By checking the box labelled “Accept” below, and entering your payment information on the following page, you hereby acknowledge and assent to enter into this
Executive Club Membership Agreement
(the “Agreement“) is made and entered into as of today’s date (the “Effective Date“), by and between Travel Visa Pro, LLC, a California Limited Liability Company (“TVP“), and yourself (“Subscriber“). For purposes of this Agreement, TVP and Subscriber are sometimes referred to individually as a “Party,” and collectively as the “Parties.” In consideration of the mutual terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1
GRANT OF SERVICE SUBSCRIPTION
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1.1
TVP hereby grants to Subscriber a nonexclusive, non-transferable subscription and right to request and use all services identified and specified herein according to this Section 1 (the “Services“) subject to the terms and conditions of this Agreement. The full scope of Services selected by Subscriber shall be collectively known as the “Subscription“.
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1.2
Subscriber hereby agrees that such Subscription shall include all Services identified and defined as included in the “Executive Package” according to the previous page;
SECTION 2
PAYMENT FOR SUBSCRIPTION
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2.1
Integration Fee.
Subscriber shall pay to TVP, upon execution of this Agreement, a subscription fee of a sum equal to the amount as calculated according to the following web page, and determined by the full selection of Services selected by Subscriber. Such Subscription Fee shall entitle Subscriber to the Services for which Subscriber has indicated herein and paid the appropriate sum total for a period of ONE (1) YEAR, beginning immediately upon the Execution Date.
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2.2
Renewal.
The term of this Agreement shall automatically renew at the end of each annual period. Subscriber hereby agrees to pay an additional Subscription Fee at the beginning of each annual period, unless and until this Agreement is terminated or modified according to the terms of this agreement OR mutual written consent of both Parties.
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2.3
Cancellation.
Subscriber may cancel this Agreement at will and at any time by delivery to TVP of THIRTY (30) days’ written notice. Such cancellation shall take effect upon the completion of thirty (30) days following the delivery of notice upon TVP (or earlier, with TVP’s express consent). If Subscriber delivers notice of cancellation at any time within the period beginning thirty (30) days prior to the scheduled date of renewal, and ending upon the date of renewal, such cancellation shall not take effect prior to renewal, and Subscriber shall be obligated to pay the renewed Subscription fee for the proceeding annual period.
SECTION 3
CONFIDENTIALITY OF INFORMATION AND USE RESTRICTION
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3.1
Subscriber recognizes that the Services, and customizations, updates, or corrections, if any, are the property of, and all rights thereto, are owned by TVP. The Services are for the sole use of Subscriber and shall be used only for the purpose set forth in this Agreement, and Subscriber shall only use the Services in the manner, to the extent, and the scope in which it is specifically described in this Agreement.
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3.2
TVP reserves the rights to all information, content, graphics, text, sounds, images, buttons, trademarks, service marks, trade names and logos protected or protectible by copyright, trademark, database right, or other intellectual property laws, whether under state, national or local laws or international treaties (the “Materials“). TVP and its licensors (as the case may be) retain all right, title, interest, and intellectual property rights in and to the Materials. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, Materials, software, products or services obtained from TVP or due to this Agreement. Other than expressly provided herein, nothing in these terms shall be construed as inferring by implication or otherwise any license or right under any copyright, trademark, database right, sui generis right or other intellectual property or proprietary interest of TVP, its licensors or any third party. Any persons breaching any of this provision will be prosecuted.
SECTION 4
TERM AND TERMINATION
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4.1
Term.
The Subscription right granted hereunder shall continue unless and until terminated pursuant to Section 4.2 hereof and subject to Subscriber’s proper performance of its obligations hereunder.
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4.2
Termination.
In the event of termination of this Agreement pursuant to the above, TVP shall have the right to revoke license to the Services. Termination of this Agreement shall not relieve either party of its obligations pursuant to the terms and obligations of this Agreement.
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4.3
Notice and Opportunity to Cure.
If Subscriber, its officers, agents, or employees, breach any provision of this Agreement, such breach must be cured within thirty (30) days of receipt of TVP’s written notice describing such breach. If such breach is not cured within the thirty(30) days after receipt of the notice, Subscriber shall pay TVP reasonable monetary payments for loss and/or damages related to such breach.
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4.4
Immediate Termination of Agreement.
If Subscriber attempts to sublicense the Services, or use the Services for a purpose that is not expressly and as explicitly provided for in this Agreement, TVP shall have the absolute and indefeasible right to immediately terminate this Agreement. Subscriber’s use of the Services after termination of this Agreement shall subject Subscriber to all equitable claims (injunction), and legal claim for copyright infringement, and a claim for profits, other damages, if any, and all of TVP’s attorney fees and costs.
SECTION 5
WARRANTIES OF SUBSCRIPTION
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5.1
TVP warrants that it has the right to license the Services to Subscriber hereunder. TVP makes no warranties or representations that the Services are free of errors or defects, or that it adequately performs the functions it is intended to perform. Subscriber shall use its own due diligence to test the Services and independently determine its acceptability for Subscriber’s business purposes.
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5.2
TVP is under no obligation to update or correct defects or errors in the Services. If TVP does provide Subscriber with updates or corrections, the terms and conditions of this Agreement shall apply.
