App Quality Alliance (AQuA)
MEMBERSHIP AGREEMENT
Version 2.1
1st August 2015
This MEMBERSHIP AGREEMENT is entered into between the App Quality Alliance ("AQuA"), App
Quality Alliance (AQuA) Ltd, incorporated and registered in England and Wales (9257979), 7
Southernhay West, Exeter, Devon, EX1 1JG, UK, and the undersigned entity ("Member").
Member agrees to be a Member of AQuA on the terms and conditions stated in this Membership
Agreement as well as the terms and conditions stated in the AQuA Bylaws (as defined below) (the
entirety of which is incorporated herein by reference). If and to the extent that any provision of this
Membership Agreement limits, qualifies, or conflicts with any provision of the AQuA Bylaws, the AQuA
Bylaws govern.
1. DEFINITIONS
Board of Directors or Board shall have the meaning set forth in Article 1 the Bylaws.
Bylaws means the App Quality Alliance (AQuA) Bylaws, as in effect and as amended from time to time.
Intellectual Property Rights means all patents, trademarks, design rights (registered and unregistered),
copyrights, database rights, trade secrets and all rights of an equivalent nature anywhere in the world.
Member means all members of the Organization pursuant to the AQuA Bylaws, including such Members
who may join after the undersigned Member joins.
Endorsed Member means a Member who has successfully passed the AQuA assessment as relevant to
the type of endorsement and thus has additional rights, benefits and obligations as set out in Appendix 2.
Organization means the App Quality Alliance ("AQuA"), defined as an industry body comprising device
manufacturers, carriers, testing companies, developers and others within the mobile application industry.
Trademarks means Members’ corporate logos, name, and word marks.
The foregoing defined terms may be used in the singular or plural; changes in a term's number shall not
affect the provided definition except as to number.
2. MEMBERSHIP
2.1 Qualifications. Subject to the terms and conditions of this Agreement, and the AQuA Bylaws,
Member agrees to be a Member of the Organization. Member’s acceptance into the Organization is
subject to meeting the qualifications for membership as set forth in appendix 1, the AQuA Bylaws, and
approval by the Board of Directors.
2.3 Member Benefits. Members shall be entitled to the benefits provided by this Agreement, and the
AQuA Bylaws. Members shall be entitled to participate in AQuA Member meetings, to receive materials
disseminated to the Members, and to collaborate with other members to produce and benefit from
deliverables such as best practices, guidelines, testing and other informative/constructive pieces of work.
These deliverables are endorsed, publicized and put in use for the benefit of members and industry alike.
Deliverables may be both platform agnostic and platform specific.
3. OBLIGATIONS OF MEMBERS
3.1 Bylaws. The Member has reviewed, hereby approves, and agrees to abide by the AQuA Bylaws.
Terms used in this Agreement have the same meaning as when the same terms are used in the Bylaws.
3.2 Dues and Other Fees. The Member shall pay annual AQuA dues. The Board of Directors may
establish reasonable additional fees or charges for participation in meetings or for other benefits of
membership.
3.3 Expenses. Unless otherwise authorized by the Board of Directors, the Member shall bear its own
costs and expenses for its participation in any and all activities conducted pursuant to this Agreement,
such as travel, employee compensation, and incidental expenses.
3.4 Antitrust Policy. As more fully provided in the Bylaws, the Member agrees to comply with all
applicable antitrust laws pertaining to the Member’s participation in the Organization. Nothing in this
Agreement shall be construed to require or permit conduct that violates any applicable antitrust law.
Member consents to the disclosure of its name and any other required information for the purposes of
permitting the Organization to invoke the protection of the National Cooperative Research and Protection
Act of 1993 (15 U.S.C. sec. 4301 et seq.).
3.5 Press Releases. Any Member may make public announcements or press releases concerning its
own activities as a Member. No Member may make a press or other public announcement regarding the
activities of another Member as a Member or use the name of another Member in a press or other public
announcement regarding this Agreement without the consent of the Member. However, the Board may
issue press or other public announcements regarding the activities of the Organization and will be able to
identify Members in a reasonable manner. The Board, however, may not issue press or other public
announcements regarding a specific Member or the specific activities of a Member without obtaining
permission from the specific Member.
