These Membership Terms and Conditions (“Terms”) are a binding agreement between end user (the corporation, business, other entity or natural person in whose name the membership is purchased) (“Member”) and EnsembleIQ, d/b/a The Path to Purchase Institute (the “Institute”), an Illinois corporation with a place of business at 8550 W. Bryn Mawr Ave, Suite 200, Chicago, IL 60631.
1.1. Annual membership dues are based on a 12-month, calendar year term, starting on January 1 and expiring on December 31. Newly admitted members will pay prorated dues based on their start date and an expiration of December 31 of same year. Should Membership be terminated for violation of these Terms, or if Member cancels its Membership for any reason, no dues will be refunded, and any dues already paid or billed shall be due. The Institute reserves the right to change Membership dues and benefits at any time, and membership period/term upon notice.
2. TERM AND RENEWALS
2.1. The initial membership term begins when payment is received, and membership is activated by Institute (“Effective Date”) and ends on December 31 of same year. Approximately ninety (90) days before the end of the membership term, Institute will issue an invoice to Member for renewal of Member’s Path To Purchase Institute membership for an additional 1-year, at Institute’s then current rate for annual dues, payable upon receipt. Upon Member’s timely payment of such invoice, and Institute’s acceptance of such payment, Member’s membership shall renew for an additional 1-year term. Institute may, in Institute’s sole discretion, accept or reject any late payment of membership renewal dues. Any late payment of annual dues shall not extend the next renewal term beyond its normal expiration date if dues were timely paid.
3. MEMBERSHIP QUALIFICATIONS AND BENEFITS
3.1. Membership in the Institute is open to all lawful corporations, partnerships, sole proprietorships, and business practitioners, regardless of their primary function, including but not limited to companies whose primary function is the manufacturing and marketing of consumer goods and services sold at retail, P-O-P manufacturers, advertising and marketing agencies, consultants, retailers, students, academic professionals, suppliers to the trade and other types of companies. Membership entitles licensed designated users unlimited access to the Members Only section of the Institute’s website; free domestic subscriptions to Path to PurchaseIQ Magazine (number of subscriptions based on Membership Type); applicable Member discounts on Institute educational and trade events, (for all employees of applicant business or corporation); monthly E-newsletters; as well as all other Member benefits for the membership term. Employees of Member’s parent, sister or subsidiary companies operating under a different name are not eligible and must apply for a separate Membership.
4. GOOD FAITH
4.1. Member represents and warrants that Member is joining the Institute in good faith, for the sole purpose of supporting the mission of the Institute as stated herein and/or on the Institute Web site, and Member attests that all information provided on its application is true and correct. Should it be found that Member has misrepresented its intentions as stated on Member’s application for Membership with the Institute, or intentionally misused or disclosed information distributed to Members by the Institute, Institute may cancel the Membership and Member will forfeit any dues already paid or the payment of actual damages, including the costs and expenses necessitated to bring litigation to recover such damages.
5. PURPOSE OF MEMBERSHIP
5.1. It is the mission of the Institute to enhance the work lives and businesses of brand marketers, retailers, agencies and manufacturers through research studies, networking events, tradeshows and trade publications designed to further the effectiveness of path to purchase marketing. The Institute opposes undue and illegal/vigilante practices such as black-balling, blacklisting, arbitrary blocking, libeling, copyright infringement, wrongful interference, hacking, sending viruses designed to damage or disable software, harassment, assault, frivolous suits initiated for the purpose of damaging another, or using regulations for wrongful financial gain, termination of service caused by contrived or fictitious complaints to up-line providers, misappropriation of others’ designs or work, or unethical bidding practices. Where appropriate, the Institute, through its membership, will aggressively pursue recovery of damages caused by such acts.
6. LICENSE GRANT
6.2. The license granted to Member does not include the right to use or disseminate the trademarks, logos, artwork, images, or graphics of Institute or third parties contained in the Content in any manner that is likely to cause confusion as to the source, affiliation, ownership and/or sponsorship thereof.
