American Society for Collective Rights Licensing
ASCRL MEMBERSHIP AGREEMENT
PART V.
ADDITIONAL LEGAL MATTERS
I. INDEMNITIES
A. Indemnification for Member Breach
You shall indemnify, protect, defend, and hold harmless, ASCRL, its directors, officers, board members, employees, agents, contractors, and those acting under ASCRL’s authorization (including, without limitation its Sister Societies, and their officers, directors, members, employees and agents), from any and all claims, demands, actions, proceedings, damages, and costs, (including without limitation attorneys fees, arbitration fees, and court costs) that they may incur by reason of your breach of this ASCRL Membership Agreement, or the ASCRL Mandate, or any of the covenants or conditions therein.
B. Indemnification for ASCRL and Related party Acts and Omissions.
You shall further indemnify, protect, defend, and hold ASCRL, its directors, officers, board members, employees, agents, contractors, and those acting under ASCRL’s authorization (including, without limitation its Sister Societies, and their officers, directors, members, employees and agents), from any and all claims demands, actions, proceedings, which you have or may bring, and from and for any damages, costs, fees (including without limitation legal, investigation, expert, and court costs) they may incur that are connected therewith, that arise from or in connection with their own acts and or omissions, except for any that are due to their own willful wrongdoing, their sole negligence, or that violate federal or state law.
II. DISPUTES
A. Resolution of Disputes.
If a dispute arises between you and ASCRL, or its Directors, Officers, Agents, or Employees, (herein “ASCRL Related Parties”) concerning or arising out of the ASCRL Membership Agreement or the ASCRL Mandate, and / or any ASCRL operations of the acts of any of the ASCRL Related Parties, including without limitation any dispute concerning the scope and enforceability of this arbitration provision, it shall be resolved exclusively by binding arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association, in Washington, D.C., and the decision of the arbitrator shall be final, binding, and enterable in any court having jurisdiction.
B. Arbitration Costs.
In the event that ASCRL or any ASCRL Related Parties prevail in any arbitration or suit you commence against ASCRL, or any ASCRL Related Party, you shall reimburse ASCRL and the ASCRL Related Party for all liabilities, including without limitation legal fees, investigation costs, arbitration costs, and other costs, that they incur in connection with the arbitration and suit, as applicable, together with pre and post judgment simple interest accruing on the part of any and all unpaid awards at the legal rate applicable in the District of Columbia until such liabilities are paid to ASCRL in full.
C. Class Action Waiver.
No dispute between you and ASCRL shall be joined or consolidated in any class action, or be joined or combined in any other dispute with any another ASCRL member. Any arbitration will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Unless both you and ASCRL agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
D. Applicable Law.
This Agreement and the ASCRL Mandate shall be construed under and in accordance with the laws of the District of Columbia, without regard to its rules for the resolution of conflicts of law. This agreement shall be construed in the English language.
E. Jurisdiction and Venue.
You consent to the personal jurisdiction of the Courts of the District of Columbia and agree that the courts of the District of Columbia shall have jurisdiction over and be the exclusive venue for any and all matters that may properly be brought before a court.
F. Default.
In the event that you fail to appear for any arbitration of any legal proceeding, after notice thereof properly served upon you, the arbitrator or court, as applicable, shall order judgment against you on the claim or matter submitted to the arbitration or court.
G. ASCRL Treatment of Disputes Between Members and Between Members and Agents.
In the event that ASCRL is notified of a dispute between you and any other member, or any agent, that might affect any rights or liabilities between ASCRL and you, the members, and or the agent, ASCRL may
(i) create a reserve and withhold any distributions to you, the member, and or the agent until the dispute is amicably resolved, and if the dispute is not amicably resolved within ninety (90) days,
(ii) notify you, the member, and the agent, as applicable, that the dispute must be resolved by final and binding arbitration.
In the event that you are notified that the dispute must be resolved by binding arbitration, you, the member, and or the agent, as the case may be, shall diligently pursue and obtain an arbitration order resolving the dispute prior to the expiration of the reserve period that follows the claims period to which the dispute pertains. If an arbitration order resolving the dispute is not provided prior to the expiration of the reserve period, any funds that are the subject of the dispute shall be forfeited and shall be distributed in accordance with the rules for the forfeiture or reserves.
III. LIMITATIONS UPON LIABILITY
A. Incidental, Consequential, and other Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ASCRL OR ITS SISTER SOCIETIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ASCRL’S SERVICES, OR ASCRL’S FAILURE TO PROVIDE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ASCRL AND OR ITS SISTER SOCIETIES HAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY ASCRL SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE MEMBERSHIP TO TERMINATE YOUR MANDATE IN ACCORDANCE WITH THE TERMS OF THE MEMBERSHIP AGREEMENT.
IV. RELATIONSHIP OF THE PARTIES
You understand and agree that you and ASCRL are independent entities, and are independent contractors. You agree that you and ASCRL are not in a partnership or joint adventure, and that you are not in a principal and agent, employer-employee, or in a fiduciary relationship with ASCRL. ASCRL’s and your rights and obligations are determined solely by this ASCRL Membership Agreement and the ASCRL Mandate.
