San Diego Opera: OPERA HACK

Terms and Conditions

This Terms and Conditions is an agreement between you (“you,” “your," or “Participant”) and San Diego Opera, with respect to the OPERA HACK Event to be held on and between July 27th and 28th, on the campus of Microsoft Corporate Offices in La Jolla, Ca.

As a condition to participating in OPERA HACK, you must read and accept all of the terms and conditions contained in this Agreement. In addition, as a condition to participating in OPERA HACK, you must read and accept the OPERA HACK Official Rules (the “Official Rules”), which are attached hereto, and available at www.sdopera.org/operahack/terms, and which are fully incorporated herein by reference in their entity. Your application for, registration to, and/or participation in OPERA HACK constitutes your acceptance to all of the terms and conditions contained in this Agreement and the Official Rules. In the event of any direct conflict between this Agreement and the Official Rules, the Official Rules shall govern (though not limit any additional provisions binding you in this Agreement). Your registration for and/or participation in OPERA HACK constitutes your acceptance of all the terms and conditions contained in this Agreement.

OPERA HACK Description. OPERA HACK is organized by San Diego Opera, in cooperation with OPERA America, certain other sponsoring individuals or organizations, and other persons and/or entities participating in the design, production, organization, execution, promotion or marketing of OPERA HACK. OPERA HACK is a collaborative project among individuals or teams, to gather, brainstorm, and discover new methods for live performance. Participants will be selected by OPERA HACK Entities though an application process. Selected Participants will attend the OPERA HACK Event to form interdisciplinary teams, identify specific components within live theater, and explore various technological mediums to offer enhancements. OPERA HACK will culminate with teams proposing their best ideas for further expansion. Following the Event, San Diego Opera will select teams at their sole discretion, to develop and present the team’s respective concepts at a future public event in Summer 2020.

OPERA HACK Assets. By participating in OPERA HACK you may receive access to certain documents from San Diego Opera and potentially other software, processes, ideas, formulas, concepts, inventions (whether or not patentable), models, plans, apparatus, methods, devices, systems, information, and pictorial, audio, video, and/or audiovisual content which may or may not be publicly known, or owned by San Diego Opera, the OPERA HACK entities, and/or any of their affiliates, partners or licensors (“Technical Materials”). Your participation may also result in access to documentation, instructions, and other information regarding the Technical Materials (“Information”). The Technical Materials and Information collectively comprise OPERA HACK (“OPERA HACK Assets”).

Permissible Use. You acknowledge and agree that the OPERA HACK Assets are being made available to you solely for your personal use in developing and testing your OPERA HACK Entry in connection with OPERA HACK. Your access to and use of the OPERA HACK Assets may be limited or terminated at any time within the OPERA HACK Entities sole discretion. Your obligation to comply with this clause continues in perpetuity and survives conclusion of the Event, your disqualification from OPERA HACK, the expiration of any license granted by you, and the end of any other obligation under this Agreement.

No Warranties for OPERA HACK Assets. The OPERA HACK Assets are provided “as is” without warranty of any kind, either express or implied, including, without limitation, any implied warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, the OPERA HACK Entities do not warrant that the Technical Materials or Information will be suitable for your solution, prototype, or OPERA HACK Entry or that the operation or supply of the OPERA HACK Assets will be uninterrupted or error free.

Limited License to Use OPERA HACK Assets. By providing OPERA HACK Assets for your use, the OPERA HACK Entities, their affiliates and/or partners are granting to you a limited, non-exclusive, license to use the OPERA HACK Assets, only during the OPERA HACK Event, to develop your OPERA HACK Entry, and only as permitted by this Agreement. Subject to the terms of this Agreement, you will have no right, title or interest in or to any OPERA HACK Assets upon conclusion of OPERA HACK or your withdrawal or disqualification from the Event. Any use of the OPERA HACK Assets other than as permitted by this Agreement may constitute infringement of Intellectual Property owned by or licensed to the OPERA HACK Entities’, their affiliates’ and/or their partners’.

Intellectual Property. For purposes of this Agreement, “Intellectual Property” shall include all inventions, discoveries, developments, original works of authorship, patents, copyrights, trade secrets, trademark rights, rights of publicity, and any other form of intellectual property right or foreign counterpart thereof. Additionally, your use of certain OPERA HACK Assets may be subject to additional terms and conditions required by the owner or provider of those OPERA HACK Assets.