6.3. Member shall not permit, and Institute may deny, access to subscription Content by more than the identified number of licensed users of Member. Member shall be responsible for all activities that occur in connection with the passwords or accounts of a user of Member. Member shall immediately notify Institute of any unauthorized uses of any Content or any other breach of security regarding the Content of which it becomes aware. Member shall use commercially reasonable efforts to prevent any such breaches of security regarding the Content, any other conduct interfering with the operation of the Content and/or attempting to obtain personal or system information.
6.4. Institute may, at its sole discretion, improve, enhance, modify or change the Content at any time. Institute may suspend or cease offering the Content to Members of Institute at any time, and Member’s sole remedy shall be a pro-rata refund of license fees previously paid to Institute by Member.
6.5. Member shall not (a) misrepresent its identity or those of its Content users; or (b) misrepresent the origin of any of the Content.
6.6. In further consideration for the license provided by Institute to Member, Member hereby grants to Institute a non-exclusive, worldwide, royalty-free, perpetual, right and license to use, display and disseminate the publicly available promotional, product, packaging, advertising, point of purchase, photographs, marketing and/or other materials of Member appearing on its website or otherwise available on the Internet or in the marketplace, and the like, including but not limited to the trademark and copyright rights thereto.
7.1. Member agrees to pay Institute all the fees due under its membership subscription. Unless stated otherwise in the applicable Service Schedule, all fees are payable in full upon execution of these Terms or an applicable Service Schedule, and are non-refundable. Any amounts not paid when due shall accrue interest from the date when due until paid at the rate of twelve percent (12%) per annum or the highest rate allowed by law, whichever is less. In addition to all applicable fees, Member shall pay all sales, use, GST, withholding, customs, value-added and similar taxes or levies resulting from the subscription, including any taxes with respect to the Content, excluding taxes based on Institute’s net income. Institute shall not be obligated to continue to provide Member with use or access to the Content while Member is not current with payment of both: a) all required fees under a membership; and (b) all required fees under any other agreement or Service Schedule with Institute.
8. CONFIDENTIAL INFORMATION
8.1. Member acknowledges that it has not and will not provide Institute with any information that Member considers the confidential information of Member and/or any third party. Member agrees to hold the Content and its documentation in confidence and to take commercially reasonable steps to ensure that the Content and its documentation are not disclosed or distributed in violation of these Terms. These confidentiality obligations do not apply to information that: (a) is or becomes publicly available through no act or omission of Member; or (b) is already rightfully known to Member without nondisclosure obligations before it received such information from Institute. Member may disclose the Content and its documentation to the extent required by law pursuant to a subpoena, court order or other similar process or governmental requirement; provided, however, that prior to any such compelled disclosure, Member shall (to the extent permitted by applicable law) give the Institute reasonable advance notice of any such disclosure and shall cooperate with the Institute in protecting against any such disclosure and/or obtaining a protective order.
9.1. During the term of the membership subscription, Institute will defend, indemnify, and/or settle at its own expense during the term of the applicable Service Schedule any action brought against Member by a third party to the extent based on a claim that the Content delivered by Institute infringes a copyright or misappropriates a trade secret right of the third party. This obligation is subject to Member: (a) notifying Institute promptly in writing of the claim; (b) giving Institute the exclusive control of the defense and settlement thereof; (c) providing reasonable assistance necessary to perform Institute’s obligations hereunder; and (d) Member not exceeding the authorized scope of use of the Content permitted pursuant to the membership subscription.
9.2. Institute shall have no liability for (and Member shall at Member’s sole expense indemnify and/or settle and, at Institute’s option, defend) any claim based on: (a) the combination, operation, or use of the Content furnished under the subscription with software, data, equipment or networks not provided by Institute; and/or (b) use of the Content if the Content is modified by any party other than Institute without Institute’s prior written consent, to the extent the alleged infringement is caused by such modification.
