Product Advisory Terms of Participation

If you have elected to participate in any product (including beta) testing, advisory council, early adopter program, or similar project or program (collectively, “Research Projects”), then these Product Advisory Terms of Participation (this “Agreement”) will apply to you at all times during your participation in Research Projects. As used herein, the terms “you” and “Participant” refer to both you in your individual capacity, the organization or entity with whom you are associated in the context of entering into this Agreement, and any other individual from your organization or entity who participates in a Research Project (as defined below), and “Firstup” refers to Firstup, Inc., with a principal place of business at 1 Montgomery St., Ste. 2150, San Francisco, CA 94104, together with its affiliates.

Participant represents and warrants that Participant has the necessary and full right, power, authority, and capability to accept this Agreement, to bind Participant’s organization, and to perform Participant’s obligations hereunder. Participant can accept this Agreement by: (a) clicking to accept or agree to this Agreement, where this option is made available to Participant by Firstup; (b) where a link to this Agreement appears in an order form, schedule, or other document provided to Participant by Firstup, by signing such document; or (c) signing this Agreement, if there is a designated area to sign. Participant may not accept this Agreement if (i) Participant is not at least eighteen (18) years of age, or (ii) Participant is a person barred from using Firstup’s products or services under the laws of the U.S. or other countries, including the country in which Participant is a resident. Participant may not participate in a Research Project if Participant does not accept this Agreement. By accepting this Agreement, Participant agrees as follows:

A. How Our Research Projects Work 

i. Research Projects may occur on an ongoing or one-time basis and are designed to solicit general feedback about Firstup’s products and services through beta-tests (as described below), early adopter programs, surveys, panels, telephone and/or video interviewers. If Participant agrees to take part in a Research Project, then Firstup may reach out to Participant from time to time, using the email address Participant provided when Participant registered for a Research Project, to invite Participant to participate in additional Research Projects. Participation in each individual Research Project is voluntary and Participant may accept or decline to participate. If Participant  would like to terminate Participant’s participation so that Participant will no longer be notified about upcoming Research Projects, please follow the instructions under “Canceling Participant’s Participation” below.

ii. From time to time, Firstup may make available to some or all of its customers, new or modified products, or features or functionalities of existing products, which are designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a similar description (“Beta Products”), prior to their general release. Beta Products are intended for evaluation purposes only, are not supported by Firstup and may be subject to additional terms. Beta Products are not subject to any service level agreement, indemnity or warranties of any kind. If Participant has an existing agreement with Firstup (an “Existing Agreement”) that specifically addresses Beta Products and disclaims all warranties and liability related thereto (including, without limitation, any service level commitments), the Existing Agreement and not this clause will govern Participant’s use thereof unless Participant has agreed to specific terms related to the applicable Beta Product, in which case those specific terms will either supersede or supplement those in Participant’s Existing Agreement, as described in the specific terms related to the applicable Beta Product. Firstup may discontinue Beta Products and/or Participant’s access to such Beta Products at any time in its sole discretion and may never make them generally available. Access to the Beta Products does not guarantee that Participant will have access to the same products should they become generally available or that Participant will obtain them at no cost or a reduced cost. The Beta Products, and all documentation or other materials that may be provided to Participant in connection with Participant’s participation in the applicable Research Project are the Confidential Information (as defined below) of Firstup. Unless Participant has received Firstup’s express written permission, Participant may not publish or otherwise publicly disclose information related to the Beta Products. Except as set forth herein, the terms and conditions of Participant’s use of Firstup’s products and services will be governed by the Existing Agreement.