Discontinuation of Access to and Use of OPERA HACK Assets. Upon the earlier of (i) the conclusion of OPERA HACK, (ii) cancellation of your registration or disqualification from OPERA HACK or (iii) upon request by any of OPERA HACK Entities’ request, you must terminate your use of, permanently delete or destroy, and/or return all OPERA HACK Assets in your possession or control, unless otherwise specified at OPERA HACK and agreed to in writing. You agree to access and use the Technical Materials only in accordance with the parameters set forth herein, or otherwise set forth in the Information, and agree not to access or use the Technical Materials in a manner that may interfere with any other user’s access or use.

Intellectual Property. Title and Ownership of any Intellectual Property rights conceived, created, or developed in relation to any OPERA HACK Entries, during or in connection with OPERA HACK, will be in accordance with applicable Federal and/or State laws. It is expressly acknowledged that Participants shall retain all ownership rights in and to any and all Intellectual Property created during or in connection with OPERA HACK, and retain all rights to perfect and commercialize such Intellectual Property rights, subject to OPERA HACK Entities’ Evaluation Period (as discussed below).

Right to Perfect Participant IP. During the creation and preparation of your OPERA HACK Entry, you may acquire or accrue certain ownership rights to Intellectual Property developed as a result of or associated with your OPERA HACK Entry (hereinafter “Participant IP”). Subject to the terms and conditions of Section 3 of the Agreement, Participants shall be free to file any and all applications to register or perfect any actual or potential Intellectual Property rights created during or in connection with OPERA HACK, including but not limited to filing of any patent applications and/or seeking the registration of any trademarks or copyrightable materials, or protecting any trade secrets from non-disclosure, as may be necessary for purposes of claiming or perfecting rights to your Participant IP.

Right to Commercialize Participant IP. Subject to the terms and conditions of Section 3 of the Agreement, Participants (in accordance with any agreement or understanding among participants of a team), shall be free to further develop, change, refine, use, license, sub-license, lease, market, publish, present, offer for sale, sell, transfer, exploit, and/or otherwise pursue the commercialization of your OPERA HACK Entry, Participant IP, and/or any portion thereof.

OPERA HACK Entity Evaluation Period re Participant IP. Prior to any publication, presentation, commercialization, or disposition of your OPERA HACK Entry, Participant IP, and/or any portion thereof, the OPERA HACK Entities shall have a period of thirty (30) days for an exclusive first option to consider, negotiate, and/or evaluate whether to (i) acquire any rights in and to your OPERA HACK Entry, Participant IP, and any portion thereto (e.g. an exclusive, worldwide, fully sub-licensable, royalty-bearing license in and to all of Participant's interest in any Participant IP), and/or (ii) offer any aid in perfecting or commercializing your OPERA HACK Entry, Participant IP, and/or any portion thereof, as the OPERA HACK Entities may deem appropriate, in their sole discretion (the “Evaluation Period”).

The Evaluation Period shall commence upon final presentations of OPERA HACK Entries on July 28 and continue to 11:59 p.m. (PDT) on August 28, 2019. At any time during the Evaluation Period, one or more OPERA HACK Entities may notify you, in writing, with an offer to acquire and/or commercialize your OPERA HACK Entry, Participant IP, and/or any portion thereof, including, without limitation, an offer to use, license, sub-license, lease, purchase, and/or acquire certain rights to your OPERA HACK Entry, Participant IP, and/or any portion thereof (an “Offer”).

Upon receipt of an Offer, you agree to enter into good-faith negotiations with the applicable OPERA HACK Entity or Entities to arrive at a fair, mutually advantageous agreement concerning the use and/or transfer of your OPERA HACK Entry, Participant IP, Intellectual Property, and/or any portion thereof. During the Evaluation Period and throughout the negotiation process related to any Offer you might receive, you agree to cooperate with the applicable OPERA HACK Entities for the provision and/or disclosure of any of such confidential, proprietary, or trade secret data or information as may be necessary for the thorough review, evaluation, and consideration of your OPERA HACK Entry, Participant IP, and any portion thereof.

