Last Revised: October 22, 2019
BEFORE USING/ACCESSING THE SITES, THE MEMBER BENEFITS, PREMIUM SERVICES, OR ANY OTHER FEATURE OF MEMBERSHIP IN THE COMMUNITY, PLEASE CAREFULLY READ THE FOLLOWING, BECAUSE THIS AGREEMENT GOVERNS YOUR MEMBERSHIP AND CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES. PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN AND HOW DISPUTES BETWEEN YOU AND COMPANY ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER, A CLASS ACTION WAIVER, AND AN AGREEMENT TO ARBITRATE CLAIMS.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN THE AUTOMATIC RENEWAL OF YOUR MEMBERSHIP SET FORTH IN SECTION 4.1 OF THIS AGREEMENT.
NOTICE REGARDING MEMBERSHIP TRANSFERS: Your Application for membership and Your membership is personal to You. Your application should be made in your individual name and not a business entity, regardless if Your employer or another entity pays or paid the Annual Membership Fee (defined in Section 4.3) or other fees related to your membership. Neither Your membership nor the ability to receive the Member Benefits or access the Premium Services will be transferrable to Your employer or any third party. You are personally responsible for your membership and the fees associated therewith.
Section 1. MODIFICATION OF THIS AGREEMENT
The Company may, in its sole discretion, change or modify this Agreement, the Member Benefits, the Premium Services, the Community Terms, or the Policies at any time and from time to time without notice. If the Company does change this Agreement, a notice of the changes will be posted on the Policies Site and will indicate the effective date of each new version of this Agreement along with a list of the affected sections which were changed or modified. The changes or modifications of this Agreement will be effective immediately upon posting them unless otherwise provided in writing. In addition, the Company may, but does not have an obligation, to notify You of changes or modifications to this Agreement by email to Your email address listed in connection with Your account. Your continued use of the Member Benefits, Premium Services, or the Sites following the posting of a new version of this Agreement constitutes acceptance and agreement to the posted version of the Agreement and its incorporated changes. It is therefore important that You keep Your Account Information current, as detailed in Section 6 below. You will not hold the Company liable and the Company assumes no liability or responsibility for Your failure to receive an email notification. You acknowledge and agree that the Company has no obligation to provide You with an email notification of any modifications to the Policies and that any email notification provided at any time shall not obligate or create an expectation for the Company to do so in the future. the Company reserves the right to modify, change, or discontinue any aspect of membership in the Community at any time. Only a specific, written waiver signed by an authorized representative of the Company shall have any legal effect as a waiver by the Company of any terms of this Agreement or any other policy.
Section 2. MEMBER BENEFITS
2.1 Member Benefits Generally: To be eligible for membership in the Community, You must submit an application and be approved as set forth in Section 3 below. Persons who are accepted for membership in the Community (each a “Member”) are eligible for the then-current benefits included in membership with the Community which are set forth in the Community Terms (the “Member Benefits”), and which may include but are not necessarily limited to access to a Bespoke Marketplace (as described in Section 2.2.1), Networking Opportunities (as described in Section 2.2.2), Media and Personal Brand Building (as described in Section 2.2.3), access to Community Knowledge Platform (as described in Section 2.2.4), and Concierge Support (as described in Section 2.2.5) and the opportunity to purchase Premium Services (as describes in Section 2.5), when available, for additional fees. The Member Benefits are included in Your Annual Membership Fee. We will make reasonable efforts to ensure that the Member Benefits existing at the time of Your acceptance for membership will remain available throughout the then-current term of Your membership, however, the Member Benefits are subject to change without notice at any time, and from time to time, depending on the needs and value to the Community as determined by the Company from time to time. The Member Benefits are personal to the Member and shall not be resold, assigned, offered, or transferred to any party except as expressly provided herein or otherwise as approved by the Company in writing. If You are in breach of the Policies, including the failure to pay amounts due to the Company hereunder, Your membership and/or Your ability to utilize the Member Benefits may be suspended or terminated.