B. Information We Collect and How We Use It

i. Registration Information.  When Participant registers for or participates in a Research Project, Participant will be asked to provide certain information, including but not limited Participant’s name and email address and certain demographic information. Firstup’s use of any information Participant provides in connection with Participant’s registration will at all times be subject to the provisions of Firstup’s Privacy Policy.

ii. Recordings and Other Research Content.  If the activity Participant is involved in as part of the Research Project involves an interview or series of interviews (either in person or via a computer or telephone system) those interviews may be recorded. Firstup may use those recordings, as well as Participant’s responses to any questions asked in connection with Participant’s participation, including Participant’s answers to any multiple choice questions and quotes from any oral or written response (together, the “Research Materials”), for purposes of Firstup’s research and in connection with the publication and marketing of research results. Participant may be asked to use a special workspace, either in Slack, the Firstup platform or another tool, in order to participate in the Research Project. Participant agrees that passwords or login information to the workspace may not be shared, and Participant further understands and agrees that the workspace is confidential to Firstup, contains the Confidential Information of Firstup, and is only to be used for the purposes of the Research Project in which Participant are participating.

iii. Usage Rights.  Should Participant choose to submit any ideas, suggestions, documents, and/or proposals (collectively, “Feedback”) to Firstup through any of its media, Participant acknowledges and agrees that: (a) Participant’s Feedback and Research Materials do not contain confidential or proprietary information; (b) Firstup is not under any obligation of confidentiality, express or implied, with respect to the Feedback or Research Materials; (c) Firstup will be entitled to use or disclose (or choose not to use or disclose) such Feedback or Research Materials for any purpose, in any way, in any media worldwide; (d) Firstup may have something similar to the Feedback and Research Materials already under consideration or in development; (e) Participant hereby grants to Firstup an irrevocable, transferable, worldwide, and perpetual license to use the Feedback and Research Materials for any purpose whatsoever, without any obligation of Firstup to Participant; and (f) Participant is not entitled to any compensation or reimbursement of any kind from Firstup under any circumstances.

C. Release

Participant hereby authorizes Firstup to use, reproduce and/or publish the Research Materials and Feedback. Participant understands that the Research Materials and Feedback may be used with or without compensation from Firstup and that they may be used for the development, marketing and promotion of Firstup and its products in multimedia and print materials and in any other distribution media chosen by Firstup. Participant further grants to Firstup any and all right, title and interest that Participant may have in and to the Research Materials, including the right to sublicense or transfer the Research Materials for marketing, communications or advertising purposes as Firstup sees fit.

D. Canceling Participant’s Participation

Participant may cancel its participation in the Research Project at any time by emailing us at beta@firstup.io.

E. Confidential Information

i. “Confidential Information” as used in this Agreement means any and all technical and non-technical information, including  without limitation patent, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of Firstup, and includes, without limitation, its respective information concerning product and feature plans, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information provided by or on behalf of Firstup in connection with a Research Project.

ii. Participant will treat all Confidential Information of Firstup with at least the same degree of care as it accords to its own Confidential Information, which will be no less than a reasonable degree of care.  Participant agrees that it will not make use of, disseminate, or in any way disclose any Confidential Information of Firstup to any person, firm or business, except to the extent necessary for the purposes of the Research Project and consultations with personnel, authorized representatives, and advisors of Participant in connection with a Research Project who need to know such information and who have previously agreed, either as a condition to employment or service or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement (collectively, “Authorized Representatives”) or any other purpose that Firstup may hereafter authorize in writing. Participant agrees to be responsible and liable for the compliance of its Authorized Representatives with the terms and conditions of this Agreement.

iii. Participant agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of Firstup, unless Firstup gives specific permission by means of prior written consent.

iv. Participant’s obligations under subsection ii with respect to any portion of Firstup’s Confidential Information will terminate when Participant can document that:  (a) such information was generally known to the public at the time it was communicated to Participant by Firstup; (b) such information became generally known to the public subsequent to the time it was communicated to Participant through no fault of Participant; (c) it was in Participant’s possession free of any obligation of confidence at the time it was communicated to Participant by Firstup (as shown by Participant’s files and records as of the time of disclosure); (d) it was rightfully communicated to Participant on a non-confidential basis by a third party free of any obligation of confidence subsequent to the time that it was communicated to Participant by Firstup; or (e) it was developed by employees or agents of Participant independently of and without use or reference to any information communicated to Participant by Firstup.

