Runner in Residence Terms and Conditions
NOBULL, LLC RUNNER IN RESIDENCE TERMS AND CONDITIONS
These Runner in Residence Terms and Conditions are incorporated by reference in the Runner in Residence Contract by and between NOBULL, LLC (“NOBULL”) and the Resident Runner executing the Runner in Residence Contract (“Resident Runner”). NOBULL and Resident Runner are individually referred to herein as a "Party" and collectively as the “Parties.” Defined terms used in these Terms and Conditions and not otherwise defined below have the meanings set forth in the Resident Runner Contract. The Runner in Residence Contract and these Terms and Conditions are referred to herein as the “Agreement.”
NOBULL desires to have Resident Runner participate in NOBULL’s Runner in Residence Program, a short-term engagement during which running experts collaborate with NOBULL on NOBULL Run Club’s private social media platform, NOBULL Connect, to lead NOBULL Run Club members through programming, running tips, and various virtual and/or in-person running challenges and events, the specifics of which are set forth in the Runner in Residence Contract.
Resident Runner desires to participate in NOBULL’s Runner in Residence Program in exchange for the receipt of certain non-monetary compensation, all as set forth in this Agreement.
1. Appointment. NOBULL appoints Resident Runner as its representative on a non-exclusive, non-employee basis to (a) provide written training programming content for NOBULL “Runner in Residence” program; (b) join a virtual or in-person Runner in Residence workout event; and (c) endorse and promote NOBULL’s products (the “Products”) [in the United States] (the “Territory”) via Resident Runner’s social media accounts. as set forth in the Runner in Residence Contract (collectively, the “Services”) and the agreed number of social media posts and written training programming content specified in the Runner in Residence Contract (the “Deliverables”).
2. Voluntary Participation. Resident Runner shall act as an advocate for NOBULL to generate interest in and awareness of NOBULL’s products and to produce certain content under the terms and conditions of this Agreement. Resident Runner acknowledges that other than the Products received and compensation as set forth in the Contract, and, if applicable, event participation, Resident Runner will not receive any other compensation from NOBULL, monetary or otherwise, for serving as a Runner in Residence, and Resident Runner’s service is voluntary.
3. NOBULL Obligations. NOBULL shall provide Resident Runner, at no charge, with (a) a set amount of Products as set forth in the Runner in Residence Contract for Resident Runner’s own use, subject to inventory availability, so that Resident Runner has the opportunity to evaluate the Products and meet its obligations under this Agreement; and (b) the necessary content and briefing materials to enable Resident Runner to perform the Services and create the Deliverables.
4. Deliverables. Resident Runner will deliver the Deliverables on the agreed platforms on behalf of NOBULL in accordance with the Runner in Residence Contract. The Deliverables shall conform to the specifications and instructions of NOBULL in the Runner in Residence Contract and the supplemental NOBULL Brand Guidelines, if any, to be provided by NOBULL to Resident Runner. (for example, all blog posts, social media statuses, tweets, and/or comments should be in good taste and free of inappropriate language and/or any content promoting bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age). NOBULL Brand Guidelines are incorporated by reference in this Agreement. Resident Runner shall also abide by the rules of the relevant social media channels.
5. Acceptance. Resident Runner acknowledges and agrees that all promotions and Products promoted as part of this Agreement are controlled by NOBULL. The Deliverables are therefore subject to NOBULL’s acceptance and approval prior to being posted, in accordance with the following procedures:
At least three (3) business days before the delivery date for any Deliverables, Resident Runner shall submit the Deliverables to NOBULL for review and approval. Such Deliverables shall not be publicly released by Resident Runner without the prior written approval of NOBULL (email approval shall be deemed sufficient).
Upon receipt of Deliverables, NOBULL shall review the Deliverables to confirm compliance with the NOBULL Rule Guidelines and any requirements in the Runner in Residence Contract (the “Completion Criteria”).
NOBULL shall either provide Resident Runner with written acceptance of the Deliverables (email acceptance shall be deemed sufficient), or deliver to Resident Runner a written statement of nonconformities to be corrected prior to NOBULL’s acceptance of the Deliverables. Any such written statement shall provide sufficient detail to enable Resident Runner to remedy the failure to conform to the Completion Criteria. Unless otherwise agreed to in writing by the Parties (email shall be deemed sufficient), Resident Runner will redeliver corrected Deliverables to NOBULL within five (5) business days after receipt of such statement of nonconformities. Following redelivery of corrected Deliverables, a new acceptance review shall be commenced by NOBULL.
