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Terms of Service with GZ MemberSuite AMS
Conditions and guidelines that help protect our customers, platform, and community.
Terms of Service (September 15, 2023)
Last Updated: Sept 15, 2023
These Terms of Service (the “Terms”) are a legal contract between GrowthZone, LLC and its affiliates, (collectively, the “Company”, “we” or “us”) and “you” (and “your,” or “User”). The Terms explain how you are permitted to use the services provided by and through our software-as-a-service platforms and website(s) (including those located at the URL https://www.growthzone.com) as well as all of our associated internet properties (either linked by the Company and/or by affiliated companies) and any software that the Company provides to you for download, including in your mobile devices (our “Mobile App(s)” or “App(s)”) (all of these virtual properties and mobile applications, collectively, the “Site”). These Terms also govern your use of all the text, data, information, software, graphics, proprietary content and more (all of which we refer to as “Materials”) that we and/or our affiliates may make available to you, as well as any services we may provide through this Site. Collectively, the Site, the Materials, and the services provided herein are referred to as the “Service”.
USING THE SERVICE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE. THESE TERMS APPLY TO ALL VISITORS, CUSTOMERS, USERS, VENDORS, AND OTHERS WHO ACCESS THIS SERVICE.
Note: These Terms contain a dispute resolution and arbitration provision, including a class action waiver that affects your rights. This section applies to the extent applicable in your jurisdiction.
- THE SERVICE.
The Service includes an integrated, software-as-a-service enterprise-level platform, that facilitates among other services, any or all of the following: (i) membership management by associations; (ii) events’ management; and (iii) event experiential engagement services. Our Service enables our customers (each a “Customer”) and our Customers’ constituents (defined below) to manage their own Users (defined in Section 5) and their membership engagement and/or events, by accessing and using the features provided through the Service, including our online dashboard experience and our application programming interfaces (“API”). The Service provides both an internal management console for use by our Customers and their authorized Users (the “Console”), and a user-facing portal for use by Customer Constituents and their own authorized Users (the “Portal”). For purposes of these Terms, “Customer Constituents” means the companies, individuals, universities, suppliers, licensees, registrants, attendees, and/or any other organizations that have fulfilled, or are in the process of fulfilling, Customer’s formal membership process or access to their user community.
- MODIFICATIONS AND ADDITIONAL TERMS.
(a) Changes to these Terms. The Company can change, update, add or remove provisions of these Terms at any time by posting the updated Terms on the Site and by providing a notice on the Service. We will ask for your express consent to the updated Terms where we are legally required to do so, and our notice to you will explain how you can accept or reject the changes. If you do not agree with any of the updated Terms, you must stop using the Service. Unless otherwise required by law, the updated Terms are effective as of the day of posting.
(b) Changes to the Service. The Company may make changes to the Service at any time, without notice to you. If you object to any changes to the Service, your sole recourse will be to cease using the Service. Continued use of the Service following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Service as modified. We also reserve the right to discontinue the Service, or any component of it, at any time without notice to you. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Service. If you are under a paid subscription, any changes to the Service will become effective only after termination of your then-current term.
(c) Additional Terms. In addition, certain features of the Service may be subject to additional terms of use (“Additional Terms”), which shall be provided to you at the moment you choose to use such features or services. By using such features, or any part thereof, you agree to be bound by the Additional Terms applicable to such features. In the event that any of the Additional Terms governing such features conflict with these Terms, the Additional Terms will govern.
(d) Executed Contract(s). If you have entered into a separately executed (i.e. signed) order form, statement of work, and/or agreement for services with the Company (collectively and individually, “Contract”), you are also subject to all additional terms and/or limitations set forth in such Contract in addition to these Terms. For sake of clarity, however, such Contract shall supersede these Terms, even when the Contract incorporates these Terms by reference. In the event of any conflict between these Terms and the Contract, the Contract will prevail. In cases where the Contract does not address specific provisions included in these Terms, these Terms will apply, supplementing the Contract.
- PRIVACY.
Please review our privacy policy (the “Privacy Policy”) which explains how we use any personal information that you submit to the Company. The Privacy Policy is hereby incorporated by reference. Additionally before registering for the Service, California residents please refer to our California Privacy Notice, and residents of the European Economic Area (EEA) to our GDPR Privacy Notice.
- YOUR ACCEPTANCE AND CONTRACTUAL RELATIONSHIP.
By using the Service, you represent, acknowledge and agree that you are at least 18 years of age, or that you are of age under the laws of your jurisdiction, and/or lawfully able to enter into contracts. If you are not legally able to enter into contracts, you may not use the Service at any time or in any manner or submit any information to the Company or the Service. If you are under 18 years of age or not of legal age to form a binding contract in your place of residence, you must have your parent or legal guardian’s permission to use the Service.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available and may assist you in limiting access to material that is harmful to minors.
If you are entering into these Terms on behalf of a business entity or organization, you represent and warrant that you have the legal authority and capacity to bind such business entity or organization. If you are not authorized nor deemed by law to have such authority, you assume sole personal liability for the obligations set out in these Terms.
Your access to and use of the Service is subject to your continued compliance with these Terms and all applicable laws. Your right to access and use the Service will terminate immediately, without any further action by the Company, if you breach these Terms.
- USERS.
(a) Visitors and Guests. Visitors and guests may not need to register with the Company to simply visit and view the Site. You can simply view the Site and not use the Service.
(b) Accounts. However, in order to access certain password-restricted areas of the Site and to use the Service and Materials offered on and through the Site, you must register and/or open an account with us (your “Account”).
(c) Customers and Customer Constituents. If you purchase access to the Service from us, you become a Customer. Your use is limited to your internal business purposes, which includes the right for your Customer Constituents to register as your members or part of your community under the Service. An authorized User for purposes of the Service, means any individual employees, agents, or contractors of Customer or a Customer Constituent as applicable, who access the Service under the rights granted to Customer and/or Customer Constituent, pursuant to these Terms. As a Customer or Customer Constituent you acknowledge and agree that, as between us and you, you are responsible for any act or omission by an authorized User which, if undertaken by you, would constitute a breach of these Terms. You agree to undertake reasonable efforts to make all your authorized Users aware of these provisions as applicable to such Users and to you.
(d) Users. A “User” is anyone who accesses the Service under the rights granted hereunder. If you are a User, you accept responsibility for yourself in the use of the Service. The Service is designed for your active engagement in membership, registrant, attendee, or event management, however you acknowledge that your relationship with Customer or Customer Constituent or your own authorized Users, as applicable, is with them (as your employee/employer, or contractor/agent/principal) and independent of your use of this Service. By using the Service, you agree not to hold the Company liable in any way for any issues between you and Customer or Customer Constituent or with your own authorized User(s). Additionally, you agree and understand that you are subject at all times to these Terms and all additional policies hereby incorporated by reference.
- USE OF THE SERVICE.
For as long as you agree to these Terms and abide by them, you may use the Service. These Terms apply to all Users of the Service, including Visitors and Registered Users (Customers, Customer Constituents, authorized Users), who are also contributors of User Content. The Service is licensed, not sold, to you.
(a) Grant of a Limited License to Use the Service. The Service is protected by copyright laws throughout the world. Subject to your agreement, continuing compliance with these Terms, and any other relevant Company policies, Company grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to use the Service and/or download, and use a copy of the Mobile App or client-software on a mobile device or computer that you own or control and to run such copy solely for your own individual, non-commercial purposes only. You agree not to use the Service for any other purpose. If you are Customer or Customer Constituent, your rights include those granted in Section 6(c).
(b) API credentials. If you are a Customer, in order to access the Service, you may need to use our API. For this purpose, the Company grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access, use, and integrate the Service with your application(s) in accordance with this Agreement (“API License”). This API License may be immediately revoked or terminated by the Company if you share your API Credentials with any third party (other than third party service providers who need such information in order to perform services for you) or if you breach this Agreement. In order to access and use the Company API, the Company will provide you with credentials in the form of a key and secret specific to you (“API Credentials”). The API Credentials are confidential information and property of the Company. You are responsible for maintaining commercially reasonable security and control of your API Credentials in accordance with this section. You are prohibited from selling, transferring, sublicensing, or disclosing the API Credentials to any third party, other than to your third-party service providers who need such information in order to perform services for you, if applicable. The Company may immediately revoke the API Credentials if you breach this Agreement.
(c) Restrictions. You may not (i) remove any copyright, trademark or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted by the Company; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (v) link to, mirror or frame any portion of the Service except as expressly permitted by the Company; (vi) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; or (vii) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks.
(d) Registration Data. In registering for the Service, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (A) notify the Company immediately of any unauthorized use of your password or any other breach of security by emailing us (please refer to our Contact Us page for applicable email information); and (B) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information. You agree that you shall not have more than one Account for personal use at any given time. The Company shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that the Company considers insecure or inappropriate, the Company will be entitled to require this to be changed and/or terminate your Account. The Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to register for an Account on behalf of an individual other than yourself, or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group, organization, or entity to these Terms. By registering another person, group, organization, or entity you hereby represent that you are authorized to do so. You agree not to create an Account or use the Service if you have been previously removed by the Company, or if you have been previously banned from any of the Company properties.
(e) Data Network and Internet Access. When you access the Service through a mobile network, your network or roaming data services, data and other rates and fees will apply. Downloading, installing or using certain services may be prohibited or restricted by your network provider and not all features of the Service may work with your network provider or device. The Service may require an Internet connection to access Internet-based features, authenticate the Service, real-time messaging or perform other functions. You acknowledge that you may be charged by your network service provider and shall be responsible for any such charges for Internet access.
(f) Company Responsibilities. As part of the Service, the Company will provide Customer with the Company’s standard support and service level commitment for the Service in accordance with its standard policies under the terms of the Service Level Agreement, except for any unavailability caused by circumstances beyond the Company’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, epidemic, civil unrest, act of terror, strike or other labor problem (other than one involving the Company’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack. The Company reserves the right to modify its maintenance and support services documentation from time-to-time and, other than immaterial changes and corrections, will give Customer reasonable notice of modifications thereto. Additionally, the Company has implemented industry standard technical and organizational measures designed to secure the Service and User Content from accidental loss and unauthorized access, use, alteration or disclosure; as further set forth in our Security Statement. Notwithstanding the foregoing, the Company cannot guarantee that unauthorized third parties will never be able to defeat those measures to gain access to the Service, and as such, Customer understands that its use of the Service is at Customer’s own risk. Notwithstanding the foregoing, each party shall take, and hereby represents that it has taken, all steps to ensure the reliability and security of its systems; and that it will comply with their respective systems, network and data security policies.
- BETA OR NON-PRODUCTION FUNCIONTALITY.
