Sales Assembly Membership Agreement Terms

Effective Date: 1/1/2022

This Membership Agreement (this “Agreement”) is between SALES ASSEMBLY, LLC., an Illinois limited liability corporation (“SA”) and the entity obtaining a Membership pursuant to a Membership Proposal (“Member”).  This Agreement governs the Member’s access to, participation in and use of the Membership Benefits. This Agreement constitutes a binding contract between Member and SA (together, the “Parties” and, individually, each a “Party”).

BY ACCEPTING A MEMBERSHIP PURSUANT TO A MEMBERSHIP PROPOSAL THAT INTEGRATES THE TERMS OF THIS AGREEMENT, MEMBER IS ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE EFFECTIVE DATE OF MEMBER’S MEMBERSHIP (THE “EFFECTIVE DATE”). IF THIS AGREEMENT IS BEING AGREED TO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL AGREEING TO THIS AGREEMENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND “MEMBER” AS USED HEREIN SHALL REFER TO SUCH ENTITY.

THE MEMBERSHIP BENEFITS PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY LICENSES GRANTED OR SERVICES PROVIDED TO MEMBER ARE EXPRESSLY CONDITIONED UPON THE TERMS CONTAINED IN THIS AGREEMENT WITHOUT MODIFICATION. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY MEMBER OR ON MEMBER’S BEHALF IN ANY MANNER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN BY SA.

WHEREAS, SA has developed a Program that provides Membership Benefits designed to assist entities that have a Membership (“Program Members”) to scale their business; and

WHEREAS, Member, subject to the terms and conditions of this Agreement, desires to become a Program Member.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

As used in this Agreement:

• “Account” means a password-protected account that provides a Program Member access to certain features and functionalities on the Platform. The term “Account” includes, where applicable, any and all sub-accounts created by or on behalf of a Program Member for use of the Platform by such Program Member’s personnel to access certain features and functionalities on the Platform on behalf of such Program Member.
• “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interests of such entity or Party.
• “Confidential Information” means any information prepared for or delivered to a Party (the “Receiving Party”) by the other Party or its representative (the “Disclosing Party”) (including information or data received by the Disclosing Party from a third party and to which the Disclosing Party has confidentiality obligations) that: (i) is marked or designated by the Disclosing Party as “confidential” or “proprietary”; (ii) is disclosed orally or visually provided that such information is identified by the Disclosing Party at the time of disclosure as proprietary or confidential; or (iii) is known to the Receiving Party, or should be known to a reasonable person given the contents and circumstances of the disclosure, as being treated as confidential or proprietary by the Disclosing Party, even if the Disclosing Party fails to take the actions specified in (i) and (ii) with respect to such information.
• “Documentation” means all SA user manuals, operating instructions and other documentation relating to the Program, as generally made available by SA to Program Members.
• “Feedback” means all ideas, advice, recommendations, proposals, suggestions, comments and other feedback Member or Member’s personnel provide to SA related to the Program or any other services provided by SA or its Affiliates.
• “Initial Membership Term” means the initial minimum fixed term set out in the Membership Proposal during which Member’s Membership is active.
• “Intellectual Property” means, to the extent that any of the following are recognized in any jurisdiction worldwide: (i) intellectual property and/or proprietary rights, whether registered or unregistered, including, without limitation, copyrights and patent rights (including, without limitation, applications for patent protection); (ii) publicity rights, trade dress, registered or otherwise protected trademarks, trade names, service marks and protections from trademark dilution; (iii) trade secrets, as defined in the Uniform Trade Secrets Act or its successor or its equivalent in applicable jurisdictions; and (iv) proprietary products, services, know-how, techniques, business processes, configurations and business methods.
• “License” means the licenses granted by SA to Member, as more fully set forth in Section 3.
• “Member Data” means any data collected through, or otherwise generated by, Member’s access, participation in the Program.
• “Membership” means, subject to the terms of this Agreement, the ability to access, participate in and use the Membership Benefits provided under the Program as a Program Member.
• “Membership Benefits” means the training, certifications, tools, programs, resources, strategies, peer connections, and access to talent provided in connection with a Membership in the Program, as more fully described in Appendix A, attached hereto and incorporated herein by reference, and in the Documentation.
• “Membership Fee” means the fees applicable to the Membership as set forth in the Membership Proposal.
• “Membership Proposal” means a form executed by Member and SA which details the terms applicable to Member’s Membership in the Program, including, without limitation, the duration of such Membership and the Membership Fees applicable to such Membership.
• “Membership Term” means the term of Member’s Membership in the Program, which shall consist of the Initial Membership Term and any and all Renewal Membership Terms.
• “Platform” means the online platforms and applications SA makes available to Program Members to provide certain Membership Benefits. As referred to herein, the Platform includes, without limitation, the SaaS and the applicable Documentation.
• “Program” means SA’s membership model that provides the Membership Benefits to companies who have a Membership. As referred to herein, the Program includes, without limitation, the Platform, Membership Benefits and Documentation.
• “Renewal Membership Term” means any subsequent term of the same duration of the Initial Membership Term which follows the Initial Membership Term during which Member’s Membership remains active.
• “SaaS” means the software as a service features and functionalities within the Membership Benefits that SA makes available to Member under this Agreement. As referred to herein, the SaaS includes, without limitation, the Websites, software used by SA to operate the SaaS and all applicable Documentation.
• “Websites” means the website, including, without limitation, any and all sub domains thereof and the features, functionalities, applications, browser extensions and other services available through the foregoing used by SA to provide and operate the Platform.