4. INTELLECTUAL PROPERTY
4.1 Ownership. Each Member acknowledges that it will not acquire any Intellectual Property Rights
under this Agreement in any other Member's contributions, and all rights therein are strictly reserved. To
the extent that any Intellectual Property of the Organization contains any contributions of a Member, such
Member shall retain all Intellectual Property Rights to those contributions. Any goodwill arising in the
course of this Agreement regarding a Member's Trademarks will inure solely for the benefit of that
Member.
4.2 Use of Organization name and logo. The Member may publicly disclose that it is a Member of the
Organization. However, unless otherwise authorized by the Board of Directors, the Member may not
identify any product or service as being sanctioned by, sponsored by, or associated with the Organization.
The Organization shall have the right to include the Member’s name in any lists of Members published by
the Organization and to announce that the Member has joined the Organization.
4.3 Use of Member name and logo. The Organization may publicly disclose all current Members
collectively. When disclosing the name of Members collectively, the Organization may use each
Member’s company name and logo, subject to the Member’s provided specifications regarding use of its
logo. The Organization is not authorized to use the Member's name or logo in any other fashion without
first having written consent from the Member. Members shall provide specifications regarding the use of
their logos with their Membership Agreement.
5. TERM AND TERMINATION
5.1 Term. Unless terminated as provided in Article 15.8 of the AQuA Bylaws, this Agreement shall
remain in full force and effect, renewing annually upon the anniversary of the Member's initial joining of
the Organization, so long as the Organization is in operation.
5.2 Effect of Termination. In the event that this Agreement is terminated, Sections 1, 4, 5, 6 and 7 shall
survive. Additional consequences of termination of this Agreement as to a particular Attachment are set
forth in such Attachment.
6. LIMITATION OF LIABILITY
6.1 No Limitation on Certain Categories of Liability. Each Member acknowledges the full extent of its
own liability, arising from death or personal injury resulting from its negligent acts or omissions; and the
non-excludable statutory rights of consumers (for example, under laws providing for strict product liability)
are not affected.
6.2 Limitation on Other Categories of Liability.
(a) Except as otherwise specifically recited herein, each Member's maximum aggregate liability for all
claims resulting directly from any action under, or in connection with, this Agreement, whether for breach
of contract or in tort, including negligence, will be limited to one hundred thousand US dollars (U.S.
$100,000). With respect to any liability specifically (i) resulting from gross negligence, or (ii) resulting from
breach of the Confidential Information provisions of the Operating Procedures, including without limitation
any damage to or loss of a Member's Intellectual Property Rights solely originating from such Confidential
Information breach; the maximum aggregate liability for all such claims shall be one million US dollars
($1,000,000). For clarity, any infringement or other damage or loss of any Member's Intellectual Property
Rights, not originating from a breach of Confidential Information hereunder, are not limited in any way by
this Agreement.
(b) In no event will any Member be liable for any indirect, punitive, special, incidental or
consequential damages in connection with or arising out of this Agreement (including loss of business,
revenue, profits, use, data, electronically transmitted orders, or other economic advantage), however they
arise, whether in breach of contract or in tort, including negligence, and even if that Member has
previously been advised of, or could reasonably have foreseen as at the Effective Date or any time
thereafter, the possibility of such damages.
7. OTHER PROVISIONS
7.1 Notice. The Member designates the representative identified below as Primary Contact for the
purpose of receiving notice under this Agreement. The Member may change the designated
representative by written notice to the Organization. If the Member fails to designate a representative,
notice may be sent to the Member at its address stated below. Any notification made under this
Agreement shall be deemed delivered on the next business day following it being sent by electronic mail,
by facsimile, by express mail or by courier, or three (3) days after being sent first-class mail, postage
prepaid, addressed to the Member’s designated representative at the address provided. Notice of a
breach of this Agreement and notice of termination of this Agreement shall be given both by express mail,
courier or by first class mail, postage prepaid, and, in addition, by electronic mail or by facsimile.
7.2 No Joint Venture. Nothing contained in this Agreement and no action taken by the Member shall be
deemed to render the Member an employee, agent or representative of the Organization or any other
Member, or shall be deemed to create a partnership, joint venture or syndicate among or between any of
the Members or with the Organization.
