HARLEY-DAVIDSON® INSIDERS
OFFICIAL RULES AND PROGRAM TERMS AND CONDITIONS
Harley-Davidson Motor Company, Inc. (“H-D” or the “Administrator”) has launched a program to enable individuals who are Eligible Candidates (as defined below) and who are selected to participate in the program to promote products and services offered by H-D or its corporate affiliates through the use of video or photo reviews (the “Harley-Davidson Insiders Program”, or the “Program”). Each participant in the Program (such participants are referred to as “H-D Insiders”) will be selected from the application and selection process described herein, subject to the official rules of the Harley-Davidson Insiders Program set forth below (the “Official Rules”).
By submitting an application to participate in the Program and checking the “I AGREE to the Official Rules and Program Terms and Conditions” box in the application, I, the applicant (referred to herein as “I”, “me”, “my”, “mine” or “Applicant”) hereby agree to the Official Rules, and further acknowledge and agree that if selected to be an H-D Insider, I will be bound by and comply with all of the terms and conditions of the Harley-Davidson Insiders Program set forth below (the “Program Terms and Conditions”).
OFFICIAL RULES
1. ELIGIBILITY: The Program is open to all Eligible Candidates to apply. An “Eligible Candidate” is an individual who: (a) is a resident of the United States of America; (b) is at least eighteen (18) years of age at the time of submitting an application; (c) is not an employee, officer or director of the Administrator or any of its affiliates, contractors or service providers; (d) is not an owner, employee, officer, director or contractor of any authorized Harley-Davidson® dealer; and (e) agrees to be bound by and comply with (i) all of the Official Rules, and (ii) if chosen to participate in the Program, all of the Program Terms and Conditions set forth below. Those who are not Eligible Candidates are not eligible to apply to or participate in the Program.
2. TO ENTER AND PARTICIPATE: To be considered, each Applicant must submit an application through the Program application and content portal (the “Portal”). Applications will be reviewed on a rolling basis. Only completed applications will be considered. Applications will require the Applicant to answer Program-related questions and provide requested biographical information and contact information. Applicants may also at their option submit an application video or photo (“Video”).
3. VIDEO REQUIREMENTS: The following terms and requirements apply to each Video submitted by an Applicant:
Any Video submitted by an Applicant must be captured by the Applicant and be original to the Applicant. Each Video should show H-D a little bit about the Applicant and what excites the Applicant about H-D’s brand.
Applicant will be disqualified from participation in the Program if the Administrator determines, in its sole discretion, that the Applicant’s Video: violates or infringes upon the rights of any party; is inappropriate, obscene, abusive, threatening, harassing, defamatory, discriminatory, libelous, pornographic, sexually explicit, offensive or otherwise unfit for publication; advocates the illegal use of drugs or alcohol, or acts of violence or illegal behavior; disparages or damages the reputation, goodwill, prestige or image of H-D or its affiliates, or disparages any of the products or services offered by H-D or its affiliates; promotes or disparages any third party or its products or services; contains any personal identification, such as personal names, street or email addresses, or phone numbers; or is irrelevant to the Program theme.
4. H-D INSIDER SELECTION AND PARTICIPATION: Administrator will evaluate the Program applications and determine those individuals who will be selected as H-D Insiders, in Administrator’s sole discretion. Each Applicant that is selected to participate in the Program will be contacted by H-D and provided with further instructions. Each individual chosen to be a participant in the Program must comply with the Program Terms and Conditions.
PROGRAM TERMS AND CONDITIONS
The following Program Terms and Conditions apply to all participants in the Harley-Davidson Insiders Program. By submitting an application to participate in the Program and checking the “I AGREE to the Official Rules and Program Terms and Conditions” box in the application, I, the Applicant, agree to be bound by all of these Program Terms and Conditions if I am selected to be an H-D Insider:
2. ACTIVE STATUS: If I do not provide H-D with at least one conforming Post in any calendar month, I agree I will be placed on inactive status until I provide a conforming Post to H-D. If I am on inactive status for three (3) months or more, H-D may in its discretion remove me from the Program. No Commissions (as defined below) will be earned by me while I am on inactive status or after such date (if any) as I am removed from the Program due to being inactive.
3. COMMISSIONS:
Exclusive Compensation.I understand and agree that, as my sole and exclusive compensation for participating in the Program, I will have the opportunity to earn a commission (“Commission“), which shall be calculated by multiplying the Applicable Commission Rate by all Retail Product Sales generated by Qualified Transactions arising from my Post(s) during the Applicable Time Period, as those capitalized terms are defined below.
Definitions.
The “Applicable Commission Rate“ shall initially be two percent (2.0%), but I acknowledge and agree that H-D may increase or decrease the Applicable Commission Rate applicable to Qualified Transactions involving purchases of one or more specified products or applicable during specified time periods, on thirty (30) calendar days’ prior notice to me.