V. AMENDMENTS
The ASCRL Membership Agreement and ASCRL Mandate may be modified at any time by the ASCRL Board of Directors, under the supervision of the ASCRL Advisory Board. Modifications shall become effective sixty (60) days after they are published on the ASCRL Website. You agree to monitor the ASCRL website and if you do not agree with the modified terms you may terminate the authorizations provided in the ASRL Mandate and you may terminate your membership in ASCRL in accordance with the provisions of the ASCRL Mandate and the ASCRL Membership Agreement. The amended terms shall become binding upon you when they become effective if you have not terminated prior to the effective date of the amended terms. The terms of the ASCRL Membership Agreement, as it may be amended from time to time, in accordance with ASCRL’s published Membership Agreement terms, are incorporated in, and shall be deemed to be a part of, the ASCRL Mandate. If there is a conflict between the Mandate and any term or provision of the ASCRL Membership Agreement, the terms and provisions of the ASCRL Membership Agreement, as amended and as effective, from time to time, shall govern.
VI. EXECUTION OF THE ASCRL MEMBERSHIPP AGREEMENT AND MANDATE
You acknowledge that you have read and that you agree to the ASCRL Membership Agreement and ASCRL Mandate. You also warrant and represent that you have the legal power and authority to, and are under no legal disability to the ASCRL Membership Agreement and ASCRL Mandate and that you execute them as your own free act and deed.
VII. TERMINATION
You may terminate your ASCRL Membership on your ASCRL Dashboard on the ASCRL website, and to be effective, the termination must be done on your Dashboard. Other forms of termination will not be processed or become effective. Termination of your ASCRL Membership shall become effective at the close of the calendar year in which you terminate. When you terminate your ASCRL Membership, a) ASCRL will cease to represent your Reprographic Rights after the effective date of termination (unless you rejoin ASCRL) (accordingly, as of the effective date of termination, the authorizations that you have given to ASCRL in the ASCRL Mandate, Part II, paragraphs A, B (insofar as it applies to you), C, G, and E, shall cease to be in effect), b) as of the effective date of termination, you will cease to become eligible for distributions from ASCRL (unless you re-join, and except for claims that you submitted before you terminated your ASCRL Membership), and c) you will no longer be able to submit claims for distributions, and d) your access to the ASCRL Dashboard and Dashboard related information may be disabled and terminated. Termination of your ASCRL Memberhip shall not affect any other rights or obligations accruing prior to termination and the terms of the ASCRL Membership Agreement shall otherwise survive termination and continue to be in effect.
PART V.
ADDITIONAL LEGAL MATTERS
I. INDEMNITIES
A. Indemnification for Member Breach
You shall indemnify, protect, defend, and hold harmless, ASCRL, its directors, officers, board members, employees, agents, contractors, and those acting under ASCRL’s authorization (including, without limitation its Sister Societies, and their officers, directors, members, employees and agents), from any and all claims, demands, actions, proceedings, damages, and costs, (including without limitation attorneys fees, arbitration fees, and court costs) that they may incur by reason of your breach of this ASCRL Membership Agreement, or the ASCRL Mandate, or any of the covenants or conditions therein.
B. Indemnification for ASCRL and Related party Acts and Omissions.
You shall further indemnify, protect, defend, and hold ASCRL, its directors, officers, board members, employees, agents, contractors, and those acting under ASCRL’s authorization (including, without limitation its Sister Societies, and their officers, directors, members, employees and agents), from any and all claims demands, actions, proceedings, which you have or may bring, and from and for any damages, costs, fees (including without limitation legal, investigation, expert, and court costs) they may incur that are connected therewith, that arise from or in connection with their own acts and or omissions, except for any that are due to their own willful wrongdoing, their sole negligence, or that violate federal or state law.
II. DISPUTES
A. Resolution of Disputes.
If a dispute arises between you and ASCRL, or its Directors, Officers, Agents, or Employees, (herein “ASCRL Related Parties”) concerning or arising out of the ASCRL Membership Agreement or the ASCRL Mandate, and / or any ASCRL operations of the acts of any of the ASCRL Related Parties, including without limitation any dispute concerning the scope and enforceability of this arbitration provision, it shall be resolved exclusively by binding arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association, in Washington, D.C., and the decision of the arbitrator shall be final, binding, and enterable in any court having jurisdiction.
B. Arbitration Costs.
In the event that ASCRL or any ASCRL Related Parties prevail in any arbitration or suit you commence against ASCRL, or any ASCRL Related Party, you shall reimburse ASCRL and the ASCRL Related Party for all liabilities, including without limitation legal fees, investigation costs, arbitration costs, and other costs, that they incur in connection with the arbitration and suit, as applicable, together with pre and post judgment simple interest accruing on the part of any and all unpaid awards at the legal rate applicable in the District of Columbia until such liabilities are paid to ASCRL in full.