Participant Commercialization: Following expiration of the Evaluation Period, you may present, publish, dispose of, or commercialize your OPERA HACK Entry, Participant IP, and/or any portion thereof, as Participant deems appropriate, in your sole discretion only under two circumstances: (i) you have not received an Offer from any of the OPERA HACK Entities at the end of the thirty (30) day Evaluation Period; or (ii) after a period of sixty (60) days of active, good-faith negotiations related to an Offer, you and the applicable OPERA HACK Entities are unable to reach an agreement as concerning your OPERA HACK Entry, Participant IP, and/or any portion thereof (“Participant Commercialization”). If you do not receive an Offer, You must inform the OPERA HACK Entities, in writing, no later than 5:30 p.m. (PDT) on September 1, 2019, of your decision and intentions regarding Participant Commercialization.

Election to Release: If, despite having the right to engage in Participant Commercialization, you elect not to pursue the commercialization of your OPERA HACK Entry and any portion thereof, including any Participant IP, you, your team, and all individual members of your team shall release and assign any and all rights, title, and interests you may have in and to your OPERA HACK Entry, Participant IP, and any portion thereof to San Diego Opera free of charge (an “Election to Release”). Following your Election to Release, you shall have no right, and you shall not be entitled to receive, any license to use your OPERA HACK Entry, Participant IP, Intellectual Property, and/or any portion thereof, related to the release.

Privacy Policy. By participating in OPERA HACK you give us permission to: (i) collect personal information from you for OPERA HACK; (ii) to contact you; (iii) to disclose any personal information about you to the OPERA HACK Entities, their suppliers, or third-party providers who are engaged by the OPERA HACK Entities to assist with any OPERA HACK services, including running OPERA HACK, marketing, research, and OPERA HACK Asset support. Any personal information will be collected and used in accordance with San Diego Opera’s Privacy Policy (found at https://www.sdopera.org/about/privacy-policy).

Use of OPERA HACK Entity Trademarks. You agree that you will obtain prior written consent from the OPERA HACK Entities, before you use any of their respective trademarks on any documents, presentations or other materials relating to OPERA HACK and, if any of the OPERA HACK Entities grant you permission to use such trademarks, you must only use them only in the agreed-upon manner.

Publicity – Advertising and Marketing. Except where prohibited, by participating in OPERA HACK, Participant consents to the use of his/her name, photo, and/or likeness, biographical information, entry and statements, including any and all footage or pictures taken in connection with OPERA HACK, for advertising, marketing, and promotional purposes, including without limitation, inclusion in any newsletters, OPERA HACK Entities’ websites, and any of the OPERA HACK Entities’ social media accounts or other media outlets without any compensation. Additionally, you agree that San Diego Opera and the OPERA HACK Entities may demonstrate the operation and functionality of your OPERA HACK Entry in connection with advertising and promoting OPERA HACK and subsequent Events organized by them.

Participant Representations and Warranties. You represent and warrant that:

  1. you and/or one or more of your teammates is/are the original inventor and/or author of your contributions to your OPERA HACK Entry;
  2. to your knowledge, your OPERA HACK Entry will not infringe on any third-party’s copyright, patent, trademark, trade secret, right of publicity or property or any other right;
  3. your OPERA HACK Entry is not the subject of any actual or threatened litigation or claim;
  4. your OPERA HACK Entry will not be obscene, offensive, libelous, pornographic, threatening, abusive, or otherwise objectionable;
  5. your OPERA HACK Entry will not contain any content that is illegal, would constitute or encourage a criminal offense, or would otherwise give rise to liability or violate any law; and
  6. no contractual or other obligations (including obligations associated with your employment) exist that would (i) prevent you from granting the licenses provided in this Agreement, and/or (ii) prevent you from claiming Intellectual Property and/or Participant IP ownership rights in materials or inventions created by Participant and incorporated into Participant’s OPERA HACK Entry.

Limitation of Liability – Assumption of Risk. In no event shall the OPERA HACK Entities, their affiliates, successors and assigns, or any of their respective officers, directors, agents, employees or representatives, be liable for any loss, damage, liability, cost or expense, dispute among participants, including any incidental, consequential, exemplary or punitive damages, however caused (including negligence), that you may have as a result of, or in connection with, OPERA HACK or this Agreement. You acknowledge and agree that your participation in the Event may involve staying awake for an extended period of time which could give rise to a degree of risk including personal injury, which may even include death, physical or mental injury, illness or disease. By participating in OPERA HACK, you voluntarily assume and accept all such risks.