If you register for a “beta functionality” or “beta account” or “sandbox service” or other non-production or pre-release version of the Service (each a “Non-Production Offering”), you acknowledge and agree that the Non-Production Offering may contain, in the Company’ sole discretion, more or fewer features or different licensing terms than a subsequent commercial release or production version of the Service that may be offered through the Site. You acknowledge and agree that any pre-release “beta account” will automatically convert to a commercial release version account upon the launch date of the Service or functionality to the public (“Public Launch Date”). If you do not desire to continue using the Service or functionality after a Public Launch Date, you may contact the Company to delete your account in accordance with the terms and conditions governing deletion of personal information set forth in the Company’s Privacy Policy. While the Company generally intends to distribute commercial release versions of any functionality of the Service, the Company reserves the right not to release later commercial release versions of any Non-Production Offering. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Non-Production Offering is not considered by the Company to be suitable for commercial or in production use, and that it may contain errors affecting its proper operation. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT USE OF A NON-PRODUCTION OFFERING MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICE THAT MAY BE OFFERED THROUGH THE SITE. COMPANY SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY NON-PRODUCTION OFFERING.
- PROFESSIONAL SERVICES
(a) Professional Services. “Professional Services” means, in each instance, those services provided by the Company to Customer, pursuant to a Statement of Work, including without limitation, integration, configuration, training, consulting or other professional services. A “Statement of Work” means one or more ordering documents for purchases of Professional Services that are executed by Customer and the Company, from time to time. Each Statement of Work shall contain, at a minimum, the following information: (i) the scope of the Professional Services to be provided; (ii) applicable rates and fees; (iii) responsibilities and dependencies of each Party; (iv) agreed upon Work Product and specific deliverables, if any; and (v) signatures of authorized representatives of both Parties. Statement of Works are incorporated into these Terms by reference.
(b) Ordering Professional Services. The Parties may, but are under no obligation to, enter into one or more Statement of Works for Professional Services to be performed by the Company. No Professional Services shall be furnished to Customer by virtue of these Terms alone but shall require the execution of a Statement of Work by both Parties.
(c) Scope Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Statement of Work by making a written request to the Company specifying the desired modifications. The Company shall submit an estimate of the cost for such modifications and a revised estimate of the time for performance pursuant to the Statement of Work. Modifications in any Statement of Work shall become effective only when a written change request is executed by authorized representatives of both Parties.
(d) Company Personnel. The Company shall be responsible for securing, managing, scheduling, coordinating and supervising Company personnel, including its subcontractors, performing the Professional Services. The Company may designate a Company project manager in a Statement of Work who will be responsible for coordinating the Company’s provision of Professional Services under such Statement of Work. The Company shall have the right to remove or replace any personnel providing Professional Services with similarly skilled personnel. If key personnel are requested, the Company shall provide reasonable notice to Customer of any change in personnel providing Professional Services. The Company may, in its sole discretion, subcontract or delegate any work under any Statement of Work to any third party without Customer’s prior written consent, provided that the Company shall remain responsible for the performance, acts and omissions of any such subcontractors. Customer may request that the Company remove or replace Company personnel solely for reasons that are not unlawful, including if Customer believes, in Customer’s reasonable discretion, that such personnel’s involvement is inappropriate, unsafe or detrimental to the delivery of the Professional Services. In the event such a request is made, any project timelines shall automatically extend by the amount of time required to replace said personnel and assimilate them into the project.
(e) Cooperation. Customer shall perform its obligations as set forth in the applicable Statement of Work, as well as the following obligations: (i) provide sufficient, qualified, knowledgeable personnel capable of (1) performing Customer obligations set forth in each Statement of Work; (2) making timely decisions necessary to move the Professional Services forward; and (3) participating in the project and assisting the Company in rendering the Professional Services; and (ii) in the case of on-site Professional Services, provide the Company with reasonable access to Customer’s facilities during Customer’s normal business hours and otherwise as reasonably requested by the Company, including such working space as the Company may reasonably request. Customer acknowledges and agrees that the performance by Customer of its obligations is material to the Company’s ability to commence, proceed with and complete the Professional Services. In the event Customer does not perform Customer obligations in a timely manner, the Company may take any action as set forth in the applicable Statement of Work, or terminate the applicable Statement of Work in accordance with these Terms.
(f) Work Product. “Work Product” means any expression of the Company’s findings, developments, inventions, analyses, conclusions, opinions, recommendations, ideas, techniques, designs, programs, enhancements, derivatives, improvements, modifications, interfaces, software, and other technical information resulting from the performance of Professional Services, support services, or any other services performed for the benefit of Customer. Unless otherwise specified in the applicable Statement of Work, all Work Product created under these Terms, including all Intellectual Property Rights related thereto, is owned by the Company. Regarding Work Product created under a Statement of Work, and these Terms, that is owned by the Company, and is made available to Customer to enable Customer’s use of the Service pursuant to these Terms, the Company hereby grants Customer a worldwide, non-exclusive, non-transferrable, non-sublicensable right and license to use the Work Product, solely in connection with Customer’s use of the Service. Unless otherwise specified in the applicable Statement of Work, to the extent Customer acquires any rights in the Work Product, Customer hereby assigns such rights to the Company. Customer shall give the Company all reasonable assistance and execute all documents necessary to assist or enable the Company to perfect, preserve, register and/or record such assignment and the Company’s rights in any Work Product.
For sake of clarity, the fact that Customer uses the Service in any particular manner or configuration is Customer’s Confidential Information. However, Customer acknowledges that it does not receive any exclusive right under these Terms to use the Service in any particular manner or configuration, and that the Company reserves any Intellectual Property Rights that are embodied by or practiced by the use of the Service in a particular manner or configuration. For example, no exclusive rights are granted, and the Company reserves any intellectual property rights in, any methodologies, data models, work-flow, reports, or interfaces that are practiced or embodied by implementing the Service in a particular configuration using the Service’s non-customized code or configurable code. For the purpose of the foregoing, “configuration” means the methodical process of making the Service ready to use, including defining pre-set options, values of parameters, and configuring set-ups, templates, and/or components that make up the system or Service.
- OUR ACCEPTABLE USE POLICY AND OUR COMMUNITY.
To use our Service, you agree to and warrant that you will comply at all times with our Acceptable Use Policy, as may be amended from time to time, which regulates prohibited and/or acceptable practices relating to the use of our Service, including limitations on User Content, prohibited activities, system abuse and security. If you do not agree with our Acceptable Use Policy, you must discontinue use of the Service. The Acceptable Use Policy is hereby incorporated by reference.
- SUBSCRIPTIONS; PAYMENTS; AND CANCELLATIONS.
(a) Subscriptions. By executing a Contract (order form or otherwise) and/or by registering for an Account, you obtain access to the Service (a “Subscription”). Each Subscription and the rights and privileges provided therein is personal and non-transferable. Paid Subscriptions may include premium and/or additional features and services not available to free Subscriptions. Subject to Section 2(b), the Company reserves the right to change prices for paid Subscriptions at any time and does not provide price protection or refunds in the event of promotions or price decreases.
(b) Payments. If you purchase any services that we offer for a fee, either on a one-time or on a Subscription basis, you agree and consent to the Company’s use of third-party payment providers for billing and processing online payments, and you agree to pay the applicable fees for the Subscription (including, without limitation, periodic fees for monthly or annual Subscriptions) as they become due, plus all related taxes, and to reimburse us for all collection costs and interest for any overdue amounts. Your obligation to pay fees continues through the end of the Subscription Term (defined in Section 10(c) below).
If you do not pay on time or if the Company cannot charge your payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Service and Account and terminate these Terms. You are expressly agreeing that the Company is permitted to bill you for any applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Service and the fees will be billed to the payment method designated on your registration with the Service and, if applicable, thereafter at regular intervals for the remainder of your Subscription Term. By providing a payment method, you expressly authorize the Company to charge said payment method at regular intervals subject to your particular Subscription. If you have a balance due on any Account, you agree that the Company may charge such unpaid fees to your payment method or otherwise bill you for such unpaid fees.
(c) AUTOMATIC RENEWAL TERMS. To facilitate continuity of the Service to you, each Subscription contains automatic renewal terms. The Company will automatically renew your paid Subscription as per the Subscription period of your choosing (each a “Subscription Term”), on the anniversary of the date that the Company first charges your Account for the first Subscription fee, and, as authorized by you during the Subscription sign-up process, the Company will charge your Account with the applicable Subscription fee and any sales or similar taxes that may be imposed on your Subscription fee payment (unless you opt not to renew). Each Subscription renewal period is for the same Subscription Term as the prior one, unless otherwise agreed between you and the Company. The Company reserves the right to modify pricing at any time (but not the price in effect for your then-current Subscription Term), upon advance notice to you. If you have not cancelled your Subscription or turned off the auto-renew function within the specified time after receiving notice of a price change, your Subscription will auto-renew at the price indicated in your notice.
(d) CANCELLATION TERMS. You may cancel your Subscription at any time, and such cancellation shall become effective upon expiration of your then-current Subscription Term. You agree and understand that you will be charged Subscription fees until the expiration of your then-current Subscription Term and Subscription fees will not be refunded, in whole or in part, subject to applicable law. You will not be eligible for a pro-rated refund of any portion of the Subscription fees paid for any unused days of the then-current Subscription Term. If you have any problems or concerns with your cancellation, please Contact Us for assistance. Information regarding cancelling your Service can be found here.
- USER CONTENT.
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available (“Make Available”) on or through the Service (each such submission “User Content”). You may not Make Available on this Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or any other proprietary right owned by a third-party, and the burden of determining whether any such right protects any material is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any User Content that you make or submit. As between you and us, you own your User Content and you have full responsibility for each User Content you make or submit, including its legality, reliability and appropriateness.
You hereby grant to the Company a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your User Content, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and otherwise use and commercialize the User Content in any way that the Company deems appropriate, without any further consent, notice and/or compensation to you or to any third parties.
You also authorize others to use the User Content that you publicly share or Make Available through the Service.
You may delete, or request deletion of your User Content at any time, unless you have shared such User Content with others and they have not deleted it, or it was copied or stored by other Users. Any User Content you submit is at your own risk of loss, and if shared publicly, non-confidential.
The Company agrees to use any personal information contained in any of your User Content in accordance with the Company’s Privacy Policy, to the extent applicable. Additionally, please note that certain information, statements, data, and content (such as photographs) which you may submit to the Company, or groups you choose to join might, or are likely to, reveal your gender, ethnic origin, nationality, age, and/or other personal information about you. You acknowledge that your submission of any User Content is voluntary on your part.
We may modify or adapt your User Content in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the User Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media.
When you provide User Content you agree that such User Content shall not be in violation of the Acceptable Use Policy. Those prohibitions do not require the Company to monitor, police or remove any User Content or other information submitted by you or any other user. Notwithstanding the foregoing, the Company reserves the right to remove any User Content from its Service at any time and for any or no cause. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any User Content posted by you to or through this Service.
If you use any rating feature of the Service and/or if you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Service, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. The Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that the Company may use any of this Feedback in aggregated or non-aggregated from, however the Company is not obligated to use, display, reproduce, or distribute any such ratings, ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
- FORUMS AND MESSAGING.