“Retail Product Sales” means the aggregate retail price of General Merchandise and Parts and Accessories purchased by individual consumers via the h-d.com website in a Qualified Transaction, less any and all promotions and discounts, excluding taxes and excluding shipping, handling and insurance charges and any other miscellaneous charges that may apply.
“Qualified Transaction” means the purchase by an individual consumer of Harley- Davidson® General Merchandise and/or Parts and Accessories in a completed transaction via the h-d.com website that meets all of the following criteria: (i) the consumer purchaser must have viewed one of my photo or video Posts on h-d.com or clicked on a product link on one of my Posts on h-d.com within thirty (30) calendar days prior to completing the purchase transaction on h-d.com, and (ii) the consumer purchaser must not have viewed any photo or video Post(s) from any H-D Insider other than me on h-d.com, or clicked on any product link on any Post(s) made by any H-D Insider other than me on h-d.com, between the time the purchaser viewed my Post or clicked on a product link on my Post on h-d.com and the time the purchaser completed their purchase transaction on h-d.com, and (iii) the consumer purchaser must not have canceled their purchase transaction or returned the purchased products within thirty (30) calendar days after the purchase transaction on h-d.com is completed, and (iv) the purchase transaction must not have been voided by H-D for fraud or other permitted reason within thirty (30) calendar days after the purchase transaction on h-d.com is completed, and (v) the purchase transaction must be completed on h-d.com during the Applicable Time Period.
The “Applicable Time Period” is the period beginning when my first Post is posted by H-D on h-d.com and ending on the earliest of (i) the date I stop participating in the Program, (ii) the date I am removed from the Program by H-D in its discretion, or (iii) the date H-D terminates the Program in its discretion, unless a different Applicable Time Period is established by H-D upon notice to me for Qualfied Transactions involving purchases of one or more specified products.
Relevant Dates; When Commissions are Due and Payable.SSeveral dates are of key importance in the calculation and payment of Commissions. The “Transaction Date”for any Qualified Transaction is the date that the purchase underlying that Qualified Transaction was completed on h-d.com by the consumer purchaser. The “Qualification Date” for any Qualified Transaction is the date that is thirty (30) calendar days after the Transaction Date for that Qualified Transaction; because a purchase transaction will not constitute a Qualified Transaction if it is canceled by the purchaser or voided by H-D, or if the purchased products are returned by the purchaser, within thirty (30) days, that purchase transaction cannot become a Qualified Transaction until the Qualification Date, which is 30 days after the corresponding Transaction Date. Finally, the “Statement Date” for any Qualified Transaction shall be the first day of the calendar month immediately following the month in which the Qualification Date for that Qualified Transaction occurs. The Commission attributable to any Qualified Transaction will be processed and paid within ten (10) calendar days after the Statement Date for that Qualified Transaction, and only then will the Commission be due and payable.
Payment of CommissionsI acknowledge and agree that no Commission shall accrue or be earned by me, or be due or payable to me, with respect to any Qualified Transaction until the date that is ten (10) calendar days after the Statement Date for that Qualified Transaction. I further acknowledge and agree that no Commission shall accrue or be earned by me with respect to any purchase transaction that is not a Qualified Transaction. Commissions that are due will be paid on a monthly basis in accordance with the provisions set forth above. H-D will calculate the amount of Commissions to which I am entitled. TVPage will make available to me via the TVPage app reports showing the Commissions I have earned. I acknowledge and agree that any and all Commissions earned by me will be paid to me by TVPage via one of the payment methods supported by TVPage’s payment processor, including ACH, check, eCheck or wire transfer, less applicable transaction fees; I recognize that I will be allowed to choose which of the payment methods will be used to pay Commissions to me.
4. TALENT RELEASE:
Permission from H-D Insider.For good and valuable consideration (including being selected as an H-D Insider, and the opportunity to receive payment of Commissions as a participant in the Program, as well as the possibility, but not a guarantee, that I may appear in advertising and publicity), the receipt and sufficiency of which are hereby acknowledged, I (on my own behalf and on behalf of my heirs, personal representatives, executors, administrators, legal representatives, successors and assigns), upon becoming an H-D Insider and anytime thereafter, hereby permanently and irrevocably grant to H-D and its divisions and corporate affiliates and their respective employees, agents, designees, nominees, licensees, contractors, ad agencies, legal representatives, dealers, successors and assigns (collectively with H-D, the “Company”), my irrevocable, perpetual and worldwide permission and consent to take, use, publish and record (with or without sound) photographs, audio recordings, and video of me and including such items in which I am included with others, and including, without limitation, all recordings of my image, name, voice, likeness, signature, other indicia of my identity and identifying attributes, characteristics and/or features, and biographical materials about me (collectively, the “Personality Rights”), and all photographs, audio recordings, videos, written or spoken content, statements, testimonials, quotations and/or comments, Posts, drawings, designs, and other art, creations, publications and developments provided by me to H-D in connection with my participation in the Program or my application to participate in the Program or that incorporate element(s) of Personality Rights, by themselves or in combination with other materials, and in any form, format or medium, now known or later developed, relating to H-D or Company and/or products, services and merchandise offered by H-D or Company, and stored in any tangible medium of expression, whether now known or later developed (collectively, the “Materials”), in Company’s sole discretion and without restriction or limitation, in whole or in part.