2. MEMBERSHIP
   • Provision of Membership Benefits. Subject to Member’s compliance with its obligations under this Agreement, including, without limitation, timely payment of the Membership Fee, SA will make the Membership Benefits available to Member during the Membership Term.
   • Use of Membership Benefits. Member shall, at all times, be responsible for the actions of Member’s employees and representatives in connection with Member’s obligations under this Agreement, including, without limitation, any access to, participation in or use of any Membership Benefits and shall ensure Member’s employees and representatives: (i) do not breach the terms of this Agreement, including, without limitation, any restrictions set forth in this Agreement or the Documentation with respect to the access to, participation in or use of the Membership Benefits; and (ii) comply with all applicable laws in connection with this Agreement, including, without limitation, the access to, participation in and use of the Membership Benefits. Member acknowledges and agrees that any breach of this Agreement by Member’s employees or representatives shall constitute Member’s breach of this Agreement. Member acknowledges and agrees that under no circumstances will SA or any of its licensors or suppliers be responsible for any loss, damage or liability arising out of any mistakes or other errors made by Member as a result of Member’s access to, participation in or use of the Membership Benefits.
   • Modification of Membership Benefits. During the Membership Term, SA may adjust the Membership Benefits, substitute and/or provide other benefits during the Membership Term.
   • Limitation of Membership Benefits. Unless otherwise expressly specified in the Membership Proposal, the Membership Fee and associated Membership Benefits only apply to Membership Benefits provided through or in connection with Program and do not apply to any other program, conference, event, product, or service operated or offered by SA outside of the Program at any time during the Membership Term.
   • Use Restrictions. Member shall not, and shall not permit others to: (i) access, participate in, or use the Membership Benefits other than as set forth in the Documentation or this Agreement; (ii) copy any materials, information, applications and other portions of the Membership Benefits, including, without limitation, the Platform, or the Documentation, except as expressly permitted in this Agreement; (iii) modify, disassemble, reverse engineer, decompile, transfer, or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, or programming interoperability interfaces of the Membership Benefits; (iv) sell, assign, transfer, sublicense, lease, pledge, rent or otherwise share Member’s rights under this Agreement; (v) create any derivative works based upon the Program or the Membership Benefits; (vi) modify, obscure, or remove any product identification or proprietary notices on any materials, information, applications and other portions of the Membership Benefits or any copies thereof; (vii) except as specified in the applicable Documentation, modify or incorporate the Platform into or with other software; or (viii) use the Membership Benefits in violation of any applicable law, regulation, or rule.
   • Authorized Users. Member may access, participate in, and use the Membership Benefits solely as permitted under this Agreement and as described in the Documentation. Without limiting anything set forth herein, any access to, participation in and use of the Membership Benefits by or on Member’s behalf shall be solely by Member and Member’s officers, employees. Member authorizes to access, participate in, and use the Membership Benefits on Member’s behalf.
   • Member Data.
     • Member acknowledges and agrees that SA: (i) shall have the right to reproduce, translate, encode, publish, use and distribute any and all Member Data to the extent necessary to provide and operate the Membership Benefits; (ii) shall have the right to aggregate any and all Member Data and to use such aggregated data for any lawful purpose, including, without limitation, improving the Membership Benefits; and (iii) is not responsible or in any way liable for any corruption, misdelivery or other loss of any Member Data.
     • Without limiting anything set forth in this Agreement, Member represents and warrants to SA that: (i) Member has all necessary rights in and to any and all Member Data provided to SA in connection with this Agreement and the Member Data shall not infringe on any third party’s Intellectual Property rights; and (ii) Member Data is not and does not contain, promote, or link to material that is pornographic, defamatory, offensive, harassing, malicious, illegal, or otherwise objectionable.
   • Member is solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, participate in or otherwise use the Membership Benefits, including, without limitation, modems, hardware, servers, software, operating systems, networks, web services and the like (collectively, “Equipment”). Member shall also be responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without Member’s knowledge or consent.
3. ADDITIONAL PLATFORM TERMS
