Charter Member Agreement

READ CAREFULLY THIS MEMBERSHIP AGREEMENT (“AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN PRIOR LLC (“PRIOR”), AND YOU ( “MEMBER”), REGARDING ACCESS TO PRIOR’S MEMBERSHIP AND BENEFITS (THE “BENEFITS”). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT UNDER ALL APPLICABLE LAWS.  BY SELECTING THE “ACCEPT” BUTTON BELOW OR BY ACCESSING THE BENEFITS (“ACCEPTANCE”), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE MEMBER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. 

IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE “DO NOT ACCEPT” BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING THE BENEFITS.
 

TERMS AND CONDITIONS

1.               BENEFITS

1.1             This Agreement constitutes Member’s Club Membership and specifies all of Member’s rights with respect to Club Membership. Subject to the terms and conditions of this Agreement, Prior will provide Member with Benefits, which include access to personalized editorial content, private travel planning services (“Private Travel Planning Services”), first option on group travel experiences (each group experience, a “Journey”), and exclusive membership events (each event, an “Experience”), and such Benefits will be accessible through Prior’s web-based Member platform, available at www.byprior.com (the “Website”).  The Benefits are subject to modification from time to time at Prior’s sole discretion, for any purpose deemed appropriate by Prior.  

2.               RESTRICTIONS AND RESPONSIBILITIES

2.1             Access to the Website may require the Member to install certain software applications.  Member agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications.  Member will cooperate with Prior in establishing a password or other procedures for verifying that only Designated Users (defined below) have access to the Website. Member will be responsible for maintaining the security of Member’s password and for all uses of Member’s account with or without Member’s knowledge or consent. Member further acknowledges, agrees to and is bound by the Privacy Policy on Prior’s website (as may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof. “Designated Users” means Member’s spouse/partner and children living in the same household, provided that those individuals comply with all the terms and obligations applicable to Member.

2.2             Member hereby agrees to indemnify and hold harmless Prior against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Member’s use of Benefits. 

3.               CONFIDENTIALITY

                  Member understands that Prior has disclosed or may disclose information relating to Prior’s technology or business. Member agrees that it will maintain the confidentiality of such information, including without limitation, information regarding Experiences and price terms, and will not disclose it to any third person (except for Designated Users). Member will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by Prior prior to such disclosure.

4.               INTELLECTUAL PROPERTY RIGHTS

4.1             Prior will obtain and process certain content/data provided by Member (“Content”) to perform its obligations under this Agreement. Member and its Designated Users will (and Member hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content and the intellectual property rights with respect to that Content.  If Prior receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Prior may (but is not required to) suspend activity hereunder with respect to that Content and Member will indemnify Prior from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.

5.               PAYMENT OF FEES

5.1             Member will pay Prior a nonrefundable fee of $0 (the “Charter Membership Fee”) upon execution of this Agreement Prior reserves the right to increase the Charter Membership Fee at the end of the then-current term by providing Member with ninety (90) days’ prior notice (which may be sent by email).

5.2             Member will pay Prior additional fees for Experiences (the “Experiences Fees”) and Private Travel Planning Services (the “Private Travel Planning Services Fees”).  The Experience Fees are due upon Member’s acceptance of each Experience.  The Private Travel Planning Services Fees are due 50% upon acceptance of itinerary, and 50% sixty (60) days prior to departure, or immediately if booked within sixty (60) days of departure.

5.3             Payment for the Charter Membership Fee, Private Travel Planning Services Fees and Experiences Fees may be made by credit card for up to $20,000 or by wire transfer for any fees over $20,000.

5.4             Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any.  Member agrees to pay such taxes (excluding US taxes based on Prior’s net income) unless Member has provided Prior with a valid exemption certificate.  In the case of any withholding requirements, Member will pay any required withholding itself and will not reduce the amount paid to Member on account thereof.

6.               TERMINATION

6.1             The initial term of this Agreement shall be one year, subject to early termination (the “Initial Term”).  Following the Initial Term, this Agreement will automatically renew for successive renewal terms of one year, subject to early termination (each, a “Renewal Term”, and together with the Initial Term, the “Benefits Term”) unless either party gives the other party notice of non-renewal at least ninety (90) days prior to the end of the then-current term. Prior will not refund to Member any portion of the Founding Membership Fee.

6.2             Prior reserves the right to immediately suspend or terminate Member’s Club Membership at any time if Member’s conduct or the conduct of Designated Users is deemed by Prior to be likely to endanger the welfare, safety, or good reputation of the Club or Club Members, or is otherwise improper. Prior will be the sole judge of what constitutes improper conduct, but improper conduct includes, without limitation, any of the following: (a) submitting false Information to Prior; (b) failing to abide by the Prior Policy rules; (c) treating any Prior personnel or employees or personnel or employees of a third party in an unreasonable or abusive manner; and (d) acting in any manner that is incompatible with the standard of conduct of the Members or which damages the reputation of the Club. If Prior terminates Member’s Club Membership pursuant to any of the foregoing, Prior will not refund Member any portion of the Membership Fee.

6.3             In addition to the above, in the event of any material breach of this Agreement, including failure to pay amounts when due, the non-breaching party may terminate this Agreement prior to the end of the Benefits Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.  Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.

6.4             All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

7.               CLUB MEMBERSHIP IS NOT AN INVESTMENT AND CLUB MEMBERSHIP RIGHTS ARE LIMITED

MEMBER ACKNOWLEDGES THAT MEMBER WILL NOT EXPECT TO DERIVE ANY ECONOMIC PROFIT OR OTHER BENEFIT FROM CLUB MEMBERSHIP. CLUB MEMBERSHIP PROVIDES MEMBER WITH ACCESS TO BENEFITS, BUT IS NOT AN INVESTMENT, EQUITY, OWNERSHIP, ECONOMIC, VOTING OR ANY OTHER INTEREST (WITHOUT LIMITING THE FOREGOING, MEMBER HAS NO SUCH INTEREST IN AND IS NOT A MEMBER OF PRIOR LLC EXCEPT TO THE EXTENT, IF AT ALL, SPECIFIED IN A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES). MEMBER HAS NO INTEREST IN INCOME, WILL RECEIVE NO CASH DIVIDENDS, WILL NOT SHARE IN ANY APPRECIATION AND WILL NOT HAVE THE RIGHT TO RECEIVE ANY ASSETS. MEMBER IS NOT ENTITLED TO VOTE OR OTHERWISE BECOME INVOLVED IN THE MANAGEMENT OR OPERATION OF PRIOR LLC. MEMBER’S RIGHTS ARE SOLELY CONTRACTUAL.

8.               WARRANTY DISCLAIMER

THE BENEFITS AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND.  PRIOR (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9.               LIMITATION OF LIABILITY

IN NO EVENT WILL PRIOR (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, BENEFITS OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE BENEFITS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE BENEFITS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF PRIOR HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF PRIOR, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO PRIOR HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10.             MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Member except with Prior’s prior written consent.  Prior may transfer and assign any of its rights and obligations under this Agreement with written notice to Member.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Member does not have any authority of any kind to bind Prior in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Prior will not be liable for any loss resulting from a cause over which it does not have direct control.  This Agreement will be governed by the laws of the State of New York, U.S.A. without regard to its conflict of laws provisions.  The federal and state courts sitting in New York County, New York, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.