It is important that EACH prospective member of The OLD 300™
carefully read all of the information in this AGREEMENT AND ALL INFORMATION
ABOUT MEMBERSHIP found ON THE INTERNET AT www.garrisonbros.com (printed copies
of such information may be obtained from the company upon request) (such
information, as it may be amended or supplemented by the Company from time to
time, is referred to herein as the “Membership Information”).
Membership in the old 300™ involves benefits and obligations, and each
prospective member is encouraged to seek legal advice to evaluate this
agreement and the membership information before agreeing to become a Member of
the old 300™.
THE OLD 300™
MEMBERSHIP
AGREEMENT
THIS MEMBERSHIP AGREEMENT (this “Agreement”) is made by and between Garrison Brothers Distillery, a Texas limited liability company (the “Company”), and the person whose signature (including an electronic signature) appears hereon (“Member”) and is effective on the date that each of the Company and Member has evidenced its consent to be bound by the terms and conditions set forth herein (the “Effective Date”).
R E C I T A L S
A.
The
Company is the owner and operator of a bourbon distillery located in Hye,
Blanco County, Texas, known as Garrison Brothers Distillery (the “Distillery”).
B.
The
Company is offering memberships in The Old 300™, a bourbon education,
appreciation and ambassador association (each, a “Membership”),
subject to the terms and conditions of this Agreement.
C.
Member
desires to become a member of The Old 300™ by acceptance of the terms and
conditions of this Agreement and payment of the Membership Dues described
below.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
The term of this
Agreement will commence on the Effective Date and continue until the fifth (5th)
anniversary of the Effective Date (as it may be extended, the “Term”).
However, the Membership is subject to earlier termination as more fully set
forth herein. In addition, at the end of the Term and subject to availability,
if Member is in good standing, Member will be entitled to extend the Membership
for an additional term of five (5) years, subject to the terms and conditions established
by the Company at such time, by delivery to the Company of written notice of
Member’s intent to extend the Term.
2.
MEMBERSHIP DUES;
BARREL DEPOSIT.
Member agrees to pay to the Company membership dues (the “Membership
Dues”) in the amount of $1,000.00 no later than five (5) days after the
Effective Date. Membership Dues
are subject to change (up or down) from time to time as determined by the
Company in its sole and absolute discretion.
Member agrees to pay to the Company an additional $1,000.00
as a refundable barrel deposit (the “Barrel Deposit”) no later
than five (5) days after the Effective Date. The Barrel Deposit will be refunded to Member as provided
herein.
If the Company has not timely received Member’s Membership
Dues or Barrel Deposit, Member will be subject to (a) late charges and/or (b)
suspension or termination of the Membership. A processing fee in an amount sufficient to cover the
Company’s processing expenses and bank fees will be charged for all returned
checks.
3.
MEMBERSHIP;
MEMBERSHIP PRIVILEGES AND RESPONSIBILITIES.
Non-Equity and Non-Voting Membership.
MEMBERSHIP IN THE OLD 300™ DOES NOT ENTITLE MEMBER TO
PARTICIPATE IN OWNERSHIP OR MANAGEMENT OF THE COMPANY, INCLUDING, WITHOUT
LIMITATION, SHARING IN ANY PROFITS OR LOSSES OF THE COMPANY.
The Company will provide the following initial Membership
privileges:
(a)
The fundamental
purpose and goal of Membership is to provide a quality environment, atmosphere
and selection of programs and activities for the education of Member with
respect to the making, marketing and enjoyment of bourbon. To accomplish that,
Member will have the right to attend, participate in, and/or observe scheduled
bourbon educational programs and marketing events as described in, and subject
to, the terms and conditions set forth in this Agreement, the Membership
Information, applicable Legal Requirements (as defined below), and such other
restrictions which have been or may be established by the Company from time to
time. The Company reserves the
right to offer any number of programs and activities in its sole and absolute
discretion, but Member is encouraged to provide input and ideas on programs and
activities.
(b)
In addition to
educational and other programs offered by the Company from time to time, Member
will receive an invitation to spend a weekend at the Distillery for Bourbon
Camp to participate in a variety of programs designed to educate Member about
the making, marketing and enjoyment of fine bourbon. The Company expects to offer Bourbon Camp twice each year
and will accept reservations on a first-come/first-served basis.
(c)
Member will be
entitled to select a barrel from the Distillery’s inventory of bourbon-filled
barrels in the Distillery’s barrel barn.