   • Upon commencement of the Membership Benefits, SA shall grant Member a limited, non-exclusive, non-transferable, non-assignable, revocable, non-sublicensable right to access and use the Platform in connection with Member’s Membership in the Program and as described in the Documentation. Member’s rights with respect to the Platform shall terminate upon the expiration or earlier termination of the Membership Term. For clarity, all obligations and restrictions set forth in this Agreement with respect to the Membership Benefits, including, without limitation as set forth in Sections 2(e) – (f).
   • SA may provide general technical and other support for the Platform as described in the Documentation. Notwithstanding the foregoing, SA has no obligations under the terms of this Agreement to provide Member with any specific technical or other support with respect to the Platform.
   • Account Security. Member agrees to maintain all security regarding Account IDs, passwords, and connectivity with the Platform. If Member’s Account ID or password is stolen or otherwise compromised and such theft or compromise is not due to the fault of SA, SA shall not be responsible for any ensuing unauthorized use of the Platform.
   • Export Restrictions. Member shall not remove or export from the United States or allow the export or re-export of the Platform or anything related thereto, or any direct product thereof, in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
   • Commercial Software. As defined in FAR section 2.101, the Platform and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely on the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
4. OWNERSHIP
   • As between the Parties, SA owns all right, title, and interest in and to the Program, including any improvements, modifications, enhancements, additions, and derivatives thereof and any and all Intellectual Property rights in the foregoing. Member does not acquire any rights, express or implied, in the foregoing, other than those specified in this Agreement.
   • By submitting Feedback to SA in any way, Member acknowledges and agrees that: (i) Member’s Feedback does not contain confidential or proprietary information; (ii) SA is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (iii) SA shall be entitled to disclose (or choose not to disclose) such Feedback for any purpose and in any way; (iv) SA may have something similar to the Feedback already under consideration or in development; (v) any Feedback which is not subject to a patent automatically becomes SA’s property without obligation to Member; and (vi) Member is not entitled to any compensation or reimbursement of any kind from SA under any circumstances.
   • Member Data. As between the Parties, Member owns all right, title, and interest in and to any Member Data, excluding any SA Intellectual Property incorporated therein or otherwise utilized by the Member Data. SA does not acquire any rights, express or implied in any Member Data, other than those specified in this Agreement, including, without limitation, as set forth in Section 2(g).
   • Third Party Intellectual Property. Member acknowledges that SA may have incorporated into the Program Intellectual Property owned by third parties (collectively, “Third Party Intellectual Property”) and Member agrees that Member’s right to use the portions of the Program containing Third Party Intellectual Property may be subject to the rights of such third parties and limited by additional licensing terms concerning such Third Party Intellectual Property. Member’s express agreement to such additional licensing terms may be required before Member can access and use certain Third Party Intellectual Property.
5. MEMBERSHIP FEE
   • Membership Fee. Member shall pay SA the Membership Fee set forth in the Membership Proposal. Except as otherwise specified herein or in the Membership Proposal, payment obligations are non-cancelable, and Membership Fees paid are non-refundable. Without limiting anything set forth herein, Member shall not be entitled to access, participate in, or use any Membership Benefits during the Initial Membership Term or the then-current Renewal Membership Term until SA receives payment of the Membership Fee in full for the Initial Membership Term or the then-current Renewal Membership Term, as applicable. SA reserves the right to modify the Membership Fee applicable for each Renewal Membership Term by providing Member with written notice of such modification at least 30 days prior to the expiration of the Initial Membership Term or the then-current Renewal Membership Term.
   • SA will invoice Member for the Membership Fee: (i) for the Initial Membership Term upon Member’s acceptance of the Membership Proposal; and (ii) for each and every Renewal Membership Term, upon Member’s agreement to renew Member’s Membership. Invoices shall be payable net 30. Member shall make all payments under this Agreement in U.S. dollars. If Member fails to make a payment when due, without limiting SA’s other rights and remedies: (i) SA may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted by applicable law; (ii) Member shall reimburse SA for all reasonable costs incurred by SA in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure to pay is not promptly remedied, SA may suspend Member’s access to all, or any portion, of the Program until such amounts are paid in full.
