xi) taking any action that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (xii) modifying, adapting, reverse engineering, decompiling or attempting to discover the source code of the Website; (xiii) interfering with or disrupting the Website, Service or servers or networks connected to the Service, or disobeying any requirements, procedures, policies or regulations of networks connected to the Service; (xiv) attempting to gain access to any other Innovator's account or password; (xv) "stalking", abusing or attempting to abuse, or otherwise harassing another user; or (xvi) dealing with a Customer to “end run” the Company and cause the Company not to be fully involved with the Project or future Projects a Customer may otherwise engage the Company to perform.. The Company may use its subjective judgment as to any of the foregoing, and notwithstanding the foregoing specific list, any license we grant you under this Agreement, or other rights under this Agreement (other than the right to payments of Innovators Payment Amounts already declared by the Company) are revocable at any time by the Company without notice and with or without cause. A revocation of that license or those rights does not terminate any (i) license you have granted the Company, (ii) transfer by you of title to any Idea or Intellectual Property Right, or (iii) obligation to take future actions described under the Section named “Title to Purchased Ideas and License to Unpurchased Ideas”.
1. 9. Others Intellectual Property Rights; Let Us Know About Infringement.
We respect the intellectual property rights of others and we contractually prohibit Innovators from uploading, posting or otherwise transmitting on the Website or via the Service any materials that violate another party's Intellectual Property Rights or that constitutes another person's Proprietary Information (and you represent, warrant and covenant that you will not do so). You will immediately notify us if you believe another person who is posting Ideas on the Website is infringing another person’s Intellectual Property Rights or has misappropriated an Idea from another person. You will not make a claim against us, or another Innovator or person, if they tell us they believe you are infringing another person’s rights or misappropriated another person’s intellectual property. If you learn you have done so, you will immediately notify us, and if you believe another person via activities related to the Website is infringing your Intellectual Property Rights or has misappropriated your Ideas, you will notify us immediately. You represent, warrant and covenant that another Innovator has not infringed upon or misappropriated your Idea by commenting on it, building on it, or modifying it, pursuant to the Service as that is the very concept behind the Service.
1. 10. Our Intellectual Property
Except as explicitly provided herein, we reserve and retain all title and other rights to our Website and the Services, including all Intellectual Property Rights. As between you and other persons providing information, or function, or appearance on the Website, you are not granted a license to that information, function or appearance by that person except as you may separately agree with that person or as specifically provided in this Agreement.
You may not use, reproduce, modify, arrange, rearrange, display, transmit, market, sell, offer for sale, manufacture, import, prepare derivative works based on, distribute anywhere inthe world (in any medium now known or hereafter created), publicize, and otherwise utilize or exploit in any fashion any Ideas found on the Website including the look and feel of the Website, without the consent of the holder of the related rights. You may use the Ideas and the Website solely for the purpose of providing Ideas related to a Project pursuant to the terms of this Agreement.
Provided that you are eligible for use of the Website, you are granted a limited license to access and use the Website and the Ideas and to download or print a copy of any portion of the Ideas to which you have properly gained access solely for your own personal use, in connection with participating on the Website, for a Project, prior to the End Date. You may not upload or republish Ideas on any medium or incorporate the information in any other database or compilation, except for your own Ideas which are not purchased by the Company as described herein, and any other use of the Ideas is strictly prohibited. Such license is subject to this Agreement and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Website or the Website Ideas other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes.
Unless explicitly stated herein, nothing in this Agreement will be construed as conferring to you any license to our or another’s Intellectual Property Rights. We, our Customers, and our licensors, retain all right, title and interest in our or their marks, inventions and other intellectual property related to or appearing on the Website and the Service. You are not granted a license to use those things.
1. 11. We Do Not Necessarily Monitor Innovator Postings.
Napkin Labs is not responsible or liable in any manner for any Idea posted on the Website or in connection with the Service. Although we provide rules for Innovator conduct and postings, we do not control and are not responsible for what Innovators post, transmit or share on the Website and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable Ideas you may encounter on the Website or in connection with any Idea or other posting. The Company is not responsible for the conduct, whether online or offline, of any Innovator or the Customer.
1. 12. Disputes Between Innovators.
You hereby release Napkin Labs (and Napkin Labs' shareholders, affiliates, directors, officers, subsidiaries, employees, owners and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Innovators or a Customer; including, without limitation, any claim that another Innovator infringes upon your Intellectual Property Rights or misappropriated your Ideas. You further understand and agree that: (i) Napkin Labs will have the right but not the obligation to resolve disputes between Innovators relating to the Service, and Napkin Labs' resolution of any particular dispute does not create an obligation to resolve any other dispute; (ii) Napkin Labs' resolution of such disputes will be final and non-appealable with respect to the Website, the grant of a license or title to Ideas and related Intellectual Property under this Agreement, or the allocation of any payments due to Innovators, but will have no other bearing on disputes between Innovators; and (iii) you hereby release Napkin Labs (and Napkin Labs' shareholders, affiliates, directors, officers, subsidiaries, employees, owners and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Napkin Labs' resolution of disputes relating to the Website or the Service.
