TruPeer Membership Agreement
This TruPeer Membership Agreement (this “Agreement“), dated March 8, 2023 (the “Effective Date“), is between TruMethods LLC, a New Jersey limited liability company (the “Organizer“), and [Member NAME], a [STATE OF ORGANIZATION] [TYPE OF LEGAL ENTITY] (the “Member“).
Background
This Agreement provides for the terms and conditions of:
- Member’s payment for, attendance at, and participation in the Events (as defined below); and
Accordingly, the parties agree as follows:
1. Definitions. Terms defined in the preamble and background have the meanings given. Capitalized terms used elsewhere in this Agreement have the following meanings:
“Affiliate” means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect [power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Person.
“Event” means each event described in Schedule A.
“Event Materials” means materials presented, distributed, or otherwise
provided by Organizer or any other person or entity at or in connection with the Event.
“Mark” means any trademark, trade name, service mark, design, logo, domain name, or other indicator of the source or origin of any product or service.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Member Materials” means the Member’s Marks and any other materials presented, distributed, or otherwise provided by Member at or in connection with the TruPeer Membership Benefits or Member Obligations.
“Membership Benefits” means the items detailed in Schedule B.
2. Membership. Subject to the terms and conditions in this Agreement, Organizer shall grant Member a TruPeer membership.
3. Membership Benefits. In consideration of Member’s payment of the Membership Fee and performance of the Membership Obligations, Organizer shall provide Member with the Membership Benefits set forth in Schedule B.
4. Membership Fee and other Member Obligations. In consideration of Organizer’s provision of the Membership Benefits and other undertakings, Member shall:
- (a) pay Organizer the Membership Fee as set forth in Schedule C timely;
- (b) perform its other Member Obligations set forth in Schedule C.
- (c) treat anything Organizer provides under the Agreement as proprietary and
confidential to Organizer (“Organizer’s Confidential Information”);
(d) not use any of Organizer’s Confidential Information except for the purposes germane to this Agreement;
(e) not distribute any Organizer Confidential Information; and
(f) at all times maintain any confidentiality or copyright legends on
Organizer’s Confidential Information.
5. Own Risk: Member has sole responsibility for any loss of proprietary information, or any other loss related to the Membership Benefits. Persons participating in the Membership Benefits or Event-related activities are deemed to be invitees or licensees of Member and not of Organizer.
6. License Grants.
(a) Member hereby grants Organizer, and Organizer hereby accepts, a nonexclusive, worldwide, royalty-free, fully-paid, transferable, irrevocable, license to use, process, host, cache, record, copy, view, distribute, reproduce and display Member Materials for the purpose of providing the Membership Benefits to Member.
(b) Member represents, warrants, and covenants that: (a) it is the owner or authorized licensee of the Member Materials and has the right to grant the rights set forth herein; (b) it has obtained all consents necessary under applicable law to disclose Member Materials to Organizer; and (c) it will not provide, publish, post, upload, record, or otherwise distribute or transmit any data or other material to Organizer or in relation to any Membership Benefit that: (i) infringes or would infringe any copyright, patent, trademark, trade secret or other proprietary right of any party, or any rights of publicity or privacy of any party; (ii) violates any law, statute, ordinance, or regulation; (iii) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or
otherwise unlawful; (iv) is harmful to minors or otherwise pornographic; (v) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Personal Information, or property of another; (vi) is materially false, misleading, or inaccurate; and/or (vii) contains information for which Licensee does not have the right to permit Organizer to access and process any Member Materials.
7. Term. The term of this Agreement commences as of the Effective Date and will continue in effect for one year (the “Term“). At the end of any Term, subscriptions will automatically renew for additional Terms equal to the greater of the expiring Term length or three (3) years, unless either party gives the other party notice of non-renewal at least 30 days and no more than 60 days before the end of the relevant Term.
8. Termination.
Organizer may terminate this Agreement at any time prior to the end of the Term upon at least 15 days’ prior written notice to Member.