If NOBULL fails to provide a written acceptance or a written statement of nonconformities within two (2) days of initial receipt of said Deliverables or such other mutually acceptable period as defined in the applicable Runner in Residence Contract, or within one (1) day of re-delivery of said corrected Deliverables or such other mutually acceptable period, the Deliverables shall be deemed rejected by NOBULL. If NOBULL has not accepted the Deliverables after the second iteration, NOBULL shall have the right to either: (i) require Resident Runner to repeat this process until such time as the Deliverables are accepted in writing, or (ii) terminate this Agreement or the applicable Runner in Residence Contract, in whole or in part, upon written notice.
a. For convenience. Each Party reserves the right to terminate this Agreement or any Runner in Residence Contract for convenience, in whole or in part, upon fifteen (15) days prior written notice to the other Party.
b. For Cause. NOBULL reserves the right to terminate this Agreement at any time, effective immediately, on written notice to Resident Runner or, where applicable, his/her legal representative, on the occurrence of any of the following by Resident Runner:(i) breach of Section 8 herein or failure to comply with any applicable law; (ii) involvement or association with any event or circumstance that renders the Services and Deliverables detrimental to the marketing of the Products; (iii) commission of a felony or any other act that is or shall be an offense involving moral turpitude; (iv) commission of an act that brings Resident Runner or NOBULL into public disrepute, contempt, scandal or ridicule; (v) commission of an act that tends to shock, insult, or offend the community or any substantial portion thereof, or to offend public morals and decency to such an extent that the value of the Deliverables is, in the reasonable judgment of NOBULL, substantially impaired; or (vi) actions or statements reasonably deemed by NOBULL to be of a derogatory nature toward NOBULL or the Products, or which may tend to injure the success of NOBULL or any of its Products.
c. Effect of Termination. If this Agreement is terminated by either Party for any reason, Resident Runner shall, at the direction of NOBULL, (i) cease all promotional activities and all use of NOBULL’s brand source indicia, and (ii) if required by NOBULL, make clarifying statements which shall be pre-approved in writing by NOBULL. Resident Runner shall not undertake further work or enter into further commitments with regard to this Agreement after receiving such notice of termination from NOBULL, except as mutually agreed upon by the Parties in writing.
d. Survival. The rights and obligations of the Parties set forth in Sections 6 c, 7, 8, 9 b, 9 c, and 11 through 16 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
7. Confidentiality. During the course of Resident Runner’s performance of Services for NOBULL, Resident Runner may receive and have access to records and information of a confidential and proprietary nature to NOBULL and customers of NOBULL. Resident Runner acknowledges and agrees that such information is an asset of NOBULL or its customers, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of NOBULL and its customers, must be kept strictly confidential and used only in the performance of Resident Runner’s duties under this Agreement. Resident Runner agrees that he/she will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except to the existing employees of NOBULL or as otherwise directed by NOBULL in the course of Resident Runner’s performance of Services under this Agreement, and thereafter only with the written permission of NOBULL.
8. Material Disclosures and Compliance with FTC Guidelines. If applicable, when publishing posts/statuses about NOBULL’s products or services, Resident Runner must clearly disclose his/her “material connection” with NOBULL, including the fact that Resident Runner was given any consideration, was provided with certain experiences or is being supplied samples by NOBULL. The above disclosure should be clear and prominent and made in close proximity to any statements that Resident Runner makes about NOBULL or NOBULL’s products. This disclosure is required regardless of any space limitations of the medium (e.g. Twitter), where the disclosure can be made via hashtags. Resident Runner’s statements shall always reflect Resident Runner’s honest and truthful opinions and actual experiences. Resident Runner shall only make factual statements about NOBULL or NOBULL’s Products which Resident Runner knows for certain are true and can be verified. Without limiting the foregoing, Resident Runner shall at all times remain liable for ensuring that the Services and Deliverables and its activities under this Agreement comply with all applicable laws, including, but not limited to, the Federal Trade Commission Act (“FTC Act”) and the FTC Guides Concerning the Use of Endorsements and Testimonials in advertising (“FTC Endorsement Guides”). If requested by NOBULL, and to the extent NOBULL shall require, for the purpose of complying with the FTC Act, the FTC Endorsement Guides and any other applicable laws concerning the use of testimonials and endorsements in advertising, Resident Runner will furnish appropriate affidavits attesting to Resident Runner’s use of and preference for the Products.
9. License Grants; Ownership Rights
a. NOBULL License Grant. NOBULL hereby grants Resident Runner a non-exclusive, non-transferable license in the Territory during the Term of this Agreement to advertise, publicize, and promote any trademarks provided by NOBULL solely for the purpose of performing the Services and creating the Deliverables in accordance with NOBULL Brand Guidelines.
b. Resident Runner License Grant. Resident Runner hereby grants NOBULL a perpetual, non-exclusive, paid-up, worldwide, royalty-free license (with the right to sublicense) to use, copy, display, perform, distribute and create derivative works of any Resident Runner proprietary items which may be incorporated into the Deliverables (“Resident Runner Materials”).
c. Ownership of Deliverables. NOBULL shall own all right, title and interest in and to the Deliverables (excluding any Resident Runner Materials incorporated therein). Any Deliverables created by Resident Runner shall be considered a work made for hire, and Resident Runner hereby assigns all of its rights in and to such Deliverables to NOBULL (excluding any Resident Runner Materials incorporated therein). Resident Runner shall own all right, title and interest in and to Resident Runner Materials, subject to the licenses granted herein.