9.3. Subject to the Member obligations of Section 9.1, in the event use of the Content becomes, or in Institute’s reasonable opinion is likely to become, the subject of a claim of infringement as outlined in Section 9.1. Institute may, at its option and expense: (a) obtain the continuing right to use the Content; or (b) modify the Content or Documentation or replace it with a functional equivalent so that it no longer infringes; or if neither is reasonably practical, (c) terminate the license with respect to the allegedly infringing Content and refund the unamortized portion of the license fees paid for the remaining period of such Term license for the infringing Content.
9.4. This Section 9 states Institute’s entire liability and Member’s exclusive remedy with respect to any claim of intellectual property infringement or misappropriation.
10. LIMITED WARRANTY
10.1. Institute represents and warrants that, (a) it has the right and authority to enter into and to grant the rights under these Terms; and (b) the Content will operate substantially in accordance with the functional requirements set forth in its documentation, if any. While Institute makes reasonable efforts to ensure the accuracy and availability of the Content, Institute does not warrant that the data portions of the Content are accurate, that Member’s use of the Content will be uninterrupted, that the operation of the Content will be error free, or that the Content will achieve the results intended by Member. Institute does not warrant use of the Content via the Internet or via telecommunications lines or any network over which Institute has no direct control.
11. LIMITATION OF LIABILITY AND EXCLUSIVITY OF REMEDIES
11.1. For any breach of the warranty set forth in Section 10 above, Member’s exclusive remedy and Institute’s entire liability shall be limited to the provision of error corrections for, or replacement of, as soon as practicable, any Content, Content component or media.
11.2. OTHER THAN FOR A BREACH OF SECTION 6.2: i) NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE OR LOSSES RESULTING FROM BUSINESS DISRUPTION, TRADING OR EXECUTION LOSSES, COMPLIANCE FAILURES OR DAMAGE TO SYSTEMS OR DATA (INCLUDING THE COST OF RECOVERING SUCH SYSTEMS OR DATA), WHETHER IN AN ACTION FOR CONTRACT OR TORT, STATUTORY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR DAMAGES ARISING UNDER THESE EXCEED THE GREATER OF THE AMOUNTS PAID OR PAYABLE TO INSTITUTE OVER THE PRIOR TWELVE MONTH PERIOD UNDER THESE TERMS AND TEN THOUSAND U.S. DOLLARS.
12.3. Except as otherwise provided herein, upon the effective date of any expiration or termination, Member shall cease accessing and using the Content provided under these Terms and return to Institute or destroy all copies of Documentation, if any. This requirement applies to all copies in any form, partial or complete, and whether or not merged into other materials.
12.4. The following Sections shall survive termination for any reason: Section 6.2 (License Restrictions); Section 7 (Payments); Section 8 (Confidential Information); Section 9 (Indemnity); Section 11 (Limitation of Liability and Exclusivity of Remedies); Sections 12.3 (Termination); and Section 13 (General Terms).
13. GENERAL TERMS
13.1. Notices. Any notices (including address change notices) will be in writing delivered personally, by certified class mail (return receipt requested), or by prepaid express courier and are effective upon receipt. Notices will be addressed to Institute and to Member at the address provided on the membership application.
13.2. Assignment. Institute may assign the membership and these Terms, and all rights and obligations herein, upon notice to Member to an assignee that is capable of performing Institute’s obligations under these Terms. Member may not assign, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, these Terms or any of its rights or obligations under these Terms without the prior written consent of Institute.
13.3. Waiver. The waiver by a party of a breach of these Terms shall not be effective unless in a writing executed by such party and shall not be construed as a waiver of any subsequent breach of the same or any other provision, nor shall any delay or omission by a party to exercise any of its rights or remedies operate as a waiver of any right or remedy.
13.5. Force Majeure. Except for the payment of monies due hereunder, neither party shall be liable for any delay or failure to perform to the extent due to causes beyond its reasonable control.
13.6. Severability. In the event that any provision of these Terms is found invalid or unenforceable, it shall be enforced to the maximum extent possible so as to fulfill the intent of the parties or, if incapable of such enforcement, shall be deemed to be deleted from these Terms and the remainder of these Terms shall remain in full force and effect.