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5.3
The Services are provided “as is” and TVP makes no other warranties with respect to the Services, including but not limited to those of merchantability and fitness for a particular purpose.
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5.4
Subscriber Waives Right to Challenge Services. Subscriber has negotiated with TVP that it, the Subscriber, shall not challenge the copyright of the Services or TVP’s right in the Services, or TVP’s right to license the Services. To do so is a material breach of this Agreement, subject to Immediate Termination of the Agreement (see Section 5.4 hereinabove), and shall subject Subscriber to all equitable and legal claim, as if the Subscriber has infringed on the Services.
SECTION 6
INDEMNIFICATION AND LIMITATION OF LIABILITY
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6.1
Subscriber agrees to indemnify and hold TVP harmless from and against all loss, cost, expense, or liability (including reasonable attorney’s fees) arising out of a claim by a third party against TVP based upon Subscriber’s use of the Services; TVP, however, shall have the superior right to defend any action filed, related to a claim that Subscriber use of the Services is violative of another’s copyright or intellectual property protection, with the defense of such legal action subject to Subscriber’s indemnification obligation.
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6.2
Obligations set forth herein are contingent upon the other party:
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6.2.1
Providing the indemnifying party with prompt written notice of any action brought against the other party; and
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6.2.2
The other party cooperating with the indemnifying party in the defense of any such action and allowing the indemnifying party to control the defense and settlement of any such action at its expense.
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6.3
TVP shall have no obligation to defend any action or indemnify Subscriber from damage if:
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6.3.1
Subscriber, in providing customizations, updates and/or corrections to the Services, infringes upon the intellectual property of any third party;
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6.3.2
Subscriber is not using the most current version of the Services and the action would have been avoided without such combined use;
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6.3.3
Subscriber has modified the Services in combination with other Services and the action would have been avoided without such combined use; or
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6.3.4
Subscriber is using the Services in combination with other Services and the action would have been avoided without such combined use.
SECTION 7
LIMITATION OF LIABILITY
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7.1
TVP shall have no liability to Subscriber for any damage sustained by Subscriber as a result of Subscriber’s use of the Services, whether such damages would arise as a result of breach of contract, tort or otherwise. Subscriber has tested the Services and relies on its own judgment in utilizing it.
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7.2
In
no event shall TVP be liable for claims in respect of or arising out of the performance of it’s obligations hereunder for any indirect, incidental, consequential or punitive damages (including loss of profits, revenue, data, or use), incurred by Subscriber or by any third party whether in an action in contract or tort, even if TVP or any other person has been advised of the possibility of such damages.
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8.1
Modification.
This Agreement may not be modified except by amendment reduced to writing and signed the Parties. No waiver of this Agreement shall be construed as a continuing waiver or consent to any subsequent breach thereof.
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8.2
Governing Law and Consent to Jurisdiction.
This Agreement will be governed by the laws of the State of Texas without regard for the conflicts of laws principles of any State or County. The Parties hereby expressly consents to the personal jurisdiction in the state of Texas and venue, as applicable, in District Courts of Harris County, Texas or, in the United States District Court for the Southern District of Texas, Houston Division.
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8.3
Arbitration.
Except for purposes of injunctive relief, any disputes arising out of or relating to this Agreement shall be resolved through binding arbitration of the American Arbitration Association, employing the then existing American Arbitration Association’s Commercial Rules. The Parties shall first try to mediate such disputes before proceeding with an arbitration hearing. The Federal Arbitration Act, and not any state arbitration act or rule, shall govern the inquiry as to whether this Agreement is subject to arbitration.
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8.4
Severability.
If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect. This Agreement is to be read in favor of finding one and against forfeiture of it.
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8.5
Headings.
Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
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8.6
Additional Acknowledgments.
Both Parties acknowledge and agree that: (a) each Party is signing this Agreement through an authorized representative; (b) the Parties are executing this Agreement voluntarily and without any duress or undue influence; (c) the Parties have carefully read this Agreement and have asked any questions needed to understand the terms, consequences, and binding effect of this Agreement and fully understand them; and (d) the Parties have sought or have been given adequate time to seek the advice of an attorney of their respective choice, if so desired, prior to signing this Agreement.
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8.7
Non-Waiver Provision.
Waiver by one party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
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8.8
Notices.
All notices required in this agreement shall be provided by email or certified mail return receipt requested or by hand delivery to the addresses designated by the Parties below. Notice shall be provided to each party signing this Agreement at the location and email(s) stated below with each Parties’ signature. The name and notice address of any person signing this Agreement may be modified in writing but providing every other Party notice of same.
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8.9
Entire Agreement.
This Agreement sets forth the entire agreement and understanding between the Parties relating to the subject matter herein and supersedes all prior discussions between the Parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. Every Party to this Agreement further specifically and expressly disclaims reliance on any representation, of any kind or made at any time, by any other Party to this Agreement, or any Party’s attorneys or agents, or any other person as an inducement to enter into this Agreement. Rather, every Party warrants that he, she, or it has exercised due diligence in entering this Agreement, after reviewing it with counsel of their choice.
IN WITNESS WHEREOF, the Parties acknowledge and agree to the terms and conditions of this Agreement.