The Company may offer various forums where you can post your observations and comments on designated topics. The Company also enables sharing of information by allowing Users to post updates, including links to news articles and other information to their profile and other parts of the Service. By offering this feature, the Company is merely acting as an intermediary and is not responsible and shall not be liable for such communications. Please note that ideas you post and information you share may be seen and used by other Users, and the Company cannot guarantee that other Users will not use the ideas and information that you share on the Service. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, or that is subject to third party rights that may be infringed by your sharing it, do not post it on the public forums of the Service. Please refer to Section 14 below and our Copyright Policy for more information regarding how we treat infringing content.
COMPANY IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION POSTED IN ANY COMPANY COMMUNITY FORUMS.
- COMPANY INTELLECTUAL PROPERTY OWNERSHIP.
The Service and all proprietary and intellectual property rights embodied and practiced therein, including the look-and-feel of the Site, are and shall remain the Company’s property (or the property of the Company’s licensors). Neither these Terms nor your use of the Service convey or grant to you any rights: (i) in or related to the Service except for the limited license granted above; or (ii) to use or reference in any manner the Company’s company names, logos, product and service names, trademarks or services marks or those of the Company’s licensors. There are no licenses by implication. If you breach any of these Terms, the above license will terminate automatically, and you must stop using the Service and immediately destroy any materials downloaded or printed from the Service.
- INTELLECTUAL PROPERTY INFRINGEMENT AND NOTIFICATIONS.
The Company does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and the Company will remove User Content if properly notified that such User Content infringes on another’s intellectual property rights (please refer to our Copyright Policy). The Company reserves the right to remove User Content without prior notice.
- TERM AND TERMINATION.
The Terms commence on the date when you start using the Service and remain in full force and effect while you use the Service, unless terminated earlier in accordance with the Terms. If you want to terminate the Service, you may do so by (a) notifying the Company at any time and your Subscription will terminate at the end of the Subscription; (b) closing your Account; and/or (c) if you are Visitor, stop visiting the Site. We reserve the right to terminate or suspend your account or access to the Service at any time and for any reason. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account, or anything associated with it. Termination of the Service includes (i) automatic termination of all licenses and you must immediately destroy any downloaded or printed Materials (including software); and (ii) deletion of your password and related information, files and content associated with or inside your Account (or any part thereof), including User Content, except to the extent of any surviving licenses or applicable record retention requirements. The Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Content. All provisions of the Terms, which by their nature should survive, shall survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
You may close your Account by using the feature provided in the Service or, in the alternative, by emailing us. Please refer to our Contact Us page for contact information. We will proceed to close your Account and send you an email confirmation.
- THIRD-PARTY SITES AND OFFERINGS.
The Company or other third parties may make available to Customer certain software or services delivered or performed by third parties that may be used in conjunction with the Service, including associated offline products provided by third parties, that interoperate with the Service (“Third-Party Offerings”). Any acquisition by Customer of any such Third-Party Offerings, and any exchange of data between Customer (and Customer Constituents and authorized Users) and any provider of a Third-Party Offering, is solely between Customer and the applicable provider of the Third-Party Offering. The Company does not warrant or support any Third-Party Offering, whether or not they are designated by the Company as “certified” or otherwise. If Customer installs or enables any Third-Party Offering for use with the Service, Customer acknowledges that the Company may allow providers of that Third-Party Offering to access User Content as required for the interoperation and support of such Third-Party Offering with the Service. The Company shall not be responsible for any disclosure, modification or deletion of User Content resulting from any such access by the providers of Third-Party Offerings.
The Service may also be linked to other websites that are not Company properties (collectively, “Third-Party Sites”). You acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than the Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, user guides and privacy policies of any Third-Party Sites. The Company does not verify, make any representations or take responsibility for any Third-Party Site, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference on the Service to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply the Company’s endorsement or recommendation.
- DISCLAIMER OF WARRANTIES.
(a) Generally. You use the Service at your own risk. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY (ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSOCIATES, PARTNERS, LICENSORS AND SUPPLIERS) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(b) Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE.
- LIMITATION OF LIABILITY.
NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER OR EXCLUDE OR LIMIT ANY LIABILITY, WHICH CANNOT BE LEGALLY EXCLUDED, OR LIMITED.
THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, REMOTE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO THE EXCLUSIONS EXPRESSLY SET FORTH IN THIS SECTION, IN ALL EVENTS, THE COMPANY SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO THE COMPANY IN ACCORDANCE WITH THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO THE COMPANY DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND THE COMPANY’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH THE COMPANY IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. To the extent that the Company may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth in these Terms, the scope of such warranty, and the extent of the Company’s liability, shall be the minimum permitted under such applicable law.
- INDEMNITY.
You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees’) relating to or arising out of: (a) Your User Content; (b) your use of, or inability to use, the Service; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Service.
- INTERACTIONS BETWEEN USERS.
You are solely responsible for your interactions with other Users of the Service and any other parties with whom you interact through the Service. The Company may limit the number of connections you may have to other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Service or otherwise limit your use of the Service. The Company reserves the right, but has no obligation, to monitor or become involved in any way with these disputes. You will fully cooperate with the Company to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting the Company access to any password-protected portions of your Account. The Company reserves the right to restrict, suspend, or close your account if the Company determines, in our sole discretion, that doing so is necessary or in our best interests.
If you have a dispute with one or more Users, you release the Company (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If you are a California resident, you waive California Civil Code § 1542, which says: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
- LOCAL LAWS.
The Company controls and operates the Service from its headquarters in the United States of America and it may not be appropriate or available for use in other locations outside of the United States of America. If you use the Service outside the United States of America, you are responsible for following applicable local laws.
- SPECIAL PROVISIONS FOR MOBILE APPLICATIONS.
(a) App Stores. You acknowledge and agree that the availability of the Mobile App and the Service is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Service, including the Mobile App, the content thereof, maintenance, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Service, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Service, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
(b) Additional License Terms for use of the Service in conjunction with the Apple App Store. With respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on Apple-branded products that run the iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple Terms of Service. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and the Company only, and not Apple; and (ii) the Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between the Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
- You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and the Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(c) Additional License Terms for use of the Service in conjunction with the Android App Store. The following additional terms and conditions apply with respect to any Mobile App that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and the Company only, and not with Google, Inc. (“Google”).
- Your use of the Company’s Android App must comply with Google’s then-current Google Play Terms of Service.
- Google is only a provider of the Android App market where you obtained the Android App. The Company, and not Google, are solely responsible for the Company’s Android App and the services and content available thereon. Google has no obligation or liability to you with respect to the Company’s Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Company’s Android App.
(d) Geo-Location Terms. The Service may include and/or make use of certain functionality and services provided by third parties that allow the Company to include maps, geocoding, places and other content as part of the services (the “Geo-Location Services”). The Geo-Location Services may be provided by Google Inc., in which case your use of the Geo-Location Services will be subject to Google’s then current Terms of Use for Google Maps/Google Earth. By using Google’s Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use and the current Google privacy policy.
- DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read this carefully if you are a resident of the United States of America. It affects your rights.
(a) Applicable Law. These Terms will be subject to and construed in accordance with the laws of the State of Georgia, United States of America, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against the Company must be resolved exclusively by a state or federal court located in the State of Georgia, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in Fulton County, Georgia for the purpose of litigating all such claims or disputes.
(b) Dispute Resolution. Before either party may seek arbitration as provided below, the party must first send to the other party a written notice of dispute (“Notice“) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding as provided below.
(c) Arbitration. You agree that the Company may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event the Company elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through the American Arbitration Association or another established alternative dispute resolution provider (collectively, “ADR”) chosen by the Company. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, in which case the location of the arbitration shall be Fulton County, Georgia; and (iii) the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.
(d) Waiver of Jury Trial. YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
- ELECTRONIC COMMUNICATIONS.
The communications between you and the Company will use electronic means, whether you visit the Site, send the Company e-mails, or use the Service or whether the Company posts notices on the Site or communicates with you via e-mail.
CONSENT TO ELECTRONIC COMMUNICATION
For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. Where the Company requires that you provide an e-mail address; you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. We are not responsible for any automatic filtering you or your network provider may apply to communications we send to an e-mail address that you provide to us.
MOBILE MESSAGING TERMS
When you provide us with your mobile telephone number, you agree that the Company may send you text messages (including SMS and MMS) to that mobile telephone number. The Company may send you up to five text messages per month. When you first provide your mobile telephone number to us, you will receive a confirmation text message and you may need to reply as instructed to complete registration. The Company will never charge you for the test messages you receive, however you may see message and data rate charges from your mobile provider, though, so be sure to check your plan. You are responsible for the payment to your mobile provider of any message, data and other charges related to text messages, including for confirmation texts you receive and your responses thereto.
You may opt-out of receiving any future text messages from the Company at any time by either replying to a text message with the keyword “STOP”. If you opt-out, you agree to receive a final text message confirming your opt-out. When you opt-out of text messaging, you will no longer receive any text messages unless you re-subscribe. In addition, for assistance, you may reply to any text message with the keyword “HELP”. Texts may be sent through an automatic telephone dialing system. Consent to receive mobile messages is not required as a condition to using the Website or to purchase any goods or services on the Website.
You agree to notify us of any changes to your mobile telephone number by clicking the “Manage Preference” link at the bottom of any Subscription or by sending us an email with “Update Mobile Number” in the subject line. Please refer to our Contact Us page for applicable email information. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
- CONSUMER NOTICE.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided by GrowthZone, LLC If you have a question or complaint regarding the Service, please contact the Company’s Customer Service at Contact Us Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
- GENERAL.
These Terms, together with our Privacy Policy, Acceptable Use Policy, Copyright Policy, any separate Contract we may have executed directly with you, all policies incorporated by reference, and any Additional Terms that we may make available from time to time through our internet properties, constitute the entire agreement between you and the Company regarding your use of our Service and supersede and replace any prior written or oral agreements regarding the foregoing. Our failure to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Neither the rights nor obligations arising under these Terms are assignable by you. Any such attempted assignment or transfer shall be void and without effect. We may assign these Terms without restriction.
- CONTACT US.
If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us, as applicable,
If related to MemberSuite AMS services, please contact us at GrowthZone, LLC, 23973 Hazelwood Drive South, Suite 100, Nisswa, MN 56468, USA with a copy to info@membersuite.com; or call us at +1 (218) 825-9200
© 2021 GrowthZone, LLC All rights reserved.