2.2 Particular Member Benefits: To the extent provided as part of the then-current Member Benefits, a general description of the Member Benefits is as follows in Sections 2.2.1 through 2.2.5 below. The specifications and/or additional terms pertaining to the particular Member Benefits for the Community available in connection with Your membership are set forth in the Community Terms:
2.2.1 Bespoke Marketplace. A bespoke marketplace of direct providers, retailers, wholesalers, group purchasing organizations and other third-party providers of products, services, experiences, and discount marketplaces or offerings (each a “Marketplace Provider”) and may include certain discounts or promotional offers for Members. The offerings in the Bespoke Marketplace (“Marketplace Offerings”) are provided by the Marketplace Providers and not by the Company, its licensors or their employees, contractors or agents. The Marketplace Offerings are third party products or services that are sold or made available by such third party Marketplace Provider. The Marketplace Providers may have separate eligibility requirements, require the execution of a separate agreement or other terms and conditions for use by You or any Member and the Marketplace Providers have the right to refuse to provide the products, services or experience offerings to You. You are solely responsible for the payment for any products, services, and/or subscriptions purchased through a Marketplace Provider, and for complying with any terms or agreements You enter into in connection with a Marketplace Offering. You will maintain in strict confidence all proprietary and confidential information including but not limited to pricing information, proposals, agreements, organizational documents, software, and contract catalogs (printed and electronic) of Marketplace Providers or their vendors whose confidential information You receive from any Marketplace Provider in connection with a Marketplace Offering in which You participate. Your obligation to maintain the confidentiality of such information shall remain in effect continuously throughout the period of Your use of a Marketplace Offering and for three (3) years after its expiration or termination. Notwithstanding the foregoing, upon the termination of Your membership, Your ability to access a Marketplace Offering may be terminated without further notice. the Company makes no representations or warranties regarding the Marketplace Offerings or their initial or ongoing availability for any Member. While the Company may receive a financial or other benefits from such Marketplace Provider for permitting the Marketplace Offering to its Members and/or involvement in the Community, neither the Company nor its licensors have any liability or responsibility in connection with the management, redemption, provision or marketing of such Marketplace Offerings nor the products and/or services purchased or obtained in connection thereto. In order for You to be eligible for certain Marketplace Offerings, and/or to activate such Marketplace Offerings, the Company may be required to register You for an account with a Marketplace Provider. UNLESS YOU PROVIDE EMAIL NOTICE TO THE COMMUNITY CONTACT WITH THE SUBJECT HEADLINE “MARKETPLACE PROGRAM OPT-OUT” YOU HEREBY CONSENT TO COMPANY’S USE OF YOUR NAME, COMPANY, WORK PHONE, AND EMAIL ADDRESS TO REGISTER YOU FOR AN ACCOUNT WITH A MARKETPLACE PROVIDER FOR THE PURPOSES OF MAKING SUCH MARKETPLACE OFFERINGS POTENTIALLY AVAILABLE TO YOU IN CONNECTION WITH YOUR MEMBERSHIP. If You opt-out as set forth in the foregoing sentences, You may not be eligible for certain Marketplace Offerings that are available to other Members. The Bespoke Marketplace may only be used by You.
2.2.2 Networking Opportunities: The opportunity to network with other Members, privately through membership tools or networking events for the purposes of sharing information, experiences, advice or making personal or professional connections with other Members. While Members are encouraged to utilize the Networking Opportunities, each Member is expected to do so in a professional, courteous manner, which respects the other Member’s time, privacy and wishes. Each Member is expected to comply with the Member Code of Conduct (defined in Section 10), and shall not (a) send an unsolicited generic/blanket message to other Members or otherwise contact all or substantially all of the Members of the Community or act in any other manner which could be construed as a generalized solicitation or “spam”; (b) directly or indirectly solicit the sale of products, services, investment, employment or other opportunities to other Members; (c) directly or indirectly solicit information, including, but not limited to, contact information from Members for the purpose of solicitation of products or services, or sales, or Your other commercial use; and (d) ignore any other Member’s privacy settings or contact (or non-contact) requests or otherwise engage in any conduct which may be deemed by the Company or other Members as harassing. the Company does not guarantee any opportunity to meet or connect with any other Member or resource and that any connection with another Member shall be solely determined by the other Member. There may be additional terms, conditions, fees or charges in connection with certain events or networking opportunities.
2.2.3 Media and Personal Brand Building: The opportunity to potentially participate in media and branding opportunities, including, but not limited to, writing articles, editorial content, contributions to thought pieces, giving expert interviews, and presenting webinars and similar opportunities (collectively “Media and Personal Brand Building”). The Media and Personal Brand Building is only an opportunity to potentially participate or submit materials in connection with media opportunities and that Your membership does not guarantee Your acceptance or participation in any minimum number or any opportunities or any favorable or beneficial results from acceptance or participation. Your acceptance or participation in any opportunity does not constitute Your acceptance or right to participate in any future opportunity. The determination of whether or not You shall be involved with or Your submission shall be published and/or utilized in connection may be determined by the third-party who controls such opportunity, and/or the Company, as the case may be, and You may be required to agree to additional guidelines, editorial revisions, conditions and/or agreements prior to the publication or participation in any Media and Personal Brand Building opportunity and disclose any potential conflicts of interest with respect to such publication or Media and Personal Brand Building opportunity. Certain Media and Personal Brand Building opportunities may be open or available for only a limited number or certain Members who meet specific criteria and may not be available to all Members. Any applicable deadlines, terms, requirements or instructions in connection with publishing any Member Content (as defined in Section 11) or the availability of any Media and Personal Brand Building opportunity shall be determined by the third-party who controls such opportunity, or the Company, as applicable. The Company makes no guarantee as to the timing, viewership, publicity of, or results derived from any marketing or promotional material, including, but not limited to, Member Content and Media and Personal Brand Building opportunities.