When the Company has determined that the bourbon inside Member’s barrel
is properly aged and ready for bottling, the Company will empty the barrel and
notify Member of the time and place at which the bourbon may be purchased. The Company will then stain Member’s
barrel, make any necessary repairs, line the inside of the barrel with a
distilled spirits-safe liner, install a spigot on the barrel, and affix a brass
plaque displaying Member’s name and Old 300™ Membership number. The Company will then ship the finished
ten-gallon barrel to Member at Member’s address on file in the Company’s
records, along with a refund of Member’s Barrel Deposit.
The privilege to visit the Distillery may be exercised by (i)
Member, (ii) Member’s spouse, (iii) Member’s children under the age of 25 (by
blood, marriage or legal adoption), and (iv) Member’s guest(s) when accompanied
by Member. Visitation privileges constitute a non-exclusive, revocable license
to use certain portions of the Distillery by appointment or invitation, subject
to the terms and conditions of this Agreement, the Membership Information,
rules, regulations and charges established from time to time by the Company,
execution by each such visitor of a waiver and release of liability on a form
provided by the Company and applicable Legal Requirements (as defined herein).
In the event that the Membership acquired hereby is held in
the name of a married couple, then, upon the death of one of the spouses, the
other spouse will continue to hold the Membership in his/her own name, which
Membership will remain subject to all of the terms and conditions of this
Agreement and the Membership Information. In the event that a married person
holds the Membership solely in his/her own name, then, upon the death of the
Member, provided the Membership is in good standing, as more fully set forth in
the Membership Plan, the Membership will be deemed transferred to the surviving
spouse, subject to submission of a Membership Agreement, compliance with
membership standards and the Membership Information.
A Membership may be held in the name of a corporation,
partnership, limited liability company, trust, or other form of entity (an
“Entity”). If the undersigned Member is an Entity, Member has designated, on
the signature page hereto, one individual (the “Designated User”) who will have
the right to use and enjoy the Membership in the capacity of a Member. An Entity Member may change its
Designated User by delivery to the Company of written notice containing the new
Designated User’s name, address, telephone number and family members’ names. A
Designated User must be a director, officer, partner, shareholder or employee
of the Entity Member, or a beneficiary, trustee or settlor of the Entity if the
Membership is held in the name of a trust. No person other than the Designated
User and his/her family members and guests will be entitled to exercise the
privileges of Membership. Each
Entity Member agrees that it will be held responsible and liable for the acts
and omissions of its Designated Users and their family members and guests.
Compliance with
Applicable Legal Requirements.
Member and
Member’s family members, guests and Designated Users will comply at all times
with all applicable Legal Requirements in effect from time to time. In the event Member is required to be
licensed or otherwise qualified by any governmental authority with jurisdiction
over the Company, the Distillery or the Company’s operations, Member may
terminate the Membership by delivery of written notice to the Company
describing the event causing such termination and, in the event the Company
determines the termination is caused by a change in Legal Requirements that has
an adverse effect on Member, the Company will refund the Membership Deposit (on
a prorated basis) and the Barrel Deposit (if it has not already been refunded
to Member). Similarly, if any
governmental authority determines for any reason that the Membership is not permitted
by law, the Company may terminate the Membership and refund to Member the
Membership Dues (on a prorated basis) and the Barrel Deposit (if it has not
already been refunded to Member). As used in this Agreement, “Legal Requirements”
means current and future federal, state and local laws, statutes, codes,
ordinances, orders, rulings, regulations, permits and other approvals
applicable to the Company, the Distillery and/or the Company’s operations,
including, without limitation, the following: (a) the terms and conditions of the permits issued to the
Company by the Texas Alcoholic Beverage Commission (the “TABC”)
and the U.S. Alcohol and Tobacco Tax and Trade Bureau (the “TTB”),
respectively, and the laws, rules and regulations applicable thereto; (b) other
rules and regulations promulgated by the TABC; (c) other rules and regulations
promulgated by the TTB; (d) rules and regulations issued by the Company from
time to time; and (e) any other laws, statutes, codes, ordinances, orders,
rulings, regulations, permits and other approvals applicable to the Company,
the Distillery or the distillery industry as a whole, as any of the foregoing
may be amended, restated, supplemented, modified or replaced from time to time.
4.
REPRESENTATIONS, WARRANTIES
AND ADDITIONAL COVENANTS; indemnification.
Member Representations,
Warranties and Covenants.
Member hereby represents, warrants, understands and agrees as
follows:
(a)
Member has
received, read, understands and agrees to the terms and conditions set forth in
this Agreement and the Membership Information. Member is purchasing a
Membership for strictly social and recreational purposes and not for profit or
investment or with a view to distribution or resale to others. Member understands and acknowledges
that Member has not been promised and should not expect any economic profit or
potential appreciation from the Membership. Member agrees that neither the Company nor any other
person has made any representations, promises, or inducements of any kind to
Member except as contained in this Agreement or the Membership Information and
Member has not relied on any representations or information other than those
which are expressly contained in this Agreement or the Membership Information.
