Effective February 5, 2021
These terms contain provisions that require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute. See below in Section 10 for full details.
2. ABOUT THE SERVICES
What We Do
Our Platform connects companies (each a “Company”) looking for their next board director with individuals (each a “Candidate”) seeking such a position. “Recommenders” are users who recommend Candidates to the Service.
Dependent upon your use of the site, you may be a Company, a Candidate or a Recommender—or a combination of these categories. For example, you may originally register as a Candidate seeking your own board position, but later recommend a friend to the Platform or search for Candidates for your Company. This Agreement contains some terms that are specific to your use of the Platform as a Company, Candidate or a Recommender. However, if the category of user is not specified, then the terms apply to all users regardless of type.
What We Don’t Do
theBoardlist is not an employment agency. We do not promise to find you the Candidate or Company you’re looking for, but rather to provide a Platform through which you can conduct your own search. As detailed below in Section 6, we provide Assisted Searches to Companies for a fee.
theBoardlist does not conduct reference or background checks. All Content on the Platform specific to a Candidate or Company is user-generated Content without input or verification from theBoardlist. We encourage you to exercise due diligence and common sense in investigating whether a particular Candidate or Company is a good fit for you.
3. YOUR QUALIFICATIONS
You must be at least eighteen (18) years old to create an Account and use the Platform. If you are using the Platform on behalf of a company, you represent and warrant that you are authorized to enter into contracts on behalf of that company.
4. YOUR USE OF THE PLATFORM
License to Use the Platform
Subject to your compliance with this Agreement, theBoardlist grants you a non-exclusive, non-sublicensable, revocable, non-transferable license to access the Platform, and to use the Platform. This license allows you to use the Platform, but it does not allow you to reproduce, duplicate, copy, modify, sell or otherwise exploit any portion of the Platform without the prior express written consent of theBoardlist. All rights not expressly granted in this Agreement are reserved by theBoardlist.
You will be given the opportunity to create a public-facing account and profile (collectively, your “Account”) on the Platform. You represent and warrant that all user information you provide in connection with your Account and your use of the Platform is current, complete, and accurate, and that you will update that information as necessary to keep it accurate. You further represent and warrant that you are not impersonating any person or entity through your Account, or misleading other users as to your affiliation with any person or entity. You are responsible for maintaining the confidentiality of your Account credentials, including your username and password. You agree to notify theBoardlist immediately of any unauthorized use of your Account. If we suspect, in our sole discretion, that there has been a breach of your Account security, we reserve the right to refuse access to the Platform, terminate your Account, suspend or terminate your right to use the Platform, or take such other action as we deem necessary, in our sole discretion.
As a Candidate, Company or Recommender, we may allow you to post information, images, links, reviews, comments, ratings, and other content (“your Content”) to the Platform. You represent and warrant that all Content posted by you is current, complete, and accurate, and that you have not misstated or embellished any statement of fact therein. You are required to use common sense and are prohibited from posting any Content that infringes on the intellectual property rights of others, is illegal, obscene, threatening, defamatory, invades the privacy of others (e.g., doxing), contains a commercial solicitation or other form of “spam” messages, or otherwise violates the Prohibited Conduct section below. If you do one of these things, we may remove your Content—but we have no obligation to do so and we do not review user content as a matter of practice.
License to Display Your Content
You are always the owner of Your Content; however, theBoardlist requires the following license from you in order to be able to display your Content on the Platform as expressly permitted by you—for example, to make your review visible to others:
You grant to theBoardlist a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute and display your Content throughout the world in any media now existing or in the future created.
Reviews and Comments
With respect to any reviews or comments provided by you to theBoardlist as part of your Content, you represent and warrant that such reviews or comments are true and accurately represent your experience.
You are responsible for your Content and, as such, you agree to defend, indemnify, and hold harmless theBoardlist from and against any and all claims, actions, demands, causes of action, and other proceedings including but not limited to legal costs and attorneys’ fees, arising out of or relating to your Content.
Other Users’ Content
theBoardlist respects the intellectual property rights of others. We follow the notice and takedown procedures in the Digital Millennium Copyright Act ("DMCA").
