By paying the membership dues to DShofer Inc., a Delaware company (“DShofer”), you (the “Member”) are agreeing to be bound by the terms and conditions of membership as set forth in this Membership Agreement. You also become eligible to receive the benefits of being a Member. DShofer is sometimes referred to herein as “we” and Members are sometimes referred to as “you” or with “your”. PLEASE READ THIS AGREEMENT CAREFULLY.
ELIGIBILITY FOR MEMBERSHIP
MEMBERSHIP DUES AND SERVICE PRICING
Members pay annual dues as set forth in DShofer Pricing Policy and Table. Membership fees are non-refundable even if Member has not used any of DShofer services. These dues entitle Member to receive discounted pricing on DShofer services as published in Pricing Policy and Table. DShofer reserves the right to adjust, at any time, the membership dues as well as prices for its services.
MEMBERSHIP RENEWAL AND CANCELLATION
Membership is automatically renewed annually at the anniversary date by charging the annual membership dues to the credit card account as provided by you. Membership may be cancelled by the Member at any time by sending DShofer a request for membership cancellation in writing. Please note that annual dues are non-refundable and there is no proration of dues.
Member understands that drivers provided by and through DShofer will not drive any automobile that does not fully comply with all of the applicable Federal and State laws, including but not limited to laws governing insurance, registration and safety equipment. Member warrants that by their request to have one of DShofer drivers operate a vehicle in Member’s possession and control, that said automobile is lawfully within Member’s possession and control, and that said vehicle is in full compliance with all applicable Federal and State laws, including but not limited to any law governing insurance, registration and safety equipment. Member further warrants that Member and/or the vehicle in Member’s possession and control is covered by an automobile insurance policy for public liability which satisfies the minimum automobile insurance requirements of the applicable State and insures Member, the automobile in Member’s possession and control and DShofer driver. Member understands that in the event of an accident while being driven by one of DShofer drivers, whether or not DShofer driver is at fault in such accident, Member’s automobile insurance policy shall be the primary insurance policy for the satisfaction of any and all claims or damage. Member agrees to indemnify DShofer and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees against any and all claims made against DShofer and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees for any and all damages not paid for by Member’s insurance coverage or insurer.
ASSUMPTION OF RISK
Member is aware and acknowledges that the use of the services provided by DShofer involves an inherent risk of injury, death, and property damage to Member and Member’s guest and invitees. In addition to the inherent risks involved in the operation of an automobile in the possession and control of Member on public and private roadways/property, Member is aware of the risks of injury, death, and property damage that may result from, among other causes, the active or passive negligence of DShofer and its and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees, including, without limitation, the risk of negligent instruction or supervision. Member voluntarily agrees to assume all risks of injury, death, and property damage to Member and any and all passengers of the automobile operated by DShofer and Member waives any and all claims or actions that Member may have against DShofer and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees
RELEASE OF LIABILITY
Member releases DShofer and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees (collectively, the “Released Parties”) from all liability to Member and Member’s principals, employees, agents, representatives, guardians, successors, assigns, heirs, children, and next of kin for all liability, claims, damage, or demands for personal injury, death, or property damage, arising from or related to this Agreement or to the services provided by Released Parties, regardless of where the injury, death, or property damage occurs. This release includes, without limitation, any personal injury, death, or property damage caused by the active or passive negligence of any of the Released Parties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT MEMBER BEARS SOLE RESPONSIBILITY FOR ANY LOSS. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DSHOFER’S LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING FROM CONTRACT, WARRANTY, NEGLIGENCE, TORT OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE AMOUNT OF THE MOST RECENT ONE YEAR’S FEES PAID BY MEMBER TO DSHOFER FOR ITS SERVICES.