C. Class Action Waiver.
No dispute between you and ASCRL shall be joined or consolidated in any class action, or be joined or combined in any other dispute with any another ASCRL member. Any arbitration will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Unless both you and ASCRL agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
D. Applicable Law.
This Agreement and the ASCRL Mandate shall be construed under and in accordance with the laws of the District of Columbia, without regard to its rules for the resolution of conflicts of law. This agreement shall be construed in the English language.
E. Jurisdiction and Venue.
You consent to the personal jurisdiction of the Courts of the District of Columbia and agree that the courts of the District of Columbia shall have jurisdiction over and be the exclusive venue for any and all matters that may properly be brought before a court.
F. Default.
In the event that you fail to appear for any arbitration of any legal proceeding, after notice thereof properly served upon you, the arbitrator or court, as applicable, shall order judgment against you on the claim or matter submitted to the arbitration or court.
G. ASCRL Treatment of Disputes Between Members and Between Members and Agents.
In the event that ASCRL is notified of a dispute between you and any other member, or any agent, that might affect any rights or liabilities between ASCRL and you, the members, and or the agent, ASCRL may
(i) create a reserve and withhold any distributions to you, the member, and or the agent until the dispute is amicably resolved, and if the dispute is not amicably resolved within ninety (90) days,
(ii) notify you, the member, and the agent, as applicable, that the dispute must be resolved by final and binding arbitration.
In the event that you are notified that the dispute must be resolved by binding arbitration, you, the member, and or the agent, as the case may be, shall diligently pursue and obtain an arbitration order resolving the dispute prior to the expiration of the reserve period that follows the claims period to which the dispute pertains. If an arbitration order resolving the dispute is not provided prior to the expiration of the reserve period, any funds that are the subject of the dispute shall be forfeited and shall be distributed in accordance with the rules for the forfeiture or reserves.
III. LIMITATIONS UPON LIABILITY
A. Incidental, Consequential, and other Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ASCRL OR ITS SISTER SOCIETIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ASCRL’S SERVICES, OR ASCRL’S FAILURE TO PROVIDE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ASCRL AND OR ITS SISTER SOCIETIES HAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY ASCRL SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE MEMBERSHIP TO TERMINATE YOUR MANDATE IN ACCORDANCE WITH THE TERMS OF THE MEMBERSHIP AGREEMENT.
IV. RELATIONSHIP OF THE PARTIES
You understand and agree that you and ASCRL are independent entities, and are independent contractors. You agree that you and ASCRL are not in a partnership or joint adventure, and that you are not in a principal and agent, employer-employee, or in a fiduciary relationship with ASCRL. ASCRL’s and your rights and obligations are determined solely by this ASCRL Membership Agreement and the ASCRL Mandate.
V. AMENDMENTS
The ASCRL Membership Agreement and ASCRL Mandate may be modified at any time by the ASCRL Board of Directors, under the supervision of the ASCRL Advisory Board. Modifications shall become effective sixty (60) days after they are published on the ASCRL Website. You agree to monitor the ASCRL website and if you do not agree with the modified terms you may terminate the authorizations provided in the ASRL Mandate and you may terminate your membership in ASCRL in accordance with the provisions of the ASCRL Mandate and the ASCRL Membership Agreement. The amended terms shall become binding upon you when they become effective if you have not terminated prior to the effective date of the amended terms. The terms of the ASCRL Membership Agreement, as it may be amended from time to time, in accordance with ASCRL’s published Membership Agreement terms, are incorporated in, and shall be deemed to be a part of, the ASCRL Mandate. If there is a conflict between the Mandate and any term or provision of the ASCRL Membership Agreement, the terms and provisions of the ASCRL Membership Agreement, as amended and as effective, from time to time, shall govern.
VI. EXECUTION OF THE ASCRL MEMBERSHIPP AGREEMENT AND MANDATE
You acknowledge that you have read and that you agree to the ASCRL Membership Agreement and ASCRL Mandate. You also warrant and represent that you have the legal power and authority to, and are under no legal disability to the ASCRL Membership Agreement and ASCRL Mandate and that you execute them as your own free act and deed.
VII. TERMINATION
You may terminate your ASCRL Membership on your ASCRL Dashboard on the ASCRL website, and to be effective, the termination must be done on your Dashboard. Other forms of termination will not be processed or become effective. Termination of your ASCRL Membership shall become effective at the close of the calendar year in which you terminate. When you terminate your ASCRL Membership, a) ASCRL will cease to represent your Reprographic Rights after the effective date of termination (unless you rejoin ASCRL) (accordingly, as of the effective date of termination, the authorizations that you have given to ASCRL in the ASCRL Mandate, Part II, paragraphs A, B (insofar as it applies to you), C, G, and E, shall cease to be in effect), b) as of the effective date of termination, you will cease to become eligible for distributions from ASCRL (unless you re-join, and except for claims that you submitted before you terminated your ASCRL Membership), and c) you will no longer be able to submit claims for distributions, and d) your access to the ASCRL Dashboard and Dashboard related information may be disabled and terminated. Termination of your ASCRL Memberhip shall not affect any other rights or obligations accruing prior to termination and the terms of the ASCRL Membership Agreement shall otherwise survive termination and continue to be in effect.