All content submitted in connection with a Media and Personal Brand Building opportunity is Member Content and subject to all conditions set forth in Section 11.3. PLEASE BE AWARE THAT ONCE YOUR MEMBER CONTENT IS PUBLISHED OR OTHERWISE POSTED, THE COMPANY MAY NOT BE ABLE TO REMOVE SUCH PUBLICATION OR POST AND SHALL HAVE NO OBLIGATION OR LIABILITY FOR FAILURE TO DO SO.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY MAY, IN ITS SOLE DISCRETION, CAUSE ANY CONTENT SUBMITTED IN CONNECTION WITH A MEDIA AND PERSONAL BRAND BUILDING OPPORTUNITY TO BE PUBLISHED AS “NATIVE ADVERTISEMENTS” UPON THIRD-PARTY WEBSITES AND/OR THE SITES, AND ACCORDINGLY SUCH CONTENT SHALL NOT CONTAIN ANY ENDORSEMENT, ADVERTISEMENT, PROMOTION, RECOMMENDATION OR TESTIMONIAL IN CONNECTION WITH ANY BRAND, PRODUCT OR SERVICE UNLESS IT CONTAINS ALL DISCLOSURES REQUIRED BY RELEVANT GOVERNMENT REGULATORY AUTHORITIES AND REGULATIONS, INCLUDING BUT NOT LIMITED TO SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, PART 255 OF THE FEDERAL TRADE COMMISSION GUIDES AND TRADE PRACTICE RULES, AND STATE UNFAIR AND DECEPTIVE ACTS AND PRACTICES LAWS. SUCH REQUIRED DISCLOSURES INCLUDE, BUT ARE NOT LIMITED TO, DISCLOSURE IF YOU OR ANY OF YOUR RELATIVES, AFFILIATES, OR COMPANIES IN WHICH YOU HOLD GREATER THAN A 25% INTEREST HAVE RECEIVED OR WILL RECEIVE COMPENSATION, FREE OR DISCOUNTED PRODUCTS OR SERVICES, OR ANY OTHER CONSIDERATION FOR THE PUBLICATION OF SUCH CONTENT, AND IF YOU HAVE ANY OTHER MATERIAL RELATIONSHIP IN CONNECTION WITH ANY BRANDS, PRODUCTS OR SERVICES ENDORSED WITHIN SUCH CONTENT. IN ADDITION, YOU MUST EXPRESSLY NOTIFY COMPANY IN WRITING OR BY EMAIL REFERENCING THIS SECTION AT THE TIME OF SUBMISSION OF ANY MATERIAL CONNECTION YOU HAVE WITH ANY BRANDS, PRODUCTS OR SERVICES ENDORSED WITHIN ANY SUBMITTED CONTENT. YOU WILL NOT SOLICIT, MARKET, OR RESELL ACCESS TO THE COMMUNITY, ITS MEMBERS, ANY MEMBER BENEFITS, OR PREMIUM SERVICES TO THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, OFFERING TO INCLUDE A THIRD PARTY’S SERVICES, PRODUCTS OR LINKS IN MEMBER CONTENT, OR TO POSITIVELY PORTRAY A THIRD PARTY’S PRODUCTS OR SERVICES FOR A FEE.
2.2.4 Community Knowledge Platform: In connection with membership, the Company may make available a platform, information site or other resources for the publication of information, videos, and materials which the Company believes may be of interest to the Members. The information, videos, and materials are made available solely for general information and opinion purposes. The Company does not warrant the accuracy, completeness or usefulness of this information. Any reliance You place on such information is strictly at Your own risk. the Company disclaims all liability and responsibility arising from any reliance or actions based on such information and materials by You or any other visitor to the Site, or by anyone who may be informed of such content. The Site may include content provided by third parties, including materials provided by other Members, users, bloggers, and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company or its licensors. Neither the Company nor its licensors are responsible, or liable to You or any third party, for the content or accuracy of any materials provided by any third parties.
2.2.5 Concierge Support: the Company may provide concierge level resource support by phone, email, social media or other digital means at such times and manner as set forth in the Community Terms for the purpose of utilizing the Member Benefits. If concierge level resource support is provided, it shall be provided from 9 AM to 5 PM, Eastern Standard Time, Monday- Friday, except for Federal Holidays. You hereby consent to allow the Company, for training, quality assurance or other purposes, in the Company’s sole discretion, to record the entirety of any calls or communications in which You utilize concierge support, regardless of whether the Company asks You for consent to record a particular call or communication.