Use of Materials.I hereby agree that during my participation in the Program and in perpetuity thereafter, the Materials may be reproduced, broadcasted, streamed, posted, displayed, distributed, sublicensed, modified, exhibited, displayed, projected, copyrighted, published, edited, sold or otherwise used in any manner and in any media (now known or later developed, and including without limitation all print, electronic, digital and online media) worldwide by H-D and Company for the purposes of education, illustration, publication, documentation, trade, promotion, marketing, advertising, research, competition of every description, and for any other purposes whatsoever, including without limitation on billboards, internet websites, mobile applications and social media (including, but not limited to, Snapchat, Facebook, Pinterest, Google+, Twitter, Tumblr, YouTube, TikTok, and Instagram), pop-ups, pop-unders, banner ads, social media homepage takeovers, e-mail blasts, blogs, radio, cable and broadcast television, and for internal, editorial and archival purposes, without further permission from or compensation or consideration to me. I also consent to H-D’s and Company’s use of any printed matter in conjunction therewith. I understand and agree that Materials may be used to promote H-D, Company and their products, services and merchandise. I hereby waive any right that I may have to inspect and/or approve the finished product or products or the editorial, promotional, advertising, or printed copy or soundtrack that may be used in connection therewith and any right that I may have to control the use to which said product, products, copy and/or soundtrack may be applied.
H-D Insider Warranties.I hereby represent, warrant and covenant that I have the full power and authority to provide the permissions, consents and releases set forth in this Section 4 (this “Talent Release”). I represent, warrant and covenant that none of the Materials will misappropriate, violate or infringe any patent, copyright, trade secret, trademark, right of publicity or privacy or other intellectual property rights of any person or entity.
No Obligation; No Return.I hereby agree and understand that neither H-D nor Company shall be obligated to use any of the Materials (including without limitation any Post), in any form, or to provide a credit or acknowledgement to me, for the use of any of the Materials. I understand that I will not be given any monetary or other compensation for use of the Materials by H-D or Company or any third party other than the Commissions and the opportunity to receive Commissions, as set forth in the Program Terms and Conditions. I understand and agree that all Materials are, or shall become upon submission to H-D or Company, the sole and exclusive property of H-D, and any and all Materials submitted by me to H-D or Company will not be returned.
H-D Ownership of Materials.I hereby acknowledge and agree that H-D owns, controls, and retains, and shall own, control and retain, exclusive ownership of, and worldwide rights, title, and interest in and to, all of the Materials created, developed or provided under or pursuant to the terms and conditions set forth in this Talent Release and the rest of the Program Terms and Conditions, free and clear of any and all liens, claims, mortgages and encumbrances of any kind. All copyright and any other rights in and to the Materials shall be solely the property of H-D in perpetuity, throughout the world in all media, now known or later developed. I have no ownership or other rights in any of the Materials, and to the extent I possess such, I hereby assign to H-D any and all right, title and interest that I possess in the Materials pursuant to Section 4(F) below.