Terms of Service (prior to September 15, 2023)
Last Updated: May 5, 2021
These Terms of Service (the “Terms”) are a legal contract between MemberSuite, Inc. and its affiliates, (collectively, the “Company”, “we” or “us”) and “you” (and “your,” or “User”). The Terms explain how you are permitted to use the services provided by and through our software-as-a-service platforms and website(s) (including those located at the URL https://www.membersuite.com/) as well as all of our associated internet properties (either linked by the Company and/or by affiliated companies) and any software that the Company provides to you for download, including in your mobile devices (our “Mobile App(s)” or “App(s)”) (all of these virtual properties and mobile applications, collectively, the “Site”). These Terms also govern your use of all the text, data, information, software, graphics, proprietary content and more (all of which we refer to as “Materials”) that we and/or our affiliates may make available to you, as well as any services we may provide through this Site. Collectively, the Site, the Materials, and the services provided herein are referred to as the “Service”.
USING THE SERVICE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE. THESE TERMS APPLY TO ALL VISITORS, CUSTOMERS, USERS, VENDORS, AND OTHERS WHO ACCESS THIS SERVICE.
Note: These Terms contain a dispute resolution and arbitration provision, including a class action waiver that affects your rights. This section applies to the extent applicable in your jurisdiction.
- THE SERVICE.
The Service includes an integrated, software-as-a-service enterprise-level platform, that facilitates among other services, any or all of the following: (i) membership management by associations; (ii) events’ management; and (iii) event experiential engagement services. Our Service enables our customers (each a “Customer”) and our Customers’ constituents (defined below) to manage their own Users (defined in Section 5) and their membership engagement and/or events, by accessing and using the features provided through the Service, including our online dashboard experience and our application programming interfaces (“API”). The Service provides both an internal management console for use by our Customers and their authorized Users (the “Console”), and a user-facing portal for use by Customer Constituents and their own authorized Users (the “Portal”). For purposes of these Terms, “Customer Constituents” means the companies, individuals, universities, suppliers, licensees, registrants, attendees, and/or any other organizations that have fulfilled, or are in the process of fulfilling, Customer’s formal membership process or access to their user community.
- MODIFICATIONS AND ADDITIONAL TERMS.
(a) Changes to these Terms. The Company can change, update, add or remove provisions of these Terms at any time by posting the updated Terms on the Site and by providing a notice on the Service. We will ask for your express consent to the updated Terms where we are legally required to do so, and our notice to you will explain how you can accept or reject the changes. If you do not agree with any of the updated Terms, you must stop using the Service. Unless otherwise required by law, the updated Terms are effective as of the day of posting.
(b) Changes to the Service. The Company may make changes to the Service at any time, without notice to you. If you object to any changes to the Service, your sole recourse will be to cease using the Service. Continued use of the Service following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Service as modified. We also reserve the right to discontinue the Service, or any component of it, at any time without notice to you. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Service. If you are under a paid subscription, any changes to the Service will become effective only after termination of your then-current term.
(c) Additional Terms. In addition, certain features of the Service may be subject to additional terms of use (“Additional Terms”), which shall be provided to you at the moment you choose to use such features or services. By using such features, or any part thereof, you agree to be bound by the Additional Terms applicable to such features. In the event that any of the Additional Terms governing such features conflict with these Terms, the Additional Terms will govern.
(d) Executed Contract(s). If you have entered into a separately executed (i.e. signed) order form, statement of work, and/or agreement for services with the Company (collectively and individually, “Contract”), you are also subject to all additional terms and/or limitations set forth in such Contract in addition to these Terms. For sake of clarity, however, such Contract shall supersede these Terms, even when the Contract incorporates these Terms by reference. In the event of any conflict between these Terms and the Contract, the Contract will prevail. In cases where the Contract does not address specific provisions included in these Terms, these Terms will apply, supplementing the Contract.
- PRIVACY.
Please review our privacy policy (the “Privacy Policy”) which explains how we use any personal information that you submit to the Company. The Privacy Policy is hereby incorporated by reference. Additionally before registering for the Service, California residents please refer to our California Privacy Notice, and residents of the European Economic Area (EEA) to our GDPR Privacy Notice.
- YOUR ACCEPTANCE AND CONTRACTUAL RELATIONSHIP.
By using the Service, you represent, acknowledge and agree that you are at least 18 years of age, or that you are of age under the laws of your jurisdiction, and/or lawfully able to enter into contracts. If you are not legally able to enter into contracts, you may not use the Service at any time or in any manner or submit any information to the Company or the Service. If you are under 18 years of age or not of legal age to form a binding contract in your place of residence, you must have your parent or legal guardian’s permission to use the Service.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available and may assist you in limiting access to material that is harmful to minors.
If you are entering into these Terms on behalf of a business entity or organization, you represent and warrant that you have the legal authority and capacity to bind such business entity or organization. If you are not authorized nor deemed by law to have such authority, you assume sole personal liability for the obligations set out in these Terms.
Your access to and use of the Service is subject to your continued compliance with these Terms and all applicable laws. Your right to access and use the Service will terminate immediately, without any further action by the Company, if you breach these Terms.
- USERS.
(a) Visitors and Guests. Visitors and guests may not need to register with the Company to simply visit and view the Site. You can simply view the Site and not use the Service.
(b) Accounts. However, in order to access certain password-restricted areas of the Site and to use the Service and Materials offered on and through the Site, you must register and/or open an account with us (your “Account”).
(c) Customers and Customer Constituents. If you purchase access to the Service from us, you become a Customer. Your use is limited to your internal business purposes, which includes the right for your Customer Constituents to register as your members or part of your community under the Service. An authorized User for purposes of the Service, means any individual employees, agents, or contractors of Customer or a Customer Constituent as applicable, who access the Service under the rights granted to Customer and/or Customer Constituent, pursuant to these Terms. As a Customer or Customer Constituent you acknowledge and agree that, as between us and you, you are responsible for any act or omission by an authorized User which, if undertaken by you, would constitute a breach of these Terms. You agree to undertake reasonable efforts to make all your authorized Users aware of these provisions as applicable to such Users and to you.
(d) Users. A “User” is anyone who accesses the Service under the rights granted hereunder. If you are a User, you accept responsibility for yourself in the use of the Service. The Service is designed for your active engagement in membership, registrant, attendee, or event management, however you acknowledge that your relationship with Customer or Customer Constituent or your own authorized Users, as applicable, is with them (as your employee/employer, or contractor/agent/principal) and independent of your use of this Service. By using the Service, you agree not to hold the Company liable in any way for any issues between you and Customer or Customer Constituent or with your own authorized User(s). Additionally, you agree and understand that you are subject at all times to these Terms and all additional policies hereby incorporated by reference.
- USE OF THE SERVICE.
For as long as you agree to these Terms and abide by them, you may use the Service. These Terms apply to all Users of the Service, including Visitors and Registered Users (Customers, Customer Constituents, authorized Users), who are also contributors of User Content. The Service is licensed, not sold, to you.
(a) Grant of a Limited License to Use the Service. The Service is protected by copyright laws throughout the world. Subject to your agreement, continuing compliance with these Terms, and any other relevant Company policies, Company grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to use the Service and/or download, and use a copy of the Mobile App or client-software on a mobile device or computer that you own or control and to run such copy solely for your own individual, non-commercial purposes only. You agree not to use the Service for any other purpose. If you are Customer or Customer Constituent, your rights include those granted in Section 6(c).
(b) API credentials. If you are a Customer, in order to access the Service, you may need to use our API. For this purpose, the Company grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access, use, and integrate the Service with your application(s) in accordance with this Agreement (“API License”). This API License may be immediately revoked or terminated by the Company if you share your API Credentials with any third party (other than third party service providers who need such information in order to perform services for you) or if you breach this Agreement. In order to access and use the Company API, the Company will provide you with credentials in the form of a key and secret specific to you (“API Credentials”). The API Credentials are confidential information and property of the Company. You are responsible for maintaining commercially reasonable security and control of your API Credentials in accordance with this section. You are prohibited from selling, transferring, sublicensing, or disclosing the API Credentials to any third party, other than to your third-party service providers who need such information in order to perform services for you, if applicable. The Company may immediately revoke the API Credentials if you breach this Agreement.
(c) Restrictions. You may not (i) remove any copyright, trademark or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted by the Company; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (v) link to, mirror or frame any portion of the Service except as expressly permitted by the Company; (vi) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; or (vii) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks.
(d) Registration Data. In registering for the Service, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (A) notify the Company immediately of any unauthorized use of your password or any other breach of security by emailing us (please refer to our Contact Us page for applicable email information); and (B) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information. You agree that you shall not have more than one Account for personal use at any given time. The Company shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that the Company considers insecure or inappropriate, the Company will be entitled to require this to be changed and/or terminate your Account. The Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to register for an Account on behalf of an individual other than yourself, or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group, organization, or entity to these Terms. By registering another person, group, organization, or entity you hereby represent that you are authorized to do so. You agree not to create an Account or use the Service if you have been previously removed by the Company, or if you have been previously banned from any of the Company properties.
(e) Data Network and Internet Access. When you access the Service through a mobile network, your network or roaming data services, data and other rates and fees will apply. Downloading, installing or using certain services may be prohibited or restricted by your network provider and not all features of the Service may work with your network provider or device. The Service may require an Internet connection to access Internet-based features, authenticate the Service, real-time messaging or perform other functions. You acknowledge that you may be charged by your network service provider and shall be responsible for any such charges for Internet access.
(f) Company Responsibilities. As part of the Service, the Company will provide Customer with the Company’s standard support and service level commitment for the Service in accordance with its standard policies under the terms of the Service Level Agreement, except for any unavailability caused by circumstances beyond the Company’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, epidemic, civil unrest, act of terror, strike or other labor problem (other than one involving the Company’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack. The Company reserves the right to modify its maintenance and support services documentation from time-to-time and, other than immaterial changes and corrections, will give Customer reasonable notice of modifications thereto. Additionally, the Company has implemented industry standard technical and organizational measures designed to secure the Service and User Content from accidental loss and unauthorized access, use, alteration or disclosure; as further set forth in our Security Statement. Notwithstanding the foregoing, the Company cannot guarantee that unauthorized third parties will never be able to defeat those measures to gain access to the Service, and as such, Customer understands that its use of the Service is at Customer’s own risk. Notwithstanding the foregoing, each party shall take, and hereby represents that it has taken, all steps to ensure the reliability and security of its systems; and that it will comply with their respective systems, network and data security policies.
- BETA OR NON-PRODUCTION FUNCIONTALITY.
If you register for a “beta functionality” or “beta account” or “sandbox service” or other non-production or pre-release version of the Service (each a “Non-Production Offering”), you acknowledge and agree that the Non-Production Offering may contain, in the Company’ sole discretion, more or fewer features or different licensing terms than a subsequent commercial release or production version of the Service that may be offered through the Site. You acknowledge and agree that any pre-release “beta account” will automatically convert to a commercial release version account upon the launch date of the Service or functionality to the public (“Public Launch Date”). If you do not desire to continue using the Service or functionality after a Public Launch Date, you may contact the Company to delete your account in accordance with the terms and conditions governing deletion of personal information set forth in the Company’s Privacy Policy. While the Company generally intends to distribute commercial release versions of any functionality of the Service, the Company reserves the right not to release later commercial release versions of any Non-Production Offering. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Non-Production Offering is not considered by the Company to be suitable for commercial or in production use, and that it may contain errors affecting its proper operation. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT USE OF A NON-PRODUCTION OFFERING MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICE THAT MAY BE OFFERED THROUGH THE SITE. COMPANY SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY NON-PRODUCTION OFFERING.