For purposes of all waivers of claims in this Agreement, Innovator has read and specifically waives Section 1542 of the Civil Code of the State of California, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
We are not responsible for Customer use of any Ideas and we do not screen or otherwise assure that a Customer’s request for a Project does not violate Laws or rights of another person.
Napkin Labs generally does not regulate communications between Innovators or Innovators' interactions with the Service. As a result, Napkin Labs has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of Ideas provided by Innovators. Nonetheless, Napkin Labs reserves the right to monitor and/or limit anything posted by an Innovator to the Website, including Ideas..
1. 13. All Goods and Services are Provided "as is" Without Express or Implied Warranties.
NAPKIN LABS PROVIDES THE WEBSITE, THE SERVICE, YOUR ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, BY SAMPLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the Service, the Website or your account, and you understand that you are not entitled to make any claim based on Napkin Labs' failure to provide any of the foregoing..
Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.
1. 14. Napkin Labs' Liability To You Is Expressly Limited, To The Extent Allowable Under Applicable Law.
IN NO EVENT SHALL NAPKIN LABS OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OWNERS, LENDERS, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE OR THE WEBSITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL NAPKIN LABS' CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE THOUSAND DOLLARS (U.S. $1,000), PROVIDED THAT THE LIABILITY FOR A FAILURE TO PAY A INNOVATOR’S PAYMENT AMOUNT THAT HAS BEEN DECLARED BY THE COMPANY IS THE AMOUNT OF THAT DECLARED INNOVATOR’S PAYMENT AMOUNT.
The Company is not liable to you if any information provided by others or Ideas on the Website (i) is not accurate or complete, (ii) is illegally provided, or (iii) infringes rights of others.
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you.
1. 15. Indemnification by You.
You hereby agree to defend, indemnify and hold harmless Napkin Labs, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, owners, customers, suppliers, licensees, distributors, successors and assigns, and other Innovators, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of this Agreement by you, from your use of the Service, and any claims by third parties that your activity on or related to the Website or Ideas infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.
1. 16. Privacy Policy.
The personal information you provide to us during registration is used for the Company's internal purposes only. However, we may provide our Customer the name and contact information of persons who provided a certain Idea or contributed to the development of an Idea. Napkin Labs also uses the information it collects to learn what you like and to improve the Service. Napkin Labs will not give any of your personal information to any third party without your express approval except: as reasonably necessary to fulfill your service request, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to comply with tax and other applicable law including money laundering or anti-terrorism laws; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; or as otherwise necessary to protect the Company, its agents and other users of the Service. Napkin Labs does not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. Napkin Labs can (and you authorize Napkin Labs to) disclose any information about you to private entities, law enforcement agencies or government officials, as Napkin Labs, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. You agree that Napkin Labs may communicate with you via email and any similar technology for any purpose relating to the Website. You acknowledge and agree that Napkin Labs, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Service. The Company may share general, demographic, or aggregated information with third parties about its Innovators and their Ideas and Website usage, but that information will not include or be linked to any personal identifiable information without your consent.
We may request your permission to give your name and/or qualifications to a Customer or potential Customer.
You agree we may give our Customers, potential Customers, or others, general demographic information on the numbers, qualifications, history, education levels, and activity levels of Innovator groups, but will not provide information that is specific to a particular Innovator or that specifically identifies you, except as provided in this Section.
1. 17. Dispute Resolution; Governing Law; Venue and Jurisdiction.
The laws of the state of Colorado and United States Federal law govern this Agreement, without giving effect to any principles of conflicts of laws that would result in application of another law. You agree that any action arising out of or related to this Agreement, Ideas, the Website or the Service, will be submitted to arbitration in Boulder or Denver, Colorado. Arbitration under this Agreement will be conducted under the commercial arbitration rules of the American Arbitration Association. The arbitrator shall apply the substantive law of the state of Colorado and United States Federal law. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction, and may be appealed to a court only as permitted by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.).
Notwithstanding the foregoing, Napkin Labs may seek preliminary or temporary injunctive relief (which will remain in effect until the entering into of a binding, non-appealable, enforceable arbitration award as provided immediately above) to enforce the terms of this Agreement or enforce its intellectual property rights, in any state or federal court in the state of Colorado, or such other venue as it may select where you have significant contacts or reside, and you consent to exclusive jurisdiction and venue in such courts.
1. 18. Payment Transfers.