   • The Membership Fees and other amounts payable by Member under this Agreement are exclusive of any taxes and similar assessments. Member is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by Member hereunder, other than taxes imposed on SA’s income.
6. CONFIDENTIALITY
   • Non-Disclosure. The Receiving Party shall keep in strict confidence and trust all Confidential Information of the Disclosing Party. The Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose the Disclosing Party’s Confidential Information to any third party (other than to the Receiving Party’s employees, agents or representatives on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein).
   • Use of Confidential Information. The Receiving Party shall not use Confidential Information except and solely for the performance of the Receiving Party’s obligations under this Agreement.
   • Protection of Confidential Information. The Receiving Party shall use the same care and discretion to avoid disclosure of the Disclosing Party’s Confidential Information as it uses with its own confidential or proprietary information, and in no event with less than reasonable care.
   • As used in this Agreement, the term Confidential Information does not include information that demonstrably: (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (ii) was possessed by the Receiving Party prior to being furnished by the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with, or other obligations of confidentiality to, the Disclosing Party or any third party with respect to such information; (iii) is independently developed by the Receiving Party without breach of this Agreement; or (iv) becomes available to the Receiving Party from a source other than the Disclosing Party that is permitted to disclose such information, provided that such source is not bound by a confidentiality agreement with, or other obligation of confidentiality to, the Disclosing Party or any third party with respect to such information.
   • Required Disclosures. It shall not be a violation of Section 6(a) for the Receiving Party to disclose the Disclosing Party’s Confidential Information in response to a subpoena or other legal process served upon the Receiving Party or where applicable law requires the disclosure of such information, provided that: (i) if not prohibited under applicable law, the Receiving Party, prior to disclosing such information, gives reasonable prior written notice to the Disclosing Party sufficient to permit the Disclosing Party to seek a protective order if it so chooses; and (ii) in all cases, the Receiving Party discloses only that information that is legally required to be disclosed. For clarity, any of the Disclosing Party’s Confidential Information the Receiving Party discloses pursuant to this Section 6(e) shall remain subject to the confidentiality requirements under this Agreement for all other purposes.
   • The Receiving Party acknowledges and agrees that the Disclosing Party may be irreparably harmed if the Disclosing Party’s Confidential Information were to be disclosed to third parties, or if any use were to be made of such Confidential Information other than as permitted under this Agreement and further agrees that the Disclosing Party shall have the right to seek injunctive relief upon any violation or threatened violation of the terms of this Section 6, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security.
   • Return/Destruction of Confidential Information. Except as otherwise set forth in this Agreement, upon the expiration or termination of this Agreement for any reason, or upon the Disclosing Party’s written request, the Receiving Party shall return to the Disclosing Party all Confidential Information of the Disclosing Party, together with any copies thereof, or, if requested by the Disclosing Party, destroy the same. Upon the Disclosing Party’s request, the Receiving Party shall provide written certification of its compliance with this Section 6(g).
   • Survival of Confidentiality Obligations. The Receiving Party’s obligation to maintain the confidentiality of the Disclosing Party’s Confidential Information shall be in effect during the Membership Term and for a period of 5 years after the expiration or earlier termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, the obligations of confidentiality with respect to a trade secret of the Disclosing Party shall continue in effect so long as such Disclosing Party protects such Confidential Information as a trade secret under applicable trade secret laws.
7. TERM AND TERMINATION
   • Membership Term. This Agreement shall begin upon the earlier of Member’s acceptance of the Membership Proposal or Member’s access to, participation in or use of the Membership Benefits and shall remain in effect during the Initial Membership Term specified in the Membership Proposal unless earlier terminated pursuant to the terms of this Agreement. This Agreement and Member’s Membership shall expire at the end of the Initial Membership Term or the then-current Renewal Membership Term unless Member notifies SA of its desire to renew this Agreement at least 15 days prior to the expiration of the Initial Membership Term or the then-current Renewal Membership Term. Notwithstanding the foregoing, SA may, in its sole discretion decline to renew this Agreement and Member’s Membership for any Renewal Membership Term. In the event Member provides SA with timely notification of Member’s desire to renew this Agreement and SA agrees to renew this Agreement, this Agreement shall remain in effect during the following Renewal Membership Term. Pricing in the renewed term is always subject to change, as long as both parties agree.