Work for Hire.All Materials, including without limitation all Posts submitted by me, and including all rights in copyrights or other intellectual property rights pertaining to the Posts and other Materials (collectively, the “Assets”), meeting the definition of a “Work Made for Hire” as set forth in the Copyright Act of 1976, Public Law 94-553, October 19, 1976, 90 Statutes 2541, Title 17, United States Code, Section 101 et seq ., as amended (the “Copyright Act”), shall be considered a “Work Made for Hire” in accordance with the Copyright Act. Furthermore, whether or not any of the Assets meets the definition of a “Work Made for Hire” under the Copyright Act, I shall irrevocably grant, transfer, convey, and assign, and cause my heirs, personal representatives, executors, administrators, legal representatives, successors and assigns, to irrevocably grant, transfer, convey, and assign to H-D (in consideration of the opportunity to receive payment of Commissions as a participant in the Program, as well as the possibility, but not a guarantee, that I may appear in advertising and publicity), and I hereby do irrevocably grant, transfer, convey and assign to H-D, all right, title and interest in and to all of the Assets, throughout the universe in perpetuity, including: (i) all copyrights subsisting in the Assets, including, without limitation, all of the exclusive rights listed in 17 U.S.C. §106, as amended; (ii) all rights to obtain registrations of copyrights on the Assets; (iii) all rights to apply for U.S. and foreign copyrights covering or applicable to any and all of the Assets; and (iv) all other intellectual property rights in the Assets. H-D and Company shall have the unlimited and unrestricted right to use and modify the Assets for any purpose whatsoever. I further agree that I shall perform, and shall cause my heirs, personal representatives, executors, administrators, legal representatives, successors and assigns to perform, any and all actions reasonably requested by H-D, without further compensation from H-D or anyone else, as H-D deems necessary or appropriate for H-D to obtain, perfect and maintain its ownership of the Assets or related intellectual property rights, applications, or registrations. To the maximum extent permitted by applicable law, I hereby waive the exercise of any "moral rights" or "droits moral" and any analogous rights, for all time and for all purposes, in the Assets, however denominated, in any jurisdiction of the world. To the extent such moral rights or droits moral are not waivable, I hereby irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise by H-D or Company of their rights in this Talent Release or the rest of the Program Terms and Conditions. I shall not file a patent, trademark or copyright application or file or seek any other type of protection on any of the Assets or any aspect thereof anywhere in the world on behalf of myself or any third party, and I shall ensure that none of my heirs, personal representatives, executors, administrators, legal representatives, successors and assigns take any action that I am prohibited from taking by this sentence. I hereby irrevocably appoint H-D as my attorney-in-fact for the purpose of securing intellectual property protection, applying for patent, trademark and/or copyright registrations, and similar purposes with respect to the Assets. These obligations shall survive and continue beyond the termination of my participation in the Program and the Program itself, and shall be binding upon my heirs, personal representatives, executors, administrators, legal representatives, successors and assigns.
H-D Trademarks.All trademarks, service marks, trade names, and other intellectual property or indicia of origin, including logos, licensed to H-D or any of its corporate affiliates by H-D U.S.A., LLC (“H-D USA”), including without limitation any HARLEY- DAVIDSON, HARLEY, HD, H-D and H.O.G. marks (collectively, the “H-D Marks”), are the exclusive property of H-D USA and are licensed to H-D. I hereby acknowledge and agree that H-D USA and H-D shall retain sole and exclusive ownership of all H-D Marks and all goodwill and rights related thereto throughout the world. Any and all logos, slogans, trademarks, service marks, trade dress, design or graphics developed or created by me in connection with the Program shall be considered H-D Marks. I agree that I shall do nothing inconsistent with the ownership of the H-D Marks by H-D USA and H-D, and that any use of any of the H-D Marks by me shall inure to the benefit of H-D. I agree that I have no right to use any of the H-D Marks except as permitted by H-D. Any permitted use by me of H-D Marks shall be done in strict adherence to the most recent written guidelines provided by H-D to me. I agree that nothing in the Program Terms and Conditions shall give me any right, title, or interest in any of the H-D Marks other than the right to use the H-D Marks if and as permitted by H-D, in compliance with this Talent Release and the rest of the Program Terms and Conditions. I agree not to engage in any conduct or take part in any activity which might (i) impair or attack the validity or enforceability of any of the H-D Marks, (ii) dilute the distinctive quality or value of any of the H-D Marks, (iii) adversely affect the goodwill of any of the H-D Marks, (iv) be considered unfair competition, and/or (v) be considered an infringement or violation of any third party rights or applicable law. All H-D property and H-D Marks are provided on an “AS IS” basis and without any warranties of any kind, including any implied warranty of non-infringement, which is expressly disclaimed by H-D.
Third Party Use of Materials.In addition to all commercial and other uses identified herein, H-D and Company reserve the right hereunder to release Materials, including but not limited to, release of my digital application Video (if I submit one), which, for avoidance of doubt, is considered part of the Materials, to iTunes, to any website of H-D's choosing, and to any social media and related channels, including but not limited to, Snapchat, Facebook, Pinterest, Google+, Twitter, Tumblr, YouTube, TikTok, and Instagram, and I hereby agree to any such release(s). I hereby acknowledge that neither H-D nor Company is able to control third party use of footage once made available in these forums, and I hereby release H-D and Company from any claims based on such third party usage. I understand that any image and video usage released or made on the Internet is subject to migration by action of third parties (e.g., sharing on Facebook), and I hereby agree H-D and Company shall not be liable for any such migration.
