This ProductBoard Representative Program Terms & Conditions (“Agreement”) contain terms and conditions that apply to, and govern, your participation as an ambassador or group leader (“Representative”) in ProductBoard’s Representative Program (“Program”). As used in this Agreement, “ProductBoard,” “we” and “our” shall mean ProductBoard, Inc., and “you” and “your” shall mean the Representative. ProductBoard and Representative are sometimes individually referred to as a “Party” and collectively, the “Parties.”
By submitting an application and/or participating in the Program: (i) you are confirming that you have read and understand this Agreement; (ii) you represent and warrant that you are lawfully able to, and possess the required authority to, enter into contracts on behalf of the entity applying to become a Representative; and (iii) you agree to be bound by, and will continue to comply with, the terms and conditions set forth herein throughout the full duration of your participation in the Program. ProductBoard reserves the right to make changes to the Program and this Agreement, at any time on at least 7 days’ notice, and such changes will become effective immediately upon being posted on our website or otherwise communicated to you. TO THE EXTENT ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF ANY SUCH CHANGE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
1. Acceptance into the Program.
1.1 – Enrollment. To begin the enrollment process, you must submit a complete Representative application form to ProductBoard. If you are enrolling for participation as an Ambassador, the application is available at https://team-productboard.typeform.com/to/Co1pAK9D. If you are enrolling for participation as a Group Leader, the application is available at https://team-productboard.typeform.com/to/jiXas2ag. Once received, we will evaluate your application, may schedule a call to interview you, and will promptly notify you of your acceptance or rejection for participation in the Program. If accepted, you will receive an introductory letter from us providing a description of your role as a Representative and the benefits you may receive for your participation in the Program (“Introductory Letter”).
1.2 – Rejection; Termination. ProductBoard may reject your application in its sole discretion and for any reason at all. ProductBoard’s acceptance criteria for the Program are subject to change by ProductBoard, in its sole discretion, at any time without prior notice. If you are accepted to participate in the Program and you are thereafter determined (in our sole discretion) to be unsuitable based on the Program’s acceptance criteria or for any reason whatsoever, ProductBoard may terminate this Agreement and, upon such a termination, you will no longer be a Representative of the Program.
2. Endorsement and Grant of Rights.
2.1 – Endorsement; No Compensation. You will use good faith and diligent efforts to consult with and aid us in promoting, endorsing, and advertising ProductBoard and its business activities and products (“Company Business”) and by performing the Promotional Activities (as described in your Introductory Letter) (together, the “Endorsement”). Except for the Program Benefits, you will not receive any compensation or any other benefits from ProductBoard for performing any services in connection with the Program or for your Endorsement, including, your performance of, or participation in, Promotional Activities. You will not receive wages, amounts paid for paid-time off, relocation, anticipated incentives, employee benefits, stock options, equity grants, signing bonuses, incentive-based pay, retirement contributions, and/or other forms of supplemental non-cash compensation. You will only be reimbursed for reasonable, out-of-pocket expenses that have been approved in writing by us prior to your incurrence thereof that you incur in performing such services.
2.2 – Promotional Activities. During the Term, you will (i) advertise, promote and endorse the Company Business and conduct yourself in a manner that reflects favorably at all times on ProductBoard and the good name, goodwill, and reputation of ProductBoard; (ii) observe all directions and instructions given to you by us in relation to the advertisement, promotion, and endorsement of the Company Business; (iii) not disparage ProductBoard, the Company Business, or any of our products or services in any manner; (iv) be truthful and not misleading about ProductBoard or the Company Business in any content you create (together or with a third party) reasonably expected to be accessible or viewable by the public; (v) not commit any act involving moral turpitude or that otherwise brings you into public disrepute, contempt, scandal, or ridicule or reflects unfavorably upon our reputation; (vi) not engage in any unfair, competitive, misleading, or deceptive practices respecting Company Business or in connection with Promotional Activities; or (vii) make any representations and warranties with respect to Company Business or in connection with Promotional Activities. Separate terms and conditions may apply for events that ProductBoard or you, whether jointly or individually, may host, organize, sponsor, or otherwise conduct relating to your Endorsement.
2.3 – Grant of Rights to Representative’s Property. In furtherance of the Endorsement pursuant to Section 2(a), and subject to the terms and conditions set forth in the Agreement, you grant to us and our affiliates the right and license during the Term to use your name, nickname, initials, autograph, facsimile signature, photograph, likeness, caricature, image, voice, statements, social media postings, biographic information, information on your endorsement (collectively, the “Property”) in connection with the advertisement and promotion of the Company Business, in all media and formats and through all distribution channels, whether now existing or hereafter developed, including advertising on television, in print, and via any wired or wireless communications networks, including the Internet and in social media, as well as the right to use such Property in connection with the Company Business. We are not under any obligation to use any of your services or your Property.
