Membership Agreement
SERVICES
In consideration of your payment of the cost of the Membership Package that you selected and the representations, warranties and covenants that you make in this Membership Agreement, Throttle Car Club, LLC ("TCC") offers you the services and benefits described in the Membership level you selected (the "Membership Level"). In this Agreement, TCC may also be referred to as "we", "Throttle Car Club", or the "Club". The physical TCC locations may also be referred to herein as the "Throttle Car Club", the "Club" or the "Facility". For purposes of this Membership Agreement, the Members Community Code and all other internal and external communications, you may be referred to as a "Member" or "you" or "your", or any other phrase which, taken in context relates to you. Any reference to you herein shall also be deemed to include your guests, as the context requires. Those references are not intended and shall not be construed to imply that you have an ownership interest in TCC or the Facility. You agree that this Membership Agreement constitutes a valid, legal and binding agreement between you and TCC. Your membership is subject to this Membership Agreement and to the rules posted on Throttle Car Club's website and contained in this Membership Agreement; such rules may be amended from time to time at the sole discretion of the Club (the "Members Community Code").
NATURE OF THIS AGREEMENT
The entire Facility shall, at all times, remain in TCC' possession and control. YOU ACKNOWLEDGE AND AGREE THAT THIS MEMBERSHIP AGREEMENT DOES NOT CREATE A LEASE, TENANCY INTEREST, LEASEHOLD ESTATE, , OR OTHER REAL PROPERTY INTEREST IN YOUR FAVOR WITH RESPECT TO THE FACILITY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT NEITHER THE SERVICES PROVIDED BY TCC, NOR THIS MEMBERSHIP AGREEMENT SHALL IN ANY MANNER CREATE OR CONSTITUTE A LANDLORD/TENANT RELATIONSHIP. Instead, TCC is granting you a limited license to use the Facility on a non-exclusive basis, on the terms provided herein. This Membership Agreement is personal to you and cannot be transferred to anyone else.
MEMBERSHIP TERM
TCC offers two types of Memberships to its Members:
Annual Membership. A Member may elect to enroll in an annual membership at the then-current annual membership price, upon payment, in full, of the annual membership dues. Annual memberships shall automatically renew at the end of the initial term, unless Member informs TCC not less than 60 days prior to the end of the Membership term, that the member will not renew his/her Membership or wishes to convert to a Monthly Membership. Payment of dues for the subsequent year shall be due and payable on the last day of the then current year's term. Annual memberships are for a one year period, and are not refundable. Should a Member fail to make the annual payment of dues on the due date, Member's Membership shall be suspended immediately and Member shall not have access to or use of the Club or its amenities. To reactivate a suspended membership, the annual payment, plus the late fee described below, must be paid no later than thirty (30) days from the due date. If payment is not made within the thirty (30) day period after the due date, the Membership shall immediately terminate and Member will be required to undergo the application process, including payment of the then-current initiation fee (if applicable), to be considered for Membership.
Initiation Fee. A one time initiation fee shall apply to all memberships. This applies only to the primary member and not spouse, family members (in same household) nor Junior or Corporate Memberships. Note: If a member becomes inactive for >12 months, the initiation fee will apply again when re-activating.
Monthly Membership. A Member may elect to enroll in a monthly Membership plan, upon payment of the then-current initiation fee (if applicable), followed by paying the monthly dues payments at the then-current monthly price on the first day of each month - hereinafter called the due date. Should a Member join TCC during the middle of a month, such Member's first monthly payment shall consist of a prorated payment of dues for the partial month, plus the initiation fee (if applicable). Monthly Memberships automatically renew each month, upon the payment of the monthly payment, which is due on the first day of the month (the "due date").
PAYMENT DELINQUENCY (Applicable to Memberships).
Should a Monthly Member (for purposes of this Section, a "Member") fail to make a monthly payment of Member dues on the due date, such Member's Membership shall be delinquent. If such Member has not paid his/her dues by 4 days after the due date, such Member will be denied access into the Club, and shall be assessed a late fee of $10, per day, for each day that the monthly payment remains unpaid. On the 14th day of delinquency the Member membership will be suspended. If such Member has not paid his/her dues (inclusive of any late fees) within thirty (30) days after the due date, the Membership is completely terminated and labeled as "Permanent Delinquent". Any Member achieving Permanent Delinquent status will be required to undergo the application process, including payment of the then-current initiation fee (if applicable), in order to be considered for Membership. Further, Members achieving "Permanent Delinquent" status are not in good standing with the Club and will not be permitted access into the Club as a member nor as a guest.