Napkin Labs or its affiliates will generally process all payments to be made to Innovators through PayPal (the "Payment Service"), but reserves the right to pay by written check. Payments to Innovators made through the Payment Service may be disbursed only in accordance with the terms outlined below. When Innovators register with the Website, Innovators will provide to the Company the Innovator’s name and e-mail address. If the Innovator’s name and e-mail address are not correct, the Innovator may not receive payment. Innovators may not share an e-mail address. Innovators will receive a payment notification via e-mail (“Payment Notification”). To claim their payment amount, Innovators must click the link received in the Payment Notification. An Innovator may be asked to sign up for a PayPal account and consent to certain PayPal terms and conditions. An Innovator must consent to any terms and conditions requested by PayPal prior to receiving payment. Payments will be made in U.S. currency, unless otherwise requested by Innovator and agreed to by the Company. Napkin Labs is not responsible for any changes or adjustments in currency exchange rates, and each Innovator agrees that Napkin Labs’ determinations of any currency exchange rate will be final and binding. Interest will not be paid on any payment amount. Funds will only be disbursed in compliance with PayPal terms and conditions and applicable laws and regulations, including without limitation the United States Patriot Act and the regulations of the Office of Foreign Assets Control.
The Company will not be liable if the Company or PayPal is not able to complete a transaction for any reason, including, but not limited to: (i) if any system or equipment was not working properly and you knew or had been advised about the breakdown before you initiated the transaction; (ii) if circumstances beyond the Company’s and/or PayPal’s control (such as, but not limited to, power outages, fire, flood, mechanical or systems failure) prevent the proper execution of the transaction; (iii) if your transaction is intercepted by legal process or other encumbrances restricting transfer, or your participation in the Website or PayPal has been terminated or suspended for security purposes; (iv) if the Company is unable to confirm your identity or have reason to believe that the transfer requested is unauthorized; or (v) if you have not provided us with correct, current and complete payment information. The Company is not liable for any damages resulting from your relationship with PayPal or any information disclosed to PayPal by an Innovator.
If you believe that any payment transaction initiated by Napkin Labs (or PayPal) is erroneous, or if you need more information about any such transaction, you should contact Napkin Labs as soon as possible.
1. 19. General Provisions.
The Website and the Service is controlled and operated by Napkin Labs from its offices within the United States of America. The Company makes no representation that any aspect of the Service is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable local laws. You will comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Service and its use. The Company's failure to act with respect to a breach by you or others does not waive Napkin Labs' right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Napkin Labs under this Agreement will beis effective unless delivered in a writing signed (which may include email signature) by an officer of the Company. All or any of Napkin Labs' rights and obligations under this Agreement may be assigned by it, including, but limited, to a subsequent owner or operator of the Website and/or the Service in a merger, acquisition or sale of any or all of the Company's assets. We may assign any or all of our rights and obligations to one or more persons. You will not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of the Company, and any attempt to do so is void. No default, delay or failure to perform on the part of Napkin Labs will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Napkin Labs. Even if the exact task is not set forth in this Agreement, you will take such reasonable further actions as are reasonably necessary to accomplish the purposes of your obligations under this Agreement.
Except as explicitly providing in this Agreement, nothing contained in this Agreement will be construed as creating a relationship between the parties of partners, joint venturers, or agents, and neither party has the power to bind the other to any contract or commitment.
If any part of this Agreement is for any reason declared invalid or unenforceable, such decision will not affect the validity of any remaining portion of the Agreement, which will remain in full force and effect. In such an event, the parties will promptly substitute for the invalid provision a valid and enforceable provision which most closely approximates the intent and economic effect of the invalid provision.
We may assign to a Customer a right to enforce some or all our rights against you for breaches of this Agreement. Among other things this means a Customer can directly sue you for breaching the obligations to maintain the confidentiality of its information. A Customer may elect to enforce these rights in an arbitration conducted pursuant to the arbitration provisions of this Agreement or enforce its rights in a court.
This Agreement sets forth the entire understanding and agreement between you and Napkin Labs with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. There are no third party beneficiaries of this Agreement.
This Agreement will continue until terminated by either you or us upon written notice. The following sections survive the expiration or termination of this Agreement: 2, 3, 5-10, 12-19.
If you fail to bring any claim for breach of this Agreement by the Company within one year of the alleged breach, you agree that such claim may not be brought.
The Website is owned by us and you do not have any rights in it.
Napkin Labs has the right, but not the obligation, to remove any Ideas, data, or other information (including your Ideas or accountant information) in whole or in part at any time for any reason or no reason, with or without notice and without any liability of any kind.
Napkin Labs reserves the right to interrupt the operation of the Website with or without prior notice for any reason or no reason. Napkin Labs will not be liable for any interruption of the Website, delay or failure to perform. Napkin Labs has the right at any time for any reason or no reason to change and/or eliminate all or any part of the Website, the Service, or a Project, as it sees fit in its sole discretion.
Napkin Labs may give notice to you by means of a general notice on our Website, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. You will email all notices given by you to us at legalnotice@napkinlabs.com.
I understand and agree that by creating a profile on napkinlabs.com/thelab, napkinlabs.ning.com or thelab.napkinlabs.com that I am providing an electronic signature and entering into a legally binding agreement, the equivalent of a signed, written contract, the terms and conditions of which are set forth above.