This Membership Agreement ("Agreement") is entered into by and between you (the “Member”) and HyperbaricLink, LLC, a Massachusetts corporation (the "Company"), with principal address at P.O. Box 753, Brookline, MA, 02446. WHEREAS, Company is engaged in the business of providing Internet products and services, including Membership services; and WHEREAS, Member desires to purchase Membership services from Company as specified in this Agreement; NOW, THEREFORE, the parties agree to the following terms and conditions:
1. Definitions
(a) "ProfilePlus" means the text, possible web link, and/or graphic (GIF or JPEG) file or file of such other format as Company may designate from time to time, supplied by Member to be published by Company on Company's Website and which may contain a link to Member's website or to a website specified by Member.
(b) "Membership Program" means the Member's particular selection and purchase of Membership space and services for publication of its ProfilePlus listing on Company's Website.
(c) "Company's Website" means a collection of HTML documents accessible by the public via the Internet at http://www.HyperbaricLink.com or such other Universal Resource Locator ("URL") as may be designated from time to time in writing by Company.
(d) "Rate Card" means the information regarding Company Membership services, rates, and technical requirements for Member Submissions for publication on Company's Website, a copy of which Rate Card may be attached hereto.
(e) "Member Submission" means all information and items necessary for Company's publication of Member's ProfilePlus, including initial Membership Program information, ProfilePlus forms, changes and updates, and replacement or new ProfilePlus data.
2. Company Services
(a) Membership Services. Company will publish Member's ProfilePlus listing on Company's Website according to the level of service selected from the Rate Card or as specified in the Membership Program. Member shall retain all right, title and interest in and to its ProfilePlus (including the copyright ownership thereof), and Member hereby grants Company a royalty-free worldwide license, without payment or other charge, to use, display, perform, reproduce and distribute the ProfilePlus, and such other licenses with respect to the ProfilePlus necessary to fulfill the intention of this Agreement.
(b) According to the option chosen, ProfilePlus listings are displayed on Company's Website at a flat 3-, 6-, or 12-month rate.
(c) No Warranty. Company may at its sole discretion provide reports to Member. Company makes no warranty, express or implied, as to any matter, including, without limitation, the Membership Program and other services provided hereunder or their accuracy. Company expressly disclaims the warranties of Non-Infringement, Merchantability, and Fitness for any Particular Purpose.
3. Member Submissions
(a) Submission Deadline. Company must receive all Member Submissions at least five (5) business days prior to the scheduled date of publication for each relevant ProfilePlus ("Submission Deadline").
(b) Changes and Cancellations. All changes to and/or cancellations of Member Submissions must be made in writing and received by Company prior to the Submission Deadline.
(c) Rejections. Company may, in its complete discretion, refuse at any time, prior to or during publication, for any reason to accept any Member Submission and/or to publish any ProfilePlus. [In the event Company exercises such discretion, Company shall refund the applicable pro rata portion of fees paid for Membership services not yet provided.]
4. Member Warranty AND Indemnification
(a) Member Warranty. Member hereby represents and warrants to Company: (i) No Infringement. Member's ProfilePlus listing(s) does not now, and will not, violate any criminal laws or any rights of any third parties, including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false Membership, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any antidiscrimination law or regulation, or any other right of any person or entity.
(ii) No Objectionable Content. Member's ProfilePlus listing(s) does not now, and will not, include any material that is: unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national or international law.
(b) Indemnification. Member shall indemnify and hold Company, its officers agents, directors, employees and distributors harmless from and against all actions, claims, damages, costs and expenses (including attorney's fees) arising out of or with respect to: (i) any breach of the foregoing warranties; or (ii) any other third party claim in connection with Member's ProfilePlus.
5. Membership Payments
Member shall pay Company according to the prices and terms listed in the Rate Card or as specified in the Membership Program or as agreed upon for the term agreed. Future and renewal Membership rates are subject to change at the Company’s sole discretion without notice.
6. Confidentiality
(a) Defined. "Confidential Information" will mean: (i) ProfilePlus content, prior to publication, (ii) any Company Website statistics, such as number of visitors/unique viewers, page views, etc., which shall be considered Company's Confidential Information, and (iii) any information designated in writing by the disclosing party as "confidential" or "proprietary."