   • In addition to any other express termination right set forth in this Agreement:
     • SA may terminate or suspend Member’s Membership at any time if, in SA’s sole discretion, SA believes that Member is violating the terms of this Agreement or applicable law, or there is otherwise a risk of imminent harm to the Program or other Program Members; provided, SA shall use reasonable efforts to provide Member with advance notice of any such suspension or termination;
     • SA may terminate this Agreement, effective on written notice to Member, if Member: (i) fails to pay any amount when due hereunder, and such failure continues for more than 30 days after SA’s delivery of written notice thereof; or (ii) breaches any of Member’s obligations under Section 2(b), 2(e), 2(f) or 3(c);
     • SA may terminate this Agreement upon a change of control in which 50% or more of Member’s assets or equity is purchased by, or merged with, another, unaffiliated entity;
     • Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for a period of thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
     • Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   • Effects of Termination. Without limiting any other effects of termination set forth in this Agreement, upon termination of this Agreement the Member’s Membership shall immediately terminate and Member shall immediately discontinue all participation in and use of, and shall have no right to access, as applicable, the Membership Benefits. Termination will not affect Member’s obligations to pay and all Membership Fees that have become due before such termination, nor shall termination of this Agreement entitle Member to any refund. Further, termination shall not relieve Member of any liabilities or obligations arising before the date of such termination.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMERS
   • Mutual Representations and Warranties of the Parties. Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of the applicable jurisdiction (as applicable); (ii) it is duly qualified to do business and is in good standing in every jurisdiction in which qualification is required; (iii) it has full right, power and authority to enter into this Agreement and to perform its obligations hereunder; (iv) the execution of this Agreement by the Party will not violate, conflict with, require consent under, or result in any breach or default under the provision of any contract or agreement to which the Party is a party or to which any of its material assets are bound; and (v) this Agreement has been properly executed and constitutes the legal, valid and binding obligation of the Party, enforceable against the Party in accordance with its terms.
   • Member Representations, Warranties, and Covenants. Member represents, warrants and covenants that: (i) Member’s participation in the Program is at Member’s own risk and Member shall not be liable for any damages arising, directly or indirectly, from Member’s access to, participation in or use of the Membership Benefits, including, without limitation, reliance on the information, analysis and other data available through the Membership Benefits; and (ii) Member’s use, directly or indirectly, of the Membership Benefits shall comply with all applicable laws and does not, and Member shall not attempt to take any action intended to, infringe any third party’s Intellectual Property rights.
   • OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE MEMBERSHIP BENEFITS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SA, ITS AFFILIATES, OR OTHER THIRD PARTIES SHALL CREATE A WARRANTY OF ANY KIND OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY GRANTED HEREIN. SA MAKES NO WARRANTY OF ANY KIND THAT THE PROGRAM, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET MEMBER’S OR ANY THIRD PARTY’S, REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. MEMBER ASSUMES THE ENTIRE RISK AS TO MEMBER’S ACCESS TO, PARTICIPATION IN AND USE OF THE MEMBERSHIP BENEFITS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE.
9. INDEMNIFICATION
   • Indemnification by SA.
     • SA shall indemnify, defend and hold Member harmless from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, damages and liabilities (collectively, “Losses”), and shall reimburse Member for any and all legal (including reasonable attorney’s fees), accounting and other fees, costs and expenses reasonably incurred in connection with investigating, mitigating or defending against any such Loss (collectively, “Expenses”) where such Losses or Expenses are sustained, incurred by or asserted against Member and arise out of a third party claim that the Membership Benefits infringe or misappropriate such third party’s Intellectual Property rights (“Infringement Claim”).