(b)
The undersigned is
at least 21 years of age and is competent and authorized to execute this
Agreement as “Member”. If Member
is an Entity, Member represents that it is duly organized and validly existing
under the laws of the jurisdiction of its organization, and has full power and
authority to execute this Agreement, which will then be a legal, valid and
binding agreement, enforceable in accordance with its terms.
(c)
Member understands
that this Membership Agreement may be accepted or rejected, in whole or in
part, by the Company in the Company’s sole and absolute discretion, and will
not be considered a binding agreement unless and until signed by an authorized
representative of the Company.
(d)
Member understands
that the Membership and the exercise of the privileges and receipt of benefits
thereunder are subject to, and may be limited by, applicable Legal Requirements
which could change or become more restrictive at any time.
(e)
Member understands
that the Company reserves the right to change the terms of Membership from time
to time due to changes in the Company’s business plans, marketing objectives,
changes in applicable Legal Requirements and other factors. If, at any time, the Company, in its
sole discretion, determines that desired membership levels in The Old 300™ have
not been met, business and/or financial objectives of the Company have not been
achieved, and/or other circumstances warrant the termination of existing
memberships in The Old 300™, then the Company may unilaterally terminate the
Membership and issue to Member a prorated refund of Member’s Membership Dues
and, if it has not already been refunded to Member, the full Barrel Deposit.
(f)
Notwithstanding any
reference herein to “Member,” Member understands that Member is entitled only to
the limited privileges and benefits set forth herein and in the Membership Information
and is not a “member” of a limited liability company, partnership, corporation
or other association under Texas or any other law by virtue of this Agreement
or entitled to any of the statutory rights provided to a “member” of any such
entity under Texas or any other law.
Member
agrees to defend, indemnify and hold harmless the Company and its officers,
directors, employees, agents, employees, attorneys, and affiliates and each of
them, fully and completely, against any and all loss, liability, claim, damage,
injury and/or expense whatsoever (including, but not limited to, attorneys’
fees and other expenses reasonably incurred in investigating, preparing, or defending
against any litigation commenced or threatened or any claim whatsoever) arising
out of, related to or based in any way upon Member’s breach of this Agreement,
including, without limitation, any breach of any representations and/or warranties
by Member contained herein, or Member’s or Member’s family members’ or guests’
use of or entry upon the Distillery facilities.
5.
TRANSFER OF
MEMBERSHIP; TERMINATION OF MEMBERSHIP.
Transfers and Assignments Prohibited.
Member
may not transfer or assign his/her Membership without the prior written consent
of the Company, which consent may be withheld in the Company’s sole and
absolute discretion. Any attempted
transfer or assignment in violation of the provisions of this Section 5.1 will be void and automatically will be deemed a
termination of the Membership by the Company as provided in Section 5.5(c) below.
Death or
Incapacity of a Member.
Upon the death or incapacity of Member (which incapacity
renders Member unable to participate in the Company’s events or fulfill the
Member’s obligations), the Membership will automatically terminate. The Company reserves the right to determine
to what extent, if any, such Member’s Membership Dues and Barrel Deposit will
be refunded.
In the event of the divorce of Member, the Membership,
including all of its rights, benefits, and obligations, will vest in the spouse
awarded the Membership by a property settlement agreement or a divorce
decree. If the Membership is held
in the name of both spouses, until such time as the award of the Membership and
written notice thereof is provided to the Company, both spouses will be jointly
and severally liable for all Member obligations hereunder and both spouses may
continue to enjoy Membership privileges. The Company reserves the right, in its
sole and absolute discretion, not to transfer the Membership to either spouse
if the Company, in its sole and absolute discretion, is unable to determine the
person who is lawfully entitled to receive the Membership. If the Company has
been unable to determine which spouse is legally entitled to the Membership
within six (6) months after the date of the property settlement agreement or
divorce decree, the Membership will automatically be deemed terminated and
neither spouse will be entitled to a refund of the Membership Dues or Barrel
Deposit.
Member may terminate such Member’s Membership by delivery of
written notice of termination to the Company. The terminating Member will not be entitled to a refund of
any Membership Dues, but will receive a refund of the Barrel Deposit (without
the barrel).