If you believe Content located on or linked to by the Platform violates your copyright, please immediately notify us by emailing us a DMCA takedown notice ("Infringement Notice"), providing the information described below. If we take action in response to an Infringement Notice, we will make a good faith attempt to contact the person or entity who made the Content available at the most recent email address they provided to us.
Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. If you are not sure if content located on or linked to by the Website infringes your copyright, you should first contact an attorney.
The DMCA requires that all Infringement Notices must include the following: (a) a signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf; (b) an identification of the copyright claimed to have been infringed; (c) a description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit theBoardlist to find and positively identify that material; (d) your name, address, telephone number, and email address; and (e) a statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
Infringement Notices should be sent to firstname.lastname@example.org with the subject line "DMCA Notice".
theBoardlist will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
theBoardlist imposes certain restrictions on your use of the Platform. The following are expressly prohibited: (a) providing false, misleading, or inaccurate information to theBoardlist or any other person in connection with the Platform; (b) impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity; (c) modifying or changing the placement and location of any advertisement posted through the Platform; (d) harvesting or otherwise collecting information about users, including email addresses and phone numbers; (e) without express written permission from theBoardlist, using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Platform for any use; (f) accessing content or data not intended for you, or logging into a server or account that you are not authorized to access; (g) attempting to probe, scan, or test the vulnerability of the Platform, or any associated system or network, or breaching security or authentication measures without proper authorization; (h) interfering or attempt to interfere with the use of the Platform by any other user, host, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities; (i) forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Platform (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers); (j) while using the Platform, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising; (k) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Platform, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Platform to determine and/or audit advertising revenues and payments, if applicable; or (l) creating additional accounts to promote your (or another's) business, or causing others to do so.
5. PAYMENTS & SUBSCRIPTIONS
You agree to pay theBoardlist all fees associated with your use of the Platform (“Fees”), as indicated to you at the time you agree to such Fees (such as through a registration or checkout process). All transmissions of payment information through the Website are secured with Internet-standard TLS (also known as HTTPS) encryption. theBoardlist does not verify account information, process any payments or store your billing information itself; instead, these services are provided through the Website by theBoardlist’s trusted Third Party “Payment Processors,” and you may be redirected to Third Party Websites (as defined below) and/or required to agree to separate Third Party terms in order to complete your payment transaction.
From time to time, theBoardlist may, at its sole discretion, offer access to certain parts of the Platform or related services on a subscription basis. If you enroll in a subscription plan (your “Subscription”), you will be billed according to the terms of the Subscription as displayed to you at the time you first enrolled (the “Subscription Terms”).
Timing of Subscription Payments. At the time you enroll in your Subscription, you will be required to provide payment card information to pay for the Fees associated with your Subscription. If you chose to enroll in a Subscription, you understand and agree that your credit or debit card on file will be charged Fees for additional Subscription periods (e.g., once per month) without obtaining further permission or confirmation from you. In other words, your Subscription renews automatically unless cancelled in advance of the next payment period by you. Please pay attention to the Fees, payment terms and disclosures provided during the order process for your Subscription.
Changes and Cancellation. To change or cancel a Subscription, you may either log into your Account or email theBoardlist email@example.com. If you choose to change or cancel your Subscription by email, you must provide theBoardlist sufficient information to identify your account, such as your username, real name, billing address, and the email address associated with the account. Changes and cancellations must be made at least three (3) days before your credit or debit card is charged for the next Subscription payment in order to avoid said payment.
Changes in Subscription Fees. theBoardlist may find it necessary to change the Fees in effect for a Subscription and reserves the right to do the same in its sole discretion. theBoardlist may lower your Subscription Fees so long as your Subscription maintains the same features and access level. theBoardlist will not increase Fees for your Subscription without prior notice to you that is sufficient to afford you an opportunity to cancel your Subscription before incurring the increased fees.
No Refunds. Due to the nature of the Platform, unless otherwise indicated at your time of checkout, ALL SALES ARE FINAL AND THERE ARE NO REFUNDS. You understand and agree that lack of success in finding or filling a board position is not reason for a refund.