     • SA’s indemnification obligations shall not apply to any Loss or Expense based on: (i) Member’s access to, participation in or use of the Membership Benefits in any manner not expressly permitted under this Agreement or the Documentation or otherwise without SA’s written permission; (ii) Member’s access to, participation in or use or combination of the Membership Benefits with non-SA-provided software, data, hardware, equipment, or technology except for uses or combinations that are approved by SA in writing; (iii) Member’s access to, participation in or use of the Membership Benefits after receiving notice it infringes a third party’s Intellectual Property rights; or (iv) any Loss or Expense for which Member is contractually obligated to indemnify SA.
     • If an Infringement Claim is made or appears possible, Member agrees to permit SA, at SA’s sole discretion, to: (i) modify or replace the Membership Benefits, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Member to continue to use the Membership Benefits. If SA determines that neither alternative is reasonably available, SA may terminate this Agreement with respect to the affected component or part, effective immediately on written notice to Member, and credit or refund any allocable prepaid Membership Fees on a pro rata basis.
     • This Section 9(a) sets forth Member’s sole remedy and SA’s sole liability and obligation for any actual, threatened, or alleged Infringement Claim. In no event will SA’s liability under this Section 9(a) exceed the amounts paid to SA under this Agreement in the twelve (12) months immediately preceding the event giving rise to such Infringement Claim.
   • Indemnification by Member. Member shall indemnify, hold harmless and defend SA and its Affiliates, and its and their officers, directors, employees, agents and attorneys (“SA Indemnified Parties”) from and against any and all Losses or Expenses that are sustained or incurred by, or asserted against, any SA Indemnified Party arising out of: (i) Member’s negligence or more culpable conduct; (ii) Member’s breach of any representation, warranty or covenant; (iii) Member’s access to, participation in or use of the Membership Benefits in a manner not authorized by this Agreement; (iv) Member’s access to, participation in or use of the Membership Benefits in combination with any data, software, hardware, equipment, or technology not provided by SA or authorized by SA in writing; (v) modifications to the Membership Benefits not made by SA; or (vi) any claim that Member’s access to, participation in or use of the Membership Benefits infringes or constitutes a wrongful use of any third party’s Intellectual Property rights, any right of publicity or privacy or is libelous or defamatory where such claim arises from Member’s access to, participation in or use of the Membership Benefits is in violation of this Agreement and/or the applicable Documentation.
   • Indemnification Procedure. In the event a Party is entitled to indemnification pursuant to this Agreement, the Party seeking indemnification shall provide the indemnifying Party with: (i) prompt written notification of any such Losses or Expenses; (ii) sole control and authority over the defense or settlement thereof, provided that if any settlement requires any actions or admissions by the indemnified Party, then the settlement will require the indemnified Party’s prior written consent; and (iii) all available information and reasonable assistance necessary to settle and/or defend any such Losses or Expenses, at the indemnifying Party’s expense. Failure by the indemnified Party to provide prompt notice of a Loss or Expense or to provide sole control and authority or information and assistance shall not relieve the indemnifying Party of its indemnification obligations under this Agreement, except and solely to the extent that the indemnifying Party is materially prejudiced by such failure. The indemnified Party may have its own counsel present at, and participate in, all proceedings or negotiations relating to a Loss or Expense, as the indemnified Party’s own expense.
10. LIMITATION OF LIABILITY
    • IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY OR FOR ANY ERROR OR INTERRUPTION OF USE; INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; LOSS OF GOODWILL OR REPUTATION; OR COST OF REPLACEMENT GOODS OR SERVICES. THE AMOUNT OF SA’S LIABILITY TO MEMBER UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH SA’S PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL IN NO CASE EXCEED THE FEES ACTUALLY PAID BY MEMBER TO SA HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE LIABILITY.
    • THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY OF THE FOLLOWING: (i) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (ii) MEMBER’S INDEMNIFICATION OBLIGATIONS; OR (iii) ANY DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
    • Member Actions/Inactions. FOR THE SAKE OF CLARITY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SA SHALL NOT BE RESPONSIBLE OR LIABLE UNDER THIS AGREEMENT FOR ANY COSTS, EXPENSES, DAMAGES, OR LIABILITIES, AND MEMBER SHALL BEAR ALL RESPONSIBILITY WITH RESPECT TO ANY DAMAGES OR LIABILITIES CAUSED BY OR ARISING FROM: (i) ANY VIOLATION OF ANY APPLICABLE LAW OR ANY THIRD PARTY CLAIM ASSOCIATED WITH MEMBER’S INTELLECTUAL PROPERTY; (ii) MEMBER’S ACTIONS OR INACTIONS (UNLESS AT THE SPECIFIC DIRECTION OF SA); OR (iii) MEMBER’S FAILURE TO FULFILL MEMBER’S RESPONSIBILITIES UNDER THIS AGREEMENT.
11. SUBCONTRACTORS

