MemberHub Terms and Conditions of Use
Last Updated October 12, 2022
MemberHub, Inc. (“we” or “our” or “MemberHub”) provides services through our website as well as through software applications available on mobile devices (individually or collectively, our website and our software applications are referred to herein as the “Services”).
Please read the following terms of service (“Terms of Service”) carefully. These Terms of Service govern your access to and use of the Services and set forth the legally binding terms for your use of the Services, whether or not you have registered a Registered Account (defined below). If you are using the Services as an individual, including as a Registered User (defined below), “you” and “your” will refer to you as the individual user of these Services. If you are using the Services on behalf of a third-party not-for-profit organization, such as a parent teacher association, then you are agreeing to these Terms of Service for that organization (an “Organization”) and promising that you have the authority to bind that Organization to these Terms of Service and “you” and “your” as used in these Terms of Service will refer to that Organization, including with respect to the creation of a Registered Account for such Organization. If you are or are using the Services on behalf of an entity that is a third-party vendor selling a product or service through the Services (a “Merchant”), then you are agreeing to these Terms of Service for such Merchant and promising that you have the authority to bind that Merchant to these Terms of Service and “you” and “your” as used in these Terms of Service will refer to that Merchant, including with respect to the creation of a Registered Account for such Merchant.
IMPORTANT: THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT, AS FURTHER SET FORTH BELOW, REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU ARE GIVING UP THE RIGHT TO SUE IN COURT OR IN CLASS ACTIONS OF ANY KIND.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Services, including any portion thereof, or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will update the “Last Updated Date” above and post the modification on our website. By continuing to access or use the Services after we have posted a modification to these Terms of Service or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Services.
Eligibility and Account Registration
The Services may be available to you on only a limited basis. In order to access certain features of the Services, including to post any User Content (defined below) through or to the Services, you must register to create an account (“Registered Account”) and become a “Registered User”.
During the registration process, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. We reserve the right to suspend or terminate your Registered Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You are responsible for safeguarding your account credentials. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Registered Account, whether or not you have authorized such activities or actions. You agree to immediately notify us of any unauthorized use of your Registered Account. We are not liable for any damages or losses caused by someone using your account without your permission.
eStore; Product Fundraisers
As part of the Services, Organizations with Registered Accounts may sell goods and services, including without limitation membership fees, and accept donations (collectively, “Products”) through an electronic storefront (an “eStore”) and may subscribe to “Product Fundraisers”, a portion of the Services through which Merchants may sell goods, services, or vouchers (“Offers”) that each Organization may offer through its eStore. After subscribing to Product Fundraisers, when available, an Organization can add Offers from Merchants to its eStore. Subject to MemberHub’s discretion and to change, subscribing Organizations will receive a notification up to once a week (typically on Tuesdays) if a new Offer is available for the Organization to add to their eStore, and Organization will have eleven (11) days to reject the Offer before such Offer is automatically added to its eStore.
Each Organization is solely and exclusively responsible for all Products, and each Merchant is solely and exclusively responsible for each Offer, including without limitation in each case with respect to the accuracy of the descriptions of the Products and Offers, the fulfillment of the transaction, the care and quality of the Products and Offers, and the delivery of any good and services. MemberHub does not verify, validate, or collect evidence of any regulatory authorization, license, or certification from any Merchant. We are not a guarantor of payment or otherwise liable for payment. MemberHub is not responsible for missed payments, fraud, or any other issues related to payments.
Offers, available Products, other available programs, functionality, and pricing may change at any time in MemberHub’s sole discretion, without notice.
Purchases; Fees and Payments
All purchases are subject to the terms of the applicable Organization or Merchant set forth with respect to each applicable Product or Offer.
You do not need to create an account or become a Registered User to make a purchase. If you wish to purchase any Product or Offer made available through the Services, you may be asked to supply certain information relevant to your purchase including, without limitation, your credit or debit card number, the expiration date of your payment card, and your billing address. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any purchase; and that (ii) the information you supply to us is true, correct and complete. MemberHub shall have no responsibility for any incident arising out of, or related to, the information provided at checkout. MemberHub may, in its sole discretion, verify a user’s identity prior to processing a purchase.