2.4 – Grant of Rights to Our Marks. During the Term, you may display and use the logos, trade names, trademarks, and service marks (“Marks”) of ProductBoard in connection with your marketing, advertising, and endorsement of Company Business and your Promotional Activities, only in a manner that reflects favorably on ProductBoard, subject to the following conditions: (i) you shall keep intact any proprietary notices; (ii) you shall comply with any trademark use guidelines provided by us from time to time; (iii) you acknowledge that any and all goodwill generated through your use of our Marks will inure to our benefit and you hereby assign any and all goodwill generated through your use of our Marks, without any payment or other consideration to you, and you further agree to take all actions necessary to effect such assignment; and (iv) upon termination of this Agreement, you shall cease using our Marks. If we are dissatisfied, in our sole discretion, with the manner in which our Marks are displayed, or with the quality or content of any Promotional Activity with which our Marks are displayed, you will immediately cease such display upon notice from us. We will own and retain all rights in and to our Marks and any materials and information it provides, including all related intellectual property rights.
2.5 – No Competing Endorsements. You hereby represent and warrant that you have not, and will not during the Term or for six (6) months after the Term: (a) render any services directly or indirectly on behalf of any company, products or services that compete with any part of Company Business; or (b) authorize the use of your Property in connection with any company, products or services that compete with any part of Company Business.
2.6 – FTC Disclosures. In compliance with certain rules and regulations promulgated by the Federal Trade Commission (“FTC”), you shall clearly and conspicuously identify yourself as a Representative of the Program on all website pages and content where you promote, endorse, or advertise the Company Business, including through the use of hashtags or explicit statements. For more information regarding the FTC’s various guidelines, please visit: https://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (Dot Com Disclosures Guidelines) and https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf (Endorsement Guide). You shall be solely responsible for your compliance with such rules and regulations and are hereby advised to seek and obtain legal advice regarding their applicability to you and your marketing and advertising activities.
2.7 – Confidentiality. You will not disclose or use any confidential or proprietary information that you obtain from us, in any form or media, for any purpose other than to provide the services contemplated under this Agreement, without our prior written consent. You will not authorize or release advertising matter or publicity, or give interviews, that make reference to the details of the terms of this Agreement, without our prior written approval, although you may, during interviews, respond, discuss, and comment in a favorable and positive manner that you are associated with ProductBoard.
3. Term and Termination.
3.1 – Term. The term of this Agreement commences on the date that you sign the Introductory Letter and shall continue in full force and effect until terminated as set forth in this Section 3.
3.2 – Termination by ProductBoard. ProductBoard may terminate this Agreement at any time upon seven (7) days’ prior written notice to you. Productboard may immediately terminate this Agreement if any of the following occurs: (i) you breach any provision of this Agreement, including the failure, inability or refusal to perform any Promotional Activities; (ii) you become unable to perform the Promotional Activities; (iii) you die, or become mentally or physically disabled, if such disability interferes with either your ability to render services hereunder or, in our sole judgment, our ability to benefit from this Agreement in the manner intended by the Parties; (iii) you misrepresent or conceal anything in your background that could be detrimental to the value of the endorsement being made; or (iv) you act without regard to public morals and conventions or commit (or are accused of committing) any act or making any statement that is an offense involving moral turpitude under any laws, may bring you or us into public disrepute, contempt, scandal, or ridicule, insults or offends the community or any organized group, or might tend to injure the success of ProductBoard, its reputation, its business relationships, or its standing in the eyes of the general public.
3.3 – Termination by Representative. You may terminate this Agreement at any time upon sixty (60) days’ prior written notice to us. You may also terminate this Agreement if (i) ProductBoard is adjudicated insolvent or declare bankruptcy, or (ii) if ProductBoard materially breaches this Agreement and, after receiving written notice of the breach, ProductBoard fails to cure the breach within thirty (30) days.
3.4 – Effect of Termination. Upon termination of this Agreement, we will have the right to continue to distribute any physical collateral that bears your Property then in our possession, or in production, at the date of termination (except that we shall have no right to manufacture or produce any new or promotional material that bears your Property) and you will immediately (i) cease use of our Marks, (ii) cease to represent yourself as a Representative of the Program and shall otherwise desist from all conduct or representations that might lead the public to believe that you are a Representative or otherwise endorse the Program and the Company Business. We will not be required to remove historical or archival collateral that bears your Property. Upon termination of this Agreement, certain benefits may be removed by ProductBoard, such as, your status (including your badge, your custom user role, your Representative username icon, and your upgraded “Rank,”) and your access to the private, Representative-only community forum. We may also send you an online exit survey for your completion post-termination. All rights, causes of action, and any provision that, by their terms, are intended to survive termination, shall survive termination of this Agreement.
4.1 – Ownership. All right, title and interest in and to the advertising, promotional and publicity materials produced pursuant to this Agreement shall be and remain the absolute property of ProductBoard forever, subject to your pre-existing rights and rights in your Property.
4.2 – Feedback. If you provide comments, suggestions, or feedback to ProductBoard relating to any of our products or services (“Feedback”), we may use it to improve or enhance our products or services. You hereby grant ProductBoard a perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction.
4.3 – Reservation of Rights. Subject to the terms of this Agreement, you will retain all rights in and to your Property whether during the Term or any extension thereof, and you will not be prevented from using, permitting, or licensing others to use your Property in connection with the advertisement, promotion, and sale of any product or service other than as specifically prohibited in this Agreement. You agree to take all necessary steps during the Term to protect the endorsement in connection with the advertisement and promotion of the Company Business.