Any Monthly Member wishing to terminate his/her Membership shall provide TCC with not less than thirty (30) days' prior written notice of such termination. If you wish to temporarily place your membership on hold and avoid reapplying and paying the then-current initiation fee (if applicable), you can request "membership hold" status with TCC by notifying the Club not less than 30 days prior to the effective date of the membership hold. Membership hold status will temporarily suspend your membership and requires that you pay $50 monthly membership dues to maintain your right to resume Membership status. Please note that if you are on membership hold status, you will not have access to the Club. A Member can elect to be on membership hold status, for a total of 3 months in any rolling 12 month period. The Club reserves the right to extend such status on a case by case basis.
Membership fees are subject to increase from time to time, at the discretion of TCC. TCC shall provide Members with not less than forty-five (45) days prior written notice of any increase in Membership fees before such increased fees go into effect.
Members may elect to transfer between annual and monthly Membership by notifying TCC in writing and following the process then in place for such transfer. These are handled on a case-by-case basis as approved by TCC staff. The member receiving the membership will need to be accepted as a member prior.
Members may elect to have access to multiple TCC facilities by paying the increased membership fee then in effect for such multi-facility access.
TCC has the right to offer occasional promotions on Membership packages, as TCC may determine in its sole discretion. Such promotions are for non-members only and existing Members are not eligible to receive such promotional offers
MEMBERS COMMUNITY CODE
You acknowledge and agree that you will, at all times during the term of your membership, abide by the Members Community Code as set forth below and as amended from time to time by TCC. The Members Community Code will be maintained on Throttle Car Club website.
PROHIBITED ACTIVITIES
You agree that while you are a Member, in the Facility or using the Services, you will not: (a) Use the Facility or Services for any purpose that is unlawful; prohibited by this Membership Agreement and Member's Community Code; interfere with the use of the Facility by TCC or others; cause any nuisance; harass or annoy any other Members, engage in any activity which is likely to cause an increase in the Club's
insurance premiums or cause loss or damage to TCC or any other Member or user of the Facility; (b) engage in any conduct of a sexual or otherwise offensive or harassing nature, toward any Member or TCC staff member which is unwelcomed and/or unwanted; (c) place anything, or allow anything to be placed, in the common areas, or near any glass, window, door, partition or wall, which TCC, in its sole judgment, deems unsightly or to limit the use or enjoyment of the Facility by others; (d) use the Facility for retail activity open to the general public, use the Facility in any way that TCC deems to create a health or safety risk, including, without limitation, chemical, biological or medical research, or otherwise conduct activities at the Facility that TCC deems to be inconsistent with an office or social club environment; (e) bring into the Facility, or knowingly permit guests or invitees to bring into the Facility, any hazardous, flammable or combustible materials, explosives, fireworks; or (f) bring any weapons into the Facility, regardless of whether you possess a concealed carry permit. If, as a result of you or your guest's actions or conduct, TCC requests your removal from the Facility, you and/or your guest (as applicable) shall leave the Facility promptly and may arrange with TCC to return at a later time to collect any personal belongings. If, you/your guest refuse to leave the Facility at TCC's request, TCC shall have the right to remove you or your guest, as the case may be, and you agree to indemnify, defend and hold TCC harmless in all respects from and against any claim, liability or expense related to such removal.
CONFERENCE ROOM POLICIES
Members may book the conference room through our online portal. Conference room use is subject to availability and is a first come first served basis.
PAYMENT OF MEMBERSHIP ACCOUNT
Membership payment is to be made annually or monthly depending on membership selection and can be made via credit card or ACH. Member must elect payment type during enrollment process. If recurring payment is selected member will be invoiced accordingly.
· Annual Membership dues payment, which shall be processed on the first day of the month following membership term.
· Monthly Membership dues payment, which shall be processed on the first day of the month.
Should a Member's account become past due, Member agrees that the Club may assess a late charge on such past-due account on the day after such payment becomes past due. Member agrees to pay all reasonable attorneys' fees, and other ancillary or related costs incurred by TCC in collecting past due amounts.
Membership dues are due and owed, whether or not you utilize your membership.
Memberships are not transferable.