MemberHub may refuse to process a purchase, may cancel a purchase, or may limit quantities, as it deems necessary in its sole discretion, to comply with applicable law or in the event of actual or suspected misrepresentation, fraud, or breach of these Terms. Refunds for cancelled orders may be issued where appropriate. If an offer becomes unavailable between ordering and processing, MemberHub will either cancel or not process the order and will notify you by email.
MemberHub does not guarantee that it offers best available rates or prices and does not guarantee against pricing errors. MemberHub reserves the right, in its sole discretion, to correct any error in the stated price of a Product or Offer. We reserve the right to refuse or cancel a purchase at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service, error in your order or other reasons.
All Offers purchased through the service are non-refundable. Refunds for Products purchased through the service are at the discretion of the Organization. Learn more about refunds here.
MemberHub retains a portion of the amount paid for each Product and Offer as described or set forth in the Services, which amount includes its own service fee and any fees required to be paid to third parties. Lean more about transaction fees here. MemberHub may change the amount it retains from each transaction from time to time in its sole discretion; provided, however, that if MemberHub and Merchant have entered into a separate written agreement that includes a description of the amount MemberHub shall retain with respect to a particular Offer, then MemberHub shall retain such amount in accordance with the terms of such separate agreement. If you are an Organization, you may be required to pay for your use of our Services or third party services using a credit card, a debit card, or a bank transfer at our then-current subscription fee. We may offer free trials or special promotions from time to time, including reduced or waived group subscription fees. These trials and promotions are offered at our sole discretion, and can be modified or cancelled at any time, without prior notice. Such trials, special promotions or reduced pricing may be, at our sole discretion, subject to the display of advertisements when using the Services and/or use of certain applications or services as part of the Services. In the event you do not allow or opt-out of such advertisements or fail to use the specified applications or services, you would owe us the difference between the then-current subscription fee and the amount you paid, if any, for the Services. You can cancel your free trial or your paid subscription at any time, and your payment method will not be charged again after your cancel.
We do not offer refunds for our Services or fees.
As a user of MemberHub (you, the Organization) maintain the direct relationship with your payers. Organizations must recognize that even authorized payments may be subject to a dispute. MemberHub is not responsible for or liable to you for authorized and completed payments that are later the subject of a dispute, are submitted without authorization or in error, or violate any laws.
You (the Organization) are immediately responsible to pay MemberHub for all disputed payments. Upon a dispute filing, MemberHub will reverse the disputed funds from the Organizations Stripe Connect account. If there are not enough funds in the Organizations Stripe Connect account, Stripe will debit your bank account or debit card or credit card on file to recover these funds. When you add a Bank Account to Stripe, it is stored as both a payout account and a payment method should it be necessary to recover disputed payments (also allowing your organization to process elective refunds even when your Stripe account does not have sufficient funds). MemberHub may have the ability to help your Organization challenge a dispute by submitting evidence of its validity to Stripe. MemberHub may request additional information to provide to payment providers and acquirers to assist in contesting the dispute, but we cannot guarantee that the challenge will be successful. Payment providers and payment acquirers may deny the challenge for any reason they deem appropriate. Where a challenge is entirely or partially successful, the Organization’s Stripe account will be credited with the funds associated with the payment that is the subject of the dispute (or a portion thereof).
Content; Rights and Access to Content
Certain types of content are made available through the Services. “MemberHub Content” means, collectively, text, data, graphics, images, illustrations, forms and look and feel attributes, our trademarks and logos and other content made available through the Services, including any technology or code making up the Services, excluding User Content.
“User Content” means the documents, files, text, data, graphics, images, photos, video or audiovisual content and any other content uploaded, transmitted or submitted by you via the Services, including all messages sent by any Organization to any other Registered Users. You retain full ownership to User Content that you have uploaded, transmitted and submitted. We do not claim any ownership to any of it. However, any User Content you post will be considered non-confidential and non-proprietary. Further, you hereby grant to us and other users of the Services that have been provided access to your User Content a limited, non-exclusive, non-transferable (except in our case and only to a successor) license, to access, display, use, view, copy, download and print, where applicable, the User Content. For the avoidance of doubt, you acknowledge and agree that (i) the Services may include features and functionality related to memberships in and among Organizations; and (ii) MemberHub may provide access to your User Content, as well as information about you, to certain other Registered Users and Organizations in connection with such memberships and membership activities.