9. Representations and Warranties.
(a) Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
(b) Member further represents and warrants that the Member Materials and Organizer’s use thereof without alteration and otherwise strictly in accordance with this Agreement will not infringe, misappropriate, or otherwise violate any rights of any third party.
(c) The Organizer does not make any warranty as to the Membership Benefits in general, and in particular in relation to the presence or absence or location of any other Member or potential Member. While the Organizer shall act in good faith, the name of any Member which may appear on any Event Materials or any statement made by or on behalf of the Organizer that any Member is booked to attend the Events provisionally or otherwise shall not constitute a warranty, representation or undertaking by the Organizer that any such Member shall attend the Events. The Organizer shall not be liable for the absence of other Members from attending the Events.
10. Indemnification.
(a) Member agrees to indemnify, defend and hold Organizer harmless against all claims, demands, costs, liabilities, losses or damages (including all reasonable attorneys’ fees) to persons or property, arising out of, related to or caused by (i) Member’s, or its contractor’s or agent’s use of Member’s Membership Benefits or participation in a Event, (ii) the acts, omissions, negligence or willful misconduct of and/or its employees, agents, representatives or contractors, (iii) Member’s violation of any trademark, service mark, trade secret, confidentiality, copyright, patent, or other third party right, (iv) any liability under data protection laws or regulations protecting Member’s agents, employees, contractors, customers, prospects or invitees, or (v) Member’s breach of or failure to perform any of its warranties or obligations under this Contract. The indemnified party must tender sole control of the indemnified portion of any third-party legal proceeding to the Member, provided, the indemnified party has the right to approve controlling counsel, such approval not to be unreasonably withheld; the indemnified party may appoint its own non-controlling counsel, at its own expense; and any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
11. Limitation of Liability.
ORGANIZER SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, HARM OR INJURY TO MEMBER OR ITS PROPERTY OR BUSINESS OR ITS AGENTS OR EMPLOYEES RESULTING FROM ANY REASON WHATSOEVER IN CONNECTION WITH THIS AGREEMENT. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, ORGANIZER SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR USE INCURRED BY COMPANY, WHETHER IN CONTRACT OR TORT, EVEN IF ORGANIZER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE APPLICABILITY OF THE FOREGOING, ORGANIZER’S AND ITS EMPLOYEES’, AGENTS’, SUPPLIERS’ AND LICENSORS’ ENTIRE LIABILITY FOR DIRECT DAMAGES FOR A BREACH OF THIS CONTRACT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY IN THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE BREACH.
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ORGANIZER’S LIABILITY FOR DIRECT DAMAGES FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12. Force Majeure.
(a) Organizer will not be liable or responsible to Member, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any: (i) acts of God; (ii) flood, fire, or explosion; (iii) war, terrorism, invasion, riot, or other civil unrest; (iv) embargoes or blockades in effect on or after the date of this
Agreement; (v) national or regional emergency; (vi) strikes, labor stoppages or slowdowns, or other industrial disturbances; (vii) passage of law or governmental order, rule, regulation, or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota, or other restriction or prohibition; (viii) national or regional shortage of adequate power, telecommunications, or transportation facilities; or (ix) unavailability of the venue for any Event
13. General.
(a) This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(b) Member may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other Organizer’s prior written consent. Any purported assignment, delegation, or transfer in violation of this Section 13(b) is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(c) This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
(d) Organizer may update this Agreement at any time with fifteen days notice to Member. No other amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by Organizer of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by Organizer. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
(g) Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
(h) In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
(i) This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
To evidence the parties’ agreement to this Agreement, the parties have signed this Agreement, which is effective on the Effective Date.
TRUMETHODS LLC By_____________________ Name:
Title:
[MEMBER NAME] By_____________________ Name:
Title:
SCHEDULES A, B AND C
TO BE DETERMINED AT TIME OF CONTRACTING