10. Representations and Warranties. Resident Runner hereby represents, warrants and covenants that:
a. Resident Runner is not a party to any oral or written agreement, contract or understanding which would prevent, limit or hinder the performance of any of Resident Runner’s obligations under this Agreement;
b. Resident Runner has full power and authority to enter into this Agreement, and to perform all of the obligations hereunder without violating the legal or equitable rights of any third party;
c. the Deliverables are original works of authorship, and Resident Runner has all necessary rights, licenses, and consents necessary to provide the Deliverables and grant the licenses granted herein to NOBULL;
d. the Deliverables will not infringe or misappropriate any third party’s intellectual property rights;
e. Resident Runner will comply with all applicable laws of the Territory in rendering the Services and providing the Deliverables hereunder, including, without limitation, the FTC Act and the FTC Endorsement Guides;
f. all Services rendered by Resident Runner shall be promptly rendered, of first quality and provided in a professional and workmanlike manner;
g. Resident Runner will refrain from taking any action inconsistent with the endorsement of the Products or NOBULL or faithful adherence to Resident Runner’s obligations under this Agreement;
h. Resident Runner is knowledgeable and experienced in training ideas and philosophies and has and will maintain, at minimum, all required training certifications;
i. All Deliverables and fitness instruction provided by Resident Runner shall be provided in a professional manner in accordance with best industry standards and practices, including with respect to participant health and safety, and avoidance of participant injury; and
j. Resident Runner will not make any disparaging or negative remarks regarding NOBULL, its employees, officers, directors or Products.
11. Indemnification. Resident Runner shall defend, indemnify and hold NOBULL and its officers, directors, employees, agents, affiliates, successors, and permitted assigns harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, resulting from any claim of a third party arising out of or occurring in connection with Resident Runner's negligence, willful misconduct or breach of this agreement.
12. LIMITATION OF LIABILITY. TO FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NOBULL HAVE ANY LIABILITY TO RESIDENT RUNNER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, ENHANCED OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY MANNER RELATING TO THIS AGREEMENT, WHETHER OR NOT NOBULL HAS BEEN ADVISED OF, OR OTHERWISE MIGHT OR SHOULD HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF NOBULL TO RESIDENT RUNNER FOR ANY DAMAGES ARISING HEREUNDER SHALL NOT EXCEED THE GREATER OF (A) THE VALUE OF THE PRODUCTS PROVIDED BY NOBULL TO RESIDENT RUNNER UNDER THIS AGREEMENT; OF (B) $100 FOR ALL CLAIMS IN THE AGGREGATE. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE), WARRANTY, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS.
13. Independent Contractor. Resident Runner is retained as an independent contractor of NOBULL. Resident Runner acknowledges and agrees that (a) Resident Runner is solely responsible for the manner and form by which Resident Runner performs under this Agreement, and (b) Resident Runner is a self-employed individual, who performs services similar to the services outlined in the attached statement of work for various entities and individuals other than NOBULL. Resident Runner has no authority to commit, act for or on behalf of NOBULL, or to bind NOBULL to any obligations or liability. Each Party is responsible for its own employees and the taxes and other governmental charges (including unemployment insurance, benefits and the like) associated with those employees. Each Party is responsible for any taxes (i.e. any foreign, federal, state, local or other government charges, including, without limitation, all government excise, use, sales, value-added, or occupational levies and charges, regulatory administration and similar pass through fees, and other similar surcharges and levies) that may be applicable or arise as a result of Resident Runner’s receipt of Products in connection with this Agreement.
14. Choice of Law; Venue; Jury Trial Waiver. This Agreement shall be construed and enforced pursuant to the laws and decisions of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. Any action, litigation or proceeding of any kind arising from or relating to this Agreement shall be brought in the appropriate state or federal courts for the Commonwealth of Massachusetts having jurisdiction over the claim, and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
15. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the Runner in Residence Contract (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only on receipt by the receiving party and when provided in compliance with the requirements of this Section.
16. General. (A) this Agreement (including its attachments) constitutes the sole and entire agreement of the Parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. (b) if any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. (c) no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. (d) no waiver by either Party of any term of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. (e) all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. (f) Resident Runner acknowledges that this is a personal services agreement and that he or she shall have no right to assign, transfer, delegate or subcontract any of his or her rights or obligations under this Agreement without the prior written consent of NOBULL. Any purported assignment, transfer, delegation or subcontract in violation of this section shall be null and void. (g) this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns. There are no third party beneficiaries. (h) the headings of the sections and subsections are for convenience only and shall not enter into the interpretation of this Agreement.