You are solely responsible for your conduct, the content of your files and folders, your User Content and your communications with others while using the Services, including such User Content’s legality, reliability, accuracy and appropriateness, as further described and set forth in the section entitled Acceptable Use Policy and General Prohibitions below. For example, it is your responsibility to ensure that you have the rights or permission needed to comply with these Terms of Service. You represent and warrant that you either are the sole and exclusive owner of all User Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to us the rights in such User Content, as contemplated under these Terms of Service. We are not responsible for the accuracy, completeness, appropriateness, or legality of files or any other information you upload or may be able to access using the Services.
You are responsible for maintaining and protecting all of your User Content. We will not be liable for any loss or corruption of User Content, or for any costs or expenses associated with backing up or restoring any User Content.
We have the right (i) to remove or refuse to post any User Content for any or no reason in our sole discretion, (ii) to take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms of Service, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services, or could create liability for us, (iii) to disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy, (iv) to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services, and (v) to terminate or suspend your access to all or part of the Services as detailed below.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD US AND OUR AFFILIATES AND SERVICE PROVIDERS HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We do not undertake to review material before it is posted through the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
The Services, the MemberHub Content, all content and materials that are not User Content that appear within the Services, and all intellectual property rights in each of the foregoing are the exclusive property of MemberHub and its licensors. Except as expressly provided in these Terms of Service, we and our licensors exclusively own all right, title and interest in and to the Services and MemberHub Content. Except for the access rights expressly granted herein, all rights in and to all of the foregoing are reserved by MemberHub. These Terms of Service do not convey to you any rights of ownership or other intellectual property right in, to, or under the Services. Nothing in these Terms of Service will be deemed to grant to you any right to receive a copy of any software underlying the Services, in any form. Our company name, MemberHub, and all related names, logos, product and service names, designs and slogans associated with the Services, as well as the MemberHub Content, are protected by copyright, trademark, and other laws of the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or MemberHub Content. Further, excepted as granted herein, you may not use such marks or intellectual property without our prior written permission.
Subject to your compliance with the terms and conditions of these Terms of Service, we grant you a limited, non-exclusive, non-transferable license (without the right to sublicense) to access, use, view, download and print, where applicable, the Services and any MemberHub Content solely for your own non-commercial purposes. You will not use, copy, adapt, reproduce, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or MemberHub Content, except as expressly permitted in these Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in these Terms of Service. You may not access or use for any commercial purposes the Services.
Comments and Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at support@MemberHub.com. You acknowledge and agree that all Feedback will be our sole and exclusive property and you hereby irrevocably assign to us and agree to irrevocably assign to us all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein.
Acceptable Use Policy and General Prohibitions
You agree not to do any of the following in connection with or while using the Services or MemberHub Content:
Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material, including any User Content, that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or that would or might give rise to any civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).
Use, display, mirror, frame or utilize framing techniques to enclose the Services, or any individual element or materials within the Services, our name, any our trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without our express written consent;
Access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;
Attempt to probe, scan, or test the vulnerability of any aspect of our system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services or MemberHub Content;
Attempt to access or search the Services or MemberHub Content or download MemberHub Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than generally available third party web browsers (such as Google Chrome, Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera) or generally available mobile devices (such as the iPad or iPhone);
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing our trademark, logo URL or product name without our express written consent;
Use the Services or MemberHub Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or MemberHub Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or MemberHub Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity; Violate any applicable law or regulation or take any action that would or might give rise to any civil liability; or
Encourage or enable any other individual to do any of the foregoing.
We will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Services security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that we have no obligation to monitor your access to or use of the Services or MemberHub Content or to review or edit any User Content, but we do have the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any MemberHub Content, or to any User Content, that we, in our sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Services.
The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by us of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination of Registered Account; Cancellation
Without limiting other remedies, we may we may at any time and for any reason suspend or terminate your access to the Services or Registered Account. In addition, we may notify authorities or take any actions we deem appropriate, without notice to you, if we suspect or determine, in our own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Service or any policies or rules established by us; or (ii) engaged in actions relating to or in the course of using the Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, our users, us or any other third parties or the Services.
