Hammerschlagen Society™ Members' Agreement
Whereas, WRB, Inc., a Minnesota corporation, ("WRB") engages in an entertainment services in the nature of providing persons an opportunity to participate in a game in which participants drive nails into wood (the "Service") under trademarks (the "Trademarks"), including a specific configuration of shapes, designs, and/or materials that comprise a specific visual appearance (the "Trade Dress"), as well as copyrights ("Copyrights"), collectively referred to herein as the "Brand," which is more fully described online at <http://www.hammerschlagen.com/our_brand/>, as amended (the "Brand Page");
And, whereas, WRB has authorized HS Franchising, LLC, a Minnesota limited liability company ("us," "we," "our,") to license the use of each individual element of the Brand (an "Element") to those within the United States of America (the "Territory") as well as sell materials and supplies to properly display the Trade Dress and represent the Brand within the Territory;
Now, therefore, this unilateral agreement (this "Offer") is made by us to any person who pays us the Membership Fee ("you," "your").
This Offer is not a business opportunity, franchise, trademark license, or a license of any other kind: it does not authorize you to use any Element in commerce. By paying the Membership Fee to us, you: warrant and represent that you intend to make this Offer a valid and binding contract with us; declare under the penalty of perjury that the warranties and representations made herein are true and correct; express your desire to be bound by, accept, and hold this Offer as valid; and execute this instrument effective immediately upon remitting the Membership Fee to us. By accepting this Offer, you recognize all the statements in this Offer are true, you make all of the warranties and representations stated in this Offer, and you promise to act as prescribed by this Offer. And, provided you accept this Offer:
- You may hold yourself out as a member of the Hammerschlagen Society™;
- We will defend and indemnify you from any and all actions taken against you by WRB for trademark infringement; and
- We will do all of the other things we promise to you herein.
You have considered information and advice from the sources you find to be fully aware of your individual circumstances, such as a licensed attorney, regarding the terms and conditions herein and the subject matter of the same, and understand the fair-use doctrines relating to trademarks and copyrights. You are a natural person, of sound mind and body, are of an age to form a legally binding contract, and have the capacity to be bound by this instrument and act in accord with its provisions.
The Hammerschlagen Society™
We are the curator of the Hammerschlagen Society™. We shall deliver to you a Certificate Of Membership electronically through an account accessible via <http://www.hammerschlagen.com/account/>. We will consider selling materials and supplies to you: you understand that we are not obligated in any way to sell any materials or supplies to you. If we are unable to verify your address as a residential address, you understand that we will not sell materials and supplies to you. If you obtain materials and supplies through or in conjunction with this instrument, you understand that the transaction occurred with us.
To induce us to enter into this Offer with you, you shall deliver a non-refundable fee of $10 to us (the "Membership Fee"): we shall not refund this Membership Fee to you under any circumstances, even if you pay us more than one Membership Fee. If we are ever found liable to you, you agree that our liability to you shall be limited to an amount not exceeding a single Membership Fee.
We may collect any identifying information about you as we, in and at our sole and absolute discretion, deem necessary and proper to enforce this Offer and to publicly verify to others via <http://www.hammerschlagen.com/hammerschlagen_society/#verify> that you are a party hereto.
Warranties & Representations
You agree to remain abreast of WRB's intellectual property and not use any Element (or anything confusingly similar thereto) in commerce or violate any intellectual property right of WRB. You agree that any future additions and modifications to the Brand are included in the definition of an Element as defined in this Offer, and you shall continue to regularly access the Brand Page to keep abreast of any such changes.
You agree to not challenge in any court of law, or in any other manner, the validity of any Element or WRB's exclusive ownership thereof, nor shall you ever use, do, or cause to be done (at any time) any act or thing challenging, contesting, impairing, invalidating, or tending to impair or invalidate any of WRB's rights in any Element or any registrations derived from such rights.
You agree not to use any Element in commerce, or aid or encourage another to do the same. To meet this end, you agree not to sell or otherwise transfer any materials or supplies required to offer or advertise the Service under any Element (including, but not limited to, stands, logs, hammers, or nails) to any third-party who has not accepted this Offer, as amended; saving only us, WRB, and our licensees and assigns.
You shall take action to clear up any confusions of which you currently know, as well as those which become known to you, regarding any Element.
You recognize that WRB is the owner of each and every Element, is using the Brand throughout the United States, and is the source and origin of the Service when offered thereunder. You recognize that this use creates recognition in the mind of consumers in the market as to the source and origin of the Service as WRB. You understand that your unauthorized use of any Element in commerce will cause damage to WRB. Therefore, you will not to use (or cause to be used) any Element in commerce without the expressed written consent of WRB. If you use (or cause to be used) any Element in commerce, you warrant and represent that said unauthorized use was done so with knowledge of WRB's intellectual property rights and in willful disregard of those rights.
If you fail to act as you promise in this Offer, WRB may seek legal recourse against you through whatever means available. The unauthorized use of any single Element shall constitute a separate breach of this Offer. Each false statement that you make in this Offer shall each constitute a separate breach hereof. In the event that you breach the terms and conditions of this Offer, you agree to be held liable for, shall pay to HSF or WRB (as applicable), and HSF or WRB (as applicable) shall be entitled to: the filing fees, court costs, and attorney fees incurred to enforce said breach; actual and/or statutory damages afforded by law; liquidated damages of not less than $2,500 for each breach hereof; and any such other legal and equitable relief a court or arbitrator may award. You agree your liability is proper given the circumstances of this particular situation.
This Offer may only be modified in and at our sole and absolute discretion. Any such modifications shall become effective when published online at the following online Internet location, which you shall access regularly to remain abreast of any additions, modifications, or deletions hereto: <http://www.hammerschlagen.com/hammerschlagen_society/join/>. If you do not agree with any of the terms or conditions of this Offer, or any modifications hereto, your only recourse shall be to immediately stop stop holding yourself out as a member of the Hammerschlagen Society™.
This instrument was last modified on and became effective as of 15 December 2016.
Headings used herein are provided for convenience and reference only, and shall not be used to construe meaning or intent. Where appropriate, words signifying one gender shall include the others, and words signifying the singular shall include the plural and vice versa. All monies described herein are in legal tender of the United States of America.
This instrument and the relationship formed herein shall be governed by, and construes in accordance with, the internal laws of the State of Minnesota without regard to its conflict or choice of law rules or provisions. In the event there is a conflict in the choice-of-law or in the choice-of-forum, the parties agree that any such jurisdiction shall be the law, forum, and venue of the State of Minnesota and federal district thereof. Any dispute arising hereunder or in relation hereto shall be resolved exclusively through a court of competent jurisdiction. I accept and submit to, in connection with my respective properties, unconditionally, the exclusive jurisdiction of the courts of the United States of America in any action, suit, or proceeding of any kind against me which arises our of or by reason this writing. In the event there is a conflict in the choice-of-law or in the choice-of-forum, the parties agree that any such jurisdiction shall be the law, forum, and venue of the State is Minnesota.
Should any portion of this instrument be deemed unlawful, void, invalid, or unenforceable by any court of competent jurisdiction, then this instrument as a whole shall not be deemed unlawful, void, invalid, or unenforceable, but only that portion which is found to be unlawful, void, invalid, or unenforceable shall be stricken and the remaining terms shall remain in full force and effect as if such unlawful, void, invalid, or unenforceable term had never been included.
Unless otherwise expressly stated herein, all covenants, agreements, representations, and warranties made herein shall continue in force and survive the acceptance or termination of this instrument. This instrument shall be binding upon the parties' successors and assigns, and shall accrue to the benefit and be enforceable by the party's successors, legal representatives, and assigns. This instrument is non-negotiable and I shall not assign this instrument. This instrument is non-negotiable, but HSF and WRB may assign this instrument at any time and for any reason (or no reason) and without obtaining my permission.
This instrument and any attachments and inclusions comprise the entire agreement between the parties hereto and supersedes any prior written or oral agreements respecting the subject matter of the same. No oral representations have been made, and the terms and conditions set forth herein represent the entire agreement made between the parties. Any materially false statement made by me, including the signing of this instrument, is a breach hereto.