6. ASSISTED SEARCHES
If you are a Company and enlist theBoardlist to provide assisted search services (“Assisted Search” with regard to your search for potential board members from Candidates on the Platform, the following terms apply:
How Assisted Search Works
theBoardlist will work with Company to understand your requirements, strategize Candidate search criteria and develop a profile of your ideal Candidate.
theBoardlist will perform a custom search of Candidates on the Platform and curate a list (the “Candidate List”) of targeted Candidates for Company to consider. Company will notify theBoardlist within 48 hours of any Candidate that you, as Company, have already identified on your own, or have a preexisting relationship with, and have been in contact with in the 6 month period prior to receiving the Candidate List from theBoardlist (each, an “Excluded Candidate”) and should not be considered as a Candidate by theBoardlist in the Assisted Search.
theBoardlist will personally reach out to Candidates Company is interested in meeting (each a “Targeted Candidate”). If there is mutual interest from the Targeted Candidate(s) in meeting Company, theBoardlist will introduce Company to such Targeted Candidate(s) directly via email.
theBoardlist will continue to present additional lists of Candidates to Company and reach out to Targeted Candidates on behalf of Company, based on the search criteria developed by Company for the Assisted Search.
As Company, you hereby agree that you will not directly, or indirectly, connect or interact with, or engage, a Candidate on the Candidate List (other than an Excluded Candidate) except as provided in this Agreement. If Company engages a Candidate (in any professional capacity) at any time during a period of three (3) years from the date that Candidate was identified on a Candidate List presented to Company, Company agrees to pay to theBoardlist the Success Fee as described below.
Assisted Search Fees
Assisted Searches are offered for a Fee (the “Assisted Search Fees”). The amount of the Assisted Search Fees will be quoted to Company at the time it orders the Assisted Search, and Company’s decision to proceed with the Assisted Search shall constitute Company’s agreement to pay the Assisted Search Fees.
One half (or 50%) of the Assisted Search Fees is due at the commencement of the Assisted Search and is NON-REFUNDABLE.
The remaining half of the Assisted Search Fees are the amount of the “Success Fee.” If a Candidate introduced to Company by theBoardlist as part of the Assisted Search (other than an Excluded Candidate) is engaged by Company in any professional capacity (including, but not limited to, as a full-time employee, advisor, consultant, board member, or advisory board member), the Success Fee becomes due and owing. If more than one Candidate is engaged by Company as a result of an introduction by the Boardlist, Company will be required to pay an additional Success Fee (each in the same amount as the first) for each such additional Candidate. Company agrees to notify theBoardlist when an offer has been made to a Candidate and again within five (5) days from the date the Candidate commences the engagement with Company. Company’s failure to provide the notices required herein will result in an additional Fee of $100 per day for each day the Candidate is engaged with Company prior to notice to theBoardlist.
theBoardlist will invoice Company for the Success Fee(s) upon receipt of notice from Company or Candidate that Candidate has been engaged by Company. Company agrees to pay all Success Fees no later than thirty (30) days after the date of the invoice.
Separate SOW Governs
Occasionally, for more complex Assisted Searches, theBoardlist, in our sole discretion, may enter into a separate written statement of work or other contract (in either event, a “Separate SOW”) for the Assisted Search. In the event of any conflict between the terms of a Separate SOW and this Section 6, the terms of the Separate SOW shall govern as to the covered Assisted Search only and the terms of this Agreement shall govern as to all other matters.
7. THIRD-PARTY CONTENT AND SERVICES
Third Party Content
Opinions, advice, statements, or other information made available through the Platform by third parties, such as other users, are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. theBoardlist does not guarantee the accuracy, completeness, or usefulness of any third-party information in any Company or otherwise accessible on or through the Platform and will not be responsible for any loss or damage resulting from your reliance on third-party information.
Third Party Services
The Platform may be linked with the services of third parties ("Third Party Services"), some of whom may have established relationships with theBoardlist and some of whom do not. theBoardlist does not have control over the content and performance of Third Party Services. theBoardlist has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Services. Accordingly, theBoardlist does not represent, warrant, or endorse any Third Party Services, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Services.