- PROFESSIONAL SERVICES
(a) Professional Services. “Professional Services” means, in each instance, those services provided by the Company to Customer, pursuant to a Statement of Work, including without limitation, integration, configuration, training, consulting or other professional services. A “Statement of Work” means one or more ordering documents for purchases of Professional Services that are executed by Customer and the Company, from time to time. Each Statement of Work shall contain, at a minimum, the following information: (i) the scope of the Professional Services to be provided; (ii) applicable rates and fees; (iii) responsibilities and dependencies of each Party; (iv) agreed upon Work Product and specific deliverables, if any; and (v) signatures of authorized representatives of both Parties. Statement of Works are incorporated into these Terms by reference.
(b) Ordering Professional Services. The Parties may, but are under no obligation to, enter into one or more Statement of Works for Professional Services to be performed by the Company. No Professional Services shall be furnished to Customer by virtue of these Terms alone but shall require the execution of a Statement of Work by both Parties.
(c) Scope Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Statement of Work by making a written request to the Company specifying the desired modifications. The Company shall submit an estimate of the cost for such modifications and a revised estimate of the time for performance pursuant to the Statement of Work. Modifications in any Statement of Work shall become effective only when a written change request is executed by authorized representatives of both Parties.
(d) Company Personnel. The Company shall be responsible for securing, managing, scheduling, coordinating and supervising Company personnel, including its subcontractors, performing the Professional Services. The Company may designate a Company project manager in a Statement of Work who will be responsible for coordinating the Company’s provision of Professional Services under such Statement of Work. The Company shall have the right to remove or replace any personnel providing Professional Services with similarly skilled personnel. If key personnel are requested, the Company shall provide reasonable notice to Customer of any change in personnel providing Professional Services. The Company may, in its sole discretion, subcontract or delegate any work under any Statement of Work to any third party without Customer’s prior written consent, provided that the Company shall remain responsible for the performance, acts and omissions of any such subcontractors. Customer may request that the Company remove or replace Company personnel solely for reasons that are not unlawful, including if Customer believes, in Customer’s reasonable discretion, that such personnel’s involvement is inappropriate, unsafe or detrimental to the delivery of the Professional Services. In the event such a request is made, any project timelines shall automatically extend by the amount of time required to replace said personnel and assimilate them into the project.
(e) Cooperation. Customer shall perform its obligations as set forth in the applicable Statement of Work, as well as the following obligations: (i) provide sufficient, qualified, knowledgeable personnel capable of (1) performing Customer obligations set forth in each Statement of Work; (2) making timely decisions necessary to move the Professional Services forward; and (3) participating in the project and assisting the Company in rendering the Professional Services; and (ii) in the case of on-site Professional Services, provide the Company with reasonable access to Customer’s facilities during Customer’s normal business hours and otherwise as reasonably requested by the Company, including such working space as the Company may reasonably request. Customer acknowledges and agrees that the performance by Customer of its obligations is material to the Company’s ability to commence, proceed with and complete the Professional Services. In the event Customer does not perform Customer obligations in a timely manner, the Company may take any action as set forth in the applicable Statement of Work, or terminate the applicable Statement of Work in accordance with these Terms.
(f) Work Product. “Work Product” means any expression of the Company’s findings, developments, inventions, analyses, conclusions, opinions, recommendations, ideas, techniques, designs, programs, enhancements, derivatives, improvements, modifications, interfaces, software, and other technical information resulting from the performance of Professional Services, support services, or any other services performed for the benefit of Customer. Unless otherwise specified in the applicable Statement of Work, all Work Product created under these Terms, including all Intellectual Property Rights related thereto, is owned by the Company. Regarding Work Product created under a Statement of Work, and these Terms, that is owned by the Company, and is made available to Customer to enable Customer’s use of the Service pursuant to these Terms, the Company hereby grants Customer a worldwide, non-exclusive, non-transferrable, non-sublicensable right and license to use the Work Product, solely in connection with Customer’s use of the Service. Unless otherwise specified in the applicable Statement of Work, to the extent Customer acquires any rights in the Work Product, Customer hereby assigns such rights to the Company. Customer shall give the Company all reasonable assistance and execute all documents necessary to assist or enable the Company to perfect, preserve, register and/or record such assignment and the Company’s rights in any Work Product.
For sake of clarity, the fact that Customer uses the Service in any particular manner or configuration is Customer’s Confidential Information. However, Customer acknowledges that it does not receive any exclusive right under these Terms to use the Service in any particular manner or configuration, and that the Company reserves any Intellectual Property Rights that are embodied by or practiced by the use of the Service in a particular manner or configuration. For example, no exclusive rights are granted, and the Company reserves any intellectual property rights in, any methodologies, data models, work-flow, reports, or interfaces that are practiced or embodied by implementing the Service in a particular configuration using the Service’s non-customized code or configurable code. For the purpose of the foregoing, “configuration” means the methodical process of making the Service ready to use, including defining pre-set options, values of parameters, and configuring set-ups, templates, and/or components that make up the system or Service.
- OUR ACCEPTABLE USE POLICY AND OUR COMMUNITY.
To use our Service, you agree to and warrant that you will comply at all times with our Acceptable Use Policy, as may be amended from time to time, which regulates prohibited and/or acceptable practices relating to the use of our Service, including limitations on User Content, prohibited activities, system abuse and security. If you do not agree with our Acceptable Use Policy, you must discontinue use of the Service. The Acceptable Use Policy is hereby incorporated by reference.
- SUBSCRIPTIONS; PAYMENTS; AND CANCELLATIONS.
(a) Subscriptions. By executing a Contract (order form or otherwise) and/or by registering for an Account, you obtain access to the Service (a “Subscription”). Each Subscription and the rights and privileges provided therein is personal and non-transferable. Paid Subscriptions may include premium and/or additional features and services not available to free Subscriptions. Subject to Section 2(b), the Company reserves the right to change prices for paid Subscriptions at any time and does not provide price protection or refunds in the event of promotions or price decreases.
(b) Payments. If you purchase any services that we offer for a fee, either on a one-time or on a Subscription basis, you agree and consent to the Company’s use of third-party payment providers for billing and processing online payments, and you agree to pay the applicable fees for the Subscription (including, without limitation, periodic fees for monthly or annual Subscriptions) as they become due, plus all related taxes, and to reimburse us for all collection costs and interest for any overdue amounts. Your obligation to pay fees continues through the end of the Subscription Term (defined in Section 10(c) below).
If you do not pay on time or if the Company cannot charge your payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Service and Account and terminate these Terms. You are expressly agreeing that the Company is permitted to bill you for any applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Service and the fees will be billed to the payment method designated on your registration with the Service and, if applicable, thereafter at regular intervals for the remainder of your Subscription Term. By providing a payment method, you expressly authorize the Company to charge said payment method at regular intervals subject to your particular Subscription. If you have a balance due on any Account, you agree that the Company may charge such unpaid fees to your payment method or otherwise bill you for such unpaid fees.
(c) AUTOMATIC RENEWAL TERMS. To facilitate continuity of the Service to you, each Subscription contains automatic renewal terms. The Company will automatically renew your paid Subscription as per the Subscription period of your choosing (each a “Subscription Term”), on the anniversary of the date that the Company first charges your Account for the first Subscription fee, and, as authorized by you during the Subscription sign-up process, the Company will charge your Account with the applicable Subscription fee and any sales or similar taxes that may be imposed on your Subscription fee payment (unless you opt not to renew). Each Subscription renewal period is for the same Subscription Term as the prior one, unless otherwise agreed between you and the Company. The Company reserves the right to modify pricing at any time (but not the price in effect for your then-current Subscription Term), upon advance notice to you. If you have not cancelled your Subscription or turned off the auto-renew function within the specified time after receiving notice of a price change, your Subscription will auto-renew at the price indicated in your notice.
(d) CANCELLATION TERMS. You may cancel your Subscription at any time, and such cancellation shall become effective upon expiration of your then-current Subscription Term. You agree and understand that you will be charged Subscription fees until the expiration of your then-current Subscription Term and Subscription fees will not be refunded, in whole or in part, subject to applicable law. You will not be eligible for a pro-rated refund of any portion of the Subscription fees paid for any unused days of the then-current Subscription Term. If you have any problems or concerns with your cancellation, please Contact Us for assistance. Information regarding cancelling your Service can be found here.
- USER CONTENT.
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available (“Make Available”) on or through the Service (each such submission “User Content”). You may not Make Available on this Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or any other proprietary right owned by a third-party, and the burden of determining whether any such right protects any material is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any User Content that you make or submit. As between you and us, you own your User Content and you have full responsibility for each User Content you make or submit, including its legality, reliability and appropriateness.
You hereby grant to the Company a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your User Content, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and otherwise use and commercialize the User Content in any way that the Company deems appropriate, without any further consent, notice and/or compensation to you or to any third parties.
You also authorize others to use the User Content that you publicly share or Make Available through the Service.
You may delete, or request deletion of your User Content at any time, unless you have shared such User Content with others and they have not deleted it, or it was copied or stored by other Users. Any User Content you submit is at your own risk of loss, and if shared publicly, non-confidential.
The Company agrees to use any personal information contained in any of your User Content in accordance with the Company’s Privacy Policy, to the extent applicable. Additionally, please note that certain information, statements, data, and content (such as photographs) which you may submit to the Company, or groups you choose to join might, or are likely to, reveal your gender, ethnic origin, nationality, age, and/or other personal information about you. You acknowledge that your submission of any User Content is voluntary on your part.
We may modify or adapt your User Content in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the User Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media.
When you provide User Content you agree that such User Content shall not be in violation of the Acceptable Use Policy. Those prohibitions do not require the Company to monitor, police or remove any User Content or other information submitted by you or any other user. Notwithstanding the foregoing, the Company reserves the right to remove any User Content from its Service at any time and for any or no cause. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any User Content posted by you to or through this Service.
If you use any rating feature of the Service and/or if you send or transmit any communications, comments, questions, suggestions, or related materials to the Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Service, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. The Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that the Company may use any of this Feedback in aggregated or non-aggregated from, however the Company is not obligated to use, display, reproduce, or distribute any such ratings, ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
- FORUMS AND MESSAGING.
The Company may offer various forums where you can post your observations and comments on designated topics. The Company also enables sharing of information by allowing Users to post updates, including links to news articles and other information to their profile and other parts of the Service. By offering this feature, the Company is merely acting as an intermediary and is not responsible and shall not be liable for such communications. Please note that ideas you post and information you share may be seen and used by other Users, and the Company cannot guarantee that other Users will not use the ideas and information that you share on the Service. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, or that is subject to third party rights that may be infringed by your sharing it, do not post it on the public forums of the Service. Please refer to Section 14 below and our Copyright Policy for more information regarding how we treat infringing content.
