THOR Member Agency Agreement Terms and Conditions

THOR MEMBER AGENCY AGREEMENT
TERMS AND CONDITIONS

Term; Termination; Survival. (a) Term. Unless otherwise terminated as provided herein, the term of this Agreement (the “Term”) shall commence on the Effective Date and continue for one (1) year from the Effective Date. The Term shall be automatically renewed for consecutive one (1) year periods thereafter, unless either party gives the other party ninety (90) days written notice of termination prior to the expiration the then current Term. (b) Termination. (i) THOR may terminate this Agreement, with or without cause, without any liability, upon thirty (30) days’ notice to MEMBER.; (ii) Each party shall be at liberty to terminate this Agreement at any time, by written notice to the other party, in the event of: (i) bankruptcy, liquidation or winding up (or any similar judicial process) of the other party; or (ii) if the other party shall commit a breach of any material terms of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice thereof from the other party. In the event that either party violates any of the terms herein, the other party may be irreparably and immediately harmed and may not be able to be made whole by monetary damages alone. Accordingly, it is agreed that either party, in addition to any other remedy to which it may be entitled in law or equity, may be entitled to seek an injunction(s) to prevent breaches of this Agreement, to compel specific performance of this Agreement and/or seek other equitable relief. (c) Survival. All obligations of each party that have accrued prior to an expiration or termination of this Agreement or that are of a continuing nature shall survive an expiration or termination of this Agreement.
Title; Licenses. (a) THOR’s Intellectual Property. Except as provided herein, all rights, title and interest in and to the THOR Supplier Program, and all THOR publications whether in printed or electronic format (collectively, “THOR’s Intellectual Property”) and all copyrights, patents, trade secret rights, trademarks and other intellectual property rights related to THOR’s Intellectual Property are and shall at all times remain the sole and exclusive property of THOR and/or its affiliates, successors, and assigns. Without conveying any proprietary right, title or interest in and to THOR’s Intellectual Property, for the purposes of this Agreement only, THOR hereby grants to MEMBER a non-exclusive, non-transferable, royalty-free license, effective throughout the Term of this Agreement, to use THOR’s Intellectual Property exclusively for the purpose of promoting and participating in the THOR Supplier Program; provided, however (i) any use of THOR’s Intellectual Property by MEMBER must comply with any usage guidelines communicated, in advance and in writing by THOR from time to time. Nothing contained in this Agreement will give MEMBER any claim, right, title or interest in or to THOR’s Intellectual Property or the goodwill associated therewith, except for the limited usage rights expressly provided herein. MEMBER acknowledges and agrees that THOR is the sole owner of, or has acquired rights in and to or the authority to control use of, all rights in and to THOR’s Intellectual Property. (b) MEMBER’s Intellectual Property. MEMBER hereby represents and warrants that it is the sole owner of or has acquired all rights of use in and to all of its copyrights, patents, trade secrets, trademarks, service marks, logos, graphics, content, data, photographs, images, advertisements, and other intellectual property rights and other services or products provided by MEMBER (collectively, “MEMBER’s Intellectual Property”), pursuant to the terms herein, shall not violate any third party’s trademark, copyright, patent, or other proprietary rights or any privacy rights. MEMBER hereby grants to THOR a revocable, limited, worldwide, non-exclusive, non-transferable, royalty-free license to install, display, and maintains MEMBER’s Intellectual Property provided by MEMBER to THOR hereunder, if any, for the purposes of displaying MEMBER’s Intellectual Property pursuant to the terms herein and any usage guidelines communicated, in advance and in writing, by MEMBER to THOR from time to time. Except for the limited usage rights expressly provided herein, nothing contained in this Agreement will give THOR any right, title or interest in or to MEMBER’s Intellectual Property or the goodwill associated therewith.
No Additional Warranties. THOR’S INTELLECTUAL PROPERTY IS PROVIDED “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MEMBER ACKNOWLEDGES AND AGREES THAT THOR HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES OF TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF THOR’S INTELLECTUAL PROPERTY, OR WARRANTIES REGARDING ANY REVENUE, COMMISSION, OR OTHER MONIES OR VOLUME THAT MEMBER MAY RECEIVE FROM PARTICIPATING SUPPLIERS PURSUANT TO THIS AGREEMENT.
Limitation of Liability. EXCEPT FOR SECTIONS 8 AND 9 HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification. (a) Indemnification. Each party (the “Indemnifying Party”) shall defend, indemnify, save and hold harmless the other party (the “Indemnified Party”) and the Indemnified Party's subsidiaries and affiliates, and the respective successors and assigns thereof, from any and all third-party claims, damages, demands, actions, suits, liabilities, losses, costs or expenses, including reasonable attorneys' fees and court costs ("Liabilities"), which arise directly or indirectly out of (i) any infringement by the Indemnifying Party of any right, title and interest in and to its Intellectual Property, as set forth in Section 5 above; (ii) any breach of this Agreement by the Indemnifying Party; (iii) the gross negligence or willful misconduct of the Indemnifying Party in connection with its participation hereunder (including, but not limited to, MEMBER indemnifying THOR for any incomplete or inaccurate information regarding the THOR Supplier Program and all THOR publications whether in printed or electronic format, made available to MEMBER hereunder); or (iv) any claim arising from products and/or services provided or to have been provided by the Indemnifying Party hereunder. (b) Claims. Each party agrees to (i) promptly notify the other party in writing of any indemnifiable claim, (ii) give the other party the opportunity to defend or negotiate a settlement of any such claim at such other party's expense, and (iii) cooperate fully with the other party, at that other party's expense, in defending or settling such claim.