You may terminate your Registered Account at any time and for any reason by sending email to support@MemberHub.com. Upon any termination by a Registered User, the related account may no longer be accessible. After any termination, you understand and acknowledge that we will have no further obligation to provide the Services and all licenses and other rights granted to you by these Terms of Service will immediately cease. We will not be liable to you or any third party for termination of the Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED TO OR THROUGH THE SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU AND MAY BE DELETED BY US IN ITS ENTIRETY. Furthermore, we will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party. Any suspension, termination or cancellation will not affect your obligations to us under these Terms of Service (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
As permitted by applicable law, you expressly agree that you use of the Services at your sole risk. Neither MemberHub, nor its affiliates nor any of their respective employees, officers, directors, agents, merchants, third-party content providers or licensors (i) warrant that use of the Services will be uninterrupted, secure, virus-free, or error free, or (ii) provide any warranty as to (a) the results that may be obtained from use of the Services, or (b) the accuracy, completeness, or reliability of (A) the content on the Services, including, without limitation, the MemberHub Content, the Products, and Offers, (B) the descriptions and pricing of Products and Offers, or (C) User Content provided through the Services. The Services, the MemberHub Content, the Products, and the Offers and all other programs accessible or available through the Services, are made accessible or available on an “AS IS” and “AS AVAILABLE” basis. TO THE EXTENT ALLOWED BY APPLICABLE LAW, MEMBERHUB HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE OPERATION OF THE SERVICES AND THE MEMBERHUB CONTENT, USER CONTENT, AND OTHER INFORMATION CONTAINED IN THE SERVICES, THE OFFERS, PRODUCTS, AND OTHER AVAILABLE PROGRAMS ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. THE WARRANTY LIMITATIONS IN THIS SECTION ARE NOT INTENDED TO LIMIT ANY WARRANTY PROVIDED DIRECTLY BY AN ORGANIZATION OR A MERCHANT OR BY THE APPLICABLE MANUFACTURER OF PHYSICAL PRODUCTS OR ANY EXPRESS REPRESENTATIONS OR WARRANTIES BY MEMBERHUB THAT ARE INCLUDED IN OTHER APPLICABLE TERMS.
IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE WHETHER THE SERVICES WILL SATISFY APPLICABLE LEGAL OR REGULATORY REQUIREMENTS THAT MAY APPLY TO YOUR USE OF THE SERVICES.
You agree to defend, indemnify, and hold us, our officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with User Content that is submitted to us, your access to or use of the Services or MemberHub Content, your violation of these Terms of Service, Products you sell through the Services, or Offers you make through the Services.
You are solely responsible for your interactions with Merchants, Organizations, Registered Users, and purchasers, as applicable. To the extent permitted under applicable laws, you hereby release MemberHub from any and all claims and liability related to any Product or Offer, regardless of any action or inaction by a Merchant, Organization, or purchaser including, without limitation, arising from a failure to comply with applicable law and/or failure to abide by the terms with respect to such Product or Offer, as well as any conduct, speech or User Content, whether online or offline, of any other third-party.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT THEREIN REMAINS WITH YOU. NEITHER WE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR MEMEBERHUB CONTENT, THE PRODUCTS OR THE OFFERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, WE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED THROUGH THE SERVICES.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT THEREIN EXCEED $1.00. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Terms of Service shall be governed and construed in accordance with the laws of the United States and the State of North Carolina, without giving effect to conflicts-of-law principles thereof. With respect to any disputes or claims not subject to arbitration, you agree to submit to the personal jurisdiction of the state and federal courts located in Raleigh, North Carolina with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.
Arbitration and CLASS ACTION WAIVER
You and MemberHub agree that any dispute, claim, or controversy that relates to or arises from these Terms of Service or the Services other than any claim or demand that relates to the intellectual property rights of MemberHub or arising under the section entitled “Indemnity; Release” will be determined by mandatory binding individual (not class) arbitration. You and MemberHub further agree that the arbitrator shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of any provision of these Terms of Service or to the arbitrability of any claim or counterclaim. Notwithstanding the above, you and MemberHub both agree that neither of us waive or limit our rights to (a) bring an individual action in a U.S. small claims court or (b) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES, CLAIMS, AND CONTROVERSIES THAT RELATE TO THESE TERMS OR OUR SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT MEMBERHUB AND YOU ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU HEREBY AGREE THAT YOU MAY NOT AND WILL NOT PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION, AS A PLAINTIFF OR CLASS MEMBER IN ANY SUCH ACTION. Unless both you and MemberHub agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Either you or MemberHub may start arbitration proceedings. Any arbitration between you and MemberHub will take place under the Consumer Arbitration Rules of the American Arbitration Association ("AAA") then in force (the "AAA Rules"), as modified by these Terms of Service. You and MemberHub agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). Any arbitration hearings will take place in Raleigh, North Carolina. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by email ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). You and MemberHub agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or MemberHub may commence an arbitration proceeding. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator's decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
YOU AGREE THAT YOU MUST BRING ANY AND ALL CLAIMS AGAINST US, INCLUDING FILING ANY SUIT OR STARTING ANY ARBITRATION PROCEDING, WITHIN ONE YEAR AFTER THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. AFTER ONE YEAR HAS PASSED, YOUR CLAIM AND ANY LAWSUIT OR ARBITRATION PROCEDING WILL BE PERMANENTLY BARRED.