Waiver and Release of H-D and Company.I, ON BEHALF OF MYSELF AND MY HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE, HOLD HARMLESS AND DISCHARGE H-D AND COMPANY FROM ANY AND ALL CLAIMS, DEMANDS, SUITS AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH (I) THE USE OF THE MATERIALS, INCLUDING WITHOUT LIMITATION, CLAIMS WITH RESPECT TO LIBEL, DEFAMATION, RIGHTS OF PUBLICITY OR PRIVACY, (II) ANY BLURRING, DISTORTION, ALTERATION, OPTICAL ILLUSION OR USE IN COMPOSITE FORM, WHETHER INTENTIONAL OR OTHERWISE, THAT MAY OCCUR OR BE PRODUCED IN THE USE, MAKING, PROCESSING, DUPLICATION, MODIFICATION, PROJECTING OR DISPLAYING OF THE MATERIALS, (III) VIOLATION OF ANY PERSONAL OR PROPRIETARY RIGHT THAT I MAY HAVE IN CONJUNCTION WITH THE MATERIALS AND WITH THE USE THEREOF, AND (IV) ANY OTHER MATTER AS MAY ARISE OUT OF ANY ACTS OR OMISSIONS BY H-D OR COMPANY WITH RESPECT TO THE SUBJECT MATTER OF THIS TALENT RELEASE OR THE REST OF THE PROGRAM TERMS AND CONDITIONS AND/OR ANY OF THE USES SET FORTH ABOVE, AND WITH RESPECT TO SUBSECTIONS (I)-(IV), ANY AND ALL DAMAGES ARISING THEREFROM, INCLUDING WITHOUT LIMITATION, DIRECT, INCIDENTAL AND CONSEQUENTIAL DAMAGES. I ALSO HEREBY WAIVE THE PROTECTION OF ANY LAW THAT PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH I DO NOT KNOW OR SUSPECT TO EXIST IN MY FAVOR AT THE TIME OF AGREEING TO THIS TALENT RELEASE, including without limitation California Civil Code Section 1542, which provides that “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Legally Binding.I hereby confirm that I was at least eighteen (18) years of age at the time I submitted my application to participate in the Program, and that I have read the Talent Release and the rest of the Program Terms and Conditions, fully understand their contents and intend to be fully and legally bound thereby. This Talent Release and the rest of the Program Terms and Conditions are binding upon me and my heirs, personal representatives, executors, administrators, legal representatives, successors and assigns.
5. ADDITIONAL PROGRAM REQUIREMENTS: I acknowledge and agree that my obligations under the Program Terms and Conditions, including my participation in the Program as an H-D Insider, shall be subject to the following usage and conduct standards:
I shall not make any statement or publish or promote any material (including in any Post or otherwise on social media) that is inappropriate, obscene, abusive, threatening, harassing, defamatory, libelous, discriminatory, pornographic, sexually explicit or offensive, or that advocates the illegal use of drugs or alcohol, or acts of violence or illegal behavior.
At all events either sponsored or produced by H-D or Company or at which members of the Harley-Davidson community have a substantial presence and which I attend or participate in (including online or virtual events and activities), I shall refrain from disorderly, unruly, immoral or illegal behavior and will not engage in conduct which could reflect negatively on the reputation of H-D, Company or any of H-D’s or Company’s products or services (or any of H-D’s business partners or their products or services).
I shall not commit any felonious act, any act involving moral turpitude, any act involving the illegal use of drugs or alcohol (it being understood that social consumption in compliance with state laws shall not be a breach hereof) or firearms, or any criminal offense involving a minor, nor shall I commit any act or omission otherwise tending to bring me, H-D, Company or any of H-D’s or Company’s products or services (or any of H-D’s business partners or their products or services) into public disrepute, contempt, scandal, or ridicule.
I shall not make any false or misleading statements, including, but not limited to, statements or endorsements that are false or misleading.
Each Post and any statement of endorsement by me shall be reviewed by H-D in advance to confirm whether it complies with H-D’s endorsement policies.
I shall clearly identify any social media (e.g., Snapchat, Facebook, Pinterest, Google+, Twitter, Tumblr, YouTube, TikTok, Instagram, etc.) Posts made in connection with the Program, as advertisements or sponsored posts by including hashtags or similar indicators provided to me by H-D, such as #ad, #advertising, #sponsorship or #sponsor, and I shall include any other disclosures required by H-D.
I shall not engage in any conduct that is directly disparaging of any competitor of H-D.
I shall not post any link to any third-party websites without H-D’s express, written authorization.
I shall not publish or post any content that violates any individual’s intellectual property rights, other proprietary rights or rights of publicity or privacy, including, but not limited to, song lyrics and movie quotations. I shall be solely responsible for obtaining any and all waivers and releases required to publish or post any such intellectual property or proprietary rights, including written releases in form and substance reasonably satisfactory to H-D, from any person featured, represented or referred to in any Materials (including, but not limited to, social media Posts) created or published by me in connection with my participation in the Program.
I shall not publish, post or otherwise disclose any confidential information of any third party.
I shall not publish or post any content that violates any law, statute, rule, ordinance or regulation.
I shall not publish or post any negative statement concerning H-D or Company or their products or services.