COMPANY IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION POSTED IN ANY COMPANY COMMUNITY FORUMS.
- COMPANY INTELLECTUAL PROPERTY OWNERSHIP.
The Service and all proprietary and intellectual property rights embodied and practiced therein, including the look-and-feel of the Site, are and shall remain the Company’s property (or the property of the Company’s licensors). Neither these Terms nor your use of the Service convey or grant to you any rights: (i) in or related to the Service except for the limited license granted above; or (ii) to use or reference in any manner the Company’s company names, logos, product and service names, trademarks or services marks or those of the Company’s licensors. There are no licenses by implication. If you breach any of these Terms, the above license will terminate automatically, and you must stop using the Service and immediately destroy any materials downloaded or printed from the Service.
- INTELLECTUAL PROPERTY INFRINGEMENT AND NOTIFICATIONS.
The Company does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and the Company will remove User Content if properly notified that such User Content infringes on another’s intellectual property rights (please refer to our Copyright Policy). The Company reserves the right to remove User Content without prior notice.
- TERM AND TERMINATION.
The Terms commence on the date when you start using the Service and remain in full force and effect while you use the Service, unless terminated earlier in accordance with the Terms. If you want to terminate the Service, you may do so by (a) notifying the Company at any time and your Subscription will terminate at the end of the Subscription; (b) closing your Account; and/or (c) if you are Visitor, stop visiting the Site. We reserve the right to terminate or suspend your account or access to the Service at any time and for any reason. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account, or anything associated with it. Termination of the Service includes (i) automatic termination of all licenses and you must immediately destroy any downloaded or printed Materials (including software); and (ii) deletion of your password and related information, files and content associated with or inside your Account (or any part thereof), including User Content, except to the extent of any surviving licenses or applicable record retention requirements. The Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Content. All provisions of the Terms, which by their nature should survive, shall survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
You may close your Account by using the feature provided in the Service or, in the alternative, by emailing us. Please refer to our Contact Us page for contact information. We will proceed to close your Account and send you an email confirmation.
- THIRD-PARTY SITES AND OFFERINGS.
The Company or other third parties may make available to Customer certain software or services delivered or performed by third parties that may be used in conjunction with the Service, including associated offline products provided by third parties, that interoperate with the Service (“Third-Party Offerings”). Any acquisition by Customer of any such Third-Party Offerings, and any exchange of data between Customer (and Customer Constituents and authorized Users) and any provider of a Third-Party Offering, is solely between Customer and the applicable provider of the Third-Party Offering. The Company does not warrant or support any Third-Party Offering, whether or not they are designated by the Company as “certified” or otherwise. If Customer installs or enables any Third-Party Offering for use with the Service, Customer acknowledges that the Company may allow providers of that Third-Party Offering to access User Content as required for the interoperation and support of such Third-Party Offering with the Service. The Company shall not be responsible for any disclosure, modification or deletion of User Content resulting from any such access by the providers of Third-Party Offerings.
The Service may also be linked to other websites that are not Company properties (collectively, “Third-Party Sites”). You acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than the Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, user guides and privacy policies of any Third-Party Sites. The Company does not verify, make any representations or take responsibility for any Third-Party Site, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference on the Service to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply the Company’s endorsement or recommendation.
- DISCLAIMER OF WARRANTIES.
(a) Generally. You use the Service at your own risk. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY (ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSOCIATES, PARTNERS, LICENSORS AND SUPPLIERS) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(b) Disclaimer of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE.
- LIMITATION OF LIABILITY.
NOTHING IN THESE TERMS SHALL AFFECT YOUR LEGAL RIGHTS AS A CONSUMER OR EXCLUDE OR LIMIT ANY LIABILITY, WHICH CANNOT BE LEGALLY EXCLUDED, OR LIMITED.
THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, REMOTE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO THE EXCLUSIONS EXPRESSLY SET FORTH IN THIS SECTION, IN ALL EVENTS, THE COMPANY SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO THE COMPANY IN ACCORDANCE WITH THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO THE COMPANY DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND THE COMPANY’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH THE COMPANY IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. To the extent that the Company may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth in these Terms, the scope of such warranty, and the extent of the Company’s liability, shall be the minimum permitted under such applicable law.
- INDEMNITY.
You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees’) relating to or arising out of: (a) Your User Content; (b) your use of, or inability to use, the Service; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Service.
- INTERACTIONS BETWEEN USERS.
You are solely responsible for your interactions with other Users of the Service and any other parties with whom you interact through the Service. The Company may limit the number of connections you may have to other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Service or otherwise limit your use of the Service. The Company reserves the right, but has no obligation, to monitor or become involved in any way with these disputes. You will fully cooperate with the Company to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting the Company access to any password-protected portions of your Account. The Company reserves the right to restrict, suspend, or close your account if the Company determines, in our sole discretion, that doing so is necessary or in our best interests.
If you have a dispute with one or more Users, you release the Company (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If you are a California resident, you waive California Civil Code § 1542, which says: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
- LOCAL LAWS.
The Company controls and operates the Service from its headquarters in the United States of America and it may not be appropriate or available for use in other locations outside of the United States of America. If you use the Service outside the United States of America, you are responsible for following applicable local laws.
- SPECIAL PROVISIONS FOR MOBILE APPLICATIONS.
(a) App Stores. You acknowledge and agree that the availability of the Mobile App and the Service is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Service, including the Mobile App, the content thereof, maintenance, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Service, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Service, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
(b) Additional License Terms for use of the Service in conjunction with the Apple App Store. With respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on Apple-branded products that run the iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple Terms of Service. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and the Company only, and not Apple; and (ii) the Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between the Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
- You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and the Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(c) Additional License Terms for use of the Service in conjunction with the Android App Store. The following additional terms and conditions apply with respect to any Mobile App that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and the Company only, and not with Google, Inc. (“Google”).
- Your use of the Company’s Android App must comply with Google’s then-current Google Play Terms of Service.
- Google is only a provider of the Android App market where you obtained the Android App. The Company, and not Google, are solely responsible for the Company’s Android App and the services and content available thereon. Google has no obligation or liability to you with respect to the Company’s Android App or these Terms.
You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Company’s Android App.
(d) Geo-Location Terms. The Service may include and/or make use of certain functionality and services provided by third parties that allow the Company to include maps, geocoding, places and other content as part of the services (the “Geo-Location Services”). The Geo-Location Services may be provided by Google Inc., in which case your use of the Geo-Location Services will be subject to Google’s then current Terms of Use for Google Maps/Google Earth. By using Google’s Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use and the current Google privacy policy.
- DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read this carefully if you are a resident of the United States of America. It affects your rights.
(a) Applicable Law. These Terms will be subject to and construed in accordance with the laws of the State of Georgia, United States of America, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against the Company must be resolved exclusively by a state or federal court located in the State of Georgia, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in Fulton County, Georgia for the purpose of litigating all such claims or disputes.
(b) Dispute Resolution. Before either party may seek arbitration as provided below, the party must first send to the other party a written notice of dispute (“Notice“) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding as provided below.
(c) Arbitration. You agree that the Company may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event the Company elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through the American Arbitration Association or another established alternative dispute resolution provider (collectively, “ADR”) chosen by the Company. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, in which case the location of the arbitration shall be Fulton County, Georgia; and (iii) the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.
(d) Waiver of Jury Trial. YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
- ELECTRONIC COMMUNICATIONS.
The communications between you and the Company will use electronic means, whether you visit the Site, send the Company e-mails, or use the Service or whether the Company posts notices on the Site or communicates with you via e-mail.
CONSENT TO ELECTRONIC COMMUNICATION
For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. Where the Company requires that you provide an e-mail address; you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. We are not responsible for any automatic filtering you or your network provider may apply to communications we send to an e-mail address that you provide to us.
MOBILE MESSAGING TERMS
When you provide us with your mobile telephone number, you agree that the Company may send you text messages (including SMS and MMS) to that mobile telephone number. The Company may send you up to five text messages per month. When you first provide your mobile telephone number to us, you will receive a confirmation text message and you may need to reply as instructed to complete registration. The Company will never charge you for the test messages you receive, however you may see message and data rate charges from your mobile provider, though, so be sure to check your plan. You are responsible for the payment to your mobile provider of any message, data and other charges related to text messages, including for confirmation texts you receive and your responses thereto.
You may opt-out of receiving any future text messages from the Company at any time by either replying to a text message with the keyword “STOP”. If you opt-out, you agree to receive a final text message confirming your opt-out. When you opt-out of text messaging, you will no longer receive any text messages unless you re-subscribe. In addition, for assistance, you may reply to any text message with the keyword “HELP”. Texts may be sent through an automatic telephone dialing system. Consent to receive mobile messages is not required as a condition to using the Website or to purchase any goods or services on the Website.
You agree to notify us of any changes to your mobile telephone number by clicking the “Manage Preference” link at the bottom of any Subscription or by sending us an email with “Update Mobile Number” in the subject line. Please refer to our Contact Us page for applicable email information. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
- CONSUMER NOTICE.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided by MemberSuite, Inc. If you have a question or complaint regarding the Service, please contact the Company’s Customer Service at Contact Us Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
- GENERAL.
These Terms, together with our Privacy Policy, Acceptable Use Policy, Copyright Policy, any separate Contract we may have executed directly with you, all policies incorporated by reference, and any Additional Terms that we may make available from time to time through our internet properties, constitute the entire agreement between you and the Company regarding your use of our Service and supersede and replace any prior written or oral agreements regarding the foregoing. Our failure to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Neither the rights nor obligations arising under these Terms are assignable by you. Any such attempted assignment or transfer shall be void and without effect. We may assign these Terms without restriction.
- CONTACT US.
If you have any questions about these Terms or otherwise need to contact the Company for any reason, you can reach us, as applicable,
If related to MemberSuite services, please contact us at MemberSuite, Inc, 47 Perimeter Center E, Suite 300, Atlanta, GA 30346, USA with a copy to info@membersuite.com; or call us at +1 (678) 606-0310
© 2021 MemberSuite, Inc. All rights reserved.
Terms of Service (prior to May 5, 2021)
This MemberSuiteTM Terms of Service (“Agreement” or “Terms of Service”) is a legal agreement between you (“Customer”) and MemberSuite, Inc. (“MemberSuite”) for access to the MemberSuite Service, which includes access to computer software and associated MemberSuite Documentation. The MemberSuite Service also includes any updates and supplements to the original MemberSuite Service to which you are provided access by MemberSuite during the term of this Agreement. Any product provided along with the MemberSuite Service that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement.
BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE MEMBERSUITE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OR ACCESS THE MEMBERSUITE SERVICE.
