Varamode, LLC (the “Company“) will provide you, the member (“you,” “yourself,” or “your“), with certain membership benefits, including access to the Company’s community of brand partners and related brand-partner experiences. In order to become a member and receive these membership benefits, you must read and accept all of the terms and conditions set forth in this Membership Agreement (this “Agreement”).
You acknowledge and agree that the Company has acquired or developed, and will continue to acquire and develop, relationships with certain brand partners, through substantial expenditures of time, effort and money. As a result of the Company’s relationships with these brand partners, the Company is able to provide its members with membership benefits, including the ability to receive promotional and/or preferred access to the products and services of its brand partners. As a result of the foregoing, it reasonable and necessary for the protection of the Company’s business interests, reputation or character that each member agree to:
- not, directly or indirectly, make any statement that disparages or criticizes the Company or any of its officers, directors, employees, and brand partners, which causes or is likely to cause damage or harm to the business interests, reputation or character of the Company and/or its brand partners;
- not negotiate independent commercial terms with the Company’s brand partners that are directly or indirectly competitive to, inconsistent with, or interfere with the business of the Company or the services and the benefits the Company provides to you or its other members (or the terms under which the Company provides such services and benefits to you or its other members);
- (i) be registered with social media platforms (i.e., Facebook, Instagram, and Twitter) with your own personal account, (ii) have the authority to use such accounts, and (iii) abide by the rules of each respective social media platform;
- have and maintain genuine followers on each social media platform;
- provide, within such time as the Company may reasonably require from time to time in connection with each brand-partner experience, data analytics from your social media activity conducted in relation to such brand-partner experience;
- that social media posts relating to each brand-partner experience remain live for a period of no less than thirty (30) consecutive days;
- allow the Company and its brand partners to share and repost your social media posts and images relating to brand-partner experiences on the same or different social media platforms on which you posted it;
- not infringe upon and not to post images or content that infringes upon the intellectual property rights of another person or entity, including the Company or any brand partner (except as otherwise expressly provided for in any specific brand-partner experience terms and conditions); and
- abide by the terms and conditions of brand-partner experience.
This Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between you and the Company for any purpose. You have no authority (and shall not hold yourself out as having authority) to bind the Company and you shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. You will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on your behalf. You shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by you in connection with the services you render during each brand-partner experience shall be your employees or contractors and you shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
The Company may terminate this Agreement, and as a result, your membership rights, effective immediately upon written notice to you, if you breach this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, you do not cure such breach within ten (10) days after receipt of written notice of such breach. Conduct by you as a member that causes or is likely to damage or harm to the business interests, reputation or character of the Company or a brand partner may result in the immediate termination of this Agreement and your membership rights. Notwithstanding the foregoing, the Company may terminate this Agreement, and as a result, your membership rights, without cause upon thirty (30) days’ written notice.
You shall not assign any rights, or delegate any obligations, under this Agreement without the Company’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Company may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns.
This Agreement may be amended, superseded, modified, and supplemented, and the terms hereof may be waived, only by written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof. No waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, shall preclude any further exercise thereof or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
The validity, construction, and performance of this Agreement shall be construed under, and governed by, the laws of the state of New York without regard to conflicts of law principles.
You agree to indemnify, hold harmless, and defend the Company and its officers, directors, and employees (collectively, “Indemnified Party“) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are awarded against Indemnified Party in a final non-appealable judgment (collectively, “Losses“), arising out of: (a) your material breach or non-fulfillment of any material representation, warranty, or covenant set forth in this Agreement; (b) your grossly negligent or more culpable act or omission (including any reckless or willful misconduct) in connection with the performance of your obligations under this Agreement; or (c) any bodily injury, death of any person, or damage to real or tangible personal property caused by your grossly negligent or more culpable acts or omissions (including any reckless or willful misconduct).