2.4 Trial Benefits. From time to time, the Company may offer new Member Benefits or new features in a pre-release version or limited preview basis (“Trial Releases”). If You elect to utilize or participate in the Trial Releases, then Your use is subject to the following terms and conditions: (a) You acknowledge and agree that the Trial Releases are provided “as-is” and may not work without error; (b) such Trial Releases when commercially released may change substantially and at any time; (c) We may limit the number of participants in the Trial Releases and/or the customer service or support time dedicated to supporting the Trial Releases; (d) You may be required to provide feedback regarding Your use and experience with the Trial Releases to be incorporated into such Member Benefits when released; and (e) all information regarding Your use of the Trial Releases, including Your experience with and opinions in relation thereto shall be treated by You as confidential, and may not be used for any purpose other than providing feedback to the Company. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRIAL RELEASES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
2.5 Premium Services. The Company may, in its sole discretion, offer additional optional offerings not typically included for your Annual Membership Fee for an additional fee (“Premium Services”). The Premium Services may be offered for a specific period of time or a specific unit of measure as set forth in writing. Premium Service offerings are subject to change without notice, as determined by the Company’s from time to time. To be eligible for Premium Services, You must be a member of the Community in good standing and not in breach of this Agreement or any of the Policies. The Premium Services are personal to the Member and may not be resold, assigned, or transferred to any other party. In addition to Sections 2.5.1, 2.5.2. and 2.5.3 below, the specifications and/or additional terms pertaining to the particular Premium Services are set forth in the Community Terms. Except as otherwise set forth in writing, each Premium Service which You purchase will expire no later than the earlier of one year, or the termination of your membership in the Community for any reason. Upon the expiration or termination of your Premium Service term for whatever reason, including the termination of your membership, You will not be entitled to any refund for any unused portion of the Premium Service(s).
2.5.1 Content Studio. “Content Studio” provides members with access to professional writers who collaborate with the Member to create original content. Content Studio services are sold in bundled packages of a certain number of articles which may be published on certain media platform(s) as set forth in the Community Terms. Your failure to submit article(s) for publication may result in the loss of any unused portion of the bundle if the article(s) are not submitted within the earlier of (a) the time set forth in the Community Terms, (b) the end of your membership in the Community, or (c) the CS Expiration Date. The “CS Expiration Date” is the date from the date of your initial payment of Content Studio that is determined by multiplying the number of articles purchased by the Member by sixty (60) days (for illustrative purposes only: a purchase of three (3) Content Studio articles results in one hundred eighty (180) days to submit all three (3) articles). Any unused portion of the Content Studio bundle will not be carried over to another period or be refunded. While the Company will use reasonable efforts to honor timing requirements, deadlines, including, publication dates, the Company makes no warranty or guarantee that Your articles will be published within the requested time. In order to meet turnaround-timing requests, You must provide complete and thoroughly detailed responses to the content creator, including, but not limited to, a list of article concepts and answers to content creator’s questions.
2.5.2 Coaching Services and Boardroom Services. “Coaching Services” are regularly occurring one-on-one coaching of a business executive and/or such business executive’s team. Coaching Services may be sold in bundled packages of a certain number of sessions or types of sessions over a certain period of time. “Boardroom Services” are dedicated regularly occurring digital peer group meetings facilitated by a moderator consisting of a selected group of individuals with shared interests, professions, or other business activities to provide results-based support and accountability. You acknowledge and agree that (a) the Coaching Services and Boardroom Services are performed by Predictable Profits Coaching, LLC (“PP”), a third-party service provider with no affiliation to the Company, (b) Your purchase and participation in the Coaching Services and Boardroom Services are subject to PP’s terms and conditions, (c) the Company has not made any representations or warranties about the Coaching Services or Boardroom Services or the results thereof, and (d) the Company is not responsible or liable for the Member’s engagement with PP or the Coaching Services or Boardroom Services.
2.5.3 Visibility Boost. The Visibility Boost service provides Members the ability to “boost” their content which is published on Community social media. The Visibility Boost service is offered by Pressboardmedia.com and subject to their terms and conditions. The Visibility Boost service offered by Pressboardmedia.com is intended to give a Member’s published content a certain number of impressions and reads. The Member will receive a summary of the campaign at the end of the boost from Pressboardmedia.com. You acknowledge and agree that (a) the Visibility Boost service is performed by Pressboardmedia.com, a third-party service provider with no affiliation to the Company, (b) the Company has not made any representations or warranties about the Visibility Boost service or the results thereof, and (c) the Company is not responsible or liable for the Member’s engagement with Pressboardmedia.com or the Visibility Boost service.
Section 3. MEMBERSHIP ELIGIBILITY
3.1 Eligibility. The Member Benefits, Premium Services, and use of the Sites are available only to Members who possess the legal right, capacity and ability to enter into this Agreement. By accessing or using the Site Member Benefits, or Premium Services, You represent and warrant that You are (a) a Member in good standing of the Community; (b) at least eighteen (18) years of age (or older if otherwise provided herein); (c) otherwise recognized as being able to form legally binding contracts under applicable law; (d) are not a person barred from purchasing or receiving any of the Member Benefits or Premium Services under the laws of the United States; and (e) located in the United States.