1. Terms of MemberSuite Service. Capitalized terms not otherwise defined herein shall have the meaning given to them in the MemberSuite Master Agreement signed by Customer (the “Master Agreement”). In addition, Customer agrees that unless explicitly stated otherwise, any new features provided by MemberSuite that augment or enhance the MemberSuite Service, and/or any new MemberSuite Service(s) which are subsequently purchased by the Customer will be subject to this Agreement. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE MASTER AGREEMENT. MemberSuite grants Customer the non-exclusive, non- transferable and terminable right to access the features and functions of the MemberSuiteTM Service as more fully set forth in the Master Agreement.
2.1. Customer Must Have Internet Access. In order to use the MemberSuite Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
2.2. Accuracy of Customer’s Registration Information. Customer agrees to provide accurate, current and complete information (“Registration Data”) about Customer. MemberSuite may provide Customer with the option to provide this information online, in order to gain access to the MemberSuite Service. Customer further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Customer acknowledges and agrees that if Customer provides information that is intentionally inaccurate, not current or incomplete in a material way, or MemberSuite has reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, MemberSuite has the right to suspend Customer’s account.
2.3. Email and Notices. Customer agrees to provide MemberSuite with Customer’s e-mail address, to promptly provide MemberSuite with any changes to Customer’s e-mail address, and to accept emails (or other electronic communications) from MemberSuite at the e-mail address Customer specifies. Except as otherwise provided in this Agreement, Customer further agrees that MemberSuite may provide any and all notices, statements, and other communications to Customer through either e-mail or posting on the MemberSuite Service.
2.4. Passwords, Access, and Notification. Customer may designate Authorized Users under Customer’s account and Customer may provide and assign unique passwords and user names to each Authorized User. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer’s (including its employees’ and members) passwords and user names. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the MemberSuite Service or under Customer’s account (“Electronic Communications”). MemberSuite will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer agrees to immediately notify MemberSuite if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number.
2.5. Customer’s Lawful Conduct. The MemberSuite Service allows Customer to send Electronic Communications directly to MemberSuite and to third-parties. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection
with its use of the MemberSuite Service, including without limitation those related to privacy,
electronic communications, and anti-spam legislation. Customer will not send any Electronic Communications from the MemberSuite Service that is unlawful, harassing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the MemberSuite Service may be
copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the MemberSuite Service by any means other than through the interfaces that are provided by MemberSuite. Customer shall not license, rent, sell, lease, transfer,
assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the MemberSuite Service available to any third party other than an Authorized User, including but not
limited to, creating Internet Links to the MemberSuite Service which include login information, including but not limited to, user names, passwords, secure cookies, and/or “mirroring” or “framing”
any part of the MemberSuite Service. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by MemberSuite. Neither Customer, nor someone acting on Customer’s behalf, will use the MemberSuite Service to target for solicitation any MemberSuite customers for purposes of providing any competitive product. Customer will ensure that any use of the MemberSuite Service by Customer’s employees (or users) is in accordance with the terms and conditions of this Agreement.
2.6. Third-Party Software. Customer agrees to use software produced by third parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by MemberSuite. Until notified otherwise by MemberSuite, Customer agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by MemberSuite and to follow logon procedures for MemberSuite Services that support such protocols. Customer acknowledges that MemberSuite is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by MemberSuite or telecommunications facilities, including, but not limited to, the Internet.
2.7. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the MemberSuite Service. Customer expressly consents to MemberSuite’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by MemberSuite. Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that MemberSuite is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by MemberSuite.
2.8. Links; Third Party Offerings. The MemberSuite Service may provide, or third parties may provide, links to other World Wide Web sites or resources. MemberSuite has no control over such sites and resources and Customer hereby acknowledges and agrees that MemberSuite is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. In addition, MemberSuite reserves the right to maintain on the MemberSuite Service the MemberSuite logo.
2.9. MemberSuite’s Support. MemberSuite will make commercially reasonable efforts to promote Customer’s successful utilization of the MemberSuite Service, including but not limited to providing Customer with MemberSuite Online User Guides and online help. MemberSuite also offers Customer Support and Professional MemberSuite Services consultation. Customer acknowledges that MemberSuite has extensive experience helping Customers improve utilization and realization of benefits of the MemberSuite Service, and that not following the advice of MemberSuite, or other MemberSuite authorized implementation partner, in these areas may substantially undermine Customer’s successful utilization of the MemberSuite Service.
2.10. Proprietary Rights. Customer acknowledges and agrees that the MemberSuite Service and any necessary software used in connection with the MemberSuite Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content or information presented to Customer through the MemberSuite Service may be protected by copyrights, trademarks, MemberSuite Service marks, patents or other proprietary rights and laws.
2.11. Trademark Information. MemberSuiteTM, the MemberSuite logoTM, and other MemberSuite Service marks, logos and product and MemberSuite Service names are marks of MemberSuite (the “MemberSuite Marks”). Customer agrees not to display or use the MemberSuite Marks in any manner without the owner’s express prior written permission.
2.12. Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure, whether such disclosure was in oral or written form, as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations hereunder; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). MemberSuite will restrict its employees’ access to Customer’s Confidential Information to only those employees necessary to provide the MemberSuite Service. MemberSuite may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their MemberSuite Service for MemberSuite in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section 2.12 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure. With respect to any information received by either party from the other as a result of any other relationship between the parties other than as set forth in this Agreement (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any Nondisclosure Agreement (or similar agreement) executed between the parties.
2.13 Storage Limits. MemberSuite currently limits the amount of database storage associated with particular MemberSuiteTM service offerings. Any customers using database storage in excess of the limits for their chosen service level will be charged additional fees.
2.14 Privacy Policy. MemberSuite’s privacy policy (the “Privacy Policy”) sets forth MemberSuite’s practices regarding the collection and use of information that MemberSuite collects from customers through use of the MemberSuite site and MemberSuite Services. The terms of such Privacy Policy are incorporated herein by reference.
3. Warranties.
3.1. Warranty of Functionality. MemberSuite warrants to Customer during the Term of this Agreement that the MemberSuite Service will substantially conform in all material respects the functionality described in the MemberSuite Online User Guides and in other related MemberSuite Documentation applicable to the products accessed by customer and that similar functionality will be maintained in all material respects in subsequent upgrades to the MemberSuite Service. MemberSuite does not warrant that the MemberSuite Service will be error-free and such warranty is conditional upon Customer’s compliance with the terms of this Agreement. Customer’s sole and exclusive remedy for MemberSuite’s breach of this warranty shall be that MemberSuite shall be required to use commercially reasonable efforts to modify the MemberSuite Service to substantially conform to all material respects the functionality described in the User Guides and other related MemberSuite Documentation and if MemberSuite is unable to restore such functionality Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the fees paid for under the Agreement for its use of the MemberSuite Service. MemberSuite shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to billing@membersuite.com.
3.2. MemberSuite Service Level Warranty. MemberSuite warrants during the Term of this Agreement that the MemberSuite Service will meet the MemberSuite Service levels in any month, as outlined in Schedule A which is attached to and made a part of this Agreement. In the event that MemberSuite fails to meet the MemberSuite Service levels outlined in Schedule A, Customer’s sole and exclusive remedy, in MemberSuite’s sole discretion, is that MemberSuite will provide Customer with a credit if such credit is set forth in Schedule A. Any credit is expressly conditioned upon Customer providing MemberSuite written notice of such failure sent to billing@membersuite.com by the tenth day of the month following such MemberSuite Service level failure.
3.3. Security, Data Maintenance and Backup Warranty. MemberSuite warrants during the Term of this Agreement that MemberSuite will use commercially reasonable efforts to provide that the information provided by the Customer(“Customer’s Data”) will be safeguarded and maintained in conformance with Schedule B which is attached to and made a part of this Agreement. MemberSuite also warrants that it will utilize and maintain commercially reasonable security and backup procedures to protect Customer Data. In the event of a breach of this provision, MemberSuite will use commercially reasonable efforts to correct the Customer’s Data or restore the Customer’s Data as quickly as possible but in any event within three (3) business days. In the event MemberSuite is unable to correct or restore Customer’s Data as provided in this Section 3.3, Customer’s sole and exclusive remedy shall be that it may, at its option, terminate the Agreement and receive a pro-rata refund of the fees paid for under the Agreement for its use of the MemberSuite Service but which use has not yet been furnished by MemberSuite as of the date of such termination.
4. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, MEMBERSUITE DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE MEMBERSUITE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE MEMBERSUITE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE MEMBERSUITE SERVICE AND/OR MEMBERSUITE DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE MEMBERSUITE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY MemberSuite. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 3 ABOVE, THE MEMBERSUITE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE MEMBERSUITE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
5. Limitations of Liability. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH MEMBERSUITE IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY MEMBERSUITE OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. OTHER THAN FOR A VIOLATION OF CUSTOMER’S ACCESS RIGHTS OR SECTION 2.12 HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding the foregoing the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any access, use or other employment of the MemberSuite Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, tort, or otherwise, shall in no case exceed the equivalent of the preceding 12 months in access fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the access of the MemberSuite Service and that, were MemberSuite to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 BELOW.
6. Indemnification.
6.1. Infringement. MemberSuite will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising solely out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from the infringement of any copyright, patent, trademark, or misappropriation of a trade secret relating to the MemberSuite Service; provided that Customer (a) promptly gives MemberSuite notice of the claim, suit, action, or proceeding; (b) gives MemberSuite sole control of the defense and related settlement negotiations; and (c) provides MemberSuite with all reasonably available information and assistance necessary to perform MemberSuite’s obligations under this paragraph. If the MemberSuite Service solely is held to infringe any intellectual property right, MemberSuite may, in its sole discretion and at its own expense, use commercially reasonable efforts to either procure rights that will protect Customer against such claim without cost to Customer or replace the MemberSuite Service with a non- infringing MemberSuite Service. Provided that MemberSuite complies with this Section 6.1, Customer shall have no remedy against MemberSuite, except it may at its option terminate the Agreement and receive a pro-rata refund of the fees paid for under the Agreement for Customer’s use of the MemberSuite Service but which use has not yet been furnished by MemberSuite as of the date of such termination.
6.2. Disclosure of Customer Data. MemberSuite will fully indemnify, defend and hold Customer harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from MemberSuite’s gross negligence in preventing unauthorized access to confidential Customer data, or MemberSuite’s willful disclosure of such confidential Customer data, as determined by a court of competent jurisdiction in connection with a claim by a third party alleging a breach of confidentiality. In addition, MemberSuite will indemnify Customer up to an amount not to exceed the total value of access fees actually paid during the term of Customer’s agreement , from and against any Losses incurred by Customer with respect to any third party claim, suit, action, or proceeding arising out of or relating to MemberSuite’s breach of Section 2.12 of this Agreement (which breach that does not rise to the level of gross negligence in preventing unauthorized access to confidential Customer Data or MemberSuite’s willful disclosure of such confidential Customer Data as described in Section 6.2). MemberSuite’s indemnification obligations under this Section 6.2 are expressly premised upon Customer (a) promptly giving MemberSuite notice of any such third party claim, suit, action, or proceeding; (b) giving MemberSuite sole control of the defense and related settlement negotiations; and (c) promptly providing MemberSuite with all reasonably available information and assistance necessary to perform MemberSuite’s obligations under this Section 6.2. Provided that MemberSuite complies with this Section 6.2, Customer shall have no remedy against MemberSuite, except it may at its option terminate the Agreement and receive a pro-rata refund of the access fees paid for under the Agreement for its use of the MemberSuite Service but which use has not yet been furnished by MemberSuite as of the date of such termination.