6. REPRESENTATIONS AND WARRANTIES: I hereby represent, warrant and agree that (i) I possess the full right, power and authority to enter into and agree to these Program Terms and Conditions, to perform fully all of my obligations under the Program, and to abide by all of the restrictions imposed on me hereunder; (ii) I have the sole and exclusive authority to grant the rights being granted to H-D and Company under the Talent Release and the rest of these Program Terms and Conditions, and I have not granted and will not grant any rights inconsistent with the rights granted to H-D and Company hereunder; (iii) there are no contractual or other obligations that would prevent me from agreeing to these Program Terms and Conditions or from performing my obligations under the Program, or that would materially interfere with the full use by H-D and Company of the rights granted and/or Materials and services to be provided by me; (iv) the exercise by H-D and Company of the rights granted to them by me hereunder will not infringe or violate any rights of any third party; (v) I shall comply with all applicable laws, rules, regulations and guidelines during and in connection with my participation in the Program, and without limiting the foregoing, I represent, warrant and agree that I will comply with the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “FTC Guidelines”, found at 16 CFR Part 255:https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf); (vi) I shall comply with the H-D Endorsement Policy attached hereto as Appendix A ; and (vii) I shall not act in a manner, nor enter into any oral or written agreement, inconsistent with these Program Terms and Conditions.
7. ONLINE AND SOCIAL MEDIA: I and H-D acknowledge and agree that H-D may in its sole discretion “whitelist” any of my Posts hereunder (e.g., promote my posts/tweets by boosting their reach from my original Post to more of my followers, but not as a separately issued post which would appear generally on social media as a sponsored post issued by anyone other than me); for purposes of clarity, H-D shall also have the right to create and issue sponsored posts, which may be targeted at general social media users who do not already follow me or H-D. H-D may re-tweet and/or re-post any Program-related Posts posted by me on the corresponding H-D social media channels. In addition, H-D shall have the right to tag me in any Program-related posts.
8. REMOVAL: I acknowledge and agree that H-D may remove me from participation in the Program at any time in its discretion, with or without cause. If I am removed from participation in the Program for any reason other than my violation of or failure to comply with the Program Terms and Conditions or my being on inactive status for three (3) months or more, H-D will give me at least fifteen (15) calendar days’ advance notice of removal. I agree that purchase transactions occurring on the h-d.com website after the effective date of my removal from the Program will not be Qualified Transactions and will not accrue any Commissions.
9. MODIFICATION; TERMINATION: I acknowledge and agree that H-D may modify the Program at any time and from time to time in its discretion, and that H-D may terminate the Program, in whole or in part, at any time. H-D will provide me with at least fifteen (15) calendar days’ advance notice of any such modification or termination. I agree that purchase transactions occurring on the h-d.com website after the effective date of termination of the Program will not be Qualified Transactions and will not accrue any Commissions.
10. ASSIGNMENT: If I am selected to be an H-D Insider, that position is non-transferable, and I shall not transfer or assign my position as an H-D Insider or any of my rights or obligations under the Program, whether in whole or in part, by delegation, subcontracting, operation of law, or otherwise, without the prior written consent of H-D at H-D’s sole discretion. Any such attempted transfer or assignment without H-D’s prior written consent shall be null and void.
11. INDEPENDENT CONTRACTOR: H-D, on the one hand, and I on the other hand, are and shall remain independent contractors with respect to each other. Neither I nor H-D is an employee, agent, partner, joint venturer or franchisee of the other. I have no authority to assume or create any obligation or responsibility, express or implied, on behalf or in the name of H-D, nor to bind H-D in any manner whatsoever. I shall not be entitled to participate in any plans, arrangements or distributions made by H-D or its affiliates pertaining to or in connection with any H-D employee benefits, including health, dental, life or disability insurance, pension, 401(k), stock, bonus, STIP, profit sharing, vacation, worker’s compensation, unemployment compensation or any other benefits afforded by H-D to its employees.
12. RESPONSIBILITY FOR TAXES: I shall be responsible for reporting and paying any and all taxes and other charges imposed by any governmental entity upon me in connection with the Program, including with respect to any Commission payments paid to me, and I shall indemnify and hold harmless H-D with respect to such taxes and charges.
13. DAMAGE DISCLAIMER; LIABILITY LIMITATION:H-D SHALL NOT BE LIABLE TO ME FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THE HARLEY-DAVIDSON INSIDERS PROGRAM, MY PARTICIPATION IN THE PROGRAM, THE OFFICIAL RULES, OR THESE PROGRAM TERMS AND CONDITIONS, WHETHER OR NOT H-D HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. H-D’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES IN CONNECTION WITH THE PROGRAM, MY PARTICIPATION IN THE PROGRAM, THE OFFICIAL RULES, AND THESE PROGRAM TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF COMMISSIONS (IF ANY) PAID TO ME HEREUNDER.
14. NON-DISPARAGEMENT: While I am participating in the Program and for one (1) year thereafter, I agree not to make any statement or do any act that affects adversely, disparages or creates any negative inference as to the reputation, goodwill, prestige or image of H-D or Company, or as to the products or services offered by H-D or Company, or the performance of H- D under these Program Terms and Conditions.