3.2 Application for Membership. The Community is comprised of persons chosen from a selective application process and approved for membership by the Company in its sole discretion. In order to qualify for consideration as a Member of the Community, You must (a) meet the age and other membership criteria of the Community; (b) submit an application for membership (the “Application”) and pay all required fees, including the nonrefundable initiation fee, if any; (c) submit to any background checks and answer due diligence questions truthfully and honestly; and (d) have such other qualifications for membership in the Community as set forth in the Community Terms or as required by the Company in its sole discretion. By submitting Your Application and by Your continued use of the Member Benefits or Premium Services, You represent and warrant that You fit the eligibility requirements for membership and that all information included in Your Application or in connection with the registration process including but not limited to personal and/or professional information is accurate, current and complete. The Company shall provide You with approval or rejection by email to the address set forth in Your Application as soon as it is practical (“Application Announcement”). If You are approved for membership, You are required to complete the registration process by creating a user name and password, providing Your Account Information (as defined in Section 6), and submitting credit card information for the payment of Your Annual Membership Fees, Premium Services fees, or other fees to access the Community and begin utilizing Member Benefits, or Premium Services, as applicable. Failure to submit credit card information within fifteen (15) days of receipt of an Application Announcement shall result in the revocation of Your acceptance. The Company is under no obligation to approve any Application or otherwise to explain or disclose the reasoning behind any membership decisions to any applicant or other third parties. If the Community does not require an Application, You still will be required to complete Your registration as set forth in this Section.
Section 4. MEMBER TERM, TERMINATION, AND ANNUAL MEMBERSHIP FEE
4.1 Membership Term: A membership shall be effective upon the later of (a) the acceptance by the Company of Your Application as set forth above, or (b) receipt by the Company of applicable initiation fee, and shall continue for an initial term of which is indicated on your membership application (for example, one year or two years)(“Initial Membership Term”). Upon the expiration of the Initial Membership Term, the membership shall automatically renew for consecutive periods which are the same term as the Initial Membership Term (for example, one (1) year or two (2) year terms(s)) (each a “Renewal Term”) unless either You or the Company terminate the Renewal Term by written notice no later than fifteen (15) days after the commencement of that Renewal Term. Provided that You have timely terminated the Renewal Term, Annual Membership Fees paid in advance for the Renewal Term shall be refunded by the Company. The Initial Membership Term and any Renewal Terms are collectively referred to herein as the “Term”. Notwithstanding the foregoing, within the first thirty (30) days of the Initial Membership Term, You may cancel Your membership and receive a refund of Your Annual Membership Fee by sending written or email notice to the Community Contact, or by selecting to cancel Your account through Your dashboard on the Sites, if You have not yet utilized any of the following Member Benefits (to the extent they are available to Your Community): (a) concierge support for more than general questions on how to use the Sites or a listing of Member Benefits, (b) the redemption or attempted redemption of any Marketplace Offerings or contact with a Marketplace Provider about purchasing any Marketplace Offering, (c) the submission or publication of any marketing or promotional materials or (d) the use of Your membership to contact any other Member. NOTWITHSTANDING THE ANYTHING TO THE CONTRARY, ANY “INITIATION FEE” PAID AFTER YOUR MEMBERSHIP APPLICATION WAS APPROVED BY THE COMPANY WHETHER OR NOT PAID AT THE TIME OF PAYMENT OF ANNUAL MEMBERSHIP FEES IS NON-REFUNDABLE AND WILL NOT BE REFUNDED ONCE PAID REGARDLESS OF TERMINATION OR CANCELLATION OF YOUR MEMBERSHIP FOR ANY REASON.
4.2 Termination: Notwithstanding the foregoing, the Company may terminate Your membership in the Community and this Agreement immediately on notice in the event You (a) violate this Agreement, the Community Terms or any of the Policies, including, but not limited to, the Member Code of Conduct as determined in the Company’s sole discretion; (b) fail to pay any amount due to the Company when due and such failure continues for fifteen (15) days after the Company’s delivery of written or email notice of nonpayment; (c) fail to pay any amount when due more than two (2) times in any twelve (12) month period; (d) reproduce confidential Member communications without the express written permission of the other Member; (e) are the subject of complaints from Members regarding Your conduct, the veracity of which will be determined by the Company in its sole discretion; (f) misrepresent or include false information in Your Application or during the Application or registration process; (g) violate any rules of professional conduct to which You are subject; (h) become the subject of a federal criminal investigation or civil investigation for actions a felony or any acts of moral turpitude or dishonesty; (i) are charged with or convicted of any felony or any misdemeanor involving moral turpitude or dishonesty; (j) engage in conduct which, if publicly revealed, would harm the esteem of the Community, whether or not such conduct constitutes crimes; (k) enroll as a Member in any Community for a purpose other than to utilize the Member Benefits (in the Company’s sole discretion); (l) solicits, markets, or sells access to Community or any Member Benefits to third parties, including, but not limited to, offering to include a third party’s services, products or links in Member Content, or to positively portray a third party’s products or services for a fee, or offering, promoting, or advertising introductions or access to any other Members; (m) solicit other Members for the sale of products, services, or investments, whether within the Sites or elsewhere; or (n) do anything which, in the Company’s reasonable discretion, is harmful to the Company’s reputation or goodwill.