v. Participant is permitted to disclose the Confidential Information if required by law, court order or regulatory body, so long as, to the extent legally permitted, Firstup is given prompt written notice of that requirement before disclosure and reasonable assistance in obtaining an order protecting that information from public disclosure. To the extent that Participant must disclose Confidential Information pursuant to the previous sentence, any such disclosure will be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court or regulatory body.

vi. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs and lists and Confidential Information, furnished to Participant by Firstup will remain the property of Firstup and will be returned to it promptly at its request, together with any copies thereof.

vii. Neither party will communicate any information to the other in violation of the proprietary (including contractual) rights of any third party.

viii. This Agreement will govern all communications between the parties that are made during the period from the effective date of this Agreement for each Research Project in which Recipient participates. Recipient will maintain the confidentiality of all Confidential Information received hereunder in accordance with the terms of this Agreement for a period of five (5) years following the receipt of or access to such Confidential Information. Notwithstanding the foregoing, the expiration of such term will have no effect on information protected as a ‘trade secret’ of Firstup in which case, the duties hereunder will continue on Recipient until such information no longer is afforded such protection. 

F. Miscellaneous

i. Participant will not acquire any licenses under any intellectual property rights of Firstup under this Agreement. All rights not expressly granted in this Agreement are reserved by Firstup and its licensors.

ii. Participant will not export, directly or indirectly, any technical data acquired from Firstup pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.

iii. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE CONFIDENTIAL INFORMATION AND BETA PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PARTICIPANT EXPRESSLY AGREES THAT FIRSTUP WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF PARTICIPANT’S USE OF A BETA PRODUCTS. FIRSTUP, ITS LICENSORS, AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY (a) WARRANTY THAT THE CONFIDENTIAL INFORMATION AND BETA PRODUCTS ARE ERROR-FREE OR “BUG”-FREE, ACCURATE, SECURE, OR RELIABLE; (b) WARRANTY THAT THE CONFIDENTIAL INFORMATION AND BETA PRODUCTS WILL OPERATE WITHOUT INTERRUPTION; (c) WARRANTY THAT ALL OR ANY ERRORS WILL BE CORRECTED OR THAT THE CONFIDENTIAL INFORMATION AND BETA PRODUCTS WILL COMPLY WITH ANY LAW, RULE, OR REGULATION; (d) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (e) IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

iv. FIRSTUP WILL NOT BE LIABLE FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT, STATUTE, TORT, OR OTHERWISE) ARISING OUT OF THIS AGREEMENT, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUE, LOST SAVINGS, COST OF REPLACEMENT SERVICES, LOST DATA, LOSS OF USE OF INFORMATION OR SERVICES, OR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, WHETHER OR NOT FIRSTUP HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FIRSTUP’S TOTAL AGGREGATE LIABILITY FOR ALL MATTERS ARISING FROM OR RELATED TO THIS AGREEMENT IS LIMITED TO USD$1,000.

v. Participant may not assign or transfer any rights or obligations under this Agreement without the prior written consent of Firstup.

vi. This Agreement will be governed in all respects by the laws of the United States of America and by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. The sole jurisdiction and venue for any dispute arising under this Agreement will be the state and federal courts located in San Francisco, CA, and each party to this Agreement hereby submits to such jurisdiction and venue.

vii. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.

viii. Any notices required to be given under this Agreement will be in writing and sent to the physical or email address on file with Firstup for Recipient or, in the case of Firstup, to the address set forth in the preamble to the attention of Legal Department or via email to legal@firstup.io. Physical notices will be deemed received the next day if sent via overnight mail or courier with confirmation of receipt, or three (3) days after deposited in the mail sent certified or registered or via another reputable carrier with tracking.

ix. Participant acknowledges and agrees that irreparable injury may result to Firstup if Participant breaches the provisions of this Agreement and that damages may be an inadequate remedy in respect of such breach. Participant agrees in advance that, in the event of such breach, Firstup will be entitled, in addition to such other remedies, damages and relief as may be available under applicable law, to the granting of injunctive relief in Firstup’s favor.

x. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. In the event of a dispute or a claim by a party to enforce its rights under this Agreement, the losing party will pay all of the prevailing party’s reasonable legal fees. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees.