Terms and Conditions
The Association for Passive Optical LAN (the “Corporation”) is a Delaware non-stock corporation, tax-exempt under Internal Revenue Code Section 501(c)(6), organized to advocate for the education and global adoption of passive optical networks in the local area network (LAN) marketplace through coalition formation, lobbying, and public relations activity.
Membership is limited to those individuals and businesses engaged in the design, development, manufacturing, distribution, sale and installation of passive optical LAN or are otherwise supportive of the implementation of such networks.
Membership in the Corporation is a privilege and may be denied, limited or terminated in accordance with the Corporation’s By-laws and the terms of this Membership Agreement, as may be amended from time to time by the Corporation’s Board of Directors (the “Board”).
1. Membership Process
a. New Members: New Members must apply for membership by completing this Membership Agreement and submitting it to the Corporation at the address noted below. Upon application approval, the Association will calculate the membership dues and issue an invoice to the applicant.
The Board must review and approve all applications for membership and will endeavor to provide applicants with a written response within sixty (60) days of a complete application submission.
The decisions of the Board regarding new Member applications are final.
b. Membership Renewal Process: Membership is for one (1) year, running January 1st to December 31st, and is subject to non-renewal or termination by the Board in its sole discretion, with or without cause, on written notice to the Member. The decisions of the Board regarding membership renewal applications are final. Renewing Members must annually complete a new Membership Agreement and submit it to the Corporation at the address noted below by December 1st of each year for the succeeding year, along with their required Membership Dues. Failure to do so will result in suspension of membership until the Membership Dues and any late fees are paid.
Suspension beyond 90 days will result in termination of Membership.
2. Member’s Representations, Warranties, and Covenants.
Member represents, warrants, covenants, and agrees with the Corporation and each of the Corporation’s individual Members, on the date of execution of this Agreement and during the term of membership, to: (a) abide by the terms and conditions of this Membership Agreement, and (b) pay annual Membership Dues and fees as set by the Board. Member agrees that it shall not be entitled to reclaim or receive a credit for any portion of Membership Dues, fees or charges paid, even in the case of Member’s non-renewal or termination.
3. Authority of Members.
No Member shall be authorized to legally bind the Corporation without specific authorization from the Board.
4. Financial Responsibilities of Members
a. Membership Dues: Each Member shall be responsible for and shall pay to the Corporation its Membership Dues as indicated below. Dues for each level of membership will be determined annually by the Board of Directors and communicated by October 31. The initial Dues for new members will be pro-rated from the application date to the end of the year.
b. Member Expenses: Except as otherwise agreed in writing or as otherwise provided in this Membership Agreement, actions taken or costs and expenses incurred by a Member, whether in the furtherance of the organization’s purposes or in the performance of duties described above, shall be the individual obligation of the Member. The Corporation shall be responsible for and shall pay only those costs and expenses incurred by a Member that are pre-approved by the Board in writing.
5. Positions of the Corporation and Minority Positions.
Positions that are approved by majority vote of the Board shall be the positions of the Corporation and may be publicly propounded as such. Any other positions (a “Minority Position”), whether or not considered or adopted by the Board, may be adopted as the position of any Member, in its own name, and propounded as the position of such Member, in its own name. Except as provided below for certain research, work papers, drafts, proposals, and other work product that is prepared or created with the support of one or more Members without participation of other Members, all the research, working papers, drafts, proposals, and other work product of the Corporation and of the Members, shall be made available to, and may be used by, a Member that wishes to propound its own position in its own name without additional charge; provided, however, that in no event shall any Member, or any other person, propounding or publicizing a Minority Position, use the name of the Corporation in any manner that associates the Minority Position with the Corporation.
Materials prepared or created with respect to a position with the support of one or more Members (“Participating Members”) without the participation of other Members (“Nonparticipating Members”) shall be available for the use of the Nonparticipating Members only if the position is adopted as the position of the Corporation. Except as provided below for certain research, work papers, drafts, proposals, and other work product that is prepared or created with the support of one or more Members without participation of other Members, all materials prepared or created by the Corporation, or by the Members in furtherance of the purposes of the organization, including but not limited to working papers, notes, diagrams and other documents, audio tapes, video tapes, and magnetic media of all types, shall be deemed to be “work made for hire” as such term is defined in the Copyright Laws of the United States and, accordingly, all rights of every kind and nature including copyrights in and to all such materials shall be the exclusive property of the Corporation.
Materials prepared or created with respect to a position with the support of one or more Participating Members without the participation of Nonparticipating Members shall be deemed “work made for hire” and the exclusive property of the Corporation only if the position is adopted as the position of the Corporation. Until such materials are deemed “work made for hire” and the exclusive property of the Corporation as provided in the preceding sentence, materials prepared or created with respect to a position with the support of one or more Participating Members and without the participation of Nonparticipating Members shall be the joint property of the Corporation and the Participating Members.
Except as otherwise expressly provided herein, the Corporation’s written consent shall be required before any Member, or any other person or organization, is permitted to use for its own purposes any such material that is the exclusive or joint property of the Corporation.
6. Use of Logo.
For so long as a Member remains a member in good standing of the Corporation, it has the right to describe itself as a member of the Corporation and use the logo of the Corporation designated for its membership tier (the “Logo”) on its publications, printed letterhead and other publicity materials for the sole purpose of identifying the Member as a member of the Corporation. The presence and use of the Logo cannot be implied to be an endorsement by the Corporation of those materials, the Member or the Member’s products or services. Members agree to use the Logo in accordance with any guidelines or standards published by the Corporation.
Members acknowledge that any breach of the use of the Logo will result in immediate harm to the Corporation which may not be measurable or compensable in money damages. Therefore, if the
Corporation (or its legal representatives) commences any action or proceeding to enforce the provisions of this section, Members hereby waive any claim or defense that the Corporation has an adequate remedy at law. In addition to any other legal remedy which may be available, the Corporation shall be entitled to injunctive relief with respect to any breach or threatened breach of this section and to specific performance of its terms.
7. Prohibited Acts.
As provided in Section 9.01 of the Corporation’s By-laws, the Corporation, including its meetings and resources, shall not be used by Members of the Corporation for participation in any act which would or could violate, or create the appearance of violating, any of the antitrust laws of the United States including Sections 1 and 2 of the Sherman Act, the Clayton Act, the Robinson-Patman Act, and the Federal Trade Commission Act or any similar or related laws of the component jurisdictions of the United States. Any act by a Member in violation of this prohibition, whether or not it involved the direct or indirect use of the Corporation or its meetings or resources, shall be deemed a violation of this Membership Agreement and the Corporation’s By-laws and grounds for expulsion.
8. Termination of Membership.
The membership of a Member may be terminated in the following manner:
a. Revocation: A Member may revoke membership by submitting a written resignation to the Board. Such resignation shall become effective no earlier than thirty (30) days after the date it is submitted.
b. Expulsion: A Member may be expelled for conduct involving dishonesty, fraud, deceit, misrepresentation, violation of a fiduciary relationship with a client or customer, non-payment of Membership Dues, or any activity inconsistent with this Membership Agreement or the Corporation’s By-laws. Members may be expelled for failure to participate in a minimum number of meetings or activities. The Board shall establish definitions and procedures for the implementation of this paragraph.
c. Merger or Acquisition: If a Member (the “Acquired Member”) is acquired by or merged into another Member (the “Surviving Member”), then the membership of the Acquired Member shall terminate and the membership of the Surviving Member shall continue. If one or more Members (the “Acquired Members”) are merged into or acquired by another organization that is not a
Member (the “Surviving Organization”), then, the membership of the Acquired Members shall continue in the name of the Surviving Organization and all the obligations of all Acquired Members
shall continue in the Surviving Organization.
Members shall not be entitled to reclaim or receive a credit for any portion of Membership Dues, fees or charges paid, even in the case of Member’s non-renewal, revocation, expulsion or merger.
9. General Terms
a. Assignment and Transfer: No Member may assign this Membership Agreement, its Membership in the Corporation or any of its rights or obligations under this Agreement or as a Member, by operation of law or otherwise, without the prior written consent of the Board and any attempt to assign this Membership Agreement or Membership in the Corporation without such consent will be void and of no force or effect.
b. Severability: The provisions of this Membership Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof. If any provision of this Membership Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable: (i) a suitable and equitable provision will be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and (ii) the remainder of this Membership Agreement and the application of such provision to other persons or circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
c. Governing Law: The laws and decisions of the State of New York, without regard to its conflicts laws, shall govern this Membership Agreement and shall control the construction, enforcement, validity, and interpretation hereof. Venue for any actions or proceedings arising under or out of this Membership Agreement shall be in the federal or state courts located in Monroe County, New York. The parties hereby consent and submit to such exclusive personal jurisdiction and waive any right which they may have to transfer or change the venue of any litigation.
d. Entire Agreement: This Membership Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. No change, amendment, modification, cancellation or discharge of the Membership Agreement or any part hereof shall be valid unless made in writing and signed by the parties hereto.