SA may subcontract the performance of any of its duties or obligations under this Agreement to any person. SA shall be responsible for the acts and omissions of each subcontractor to the same extent as if such acts or omissions were those of SA and shall be responsible for all fees and expenses payable to any subcontractor.

12. NOTICES

Member shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given under this Agreement shall be sent by email to the email address provided by the other Party for such purpose and shall be deemed given when sent. Notices to SA shall be sent to [email protected]. If Member fails to provide an email address for notices, SA may provide notices under this Agreement by any means reasonably calculated to provide Member with actual notice thereof.

13. DISPUTES
    • Governing Law and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice 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 Illinois. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby will be instituted exclusively in the state and federal courts covering Chicago, Illinois, as appropriate, and each Party irrevocably submits to the jurisdiction of such courts in any suit, action, or proceeding.
    • Wavier of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH 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.
    • Attorney’s Fees. In the event that any Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorney’s fees, expenses and court costs.
14. MISCELLANEOUS
    • Relationship of the Parties. It is expressly agreed that the Parties are independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party.
    • Amendment and Modification. SA may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement 30 days after the day such notice is given unless Member informs SA that Member does not accept such amendments. In the event Member informs SA that Member does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification of this Agreement shall be valid except by written amendment signed by SA’s and Member’s authorized representatives.
    • No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, 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.
    • If any term or 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.
    • Member may not assign any of SA’s rights or delegate any of SA’s obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of SA. SA may freely assign any right or obligation under this Agreement without Member’s prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder arising prior to such assignment or delegation. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • Force Majeure. In no event shall SA be liable to Member, or be deemed to have breached this Agreement, for any failure or delay in performing SA’s obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond SA’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, epidemic or pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or other similarly disruptive events, whether or not such events are of a similar type or nature to the previously listed events.
    • The provisions of this Agreement which by their nature are intended to survive the expiration or earlier termination of this Agreement shall continue as valid and enforceable obligations of the Parties notwithstanding any such termination, cancellation, completion, or expiration. Without limiting the foregoing, the provisions regarding confidentiality, indemnity and limitations of liability shall survive the expiration or earlier termination of this Agreement.
    • The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement: (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; and (iv) unless the context otherwise requires, references herein: (a) to a defined term that includes other defined terms (e.g., Membership Benefits) are deemed to be followed by the words “(in whole or in part”); (b) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (c) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (d) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules, exhibits and other attachments referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
    • Online Terms and Conditions. Member agrees that, in addition to this Agreement, Member’s access to, participation in and use of the Platform is governed by the Terms and Conditions, available at https://www.salesassembly.com/terms-of-use/, as well as any additional terms of use, terms of service, end user license agreement, or click-through provisions governing the access to, participation in or use of the Membership Benefits published, presented, or otherwise made available to Member and/or Member’s personnel by SA, either directly or through the Platform (collectively, the “Terms of Service”). The Terms of Service are incorporated herein by this reference.
    • In the event of any inconsistency between the statements made in the body of this Agreement, the Terms of Service, and any other documents incorporated herein by reference, the following order of precedence governs: (i) this Agreement; (ii) the Terms of Service; and (iii) any other document incorporated herein by reference unless such document expressly provides that it is modifying this Agreement and is signed by an authorized representative of SA and Member.
    • No Exclusivity. Nothing herein shall restrict SA’s right to contract with any third party to provide products and/or services similar to those provided by SA to Member under this Agreement.
    • Electronic Communications. The communications between SA ad Member use electronic means, whether Member accesses, participates in or uses the Membership Benefits or communicates with SA via email, or whether SA post notices on the Websites or communicates with Member via email. For contractual purposes, each Party consents to receive communications from the other Party in electronic form. Further, member agrees that all Terms of Service and other notices, disclosures and other communications that SA provides to Member electronically satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect either Party’s non-waivable rights.
    • Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications or agreements with respect to the subject matter hereof. No usage of trade, or other regular practice or method of dealing between the Parties or others, will be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement. If any document issued by Client includes any reference that is inconsistent with the provisions of this Agreement, such references shall be null and void despite no objection being stated by Company.

APPENDIX A

Membership Benefits Overview