4.3 Annual Membership Fee: You agree to pay the then-current membership fee for each year of the Term in which You are a Member (the “Annual Membership Fee”). Additionally, You agree to pay any and all prices and fees in connection with any additional Product Terms in connection with any Member Benefits, Marketplace Offerings, or Premium Services purchased or obtained by You, if applicable. The Annual Membership Fee associated with Your membership does not guarantee any benefits or results in connection with Your membership and, except as provided hereunder. All fees for Member Benefits are non-refundable unless otherwise noted in any Product Terms, even if Your access or use of the Sites or Member Benefits are suspended, terminated, or transferred prior to the end of the annual period. the Company reserves the right to change or modify its Annual Membership Fee for the next yearly term and any Product Terms upon thirty (30) days’ electronic notice to You, which such changes or modifications shall be posted online at the Sites or as otherwise permitted in the Community Terms and effective without need for further notice to You. Changes in prices and fees will be effective when Your membership is renewed, except that if Your membership is not for a set term, the change will be effective no less than thirty (30) days after posting of the change.
Unless as otherwise set forth in the Community Terms, the Annual Membership Fee shall be due in full upon the commencement of the Initial Membership Term and upon the commencement of each Renewal Term. EVEN IF THE COMMUNITY TERMS PERMIT PAYMENT OF THE ANNUAL MEMBERSHIP FEE ON A MONTHLY, QUARTERLY OR SEMI-ANNUAL BASIS, SUCH OPTION SHALL MERELY BE A PAYMENT PLAN OPTION AND SHALL NOT AFFECT THE MEMBERSHIP TERM, WHICH SHALL STILL BE ON AN ANNUAL BASIS AND THE ANNUAL MEMBERSHIP FEE FOR THE ENTIRE YEAR SHALL STILL BE DUE, AND UNDER NO CIRCUMSTANCE SHOULD SUCH PAYMENT PLAN OPTION CONSTITUTE PAYMENT FOR RENEWAL TERMS. Except as otherwise set forth in any Community Terms or Product Terms, You shall provide a valid credit card to be stored on file in order to pay the Annual Membership Fee and for any fee in connection with the Member Benefits which You choose to purchase or exercise (“Payment Method”). You hereby authorize the Company to charge Your Payment Method for the Annual Membership Fee and any fees or charges related to the Member Benefits when due without additional notice. You hereby represent and warrant that in the event that Your Payment Method belongs to or is provided by an employer or other third party, that You are authorized to provide such Payment Method, that if such Payment Method is revoked You are still liable for payments due hereunder and that You shall indemnify the Company against any claim by a third party that the Company was not authorized to utilize the Payment Method provided by You or on Your behalf.
IN ADDITION TO YOUR MEMBERSHIP, COMPANY MAY OFFER AN AUTOMATIC RENEWAL OPTION FOR CERTAIN MEMBER BENEFITS IN THE EVENT THAT AN AUTOMATIC RENEWAL OPTION IS AVAILABLE AND YOU DO NOT OPT-OUT OF SUCH AN OPTION AS SET FORTH IN SECTION 4.1, THE COMPANY WILL KEEP YOUR PAYMENT METHOD INFORMATION ON FILE, AND YOU HEREBY AUTHORIZE COMPANY TO CHARGE YOUR PAYMENT METHOD WHEN YOUR MEMBERSHIP TERM OR AN ADDITIONAL CHARGE IN CONNECTION WITH A PRODUCT TERM IS UP FOR RENEWAL THEREBY AUTOMATICALLY RENEWING THE SAME FOR THE SAME PERIOD OF TIME AS THE PRIOR TERM.
If for any reason the Company is unable to charge Your Payment Method for the full amount owed or if the Company receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to Your Payment Method, You agree that the Company may (a) pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation of Your membership or any Member Benefit in connection thereto, without notice to You; (b) suspend Your account; and (c) in the event that the Company pursues any action for the collection of monies due to the Company from You hereunder, the Company will be entitled to reimbursement of its costs and expenses in connection with such actions include any attorneys or arbitrator fees.
In the event of suspected fraudulent activity or erroneous charges on or in connection with Your account or Payment Method, You will contact the Community Contact as soon as possible with the subject line “Suspected Fraudulent Activity” or “Erroneous Charges” or call the telephone number associated with the Community Contact.
4.4 Refunds. If Your membership is terminated for any reason, You shall not be entitled to a refund of any portion of Your Annual Membership Fee, though the Company may refund all or a portion of Your Annual Membership Fee with or without the requirement of the execution of a release. Notwithstanding the foregoing, Annual Membership Fee refunds are available under the following circumstances: (a) at the conclusion of an Initial Membership Term or any Renewal Term as provided for in this Agreement, (b) within the first fifteen (15) days of a Renewal Term as set forth in Section 4.1, or (c) within the first thirty (30) days of the Initial Membership Term as set forth in Section 4.1. Initiation fees are not refundable pursuant to Section 4.1 You shall not be entitled to a refund of Your Annual Membership Fee on the belief that Your membership was unsatisfactory or did not live up to Your expectations. If refunds are issued to Your Payment Method, the Company’s issuance of a refund receipt is only confirmation that the Company has submitted Your refund to the Payment Method charged at the time of the original sale and that the Company has absolutely no control over when the refund will be applied toward Your Payment Method’s available balance. The payment provider and/or individual issuing bank associated with Your Payment Method establish and regulate the time frames for posting Your refund, and that such refund posting time frames may range from five (5) business days to a full billing cycle, or longer.
4.5 Free/ Discounted Trial: The Initial Membership Term may be provided gratis or at a discounted rate, allowing You or other Members to receive Your Member Benefits free or at a discount for a limited period of time (“Trial Pricing”). If You receive Trial Pricing at the time of sign-up, Your Payment Method will be verified but not charged. The provision of Trial Pricing may be offered to some or all Members as determined by the Company in its sole discretion, and because one Member is offered Trial Pricing does not entitle You to such Trial Pricing. the Company reserves the right, in its sole discretion, to determine any Trial Pricing and the granting thereof. If Trial Pricing is offered and accepted by You, the Company will begin billing Your Payment Method as set forth above at the commencement of the Renewal Term unless You cancel Your membership prior to the end of the Initial Membership Term. At the conclusion of a Trial Pricing period, Your Annual Membership Fees will automatically revert to the then-current rate for Annual Membership Fees applicable to Your Community, as determined in the Company’s sole discretion.
To obtain specific details regarding Your membership, including Annual Membership Fees and the end date of Your Trial Pricing, please contact the Community Contact with the subject line “Membership Details”.
You will not receive a notice from the Company that Your Trial Pricing period has ended or that You will be charged upon the commencement of the Renewal Term. the Company reserves the right, in its sole discretion, to withdraw or modify any Trial Pricing or promotions at any time upon notice and with no liability.
4.6 Credit Card Authorization. For any payments made by credit card, by providing the Company your credit card information, You authorize the Company to store Your credit card information and You further authorize the Company to charge the full amount to Your credit card. the Company may charge $1.00 or less against your credit card to test the validity of Your credit card account at any time during Your membership or prior to a charge. Once your credit card account is verified, the small charge will be refunded to such credit card.
Section 5. TRANSFER OF MEMBERSHIP
Your membership, use of the Sites, Member Benefits, or Premium Services You acquire pursuant to this Agreement are for Your benefit alone. No other individual or corporate entity acquires any interest in Your membership, use of the Sites, or any Member Benefits or Premium Services whether or not You entered into this Agreement or obtained membership with or without its authority or on its behalf. Your membership is personal to You and not the property of Your employer or your company, even if Your employer or company pays for the membership on Your behalf. Therefore, if Your employment status changes or if You transfer employers, Your membership in the Community will not be affected, regardless if a third party paid any fees associated with Your membership. Additionally, if Your contact information or employment status changes during the Term of Your membership, You must notify the Company of such change.
Your membership is not transferable, except in limited circumstances, the Company may, in its sole and absolute discretion, transfer Your membership, use of the Sites, or any Member Benefits or Premium Services to another individual, but is in no event obligated or required to do so.
Section 6. ACCOUNT INFORMATION
6.1 Account Information Generally. In order to access the Member Benefits, Premium Services and some features of the Sites, You will be required to create a profile or account, which shall include, but not be limited to, Your username, password, contact information (including personal mailing and/or personal email address), as well as Payment Method (“Account Information”). You represent and warrant to the Company that all information You submit when You create Your profile or account is current, accurate, complete, and that You will keep Your Account Information current, accurate and complete and notify the Company of any changes to your Account Information. In the creation of Your profile or account, You are not impersonating any third party or otherwise using any third party’s information without their written approval. If the Company has reason to believe that Your Account information is untrue, inaccurate, out-of-date or incomplete, the Company reserves the right, in its sole discretion, to suspend or terminate Your membership, and/or suspend Your use of the Sites, Your membership and any Member Benefits or Premium Services. At all times, You shall keep your profile or account personal to You and not permit any third party to access your profile, account, or Account Information.
6.2 Member Profile. Each new Member must complete and keep their profile up-to-date on the Sites. If within thirty (30) days of a Member’s membership initiation, a Member has not completed their profile, such Member grants the Company the right and authority to complete the Member’s profile based upon the information given by the Member to the Company and other such information that is publically available, including, but not limited to such information on the Member’s social media accounts. While the Company will attempt to present the Member’s information accurately, it is the Member’s responsibility to correct and update all information on the Member’s profile. You agree that the Company will not be responsible for and you will hold the Company harmless from and against any inaccuracy or misrepresentation appearing on Your profile.
6.3 Account Information Security. You are solely responsible for the activity that occurs in connection with Your account, whether authorized by You or not, and You must keep Your Account Information secure, including, without limitation, Your user name and password. You must notify the Company immediately of any breach of security or unauthorized use of Your Account by emailing the Community Contact and writing “Unauthorized Use of Account Information” in the subject line. the Company will not be liable for any loss You incur due to any unauthorized or improper use of Your Account Information by You or third parties. You, however, may be liable for any loss the Company or others incur caused by use of Your Account Information, whether caused by You, or by an authorized person, or by an unauthorized person.