8. INTELLECTUAL PROPERTY
theBoardlist, the theBoardlist logo, theBoardlist’s website domain(s), and all content and other materials available through the Platform, exclusive of your Content and the Content of other users, (collectively, the "Company IP") are the trademarks, copyrights, and intellectual property of and owned by theBoardlist or its licensors and suppliers. Neither your use of the Platform nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company IP. You agree that any goodwill in the Company IP generated as a result of your use of the Platform will inure to the benefit of theBoardlist, and you agree to assign, and do assign, all such goodwill to theBoardlist. You shall not at any time, nor shall you assist others to, challenge theBoardlist’s right, title, or interest in, or the validity of, the Company IP.
10. DISPUTE RESOLUTION
This section governs any dispute between you and us, and how that dispute will be legally resolved, if necessary. Remember, these dispute resolution provisions only apply to disputes between theBoardlist and you, and not to disputes between you and any other user (such as a Company, Candidate, or Recommender).
Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of California without regard to its conflict of law principles.
Subject to and without waiving the arbitration agreement below, the proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in San Francisco, California (a “Court of Competent Jurisdiction”). You and theBoardlist stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts and submit to extraterritorial service of process.
If you and theBoardlist cannot resolve a dispute through negotiations, either one of us may choose to have the dispute exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).
Arbitration is an alternative dispute resolution procedure that is often faster and more final than litigating a matter in court. By agreeing to arbitration, we are each giving up our right to sue in court or to have a jury trial.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), as modified by this Agreement. You can review these rules at www.adr.org or by calling the AAA at 1-800-778-7879. We will pay the AAA filing, administration, and arbitrator fees so you don’t have to, unless you bring the claim for a frivolous or improper purpose (such as to harass or annoy us), in which case the arbitrator will have the power to require you to pay half of these fees for the duration of the arbitration. The arbitrator is bound by the terms of this Agreement. All issues in the dispute are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The location of the arbitration will be San Francisco, California, but the arbitrator will have the ability to allow participation by phone, virtual communication, and other means to ease the burden and expense of travel, where appropriate.
No Class Actions Allowed
You and theBoardlist agree that any arbitration or other legal action shall be limited to the two of us as parties, and any joinder of other parties is not allowed. This means that you cannot participate in any sort of representative proceeding against theBoardlist, including as a plaintiff or class member in any purported class action.
Court Action to Assist Arbitration
Even though we are agreeing to arbitration, you and theBoardlist will both be allowed to seek relief from a Court of Competent Jurisdiction in aid of arbitration. For example, a court proceeding would be allowed to stay a court action, compel arbitration, confirm an arbitration award, or seek injunctive relief, whether temporary or permanent.
11. ASSUMPTION OF RISK
You knowingly and freely assume all risk when using the Platform. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify theBoardlist and its owners, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Platform.
12. DISCLAIMERS, LIMITATION OF LIABILITY
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, THEBOARDLIST, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PLATFORM, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT IN ADDITION TO ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER THEBOARDLIST NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT YOU WILL FIND A SUITABLE BOARD POSITION OR CANDIDATE, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. THEBOARDLIST DISCLAIMS ALL IMPLIED LIABILITY FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE PLATFORM PURSUANT TO THIS AGREEMENT.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THEBOARDLIST OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY CLAIMS ARISING FROM YOUR USE OF THE PLATFORM, INCLUDING WITHOUT LIMITATION FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THEBOARDLIST AND YOU. THE PLATFORM WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
Application of Disclaimers
Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. theBoardlist’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Platform or otherwise shall alter any of the disclaimers or limitations stated in this section.
Entire Agreement. This Agreement constitutes the entire agreement between theBoardlist and you concerning your use of the Platform.
Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of theBoardlist, or by the unilateral amendment of this Agreement by theBoardlist along with the posting by theBoardlist of that amended version, as explained more fully in Section 14.
No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of theBoardlist. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
Independent Contractors. You and theBoardlist are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
Third Party Beneficiaries. Except where expressly stated herein, there are no third-party beneficiaries to this Agreement.
Headings. The headings in this Agreement are for convenience only and shall have no legal or contractual effect.