The
Company may terminate Member’s Membership, in its sole discretion. Grounds for Membership termination
include, without limitation:
(a)
Expiration of the
Term;
(b)
Failure by Member
to pay when due any Membership Dues, the Barrel Deposit or any other amounts
payable by Member to the Company;
(d)
Violation by
Member, Member’s family members and/or Member’s guests of applicable Legal
Requirements;
(e)
Conviction of
Member for a felony offense;
(f)
Conduct by Member,
Member’s family members and/or Member’s guest which, in the sole and absolute
discretion of the Company, is detrimental to the Company, the Distillery or the
business of the Company; or
(g)
Determination by a
governmental or quasi-governmental agency or authority that the Membership is
not permitted by applicable Legal Requirements.
In the event the Company
terminates the Membership as provided above, except with respect to a
termination caused by an event described in (g) above, Member will not be
entitled to a refund of any Membership Dues or the Barrel Deposit.
Immediately upon any termination of the Membership as
provided herein, Member, Member’s family members and Member’s guests will no
longer be entitled to any privileges or benefits of Membership described in
this Agreement, the Membership Information or any other communication from the
Company to Member.
Member acknowledges and agrees that participation in
activities at the Distillery, including, without limitation Bourbon Camp,
involves (a) physical activity, (b) unfamiliar activities and environments, (c)
exposure to other users of the Distillery, (d) exposure to potentially
hazardous, combustible and flammable equipment, materials and liquids, and (e)
possible impairment of physical or mental abilities.
Assumption of
All Risks; Release and Waiver.
In exchange for the benefits and privileges of Membership, Member,
on behalf of Member and Member’s directors, officers, employees, agents, family
members, guests, heirs, executors, administrators, representatives, successors
and assigns, assumes all risks of participation in the Company’s programs,
events and activities, whether located at the Distillery or elsewhere. Accordingly, in consideration of my
being allowed to participate in these activities, MEMBER, ON BEHALF OF MEMBER
AND MEMBER’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, FAMILY MEMBERS, GUESTS,
HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS,
HEREBY RELEASE AND AGREE TO HOLD HARMLESS AND INDEMNIFY THE COMPANY AND ITS
MEMBERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS
(COLLECTIVELY, THE "RELEASEES") FROM AND AGAINST ANY AND ALL
CLAIMS, CAUSES OF ACTION AND/OR SUITS ARISING OUT OF MEMBER’S OR MEMBER’S
DIRECTORS’, OFFICERS’, EMPLOYEES’, AGENTS’, FAMILY MEMBERS’, GUESTS’, HEIRS’,
EXECUTORS’, ADMINISTRATORS’, REPRESENTATIVES’, SUCCESSORS’ OR ASSIGNS’ ENTRY
INTO OR ONTO THE COMPANY’S PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY
INJURIES, ILLNESSES, DEATH OR PROPERTY DAMAGE SUSTAINED OR CAUSED BY MEMBER OR
ANY OF MEMBER’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, FAMILY MEMBERS, GUESTS,
HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS. THIS WAIVER AND RELEASE INCLUDES,
WITHOUT LIMITATION, ANY AND ALL CLAIMS, CAUSES OF ACTION AND/OR SUITS CAUSED BY
OR RESULTING FROM THE NEGLIGENCE OF ANY OF THE RELEASEES. MEMBER UNDERSTANDS THAT BY EXECUTING
THIS AGREEMENT AND AGREEING TO THIS WAIVER AND RELEASE MEMBER WILL LOSE THE
RIGHT TO SUE THE RELEASEES IN CONNECTION WITH ANY DAMAGES SUSTAINED BY MEMBER
OR ANY OF MEMBER’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, FAMILY MEMBERS,
GUESTS, HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, SUCCESSORS OR
ASSIGNS AS A RESULT OF THE RELEASEES NEGLIGENCE OR OTHER ACTIONABLE
CONDUCT. MEMBER ALSO UNDERSTANDS
THAT NO RELEASEE ASSUMES ANY RESPONSIBILITY FOR OR OBLIGATION TO PROVIDE
FINANCIAL ASSISTANCE, INCLUDING BUT NOT LIMITED TO MEDICAL, HEALTH OR
DISABILITY INSURANCE, IN THE EVENT OF INJURY, ILLNESS OR DEATH.
MEMBER
ACKNOWLEDGES AND REPRESENTS THAT MEMBER HAS CAREFULLY READ AND UNDERSTAND THIS
WAIVER AND RELEASE AND HAS SIGNED THIS AGREEMENT CONTAINING THIS WAIVER AND
RELEASE WITHOUT COERCION OR DURESS.
EXECUTION OF THIS AGREEMENT INVOLVES THE WAIVER AND RELEASE OF VALUABLE
LEGAL RIGHTS.
