1.0 MEMBERSHIP RIGHTS AND OBLIGATIONS
1.1. Generally. Member agrees to pay the annual fees, as may be amended from time to time in accordance with the Bylaws.
1.2. Compliance with Policies. Member agrees to abide by, and shall have all applicable rights and obligations as set forth in, the Bylaws, NEXCO Policy, and any and all additional policies and procedures adopted by NEXCO, as may be amended from time to time in accordance with the Bylaws.
2.1. Authority to Execute Agreement. Member hereby represents, warrants and covenants to NEXCO that (a) it has the authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution and performance of this Agreement does not and will not violate any agreement to which Member is a party or by which it is otherwise bound; and (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of Member, enforceable in accordance with its terms.
2.2. No Other Licenses. By executing this Agreement, Member neither grants nor receives, by implication, estoppel, or otherwise, any rights under any copyright, patents or other intellectual property rights of NEXCO or another Member.
2.3. No Warranty. NEXCO AND MEMBER EACH ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE AGREED IN WRITING, ALL INFORMATION PROVIDED TO OR BY NEXCO UNDER THIS AGREEMENT IS PROVIDED “AS IS” WITH NO WARRANTIES OR CONDITIONS WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NEXCO AND MEMBER EACH EXPRESSLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO SUCH INFORMATION.
2.4. Limitation of Liability. IN NO EVENT WILL EITHER NEXCO OR MEMBER BE LIABLE TO EACH OTHER OR ANY OTHER MEMBER OR THIRD PARTY UNDER THIS AGREEMENT FOR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST REVENUE, LOST SALES, LOSS OF USE, LOSS OF DATA OR ANY INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, WHETHER OR NOT SUCH PARTY HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
2.5. Governing Law. This Agreement shall be construed and controlled by the laws of the Commonwealth of Virginia without reference to conflict of laws principles.
2.6. Complete Agreement; No Waiver. This Agreement, including all attachments, sets forth the entire understanding of NEXCO and Member and supersedes all prior agreements and understandings relating hereto, unless otherwise stated in this Agreement. The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.
2.7. Amendment. Member shall be given at least thirty (30) days prior written notice of the effective date of an amendment agreed to in accordance with the Bylaws. No amendments, modifications or additions to or deletions from this Agreement shall be binding unless accepted in writing by authorized representatives of NEXCO and Member. If Member does not agree to a modification to this Agreement that was approved in accordance with the Bylaws, this Agreement and Member’s membership in NEXCO shall be terminated. Amendments shall be prospective only unless otherwise agreed to by the Member and NEXCO.
2.8. No Rule of Strict Construction. Regardless of which party may have drafted this Agreement, no rule of strict construction shall be applied against either party. If any provision of this Agreement is determined by a court to be unenforceable, the parties shall deem the provision to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted from this Agreement, and the remainder of this Agreement will continue in effect.
2.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but collectively shall constitute one and the same instrument.
2.10. Compliance with Laws. Anything contained in this Agreement to the contrary notwithstanding, the obligations of NEXCO and Member shall be subject to all laws, present and future, of any government having jurisdiction over NEXCO and Member including, without limitation, all export and re-export laws and regulations. It is the intention of NEXCO and Member that this Agreement and all referenced documents shall comply with all applicable laws and regulations.
2.11. Headings. NEXCO and Member acknowledge that the headings to the sections hereof are for reference purposes only and shall not be used in the interpretation of this Agreement.
2.12. Assignment. Member may not assign its rights or obligations under this Agreement without the prior written consent of NEXCO or as otherwise set forth in the Bylaws. For purposes of this Agreement, an assignment shall be deemed to include a transfer or sale of all or substantially all of the business of Member, or a merger, consolidation or other transaction that results in a change in control of Member.
2.13. Force Majeure. Neither NEXCO nor Member shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes or any other cause which is beyond the reasonable control of such party.