Release and Indemnification. By entering OPERA HACK, you agree, on behalf of yourself and your heirs, executors and administrators, (a) to release and hold harmless the OPERA HACK Entities and their respective officers, directors, and employees (collectively, “Released Parties”) from any claims, liability, damage, litigation, illness, injury or death that may occur, directly or indirectly, whether caused by negligence or not, from your participation in OPERA HACK, any OPERA HACK Entry you submit, your acceptance, possession, use, or misuse of any OPERA HACK Assets, or prize or any portion thereof, your violation of any law, rule or regulation, and/or your violation of the rights of any third-party; (b) to indemnify Released Parties from any and all liability resulting or arising from your participation in OPERA HACK and acknowledge that Released Parties have neither made nor are in any manner responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to any prize, including express warranties provided exclusively by any prize supplier that are sent along with such prize; and (c) to be bound by this Agreement and to waive any right to claim any ambiguity or error therein or in the OPERA HACK Event itself, and to be bound by all decisions of San Diego Opera, which are binding and final. Failure to comply with these conditions may result in disqualification from OPERA HACK at San Diego Opera’s sole discretion.

Not an Offer or Contract of Employment. Under no circumstances shall your participation in OPERA HACK, the awarding of any prize, or anything in this Agreement be construed as an offer or contract of employment with any of the OPERA HACK Entities. You acknowledge that you are participating in OPERA HACK voluntarily and not in confidence or in trust. You acknowledge that no confidential, fiduciary, agency, partnership, joint venture or other relationship or implied-in-fact contract now exists between you and any OPERA HACK Entity and that no such relationship is established by your participation in OPERA HACK.

Additional Terms. OPERA HACK is subject to applicable federal, state and local laws. San Diego Opera reserves the right to permanently disqualify from OPERA HACK any person it believes has intentionally violated this Agreement. Any attempt to deliberately damage OPERA HACK or the operation thereof is unlawful and subject to legal action by San Diego Opera, which may seek damages to the fullest extent permitted by law. The failure of Released Parties to comply with any provision of this Agreement due to an act of God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of San Diego Opera (excepting compliance with applicable codes and regulations), or other “force majeure” event will not be considered a breach of this Agreement. Released Parties assume no responsibility for any injury or damage to your or any other person’s computer relating to or resulting from entering or downloading materials or software in connection with OPERA HACK. Released Parties are not responsible for telecommunications, network, electronic, technical, or computer failures of any kind; for inaccurate transcription of entry information; for errors in any promotional or marketing materials or in this Agreement; for any human or electronic error; or for Entries that are stolen, misdirected, garbled, delayed, lost, late, damaged, or returned. San Diego Opera reserves the right to cancel, modify, or suspend OPERA HACK or any element thereof (including, without limitation, this Agreement) without notice in any manner and for any reason (including, without limitation, in the event of any unanticipated occurrence that is not fully addressed in this Agreement). San Diego Opera may prohibit any person from participating in OPERA HACK, if such person shows a disregard for this Agreement; acts with an intent to annoy, abuse, threaten, or harass any other entrant or any OPERA HACK Entity’s agents or representatives; or behaves in any other disruptive manner (as determined by San Diego Opera in its sole discretion). This Agreement constitutes the entire agreement between San Diego Opera and you with respect to OPERA HACK and supersedes all previous or contemporaneous oral or written agreements concerning OPERA HACK. This Agreement may not be amended except by a written agreement signed by you and an authorized representative of San Diego Opera.

Dispute Resolution. This Agreement is governed by, and will be construed in accordance with, the laws of the State of California and the forum and venue for any dispute shall be in the City and County of San Diego, California. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be settled by mandatory arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be San Diego, California. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party to such arbitration shall be entitled to recover reasonable attorneys’ fees or other related costs of bringing a claim.

Acknowledgment of Official Rules. By signing this Agreement and participating in OPERA HACK, you acknowledge that you have read and agree to be bound by all of the terms of this Agreement. Any decision by the OPERA HACK Entities, concerning the terms and conditions of this Agreement or the Official Rules, or any other matter relating to OPERA HACK are final and binding on all Participants.

Angel Mannion, Project Manager, is authorized contact for OPERA HACK Operations and Notification.