4.4 – Cooperation. The Parties agree to execute any documents reasonably requested by the other Party to effect any of the above provisions
5. Representations and Warranties; Indemnification.
5.1 – Representations and Warranties. You represent and warrant to Company that: (i) you have the full right, power, and authority to grant the rights to the Property set forth in this Agreement and that doing so will not cause you to breach any other agreement to which you are bound or a party; (ii) you have not misrepresented nor concealed anything with respect to your background that may have a prejudicial effect on the value of the endorsement, that you have not committed or been convicted of any felony not previously disclosed to us; (iii) you have not engaged nor will you engage during the Term of this Agreement in any activity (criminal or otherwise) that could potentially have a negative impact on us or the Company Business.
5.2 – Indemnification by ProductBoard. ProductBoard agrees to defend, indemnify, and hold you harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against you based on any breach by ProductBoard or its employees or agents of any of the covenants, warranties, or representations contained in this Agreement.
5.3 – Indemnification by Representative. You agree to defend, indemnify, and hold us, and our officers, directors, agents, employees, corporate affiliates, partners and permitted assigns, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against us based on (i) any negligent, reckless, or intentionally wrongful act by you or those under your control; (ii) any breach by you or your employees or agents of any of the covenants, warranties, or representations contained in this Agreement; (iii) any failure by you to market and promote the Products or otherwise perform under this Agreement in accordance with all applicable laws, rules, and regulations; (iv) any violation or claimed violation of a third party’s rights resulting in whole or in part from your Property or your performance under this Agreement; or (v) misleading or deceptive statements relating to the Company Business that are made by you during your endorsement, promotional, or advertising activities.
6. Limitation of Liability.
6.1 – DISCLAIMER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, WE WILL NOT, UNDER ANY CIRCUMSTANCE, BE LIABLE TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF WE ARE APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
6.2 – CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL OUR TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (I) TOTAL AMOUNT PAID BY US TO YOU DURING THE PREVIOUS 12 MONTHS UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION), OR (II) $1,000 (USD).
6.3 – INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE AGREEMENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
7.1 – Arbitration. Except as provided in Section 7(c) below, any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance, or breach of this Agreement, will be settled by arbitration to be held in San Francisco County, California, in accordance with the rules then in effect of Judicial Arbitration and Mediation Services (“JAMS”). The arbitrator may grant injunctions or other relief in the dispute or controversy. The decision of the arbitrator will be final, conclusive, and binding on the Parties. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Each Party will each pay one half of the costs and expenses of the arbitration, and each will separately pay their own counsel fees and expenses. Each Party’s promise to resolve claims by arbitration in accordance with the provisions of this Agreement, rather than through the courts, is consideration for the other Party’s like promise.
7.2 – Waiver or Right to Jury Trial. This arbitration clause constitutes a waiver of your right to a jury trial for all disputes relating to all aspects of the independent contractor relationship (except as provided in Section 7(c) below), including, but not limited to, the following claims: (i) claims, both express and implied, for breach of contract, breach of the covenant of good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, and defamation; and (ii) any and all claims for violation of any federal, state, or municipal statute.
7.3 – Equitable Remedies. The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Agreement and without abridgement of the powers of the arbitrator.
8.1 – Relationship of the Parties. Your performance of services for ProductBoard is in your capacity as an independent contractor. Accordingly, nothing contained in this Agreement shall be construed as establishing an employer/employee, a partnership, franchise, or a joint venture relationship between you and us. No Party shall have the authority to make any statements, representations or commitments of any kind or to take any action binding on another Party except as provided for in this Agreement or authorized in writing by the Party to be bound. Except as provided for in this Agreement, we shall not be liable for any your personal or business expense, except as agreed to in writing by us before you incur such expense. You shall not incur any liabilities or expenses on our behalf except as expressly provided under this Agreement.
8.2 – Agreement Binding on Successors. This Agreement shall be binding on and shall inure to the benefit of the Parties, and their heirs, administrators, successors, and assigns.
8.3 – Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
8.4 – Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
8.5 – Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
8.6 – Assignability. You may not assign this Agreement because it is personal to you, with the exception that you shall have the right to assign your financial benefits hereunder. We may not assign this Agreement except to an affiliate or in connection with a merger, acquisitions, reorganization, or sale of all or substantially all of its assets, or other similar transaction.
8.7 – Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth above and with the appropriate postage affixed. Any Party may change its address for receipt of notice by notice to the other Parties in accordance with this Section. Notices are deemed given five business days following the date of mailing or one business day following delivery to a courier.
8.8 – Interpretation. The Parties have had an equal opportunity to participate in the drafting of this Agreement all related documentation. No ambiguity will be construed against any Party based upon a claim that that Party drafted the ambiguous language.
8.9 – Governing Law. The internal laws of the State of California, but not the choice of law rules, govern this Agreement.
Entire Agreement. This Agreement and the Introductory Letter are the final and complete expression of the agreement between these Parties regarding your endorsement and marketing activities for the Company Business. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of either Party has any authority to bind that Party with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought.