Membership Agreement

MEMBERSHIP AGREEMENT

This Membership Agreement (the “Agreement”) is made as of [date] by and between OSEHRA, Inc. (the “Corporation”), and [New Member].

WHEREAS, the Member has been admitted as a Member pursuant to the current Bylaws of the Corporation;

WHEREAS, General Members and Corporate Members (both collectively referred to herein as the “Member” or the “Members”) are required to enter into this Membership Agreement in connection with their admission to membership in the Corporation;

WHEREAS, the Member and the Corporation wish to define certain rights and obligations with respect to Member’s membership in the Corporation; and

WHEREAS, execution of this Agreement is a condition to membership in the Corporation.

NOW, THEREFORE, for good and valuable consideration, the parties hereto agree as follows:

ARTICLE I

Definitions

Construction of Terms.  As used herein, the masculine, feminine or neuter gender, and the singular or plural number, shall be deemed to be or to include the other genders or number, as the case may be, whenever the context so indicates or requires.

Defined Terms.

 “Person” means an individual, a corporation, limited liability company, joint venture, estate, trust or unincorporated organization and any governmental or any agency or political subdivision thereof.

“Representatives” means, as to any Member, such Member’s affiliates and its and their controlling persons, directors, officers, employees, agents, and advisors.

ARTICLE II

Dues

Dues.  Member hereby agrees to pay dues in accordance with the dues policy of the Corporation (“Dues Policy”) as in effect from time to time.  Member acknowledges that the Dues Policy as of the date of this Agreement, which is subject to change from time to time by the Board of Directors of the Corporation, is set forth in the attachment to this Agreement.  OSEHRA has applied to the IRS for a 501(c)(6) tax-exemption.

Dues Policy Matters.

Payment. 

A Corporate Member’s initial dues are payable upon admission to membership in the Corporation in accordance with the amounts set forth in the attached Dues Policy.  After the initial dues payment, dues shall become due and payable by the applicable Corporate Member upon the successive 12-month anniversaries of the date of admission to membership in the Corporation.  Membership dues shall not be considered as being in arrears until thirty (30) days after the due date.  The Corporation shall bill Corporate Members for dues in advance by written invoice sent out at least thirty (30) days prior to the anniversary of each Corporate Member’s date of admission to Membership in the Corporation.  If a Corporate Member resigns from the Corporation during any year, such Corporate Member shall nonetheless be obligated to pay dues for the entire year and shall not be entitled to a refund. 

General Members shall have the option of making voluntary contributions in the suggested amounts set forth in the attached Dues Policy and shall be notified of their option to make voluntary contributions at least thirty (30) days prior to the anniversary of each General Member’s date of admission to Membership in the Corporation. 

Dues.  The dues are intended to cover all of the expenses of the Corporation.  The Board of Directors shall set, from time to time, the dues, fees, and other charges and assessments for membership in the Corporation.  Membership in the Corporation shall be suspended or terminated if a member does not pay all required membership dues, in full, by the due date established by the Board of Directors, pursuant to procedures established by the Board of Directors.

ARTICLE III

Confidentiality

Confidentiality.  All information or contributions made by a Member shall be considered non-confidential and nonproprietary information and shall be provided under the Terms of Service of the Corporation and the Corporation’s intellectual property policies; provided, however, under limited circumstances not covered by the Terms of Service or intellectual property policies of the Corporation, certain Member information designated by the Corporation may be exchanged by a Member with the Corporation  in which the Member has an expectation that such information be kept confidential and/or which is required by applicable law to remain confidential (“Confidential Information”).  Member and Corporation acknowledge and agree to keep such information confidential and not disclose the Confidential Information to any party other than its Representatives, whom it will cause to observe the terms of this Agreement, using the same degree of care that it exercises with respect to its own information of like importance but in no event less than reasonable care.  Confidential information shall not include (a) information that is customarily shared by the Corporation and Members in connection with the development of open source software code as set forth in the Corporation’s intellectual property policies or addressed under the Terms of Service; (b) information which is obtained by a recipient Member without breach of any obligation to maintain its confidentiality; (c) information which is or becomes known to the public through no act or omission of the recipient Member, including, but not limited to, information disclosed or available through the Corporation’s Website; (d) information which is disclosed in response to a valid court or governmental order; (e) information that is known to the receiving Member prior to disclosure by the disclosing party; or (f) information that is disclosed to the receiving Member by a third party not bound by a confidentiality restriction.  Member acknowledges that the Corporation does not contemplate the exchange of competitively sensitive information.

ARTICLE IV

Copyright License; Indemnification

License.  Member hereby acknowledges and agrees to the Terms of Service, Code of Conduct and other policies of the Corporation.

Representations and Warranties.  Member represents and warrants that it has the full power and authority to enter into and perform this Agreement.

Indemnification.  Member who has licensed any Content (as defined in the Terms of Service) to the Corporation under the terms and conditions of the Terms of Service agrees to fully defend, indemnify, save and hold the Corporation harmless from any and all liabilities, claims, causes of action, suits, damages and expenses (including attorneys’ fees, expert fees and court costs) for which the Corporation may become liable as a result of any breach by such Member of the representations and warranties set forth in this Article or the Terms of Service.

ARTICLE V

Trademark License

Trademark License.  Member hereby grants the Corporation a worldwide, non-exclusive, non-transferable, royalty-free license in and to such Member’s trademarks to use, reproduce, electronically distribute, transmit, broadcast or publicly display such trademarks related to the business activities of the Corporation.

Use of Name.  Member hereby grants the Corporation permission to use its name publicly in connection with the routine business activities of the Corporation and in press releases issued by the Corporation.

This trademark license agreement shall remain in effect as long as the Member is a member of the Corporation.

Upon written termination of a Member’s membership the Corporation shall refrain the use of Member’s trademarks and logos within a sixty-day phase out period.

Should the Member discover their trademark is still in use after the sixty-day phase out period a formal written request for immediate removal of trademark should b made to the Corporation, and allowed up to 15 days to remove.

ARTICLE VI

Governing Documents; Limitations

6.1       Governing Documents.  Each Member acknowledges receipt of the Certificate of Incorporation and the Bylaws and the other policies of the Corporation; and further acknowledge they understand the terms and conditions of such policies, including but not limited to the appointment of the initial directors and the directors after such initial directors term has expired.  The Members have had adequate opportunity to review and obtain independent legal advice regarding the policies, including but not limited to the Bylaws, and hereby agree to abide by the terms and conditions of the policies.  Terms used in this Agreement, without definition, have the same meaning as when the same terms are used in the Bylaws.  In the event of a conflict as to the meaning of any such term, the meaning in the Bylaws shall have precedence.

6.2  Members.  ALL MATERIAL, INFORMATION, AND LICENSES PROVIDED TO THE MEMBERS BY THE CORPORATION HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CONTRIBUTIONS) AND ALL MATERIAL, INFORMATION AND LICENSES PROVIDED TO THE CORPORATION BY MEMBERS (INCLUDING WITHOUT LIMITATION, THE SPECIFICATION AND CONTRIBUTIONS PROVIDED OR RELEASED TO THE CORPORATION BY A MEMBER), ARE PROVIDED ON AN “AS IS” BASIS, WITH NO WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, CONTRACTUAL OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE. FURTHERMORE, NO WARRANTY OR REPRESENTATION IS MADE OR IMPLIED RELATIVE TO THE VALIDITY OR ENFORCEABILITY OF ANY PATENT LICENSED HEREUNDER, OR RELATIVE TO FREEDOM FROM INFRINGEMENT OF ANY THIRD PARTY PATENTS.

6.3  Exclusion of Damages.  IN NO EVENT WILL ANY MEMBER BE LIABLE TO ANOTHER MEMBER OR THE CORPORATION OR THE CORPORATION TO ANY MEMBER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

6.4  Limitation of Liability.  IF, AT ANY TIME, ANY LIABILITY ARISES FROM OR BY VIRTUE OF THIS AGREEMENT, AND THE PROVISIONS FOR EXCLUSION OF DAMAGES UNDER SECTION OF THIS AGREEMENT DO NOT APPLY, AND WHETHER SUCH LIABILITY IS DUE TO THE CORPORATION’S OR ANOTHER MEMBER’S NEGLIGENCE, THE MEMBER AGREES THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF THE CORPORATION OR ANY OF ITS MEMBERS OR MEMBERS FOR ANY CLAIMS, LOSSES, OR DAMAGES INCURRED BY THE CORPORATION OR ANY MEMBER OR MEMBER EXCEED $10,000.  THIS LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF THE CORPORATION AND MEMBERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OTHER REMEDIES POSSESSED BY THE MEMBER, ITS CUSTOMERS, OR ANY THIRD PARTIES. THIS LIMITATION OF LIABILITY REFLECTS AN AGREED ALLOCATION OF RISK BETWEEN THE MEMBER AND THE CORPORATION IN VIEW OF THE NATURE OF THIS TRANSACTION.

6.5.  Covenant.  THE MEMBER COVENANTS THAT ITS REPRESENTATIVES TO THE CORPORATION SHALL NOT SUBMIT A CONTRIBUTION THAT ITS REPRESENTATIVES HAVE PERSONAL KNOWLEDGE (WITH NO OBLIGATION TO INVESTIGATE) VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER ASSOCIATE MEMBER OR THIRD PARTY.

Participation; Term

Participation; Independent Action.  Member hereby acknowledges and agrees that it participates in the Corporation voluntarily, solely to advance the purposes of the Corporation set forth in the Corporation’s Certificate of Incorporation.  Member acknowledges and agrees that each of the Members remain free, in each of their independent judgments, to adopt, reject, or modify any and all guidance developed by the Corporation.  No Member shall have the authority, actual or implied, to bind any other Member or the Corporation in any way, to make any commitments or representations on behalf of another Member or the Corporation, or to act as agent of another Member or the Corporation.  The Corporation shall not have the authority, actual or implied, to bind any Member in any way or to act as agent for any Member. 

Term.  Any Member may resign as a member of the Corporation in accordance with the Bylaws at any time after 10 days written notice to the Corporation and, upon resignation, such Member shall no longer be bound by the provisions of this Agreement.  In addition to the foregoing, a Member of any class or type may be removed as a Member of the Corporation in accordance with the Bylaws of the Corporation.  Notwithstanding the foregoing, the provisions of Article II and Article III shall survive with respect to any particular Member, resignation by such Member and such resigning Member shall not be entitled to receive any refund for prepaid dues.

Miscellaneous

Amendment.  For the purposes of this Agreement, no course of dealing between or among the parties hereto and no delay on the part of any party hereto in exercising any rights hereunder shall operate as a waiver of the rights hereof.  Member agrees that this Agreement may be amended upon the consent of a majority of the Members. 

Consent to Email Correspondence.  Member hereby consents to receive any and all correspondence from the Corporation, including any notices of Member meetings or board of director meetings, by email.

Designation of Representative(s).  Any Member that is a corporate entity or governmental entity or research or academic institution shall designate an employee as its principal representative and an employee as its alternate representative to the Corporation.  Such designees shall have the authority to act on behalf of the Member, including without limitation, with respect to casting votes and paying dues on the Member’s behalf.  Any notices required for or permitted to the Corporation by this Agreement or otherwise shall be delivered to the Member or, as applicable, to both a Member’s principal representative and its alternate, by means of email as set forth in 8.2, and such delivery shall constitute full satisfaction of any notice requirements.

No Assignment.  This Agreement shall be binding upon the parties, respective affiliates, heirs, executors, administrators, assigns, agents and representatives, but shall not be capable of assignment without the prior written consent of the Corporation and a majority of the Members.

Applicable Law.  This Agreement shall be deemed a contract made under the laws of the State of Delaware and together with the rights and obligations of the parties hereunder, shall be construed under and governed by the laws of such state, without giving effect to its conflict of laws principles.

Entire Agreement.  This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and discussions relating to the subject matter hereof.

Counterparts.  This Agreement may be executed in one or more facsimiles, pdfs, counterparts or electronic signature counterparts of any form, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts, facsimiles, pdfs or electronic signatures have been executed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart, facsimile, pdf or form of electronic signature. 

Integration.  This Agreement, including the exhibits, documents and instruments referred to herein or therein, the Certificate of Incorporation of the Corporation and the Bylaws of the Corporation, constitute the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be deemed prohibited or invalid under such applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, and such prohibition or invalidity shall not invalidate the remainder of such provision or other provisions of this Agreement.

Dues Policy

I.  General Members

Dues for General Members shall be set at $90 per annum.

II.  Corporate Members

Dues for Corporate Entities                           Company Revenue per Annum

$5,000                                                                         under $10 Million

$10,000                                                                       $10 Million to $50 million

$20,000                                                                       $50 Million to $100 Million

$30,000                                                                       $100 Million to $150 Million

$40,000                                                                       $150 Million to $200 Million

$50,000                                                                       $200 Million and above

Dues for Corporate Members who are non-profit entities or are academic or research institutions shall be set at $1,000 per annum.