INDEMNIFICATION BY MEMBER
Member agrees to indemnify, defend and hold harmless DShofer and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees from and against any and all third party claims, actions or proceedings of any kind and from any and all damages, liabilities, costs and expenses, including without limitation reasonable attorneys’ fees (collectively, “Claims”) relating to or arising out of or in connection with: (i) any and all services provided to Member by DShofer and its agents, successors, licensees, assigns, affiliated companies, and their respective officers, directors, agents, and employees; (ii) the breach of any of the representations and warranties of Member contained in this Agreement; and (iii) the breach of any covenant or agreement of Member under the terms of this Agreement. If Member shall fail to promptly indemnify the applicable party after written notice from DShofer, DShofer shall have the right to adjust, settle, litigate and take any other action DShofer deems necessary or desirable for the disposition of any such Claim, as determined by DShofer in its reasonable judgment. In any such event, Member shall reimburse DShofer on demand for all amounts paid or incurred by DShofer as a result thereof.
TIME FOR CLAIM
Notwithstanding any statute to the contrary, any claim arising from or relating to this Agreement (whether in contract, tort, or both) shall be brought within twelve (12) months after it arises
Any dispute between any of the parties hereto or claim by a party against another party arising out of or in relation to this Agreement or in relation to any alleged breach thereof shall be finally determined by arbitration in accordance with the rules then in force of the American Arbitration Association. The arbitration proceedings shall take place in St. Louis, Missouri or such other location as the parties in dispute hereafter may agree upon; and such proceedings shall be governed by the laws of the State of Missouri as such laws are applied to agreements between residents of such State entered into and to be performed entirely within such State. There shall be one arbitrator, as shall be agreed upon by the parties in dispute, who shall be an individual skilled in the legal and business aspects of the subject matter of this Agreement and of the dispute. In the absence of such agreement, each party in dispute shall select one arbitrator and the arbitrators so selected shall select a third arbitrator. In the event the arbitrators cannot agree upon the selection of a third arbitrator, such third arbitrator shall be appointed by the American Arbitration Association at the request of any of the parties in dispute. The arbitrators shall be individuals skilled in the legal and business aspects of the subject matter of this Agreement and of the dispute. The decision rendered by the arbitrator or arbitrators shall be accompanied by a written opinion in support thereof. Such decision shall be final and binding upon the parties in dispute without right of appeal. Judgment upon any such decision may be entered into in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the decision and an order of enforcement. Costs of the arbitration shall be assessed by the arbitrator or arbitrators against any or all of the parties in dispute, and shall be paid promptly by the party or parties so assessed.
Before invoking the binding arbitration mechanism set forth above in this Agreement, the parties shall first participate in mediation of any dispute arising under this Agreement. The mediator shall be a retired judge or commissioner or an attorney with at least 5 years of relevant experience relating to the subject matter of the controversy. The mediation shall take place in St. Louis, Missouri, at such time and place as Member and DShofer shall mutually agree. The cost of mediation shall be borne by the parties equally. At least 30 days before the date of the mediation, each side shall provide the mediator with a statement of its position and copies of all supporting documents. Each party shall send to the mediation a person who has authority to bind the party. If a subsequent dispute will involve third parties, such as insurers or subcontractors, they shall also be asked to participate in the mediation. If a party has participated in the mediation and is dissatisfied with the outcome, that party may invoke the binding arbitration provision set for in this Agreement.
DShofer may amend the terms and conditions of this Agreement at any time by posting the amended terms and conditions on this web site, in which case, such amended terms and conditions shall take effect with respect to existing Members ten (10) days following such posting. Alternatively, DShofer may e-mail all Members a notice of amended terms and conditions, in which case, such amended terms and conditions shall be effective on the date indicated in such notice.
This Agreement and the rights and obligations hereunder shall not be assignable or transferable by Member without the prior written consent of DShofer, which consent may be withheld in DShofer absolute discretion.
If any term or provision of this Agreement is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, the illegality, invalidity or unenforceability shall not affect the validity of the remainder of the Agreement, and to the extent permitted by applicable laws, any such term or provision shall be restricted in applicability or reformed to the minimum extent for such to be enforceable.
This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Missouri applicable to agreements made and to be performed entirely within such State, including all matters of enforcement, validity and performance.
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.