7.3 Governing Law. Except where arbitration is designated as the means of resolving a dispute as
provided under Section 7.4 (Arbitration) of this Agreement, any action or defense to an action arising out
of or related to this Agreement, shall be brought solely and exclusively in the United States State Court of
Delaware and such action or defense to an action shall be solely and exclusively governed by Delaware
State law and controlling U.S. federal law. No conflict of law rules or statutes of any jurisdiction (either
within or outside of the U.S.A.) shall apply. Other than as specified above and in Section 7.4 (Arbitration)
below, no Member shall bring any action or defense to an action arising out of or related to Agreement in
any other jurisdiction or venue in the U.S.A. or abroad.
7.4 Arbitration.
(a) Scope. Any dispute arising out of or relating to this Agreement (whether in contract, tort or other
theory) shall be finally settled by arbitration as set forth herein. Notwithstanding the foregoing, any
Member may bring an action (including without limitation, an action for injunctive relief) in a court of
competent jurisdiction with respect to any dispute, which may affect any of such Member's trademarks or
other Intellectual Property Rights.
(b) Arbitration Administration and Rules. Arbitration arising hereunder shall be administered in
accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules") in
effect at the time of arbitration and modified herein and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction to enforce such awards.
(c) Arbitrator Qualifications. Each Member shall select one arbitrator and be financially responsible
for the fees and costs of preparing its case including, without limitation, the costs and fees of its arbitrator.
If there are more than two Members to the dispute, adverse to one another, the Members should make a
good faith effort to unanimously agree on two arbitrators. If no such agreement can be reached, the
arbitration requirements of this Agreement shall not apply. The two arbitrators shall select a third
arbitrator and both parties shall share equally the costs and fees of the third arbitrator. Such arbitrators
shall be selected in accordance with ICC Rules and, in addition, must be fluent in the English language,
either a retired judge or practicing attorney having at least ten (10) years litigation experience and
conversant in the technology relative to matters in dispute.
(d) Authority and Decision Standards. The arbitrator shall consider and apply the substantive and
procedural Federal laws of the United States and the State Laws of the State of Delaware in deciding any
dispute and may only provide such damages and provisional relief available under such controlling law
and this Agreement. Discovery shall not be available to the parties with respect to the arbitrated dispute
unless the arbitration panel unanimously agrees that certain discovery would serve the interests of justice.
(e) Limitation and Damages. The arbitrator has no authority to award damages in excess of those
permitted by this Agreement for any reason and may not fashion any relief that would not otherwise be
available under applicable law. Any award not complying with this subparagraph will be void and
unenforceable.
(f) Form of Award. Subject to the Limitation of Liability in Section 6 of this Agreement:
i. All awards shall be payable in US dollars free of any tax, levy, deduction or offset (other than
income taxes of the recipient); and
ii. The arbitrator may award to the prevailing Member in any dispute (a) pre-award interest at a rate
no greater than the maximum allowed by law, and (b) reasonable attorney's fees incurred in connection
with the arbitration proceedings, subject to the limit set forth in Section 6.2, above.
7.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of
competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect; and
a substitute, valid, and enforceable provision most nearly reflecting the original intent shall be developed
in place of the invalid provision.
7.6 Amendments. This Agreement and any Attachments thereto may be amended on a
nondiscriminatory basis in accordance with Article 13 of the Bylaws. The Member shall be given at least
sixty (60) days prior written notice, via certified mail at the address provided in such Member’s AQuA
Membership Application Form or the most recent updated address Member provides to the AQuA of the
effective date of an amendment, and amendments shall be prospective only. A Member shall be bound
by a duly adopted amendment, unless it elects to terminate this Agreement and its membership in the
Organization.
7.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument.
7.8 Integration. This Agreement, along with its Attachments, supersedes and replaces any and all prior
representations, agreements and understandings relating to the Member’s membership in the
Organization, except the Bylaws.
7.9 Authority. The Member represents and warrants that it is authorized to enter into this Agreement.
The undersigned person represents and warrants that he/she is authorized to sign this Agreement on
behalf of the Member.
8. EFFECTIVE DATE
8.1 Effective Date. This Agreement shall be effective when it is executed by an authorized
representative of the Member and the Organization.