All notices given pursuant to this Agreement shall be in
writing and shall either be mailed by first class mail, postage prepaid,
registered or certified with return receipt requested, or delivered to the
intended addressee, or sent by facsimile or electronic mail followed by
confirmatory letter. Notice so
mailed shall be effective upon the expiration of three (3) days after its
deposit. Notice given in any other
manner shall be effective on the date of delivery thereof. For purposes of notice, the address of
the Company shall be the address of its principal office and the address of
Member shall be as stated under on Member’s signature page hereto; provided,
however, that Member shall have the right to change its address for notice
hereunder to any other location by the giving of thirty (30) days’ notice to
the Company in the manner set forth above.
This Agreement, together with the Membership Information,
contains the entire agreement between Member and the Company relating to the
subject matter hereof and any prior oral or written agreements or any
representations or offers whatsoever which are not contained herein are
terminated.
This Agreement shall be governed by and construed in
accordance with the substantive federal laws of the United States and the laws
of the State of Texas.
The parties
agree that any issue, controversy or claim arising out of or relating in whole
or in part to this Agreement, the performance or breach hereof, any Membership
dispute, or any act, omission, event, program or transaction arising out of
this Agreement or said Membership will be subject to resolution efforts by
face-to-face meetings between the parties, and non-binding mediation. If such
issue, controversy or claim is still not resolved, then it will be settled by
binding arbitration in accordance with the Commercial Arbitration Rules, then
obtaining, of the American Arbitration Association. Any arbitrator selected
must be knowledgeable in the subject matter of the dispute. Qualified retired judges will be
selected whenever possible through panels maintained by the American
Arbitration Association. All
parties in an arbitration proceeding shall pay an equal share of the
arbitrators’ fees. All statutes of
limitations which would otherwise be applicable shall apply to any arbitration
proceeding hereunder. Depositions
may be taken or other discovery obtained in any arbitration under this
Agreement. In any arbitration proceeding subject to these provisions, the
arbitrator is specifically empowered to decide (by documents only, or with a
hearing, at the arbitrator’s sole discretion) prehearing motions which are
substantially similar to pre-hearing motions to dismiss and motions for summary
adjudication. The provisions of
this Section 7.4 shall survive any termination, amendment, or
expiration of this Contract, unless the parties otherwise expressly agree in
writing. The Federal Arbitration Act shall govern the interpretation,
enforcement, and proceedings pursuant to the arbitration clause in this
Agreement. The arbitrator shall
award attorneys’ fees and costs to the prevailing party. Venue of any arbitration proceeding
hereunder will be in Travis County, Texas. THE PARTIES HERETO, BY THEIR
SIGNATURES HEREON, ACKNOWLEDGE AND AGREE THAT EACH OF THEM IS WAIVING THE RIGHT
TO A JURY TRIAL AND CERTAIN OTHER LEGAL REMEDIES BY AGREEING TO THIS
ARBITRATION PROVISION.
In the event of any conflict between any provision of this Agreement
and the Membership Information, this Agreement will control. Member understands
and agrees that it may be necessary to modify and/or amend this Agreement from
time to time for any reason as determined by the Company, in its sole and
absolute discretion, including, without limitation, to resolve any ambiguities
or conflicts with other Company documents or to comply with any regulatory or
other conditions and/or approvals. Upon the Company’s request, Member agrees to
execute any and all additional documents as required by the Company.
All decisions and/or elections to be made by the Company as
described herein and/or in the Membership Information will be made in the
Company’s sole and absolute discretion, with or without input from, or notice
to, any other parties, including, without limitation, any members.
This Agreement shall be binding upon and shall inure to the
benefit of Member, and Member’s heirs, legal representatives, successors and assigns;
provided, however, that nothing contained herein shall negate or diminish the
restrictions set forth in Section 5.
This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable Legal
Requirements. If any provision of
this Agreement shall, for any reason and to any extent, be invalid or
unenforceable, but the extent of such invalidity or unenforceability does not
destroy the basis of the bargain between Member and the Company as expressed
herein, the remainder of this Agreement shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
Whenever required by the context, as used in this Agreement,
the singular number shall include the plural and the neuter shall include the
masculine or feminine gender, and vice versa.
7.10
No Partnership. Nothing
in this Agreement is intended to, or should be construed to, create a
partnership, agency, joint venture or employment relationship between Member or
any other person or entity and the Company.
This Agreement may be executed in
multiple counterparts, including by facsimile, electronic or “click-through”
signature or assent, each of which shall be an original but all of which shall
constitute but one document.