(b) Obligations. During the term of this Agreement and for a period of three (3) years thereafter, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restrictions will not apply to information that (i) has been independently developed by the receiving party, (ii) has become publicly known through no wrongful act of the receiving party, (iii) has been rightfully received from a third party authorized to make such disclosure, (iv) has been approved for release by the disclosing party in writing, or (v) is required to be disclosed by a competent legal tribunal.
7. Limitation On Damages
(a) Limitation. In no event will Company be liable to Member for any lost profits, lost data, costs of procurement of substitute goods or services, or any form of special, incidental, indirect, consequential or punitive damages of any kind (whether or not foreseeable), whether based on breach of contract, tort (including negligence), product liability or otherwise, even if Company is informed in advance of the possibility of such damages. Company's total liability under this Agreement is limited to the payments received by Company from Member hereunder for the current term of this Agreement only, without regard to any previous agreements or versions of this Agreement between the Company and the Member.
(b) Failure of Essential Purpose. The parties have agreed that the limitations and exclusions of liability specified in this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
(c) Basis of the Bargain. Member acknowledges that Company has set its rates and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
8. Term and Termination
(a) Term. The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with this Section 8 or Section 3, will continue in effect for the full term of the agreement. This Agreement may not be renewed. If Member is interested in continuing Membership with the Company, a new Agreement will be signed. Prices in the Rate Card or Membership Program will be subject to updates and changes and must be agreed to by both parties in the new Agreement.
(b) Termination. Company may terminate Agreement for any reason with thirty (30) days written notice to Member. In the event of a breach by Member of any of its obligations hereunder, Company may terminate this Agreement immediately upon written notice [see Section 9(d)] to Member. In the event of a breach by Company of any of its obligations hereunder, Member may terminate this Agreement upon thirty (30) days written notice.
(c) Effect of Termination. (i) Payment Obligations. If this Agreement is terminated by Company for breach by Member, Member shall remain liable for the value of the payments which are due or would otherwise become due and payable under the terms of this Agreement as fully performed. If this Agreement is terminated by Member for breach by Company, Member shall remain liable solely for the value of the payments which are due for Membership services already provided hereunder. (ii) Survival. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 1 (Definitions), Section 2 (No Warranty), Section 3(c), Section 4 (Indemnification), Section 6 (Confidentiality), Section 7 (Limitation on Damages), Section 8(c) (Effect of Termination), and Section 9 (General). (iii) Return of Materials. Upon expiration or termination of this Agreement for any reason, Member will promptly and at the direction of Company either destroy, or return to Company, and will not take or use, all items of any nature that belong to Company or its Members or other customers and all records (in any form, format, or medium) containing or relating to Confidential Information.
9. General
(a) Assignment. Member may not assign this Agreement in whole or in part, by operation of law or otherwise, without Company's written consent, and any attempted assignment of this Agreement without such consent will be null and void.
(b) Governing Law. The validity, construction and performance of this Agreement, and the legal relations between the parties to this Agreement, will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding that body of law applicable to conflicts of law. Any legal action or proceeding between the Company and the Member for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in Middlesex County, Massachusetts.
(c) Force Majeure. Except for the obligation to pay money, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond such party's reasonable control, and such failure or delay will not constitute a breach of this Agreement.
(d) Notices. Any notices under this Agreement will be sent by confirmed email, confirmed facsimile, nationally recognized express delivery service, or certified or registered mail, return receipt requested, to the address specified on the cover sheet or such other address as the party specifies in writing. Notice by confirmed facsimile or express delivery service will be deemed received and effective upon delivery. Notice by certified or registered mail will be deemed received and effective five (5) days after dispatch.
(e) Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
(f) Severability. If one or more of the provisions contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable statute or rule of law, then such provision will be considered inoperable to the extent of such invalidity, illegality or unenforceability, and the remainder of this Agreement will continue in full force and effect. The parties hereto agree to replace any such invalid, illegal or unenforceable provision with a new provision that has the most nearly similar permissible economic and legal effect.
Revised 05/14/2010.