INTERNET USAGE
Internet access is available in the Facility as a convenience for Members and their guests. Service interruptions, if they occur, will be handled as promptly as possible. TCC is not responsible, and you agree to hold TCC harmless, for any data, business or other losses resulting from interruption in internet service. You are responsible for protecting your computer, tablets, phones, all other devices and data from electrical surges, theft, virus, or other malicious attack.
Member shall access TCC' internet network using only the Members'-only password. Each Member's guest will have internet access using a guest logon. Members shall not provide guests with the Members'-only password. you agree not to use the Club's internet service, any TCC or TCC related network or website for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to TCC's business, reputation, employees, subscribers, facilities, or to any other person. TCC may update, modify, or institute
additional Internet usage policies from time to time, and shall make such updated, modified of additional policies available for Members' review. Members shall be responsible for abiding by all such policies.
If TCC suspects a violation of its internet usage policies by you, TCC will investigate and, if a violation is confirmed, immediately deactivate your access to Internet service in the Facility without notice, and cooperate with law enforcement authorities, as applicable, to seek a resolution, which may include legal action against you. you agree to reasonably cooperate with TCC in investigating suspected violations.
SHARED WORKSPACE
If you are using a shared workspace at the Facility, it shall be your responsibility to make sure that the workspace is clean, and clear of hazards or annoyance to other Members. Shared workstations are reserved for members only.
Do not leave your personal property unattended. TCC shall have no liability for theft or loss of any personal property (cell phone, tablet, laptop, purse, food, etc.) while at the Facility, and such loss or theft shall be your sole responsibility. Neither TCC, its owners, employees, agents or representatives shall be liable in any way for safeguarding your property.
Rights to Publicity; Required Disclosure
You agree that TCC may, and you hereby grant TCC a royalty-free license to, publish your name, company name, title, website, photograph, likeness and other similar details on the web, on social media or in print; provided, however, that TCC shall have no obligation to publish any such information. To the extent required by law, government request, or pursuant to any legal proceeding or investigation, TCC may disclose information about you and your participation in and use of the Services at the Club, with or without your knowledge, and you hereby consent to such disclosure.
PRIVACY
Members are not to disclose or share information about the Club or other members without the Club's or such Member's (as applicable) permission. Members are prohibited from disturbing, photographing, or soliciting others in the Club with whom they are not personally acquainted. Doing so may lead to suspension or termination of membership
FOOD & BEVERAGE
Outside food and beverage is not permitted in the Facility. TCC food and beverages may only be consumed in designated areas. Alcohol is strictly prohibited from all shop areas including detail and service bays
HOURS OF OPERATION
A portion of the Facility will be open from 6:00 am to 10:00 pm and will be accessible with card access if a receptionist is not on site. The Club's kitchen and bar hours will be posted on the website and within the Club. Alcohol service hours will comply with the city's alcohol ordinance.
Membership Access Card
Members will be provided with an electronic membership access card for access to the Facility. Membership access cards cannot be shared with non-members, whether within or outside of the Club. Any violation may result in suspension or termination of your Membership.
FAMILY POLICY
Married persons may join TCC under one Membership account plus an additional discounted Membership rate that allows spouse to use the facilities per the Standard Membership Level. Children under the age of 21 may dine at the Club with a Member before 5 pm and only attend specified family events. Minors are never allowed at the bar area, and must at all times, be accompanied by a parent or adult guardian.
GUEST POLICY
Members may bring the number of guests associated with their membership level with them to the Club at any time. All guests must sign in at the front desk upon arrival. Members must be present in the Club at all times while a guest is present. Any Member wishing to bring more than their allowed number of guests into the Club must call ahead to confirm that space is available and any necessary reservations are made and a guest fee of $25.00 per additional guest is paid. Failure to call ahead may result in some of your guests being denied access due to space restrictions. Members are responsible for ensuring their guests follow all Club rules and policies. Your membership is subject to suspension or termination if your guest(s) violate any Club rule(s).
ACCESS
If your membership includes, or you have upgraded to reserve, a secure locker, you agree that you will not store any illegal substances, weapons or unlawful materials in your locker. You hereby grant TCC the right to access, your locker for the purposes of ensuring the safety and well-being of the community, and to ensure no such items are being stored.