Confidentiality. Without the prior written approval of the parties, neither party shall disclose any terms or conditions of this Agreement (other than its existence and duration), any matters relating to the course of dealings between the parties, any and all information emanating from the other party's business and not publicly known, or any confidential proprietary information relating to a party, including, without limitation, the contents of this Agreement, technical processes and formulas, product designs, lists, sales, costs and other unpublished financial information, product plans, and marketing data comprise confidential and proprietary information, except (i) as expressly provided herein and/or in order to perform such party’s obligations hereunder; (ii) to a party’s employees, directors, officers, affiliates, agents, consultants, investment bankers, accountants or attorneys, who either have a need to know such information and/or must access such information to perform a party's obligations hereunder or as may be required by a party for public or private financing (collectively “Representatives”); or (iii) as a party may be compelled to do so by law. Each party will instruct its Representatives who are involved in or responsible for the performance of its obligations under this Agreement to comply with the obligations set forth herein. Further, each party agrees that it shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the Term of this Agreement, and for a period of one (1) year following expiration or termination of this Agreement, to prevent the duplication or disclosure of any such confidential and proprietary information, other than as provided herein. There shall be no restriction of the use of such information if such information is publicly known, already known by, or in the possession of the non-disclosing party; is independently developed by the non-disclosing party; is thereafter rightly obtained by the non-disclosing party from a source other than the disclosing party; or is required to be disclosed by law, regulation, or court order. The parties hereby acknowledge that enforcement of this Section through claims for damages may be inadequate and that each party may be entitled to seek necessary injunctive relief related thereto. Notwithstanding the foregoing, MEMBER agrees that, during the Term hereunder, or thereafter, THOR shall have the right to use MEMBER’s name and disclose the existence and duration of the relationship established under this Agreement without first receiving the prior written consent for such use and disclosure from MEMBER.
Governing Law; Venue. This Agreement and the parties' actions under this Agreement shall be governed and construed in accordance with the laws of the State of Colorado, applicable to contracts to be wholly performed therein, and any action based on or alleging a breach of this Agreement must be brought in a State or Federal court in Colorado. In addition, both parties agree to submit to the exclusive personal jurisdiction and venue of such courts.
Assignment; Compliance with Laws; Representations and Warranties; Relationship of the Parties. (a) Other than as expressly set forth herein, this Agreement is personal to MEMBER and MEMBER may not assign any of its rights, duties or obligations hereunder to any person or entity.(b) Each party agrees to comply with all laws to which it is subject, the non-compliance with which would have a material adverse affect on its performance hereunder. (c) MEMBER represents and warrants to THOR that (i) it has the full right, power and authority to enter into this Agreement and to grant the rights herein granted; and (ii) MEMBER’s Intellectual Property shall not violate any third party’s trademark, copyright, patent or other proprietary rights or any privacy rights.(d) This Agreement does not create a partnership, agency, or joint venture between the parties and neither party is authorized to or shall act toward third parties or the public in any manner, which would indicate any such relationship with the other.
Permission to Solicit and Communications. MEMBER hereby authorizes THOR to communicate special offers, either electronically, or via fax, or mailed to MEMBER, and to send other communications to MEMBER, based on the contact information given to THOR in MEMBER’s Profile.
Force Majeure. Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform hereunder as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
Notices. All notices shall be in writing and sent by first class mail or overnight mail (or courier), or transmitted by facsimile (if confirmed by a mailing), or transmitted by electronic mail, to the addresses indicated herein, or such other address as either party may indicate by at least thirty (30) days prior written notice to the other party.
Entire Agreement; Counterparts: (a) Entire Agreement. The provisions of this Agreement, and any Schedules, Order Forms and Attachments hereto, constitute the entire Agreement between the parties and supersede any prior written documents or understandings not incorporated herein. (b) Counterparts. This Agreement may be executed in duplicate counterparts and each shall be deemed to be an original hereof.

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