15. ELECTRONIC CONSENT: I acknowledge and agree that my application to participate in the Program, together with the Official Rules and these Program Terms and Conditions, constitute the “Agreement”. The Agreement is an electronic contract. I understand and agree that by my submitting an application to participate in the Program and checking the “I AGREE to the Official Rules and Program Terms and Conditions” box in the application, I am providing my electronic consent to this Agreement, and I am (a) confirming the accuracy of the information submitted by me in the application, and (b) accepting and agreeing to abide by all of the Official Rules and these Program Terms and Conditions. I acknowledge that my electronic consent to this Agreement shall be treated in all respects as having the same legal force and effect as if I had signed this Agreement with a handwritten signature. H-D will also be deemed to have consented to and signed this Agreement. My electronic consent to this Agreement affirms my desire to participate in the Program, confirms that I have read this entire Agreement, and constitutes my agreement to the Official Rules and Program Terms and Conditions.
16. GOVERNING LAW: The Program, the Official Rules and these Program Terms and Conditions shall be governed by, and construed and enforced in accordance with, the laws of the State of Wisconsin, without regard to its conflict of laws provisions.
17. DISPUTE RESOLUTION PROVISION – MANDATORY ARBITRATION AGREEMENT:
Arbitration Agreement.TO THE EXTENT PERMITTED BY GOVERNING STATE AND FEDERAL LAW, AND EXCEPT FOR DISPUTES THAT QUALIFY FOR AND ARE BROUGHT AS AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT AS DESCRIBED BELOW, H-D AND I EACH WAIVE THEIR RIGHT TO PROCEED IN A COURT OR JUDICIAL FORUM, AND EACH SPECIFICALLY WAIVE THEIR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION, PURSUANT TO THE FOLLOWING PROVISIONS. H-D AND I AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES AND DISPUTES OF ANY KIND (collectively, “ CLAIMS ”) AGAINST EACH OTHER ARISING OUT OF OR RELATING IN ANY WAY TO THE PROGRAM, APPLICANT’S APPLICATION, COMMISSIONS, THE OFFICIAL RULES OR THESE PROGRAM TERMS AND CONDITIONS. FOR THE PURPOSES OF THIS DISPUTE RESOLUTION PROVISION, “ H - D ” ALSO INCLUDES ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES, CONTRACTORS, INSURERS AND ASSIGNS. H-D AND I AGREE THAT NO CLAIMS WILL BE PURSUED OR RESOLVED AS PART OF A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE OR COLLECTIVE ACTION OR PROCEEDING, THAT NO ARBITRATION FORUM WILL HAVE JURISDICTION TO DECIDE ANY CLAIMS ON A CLASS-WIDE, COLLECTIVE, OR CONSOLIDATED BASIS, AND THAT NO RULES OR OTHER PROCEDURES FOR CLASS-WIDE OR COLLECTIVE ARBITRATION WILL APPLY. This Dispute Resolution Provision is to be broadly interpreted and applies to all Claims based in contract, tort, statute, or any other legal theory, and all Claims that arose prior to or after termination of the Program. However, H-D and I (the “ parties ”) agree that either party may bring an individual action in a small claims court with valid jurisdiction, provided that the action remains in that court (other than any appeal of the small claims court ruling), the action is made on behalf of or against me only, and the action is not made part of a class action, private attorney general action or other representative or collective action.
Procedure.In the event of a Claim, the parties agree to attempt to resolve the Claim through good faith negotiation. If I and H-D do not resolve the Claim within sixty (60) calendar days after either Party gives the other notice of the existence of the Claim, a party may commence an arbitration by filing a demand for arbitration with the JAMS arbitration forum pursuant to the JAMS Streamlined Arbitration Rules & Procedures and, if applicable, its accompanying JAMS Consumer Arbitration Minimum Standards (collectively, the “JAMS Rules”). Claims will be resolved pursuant to the JAMS Rules in effect at the time of the demand, as modified by these Program Terms and Conditions (including without limitation this Dispute Resolution Provision), and heard by a single arbitrator. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by me or by H-D that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties, with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator. The JAMS Rules are available online at www.jamsadr.com. Except as required by law, neither a party nor an arbitrator may disclose the existence, content or results of any dispute or arbitration hereunder without the prior written consent of both parties.
Arbitrator’s Authority.The arbitrator is bound by these Program Terms and Conditions (including without limitation this Dispute Resolution Provision), the Federal Arbitration Act (“FAA”) and the JAMS Rules. The arbitrator has no authority to join or consolidate claims, or to adjudicate joined and consolidated claims. The arbitrator has exclusive authority to resolve any dispute relating to the scope, interpretation, applicability, enforceability or formation of these Program Terms and Conditions, including whether they are void. The parties agree that the arbitrator’s decision and award will be final and binding and may be confirmed or challenged in any court with jurisdiction as permitted under the FAA. The arbitrator can award the same damages and relief as a court (subject to any limitations contained in these Program Terms and Conditions), but only in favor of an individual party and for a party’s individual claim.