You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
These Terms of Service constitute the entire and exclusive understanding and agreement between us and you regarding the Services and MemberHub Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between us and you regarding the Services and MemberHub Content.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. We may freely assign these Terms of Service. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
You consent to the use of: (i) electronic means to complete these Terms of Service and to deliver any notices or other communications permitted or required hereunder; and (ii) electronic records to store information related to these Terms of Service or your use of the Services. Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: (x) by us via email (in each case to the address that you provide) or (y) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Mobile Service, Text Message, Internet and Service Fees
The use of the Services may require use of a mobile device and phone service, wireless mobile data service, and text messaging capability, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Services, including without limitation, administrative messages, service announcements, and diagnostic data reports, from us, your mobile carrier or third party service providers.
If you agree to receive text messages from the Services, the frequency of messages will vary based on your organizations activity and Message and data rates may apply from your mobile carrier. By providing your consent to participate in this service, you approve any such charges from your mobile carrier. If you do not have an unlimited wireless mobile data plan or text messaging capability, you may incur additional charges from your wireless service in connection with your use of the Services. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Services, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the Services.
The Services may not work with all devices or all mobile carriers. We make no representations that the Services will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Services, or other third party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
The information in any Services message may be subject to certain time lags and/or delays. You are responsible for managing the types of SMS texts you receive.
Additional Terms Pertaining to Apple
The following terms pertain to your use of the Services through a download of our software applications to a device manufactured by Apple, Inc. (together with its affiliates, “Apple”):
MemberHub and you acknowledge that these Terms of Service are concluded between MemberHub and you only, and not with Apple, and MemberHub, not Apple, is solely responsible for the Services and the content thereof. To the extent that any of these Terms of Service provide for usage rules for the Services that are in conflict with the Apple Media Services Terms and Conditions as of the date on which you agree to these Terms of Service, then such term shall be automatically modified to be made consistent with such terms.
The license granted to you for the Services, with respect to the version of the Services downloaded from the Apple App Store, is a non-transferable license to use such version of the Services on any Apple-branded Products that you own or control and solely as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such version of the Services may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.
MemberHub and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Services to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services. To the extent any warranty exists under law that cannot be disclaimed, MemberHub, not Apple, shall be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to the Services’ failure to conform to such warranty.
MemberHub does not make any warranties concerning the Services. To the extent that you or any third party have any claim relating to the Services or the end-user’s possession and/or use of that Services, MemberHub, not Apple, is responsible for addressing such claim, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Services’ use of the HealthKit and HomeKit frameworks. These Terms of Service may not limit MemberHub’s liability to you beyond what is permitted by applicable law.
MemberHub shall not be obligated to indemnify or defend you with respect to any third party claim arising out of or relating to the Services. In the event of any third party claim that the Services or your possession and use of that Services infringes that third party’s intellectual property rights, and MemberHub or Apple is required by law to provide indemnification, then MemberHub, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You must comply with all applicable third party terms of agreement when using the Services, including without limitation all phone, internet connectivity, and wireless data service agreements you use in connection with the Services.
MemberHub and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof.
The failure of us to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
If you have any questions, complaints, or claims related to the Services or regarding these Terms of Service, please contact us at support@MemberHub.com. If you believe that any MemberHub Content or User Content infringes on a copyright, and you would like to bring it to our attention, you must provide us with the following information: (a) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location within the Services of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, including, without limitation, telephone number and email address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
We encourage you to report violations of the Acceptable Use Policy to MemberHub immediately. To report violations, or if you have a question about whether a type of transaction may violate the Acceptable Use Policy, please contact us at support@MemberHub.com. If you want to send us a letter, please address it to MemberHub, Inc., 3041 Farrior Road, Raleigh, NC 27607.