TERMINATION
In addition to TCC's other termination rights set forth in this Membership Agreement, TCC may, in its sole discretion, immediately terminate, or suspend, your Membership and the rights granted to you herein if: (i) you or your guests engage in any of the prohibited activities set forth above; (ii)you, or your guest or invitee's conduct: interferes with the operation of the Facility or the use of the Facility by other members; results in injury to any person or damage to property; injures or threatens TCC, its staff, or other members; damages the Clubs reputation or is found to be distasteful by management; (iii) you breach this Membership Agreement or fail to comply with the Members Community Code as determined by the Club in its sole judgment; (iv) you make negative or disparaging comments about the Club or its staff. Further, TCC reserves the right to suspend or terminate any Member from the community in its sole discretion. Any such termination of you by TCC shall be without refund of any fees paid by you and shall be in addition to all other rights that TCC may have against you at law or in equity.
Upon expiration or termination of your Membership, you agree to immediately remove any and all of your personal property from the Facility and vacate the Facility. Any continued occupancy of the Facility by you will be considered trespassing. If you fail to remove your property from the Facility upon the termination or expiration of your membership, TCC may remove your property from the Facility and have it stored, at your expense, and provide you notice of the storage location. TCC shall not be liable to you, and you agree to hold TCC harmless for all charges and expense related to, and any damage to such property in storage. If your property remains unclaimed thirty days after the termination or expiration of your membership, TCC may, without any further notice, dispose of your property without any liability or obligation to you.
AUTHORITY AND UNDERSTANDING
you acknowledge that you have read, understand and agree to the terms of this Membership Agreement and the Members Community Code. you hereby represent and warrant that you are 18 years of age, or older, and have all requisite legal power and authority to enter into this Membership Agreement and abide by the terms and conditions of this Membership Agreement and Members Community Code and no further authorization or approval is necessary.
INSURANCE
TCC carries liability and property insurance for the Facility and TCC-owned property. TCC requires that you maintain insurance on your own equipment and personal property used at the Facility.
WARRANTY DISCLAIMER
THE FACILITY, FURNISHINGS, EQUIPMENT AND SERVICES ASSOCIATED WITH THIS MEMBERSHIP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TCC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TCC OR ANY OF ITS AFFILIATES, THEIR RESPECTIVE PAST, PRESENT AND FUTURE SHAREHOLDERS, PARTNERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS (THE "TCC PARTIES") BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE FACILITY, MATERIALS, EQUIPMENT OR SERVICES CONTEMPLATED BY THIS MEMBERSHIP AGREEMENT OR THE ACTS OF THE OTHER MEMBERS OF TCC, INCLUDING, WITHOUT LIMITATION, ANY BODILY INJURY, DEATH OR PROPERTY DAMAGE, EVEN IF TCC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF THE TCC PARTIES TO YOU, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE FACILITY, MATERIALS, EQUIPMENT OR SERVICES CONTEMPLATED BY THIS MEMBERSHIP AGREEMENT SHALL NOT EXCEED THE MEMBERSHIP PAYMENTS ACTUALLY PAID BY YOU TO TCC DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION OUT OF WHICH SUCH LIABILITY ARISES
INDEMNIFICATION
you agree to defend, indemnify, defend and hold harmless the TCC Parties from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees), judgments, fines and penalties based upon or arising out of or related to your (or your guest's) activities at the Facility, including, without limitation, any actual or threatened suit, demand or claim arising out of or relating to your use (or your guest's use) of the Facility, your violation of this Membership Agreement, your (or your guest's) violation of the Members Community Code or any damage or injury caused by you or your guest. Your indemnification obligations survive expiration or termination of this Membership Agreement.
ASSIGNMENT
This Membership Agreement and the rights and obligations hereunder may not be assigned, delegated or transferred by you by intentional act, operation of law or otherwise. This Membership Agreement and the rights and obligations hereunder shall be freely assignable by TCC, without your consent.
WAIVER OR MODIFICATION
Any waiver by TCC of your breach of any provision of this Membership Agreement shall not operate as, or be construed to be, a waiver of any other breach of such provision, or any other provision, of this Membership Agreement. The failure to insist on strict adherence to any term of this Membership Agreement or the Members Community Code on one or more occasions shall not be considered a waiver or deprive TCC of the right thereafter to insist on strict adherence to that term or any other term of this Membership Agreement and the Members Community Code. This Membership Agreement may not be modified or amended by you. This Membership Agreement may be changed, amended or modified by TCC at any time and such change, modification or amendment shall be provided to you by publishing on TCC's website. There may be times when TCC provides you with written notice of such change, amendment or modification, however, TCC has no obligation to provide such written notice. your continued use of the Club after such change, amendment or modification is published, or after your receipt of notice (if applicable), shall be deemed to be your acceptance of such change, amendment or modification.
