TERMS OF SERVICE
Revised: November 4, 2019
collect through your use of the application, including the website at www.membersiq.com and
related mobile applications (collectively, the “Service”). It also describes how we may use,
disclose and protect information collected through your access to and use of the Service.
ACCEPTANCE OF TERMS
This website is owned and operated by MembersIQ, L.L.C., (“MembersIQ”) and permits access to and use of this site and its related products and services, including any related Mobile Apps (as defined below) (collectively, the “Service”), subject to the terms and conditions in this Terms of Service (“TOS”). MembersIQ may, at its discretion, update the TOS at any time. You can access and review the most current version of the TOS at the URL for this page or by clicking on the “Terms of Service” link at the bottom of each page of the Service or as otherwise made available by MembersIQ.
PLEASE REVIEW THE TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, DO NOT ACCESS OR USE THE SERVICE.
THE TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 18 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you are: (i) over eighteen years of age or the age of majority in our jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction.
GRANT OF RIGHTS
- MembersIQ grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view pages from the Service.
- To the extent that the Service provides access to any online software, applications or other similar components, then MembersIQ grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in the form within the online platform provided by MembersIQ.
- MembersIQ may make available mobile apps for access to and use of certain components of the Service (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to the applicable end user license agreement for each app.
- All rights granted to you under this TOS are subject to your compliance with the TOS in all material respects and may only be exercised for your personal, non-commercial use or internal business purposes. Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by MembersIQ.
- You may browse the Service without registering, but some features may not be accessible unless you register. 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. If you provide any information that is untrue, inaccurate, not current or incomplete, or MembersIQ reasonably suspects that you have done so, MembersIQ may suspend or terminate your account
- You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone. You agree to notify MembersIQ immediately of any unauthorized use of your account or password or any other similar breach of security
FEES AND SUBSCRIPTIONS
- Certain portions of the Service require a paid subscription for access (“Subscription”).
- Prior to commencement of any Subscription, you shall pay the fees set forth in your EULA. Any payment not received from you when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
- Any and all amounts payable by you under the TOS are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). You are solely responsible for paying all applicable Taxes. If MembersIQ has the legal obligation to collect any Taxes, you shall reimburse MembersIQ upon invoice.
RESPONSIBILITY FOR CONTENT
- You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not MembersIQ, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not MembersIQ, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
- You acknowledge and agree that MembersIQ has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although MembersIQ reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, MembersIQ shall have the right to remove any Content that violates the TOS or that it deems objectionable.
- To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOS with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
RIGHTS TO CONTENT
- MembersIQ does not claim ownership of Your Content. However, you grant MembersIQ and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to provide the Service. You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
- Except with respect to Your Content, you acknowledge and agree that, as between you and MembersIQ, MembersIQ owns all rights, title and interest (including, but not limited to, all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright and other intellectual property laws and treaties. MembersIQ reserves all rights not expressly granted to you.
- Except with respect to Your Content, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOS; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by MembersIQ; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; or (vi) remove or obscure any proprietary notice that appears within the Service.
In connection with your access to or use of the Service, you shall not:
- upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
- impersonate any person or entity, including, but not limited to, MembersIQ personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- act in a manner that negatively affects the ability of other users to access or use the Service;
- take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
- sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including, but not limited to, your user account and password; or
- violate any applicable local, state, provincial, federal or international law or regulation.
If you elect to provide or make available to MembersIQ any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), MembersIQ shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third-party. You agree that MembersIQ shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
LINKS AND EXTERNAL MATERIALS
MODIFICATIONS TO THE SERVICE
MembersIQ reserves the right at any time to modify or discontinue the Service (or any portion thereof) with or without notice, and MembersIQ shall not be liable to you or any third party for any such modification or discontinuance; provided, however, that in the event of discontinuance, you shall be entitled to receive a pro-rated refund for the unused portion of any active Subscription.
You shall indemnify, defend and hold MembersIQ and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “MembersIQ Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including, but not limited to, reasonable attorneys’ fees, resulting from or arising out of your: (a) violation of the TOU or any law or regulation; or (b) violation of any rights of another party.
DISCLAIMER OF WARRANTIES
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MembersIQ PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- MembersIQ PARTIES MAKE NO WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
- ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
LIMITATION OF LIABILITY
- YOU ACKNOWLEDGE AND AGREE THAT MembersIQ PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF MembersIQ PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL MembersIQ PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO MembersIQ FOR ACCESS TO THE PORTION OF THE SERVICE AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- With respect to your access to portions of the Service that do not require a Subscription, if you violate the TOS, all rights granted to you under the TOS shall terminate immediately, with or without notice to you.
- A Subscription may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within ten (10) days after receipt of written notice from the non-breaching party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
- Upon termination of the TOS or any Subscription for any reason: (i) MembersIQ, in its sole discretion, may remove and discard Your Content; and (ii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS or any Subscription shall survive such expiration or termination.
The TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOS.
BINDING ARBITRATION AND CLASS ACTION WAIVER
- ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
- The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
- WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
- Notwithstanding anything to the contrary, you and MembersIQ may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 18.
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List.
S. GOVERNMENT ENTITIES
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOS with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOS, there shall be no third-party beneficiaries to the TOS.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide MembersIQ’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. MembersIQ’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
919 Congress, Suite 425
Austin, Texas 78701
The TOS constitutes the entire agreement between you and MembersIQ concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and MembersIQ with respect to such subject matter. The TOS may not be amended by you except in a writing executed by you and an authorized representative of MembersIQ. You may not assign or delegate any right or obligation under the TOS without the prior written consent of MembersIQ. The failure of MembersIQ to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOS. Any prevention of or delay in performance by MembersIQ hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.