6.3. Customer’s Infringement. Customer shall defend and hold MemberSuite harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding (i) alleging that Customer Data or any Trademarks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party; (ii) of Customer’s breach of Section 2.6 and 2.13 above; (iii) of a modification by Customer of the MemberSuite Service giving rise to such infringement; (iv) of Customer’s combination, interface, operation or use of the MemberSuite Service with third party technology except for as provided in the MemberSuite Documentation; (v) of misuse of the MemberSuite Service by Customer; (vi) of acts (or any failure to act) by Customer hereunder; or (vii) of any breach by Customer of the Customer obligations hereunder, provided that MemberSuite (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer’s obligations under this paragraph.
6.4. Force Majeure. MemberSuite shall not be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the reasonable control of MemberSuite, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes (except those involving party’s own employees), war, any acts or omissions of any government or governmental authority, declarations of government, transportation delays, power failure, computer failure, telecommunications failure, internet failure and any other events reasonably beyond the control of MemberSuite.
6.5. Survival. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7. Suspension/Termination.
7.1. Suspension for Delinquent Account. MemberSuite reserves the right to suspend Customer’s access and/or use of the MemberSuite Service for any accounts for which any payment is due but unpaid. Customer agrees that MemberSuite shall not be liable to Customer nor to any third party for any suspension of the MemberSuite Service resulting from Customer’s nonpayment of fees as described in this Section 7.1.
7.2. Suspension for Ongoing Harm. Customer agrees that MemberSuite may with reasonably contemporaneous telephonic notice to Customer suspend Customer’s access to the MemberSuite Service, interrupt any queries or batch processes, and generally prevent Customer from using the MemberSuite Service if MemberSuite reasonably concludes that Customer use of the MemberSuite Service is causing immediate and ongoing harm to MemberSuite or others. In the extraordinary event that MemberSuite suspends Customer’s access to the MemberSuite Service, Customer will use commercially reasonable efforts to resolve the issues causing the suspension of MemberSuite Service and agrees that MemberSuite can continue a suspension until the issue is corrected and/or no longer causing harm to MemberSuite or any other MemberSuite customers. Customer agrees that MemberSuite shall not be liable to Customer or to any third party for any suspension of the MemberSuite Service under such circumstances as described in this Section 7.2.
7.3. In The Event of Breach. Other than as noted herein, either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of a material breach of any provision of this Agreement by the other party, provided that, during the thirty (30) day period, the breaching party fails to cure such material breach. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the MemberSuite Service. If this Agreement is terminated as a result of a material breach on MemberSuite’s part, MemberSuite shall refund the pro rata portion of any fee that may have been paid by Customer for the portion of the MemberSuite Service not yet furnished to Customer.
7.4. Handling of Customer Data In The Event Of Termination. Customer acknowledges and agrees that following termination of Customer’s account and/or use of the MemberSuite Service, MemberSuite may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be able to delete Customer’s account and related Customer Data. However, in the event that Customer’s MemberSuite Service with MemberSuite terminates, MemberSuite will grant Customer temporary, limited access to the MemberSuite Service for the sole purpose of permitting Customer to retrieve lawful Customer Data using standard MemberSuite query functionality, provided that Customer has paid in full all good faith undisputed amounts owed to MemberSuite, however, in no event shall such limited temporary access exceed ninety (90) days. Customer further agrees that MemberSuite shall not be liable to Customer or to any third party for any termination of Customer access to the MemberSuite Service or deletion of Customer Data, provided that MemberSuite is in compliance with the terms of this Section 7.4.
8. Modification To or Discontinuation of the MemberSuite Service. MemberSuite reserves the right at any time and from time to time to modify, temporarily or permanently, within MemberSuite’s sole discretion, the MemberSuite Service (or any part thereof). In the event that MemberSuite modifies the MemberSuite Service in a manner which removes or disables a feature or functionality on which Customer materially relies, MemberSuite, at Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that MemberSuite is unable to substantially restore such functionality, Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the fees paid under the Agreement for use of the MemberSuite Service which was paid for by Customer but not yet furnished by MemberSuite as of the date of such termination. Customer acknowledges that MemberSuite reserves the right to discontinue offering the MemberSuite Service at the conclusion of Customer’s then current Term. Customer agrees that MemberSuite shall not be liable to Customer or to any third party for any modification of the MemberSuite Service as described in this Section 8.
9. Modifications. MemberSuite reserves the right at any time and from time to time to modify these Terms of Service by posting the updated Terms of Service. By using the MemberSuite Service after Company has updated the Terms of Service, Customer is agreeing to the updated Terms of Service.
SCHEDULE A
SERVICE LEVEL COMMITMENT FOR SUBSCRIBERS OF MEMBERSUITE
Service Level Commitment
MemberSuite commits to provide 99% service availability with respect to the Customer’s MemberSuite Service during each month of the term (exclusive of any scheduled service downtime). If in any calendar month this uptime commitment is not met, MemberSuite shall provide, as the sole and exclusive remedy, a Customer credit as provided for in this Schedule A. MemberSuite Service Downtime is defined as a period that the MemberSuite Service as provided by MemberSuite is not available to Customer and its Authorized Users as a result of nonscheduled events and starts when Customer first notifies MemberSuite the service is not available, using the prescribed notice procedures, and stops when Customer or one of its Authorized Users is able to login to the MemberSuite Service. Scheduled maintenance as described below is specifically excluded from this commitment.
- For any one (1) month period, if the 99% service availability commitment is not met Customer shall be entitled to a ten percent (10%) credit of their monthly MemberSuite Service fees.
- For any one (1) month period, if a 96% service availability level is not met Customer shall be entitled to a twenty five percent (25%) credit of their monthly MemberSuite Service fees.
- For any six (6) consecutive month period, should MemberSuite fail to meet the 96.5% service availability level for at least three months within that period, and where Customer has notified MemberSuite that 96.5% service availability was not met in each of those three months, such performance shall be considered a material breach and customer may cancel this agreement as provided in section 7.3 herein.
Warranty Limitation
MemberSuite warrants service availability only for that which is provided to Customer by MemberSuite. MemberSuite does not warranty any availability other than as it relates to the MemberSuite Service.
Scheduled and Unscheduled Maintenance
Scheduled maintenance does not count as downtime in calculating service availability. Scheduled maintenance time is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. Scheduled maintenance time occurs at night between 9:00 PM and 5:00 AM Eastern. MemberSuite may be required to periodically schedule emergency maintenance with advance notice of less than two business days. Such scheduled emergency maintenance shall not be counted against the service availability commitment and MemberSuite will use all reasonable efforts to avoid such emergency maintenance. MemberSuite reserves the right on approximately a quarterly basis to issue new releases in which MemberSuite adds functionality to the MemberSuite Service. Customer acknowledges that these periodic major releases can take several hours to complete.
In the event that MemberSuite in its sole discretion determines that any unscheduled, emergency maintenance is necessary, MemberSuite will use commercially reasonable efforts to notify Customer. Such unscheduled maintenance will be counted against the service availability commitment.
Credit Request
In order to receive a credit under this service level commitment, Customer must have created a service case with MemberSuite using the regular support process within five (5) days of the end of the applicable month. A service case will be opened by e-mailing MemberSuite at billing@membersuite.com; If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to MemberSuite are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to one year from the quarter for which the credit was issued. MemberSuite will calculate any service availability downtime using MemberSuite’s system logs and other records.
Updates/Notice
The Service Level Commitment may be amended by MemberSuite in its sole discretion, after providing 30 days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your MemberSuite account either a) as a note on the screen presented immediately after completion of the login authentication credentials through the login screen, or b) by e-mail to the registered e-mail address provided for administrator(s) for Customer’s account.
Exclusion of Sandbox and Beta Accounts
MemberSuite Sandbox, Beta, and other temporary test and production environments are expressly excluded from this or any other service level commitment.
SCHEDULE B SECURITY
Security Overview
MemberSuite’s security strategy is to protect Customer data at multiple levels, which includes data security, data integrity, and data privacy.
To ensure the privacy, security, and availability of Customer data and transactions, MemberSuite employs the following technologies in delivering its service.
- Secure Data Center
- Encrypted User Authentication
- Internet Firewalls
- Network Translation and Proxy Services
- Secure Socket Layer Data Encryption (SSL) on sensitive credit card information.
- High quality industrial strength Routers and Switches
- High quality industrial strength Web and Application Servers
- Redundant, Highly Available Power
- Regularly Scheduled Backups and restore processes
Data Security Data Center Security
MemberSuite’s production systems are located in one of the leading co-location facilities in the United States. Production web, application, and database servers along with network equipment are housed in a suite at the colocation facility which provides 24x7security. To access the suite there are several levels of security that must be passed where each entry point provides state of the art card readers, scanners, and other access devices.
Network Security
MemberSuite’s network is protected by firewalls against unauthorized access. Leading-edge firewall equipment has been chosen to protect the network.
Data Security
MemberSuite’s uses 128-bit domestic and 64 bit international SSL encryption to protect the customer’s credit card data to the credit card gateway. Databases are protected by firewalls against unauthorized usage. Database users are restricted to a controlled list; individual activities are restricted.
Secure Application Access
MemberSuite’s users access the application using password authentication which is encrypted with Secure Hash Function. The robust design of the application prevents a customer from accessing another customer’s data. There are several layers of protected servers that stand between the web page where the customer logs in and the actual data. Highly sensitive data is encrypted with AES 256- bit.
System Security
MemberSuite uses tightly controlled passwords on its servers and network equipment. MemberSuite limits access to production systems to authorized personnel only. Passwords are changed on a regular basis. Security updates to the operating systems are tracked and updated as necessary.
System Reliability
MemberSuite looks at its application as well as the infrastructure as a tightly integrated system. MemberSuite has spare servers ready to deploy at a moment’s notice in the event of an equipment failure. MemberSuite chooses equipment of the highest quality to power our application.
MemberSuite has in place an expert team to provide services for server and network management, monitoring, backups, and other necessary maintenance. System administrators respond to monitoring alerts 24×7 and repair critical failures immediately.
Data and Backups
Customer data is stored on a server that is configured with RAID 5. In the event of a disk failure, the customer will not experience an interruption of service.
All customer data changes are automatically backed up daily to a tape library system. Tapes remain in the highly secure environment to protect the data from unauthorized access.