CHOICE OF LAW VENUE
This Membership Agreement will be governed by, construed and enforced in accordance with the laws of the State of Maine, without regard to Maine's conflicts of law rules. you hereby submit to the exclusive jurisdiction of the Federal and State courts situated in Cumberland County, Maine for the resolution of any dispute which may arise between you and the Club, regardless of which Facility(ies) your membership applies. you agree that you will not contest such jurisdiction on the theory that it is inconvenient, or for any other reason.
Notices
All notices given under this Membership Agreement shall be given to the other party in writing and shall be addressed to the most recent address such party has for the other and shall be delivered via facsimile, electronic mail, in person, or via US Mail or other recognized common carrier (such as FedEx, DHL or UPS). If notice is given by US mail, notice shall be deemed given upon the earlier of actual receipt or 3 business days after the same was posted. If by electronic mail or facsimile, on the day such notice was sent. If by other carrier sent via overnight delivery, on the next business day after such notice was sent.
SEVERABILITY
In the event that any provision or portion of this Membership Agreement is determined to be invalid, illegal or unenforceable for any reason, in whole or in part, such illegal or invalid provision is hereby deemed stricken and the remaining provisions of this Membership Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
ENTIRE AGREEMENT
This Membership Agreement (including all documents attached as exhibits hereto), together with your membership application, Members Community Code and any use or storage agreement you may sign with the Club from time to time contains the entire understanding of TCC and you relating your Membership and supersedes all other prior written or oral communications, agreements, understandings or arrangements between TCC and you relating to the subject matter hereof.
you acknowledge that you have read this Membership Agreement carefully and agree that the submission of your membership application for membership consideration is deemed your express agreement to the terms contained herein.
Exhibit A - Throttle Car Club, LLC
Liability Release and Indemnification Agreement
The undersigned, in consideration for being given access to the garage, service and storage facilities of Throttle Car Club, LLC (the “Club”), does hereby acknowledge and agree that:
1. There are significant risks of injury when performing service to and working on cars with tools (both power and manual) and when using lifts or jacks to access cars for service and work (“Club Activities”), including the potential for injury, death or property damage, and that injury, death or property damage could arise from many factors, including the negligence of any one or more of the Club Releasees. The undersigned has experience working on and around cars, and acknowledges and agrees that the undersigned will not use any equipment that the undersigned does not feel competent to use safely and properly, including lifts, made available by the Club for use by its Members. For purposes of this agreement, “Club Releasees” means the Club and its affiliates, and its and their members, managers, officers, employees, independent contractors, agents, sponsors, landlords, tenants, promoters, volunteers, joint venturers, insurers, attorneys, successors and assigns.
2. Club requires eye protection be worn while performing any services and strongly encourages the undersigned to wear additional appropriate protective equipment and to ensure that any gear used by the undersigned in connection with Club Activities is in good condition. The Club Releasees are not responsible to monitor, determine or ensure that the undersigned has taken or is taking the measures described in the preceding sentence, or that the undersigned is qualified and competent to perform or participate in Club Activities.
3. The undersigned knowingly and freely assumes all risks associated with participation in Club Activities, both known and unknown, even if arising from the negligence of any Club Releasee(s) or others, and assumes full responsibility for participation in Club Activities.
4. The undersigned hereby waives, releases and discharges any and all claims against the Club Releasees for any and all damages that the undersigned sustains directly or indirectly (to the undersigned’s person or property, including any vehicle) in connection with or in any way arising out of participation of the undersigned in or association with any Club Activities, including claims for damages attributable to the negligence of any Club Releasee. The undersigned shall indemnify, defend and hold harmless each Club Releasee from and against, and reimburse each Club Releasee with respect to, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including attorneys’ fees and court costs) asserted against or incurred by the Club Releasee in connection with any claim asserted against the Club Releasee in contravention of the waiver, release and discharge set forth in the preceding sentence.
5. The undersigned authorizes Club to call for emergency medical care for the undersigned and/or to transport the undersigned to a medical facility or hospital if it appears to Club that the undersigned requires immediate medical attention, but the undersigned acknowledges that Club has no obligation to do so. The undersigned further authorizes appropriate personnel to render emergency medical treatment to the undersigned if determined by them in their discretion to be necessary.
The undersigned represents that the following information is true and complete.