Arbitration Costs.I will be responsible for my share of any arbitration fees (e.g., filing, administrative, etc.), but only up to the amount of filing fees I would incur if the Claim(s) were filed in court. H-D will be responsible for all additional arbitration fees. I am responsible for all other costs/fees that I incur in arbitration, for example, fees for attorneys, expert witnesses, etc. I will not be required to reimburse H-D for any fees unless the arbitrator finds that the substance of my Claim(s) or the relief sought by me is frivolous. If the arbitrator makes such a finding, the JAMS Rules will govern the payment of all fees, and H-D may seek reasonable attorney’s fees. H-D will pay all fees and costs it is required by law to pay.
Governing Law and Enforcement.Notwithstanding anything to the contrary herein, this Dispute Resolution Provision is made pursuant to a transaction involving Official Rules and Program Terms & Conditions (8/21) 16/18 4820-3577-0863.5 interstate commerce, and shall be governed by the FAA, 9 U.S.C. §§ 1-16. This Dispute Resolution Provision was drafted in compliance with the laws in all states, however, if any portion of it is deemed to be invalid or unenforceable or is found not to apply to a Claim, the remainder of this Dispute Resolution Provision remains in full force and effect. Except, if the class-arbitration waiver provision is deemed unenforceable, any class action Claim(s) must proceed in a court of competent jurisdiction.
Survival.This Dispute Resolution Provision shall survive termination of the Program and the end of my participation in the Program for any reason.
18. INTERVIEWS/PUBLIC DISCLOSURE: I shall not authorize or release advertising or publicity materials (including any and all Materials), nor shall I give interviews, which make reference to the details of my participation in the Program as an H-D Insider, such as my compensation, or otherwise disclose such details without H-D’s prior written approval.
19. SEVERABILITY: If any provision of the Official Rules or these Program Terms and Conditions is held by a court of law to be illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly as possible the same effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of the Official Rules and these Program Terms and Conditions shall not be affected or impaired thereby.
20. ENTIRE AGREEMENT: The Official Rules and Program Terms and Conditions constitute the entire agreement between me and H-D relating to their subject matter and supersede all prior or contemporaneous oral or written agreements concerning such subject matter.
21. VIOLATION OF TERMS: I understand that any violation by me of the Program Terms and Conditions constitutes grounds for my immediate removal from the Program.
22. ACKNOWLEDGEMENT OF RECEIPT: I hereby acknowledge receipt of a copy of the Agreement, including the Official Rules and Program Terms and Conditions.
APPENDIX A
H-D Endorsement Policy
1. This Policy applies to all employees, customers, vendors and other third parties who endorse Harley-Davidson products on a blog, social media site, or other outlet. The Federal Trade Commission (“FTC”) has certain requirements (which can be found at:https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdfpertaining to endorsers who obtain payment, free products or other compensation from a company in connection with the endorsement or promotion of its products. This Policy is designed to assist endorsers in complying with the FTC’s and other legal requirements, and applies to use of social media, social networking, websites and other advertising and communication channels.
2. An endorsement includes any message (written, verbal, video, etc.) about a Harley- Davidson product that a consumer is likely to believe reflects the opinions, beliefs or experiences of the endorser.
3. All endorsements must reflect the actual views and honest opinion of the endorser. Endorsements may not be false, deceptive or misleading in any manner.
4. An endorser must disclose any “material connection” between the endorser and H-D that would affect how people evaluate the endorsement. A material connection exists if the endorser obtains any payment, compensation or value (including free products, merchandise, or samples) from H-D. An endorser should assume a material connection exists if the typical consumer would believe the payment or connection could affect the endorser’s credibility.
5. For written endorsements, the disclosure should be posted near the endorsement in a clear and conspicuous manner. For videos, the disclosure should be at the beginning of each video containing an endorsement of H-D’s products. The disclosure can be as simple as “Harley-Davidson gave me this [t-shirt etc.] to try ....” Another example disclosure, “Some of the products I’m going to use in this video were sent to me by Harley-Davidson.”
6. A link to a disclosure is not sufficient; nor is a single disclosure on a website if it is not clearly and conspicuously presented with each endorsement posting or video.
7. Please keep in mind that H-D reserves the right to monitor endorsements of its products. H-D reserves the right to cancel any sponsorship or other relationship with any endorser relating to the endorsement of Harley-Davidson products, including if the endorser violates this Policy, the FTC requirements, or applicable law.
8. If an endorser has any questions about the FTC requirements, the endorser should refer to the FTC website -https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking - or contact H-D though the endorser’s contact at H-D to discuss this policy or the FTC requirements.