6.4 Communications with the Company. You agree that the Company may from time-to-time call, email or otherwise communicate with You about Your account, and that, for the purposes of any and all such call(s), You do not have any reasonable expectation of privacy during those calls; indeed You hereby consent to allow the Company, in its sole discretion, to record the entirety of such calls or communications regardless of whether the Company asks You on any particular call for consent to record such call or communication. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) or communication(s) may be submitted in evidence in any legal proceeding in which the Company is a party.
Section 7. AVAILABILITY OF THE SITES AND MEMBER BENEFITS
Except as otherwise set forth in the Policies, We shall use commercially reasonable efforts to provide uninterrupted access to the Sites and Member Benefits each and every day. From time to time the Sites or Member Benefits may be inaccessible or inoperable for any reasons within or outside of the Company’s control including, but not limited to, maintenance, repairs, updates, upgrades, equipment malfunctions or other reasons that are not reasonably foreseeable such as interruption or failure of telecommunication or digital transmission links, network congestion or other failures. We have no control over the availability of the Sites or Member Benefits on a continuous or uninterrupted basis, and that We assume no liability to You or any other party with regard thereto. Except as expressly set forth in writing in the Product Terms for a particular Member Benefit, You shall not be entitled to any refund, credits or set-offs of or against Your Annual Membership Fee or other fees incurred in connection herewith for any interruption of the Sites or Member Benefits or lack of availability of any Member Benefits whether due to unavailability, suspension or termination of Your membership or otherwise.
Section 8. PRICING AND AVAILABILITY
With respect to its advertising, offering or sale of any of the Member Benefits, including, but not limited to, the Marketplace Offerings or Premium Services, the Company attempts to describe such Member Benefits as accurately as possible. Nevertheless, the Company does not warrant that at any time, the descriptions, pricing, availability, or other information relating to the advertising, offering, or sale of the Member Benefits or Premium Services, or marketing materials, promotional flyers, advertisements, or other printed or electronic materials related thereto (collectively, “Benefits Materials”) is accurate, complete, reliable, current, or error-free. Despite our commercially reasonable efforts, it is possible that Benefits Materials may be mispriced, described inaccurately, unavailable depending on the jurisdiction or if offered by or through any third parties or a Marketplace Provider unavailable or subject to additional terms at such time. In the event the Company determines that any Member Benefit or Premium Service is mispriced, described inaccurately, or unavailable, the Company reserves the right to take any action it deems reasonable and necessary to rectify the error, without providing notice to You, including without limitation, canceling Your purchase or other use of the Member Benefit and refunding a pro-rata portion of the amounts paid for such Member Benefit. You agree to notify the Company immediately if You become aware of any pricing or descriptive errors or inconsistencies with any Member Benefits or Premium Services You order and comply with any corrective action taken by the Company. Notwithstanding anything else contained herein, in no event shall the Company be required or You be entitled to a refund of any portion of the Annual Membership Fee or other fees regardless of whether or not any Member Benefits or Premium Services were mispriced, described inaccurately or unavailable for any reason.
Section 9. MARKETING MATERIALS AND PROMOTIONAL SERVICES
Section 10. MEMBER CODE OF CONDUCT
10.1 Your membership in the Community as well as Your use of the Member Benefits, Premium Services, and the Sites are subject to and must comply with, the Community Terms, including this Agreement, and additionally the following (the “Member Code of Conduct”). Your use of the Sites, Member Benefits, and Premium Services: (a) will comply with all terms of this Agreement and the Policies; (b) will comply with all applicable local, state, and federal laws, rules and regulations; (c) will not be utilized for any illegal purposes or promotion or encouragement of any illegal activity, including, but not limited to, any acts of terrorism, violence against people or property; (d) will not be used for any libelous, defamatory, unlawful, illegal, pornographic, indecent, offensive, obscene, bigoted, hateful or discriminatory purposes; (e) will not infringe the intellectual property or other right of any person or entity or otherwise violate any privacy or publicity rights or impersonate any other person; (f) will not be in a manner which infringes any duty of confidentiality that You owe to another person or entity; (g) will not be used for anti-social, disruptive, or illegal purposes including but not limited to “spamming”, “trolling”, “flooding”, “bullying” or otherwise to harvest (or permit anyone else to harvest) any content contained on the Sites or any non-public or personally identifiable information about another user or entity; (h) will not include any direct or indirect, general or open, solicitations of other Members for the purposes of selling products or services or seeking employment, investment or other business opportunities; (i) will not interfere with the operation of the Sites or the Member Benefits or otherwise introduce any viruses, worms, bugs, “Trojan Horses” or other codes or programs designed to, or capable of disrupting, damaging or limiting the functionality of any software or hardware; (j) will not be used for the purposes of producing false, deceptive or unsubstantiated or comparative claims about the Community, Member Benefits, or the Marketplace Providers; (k) will not be used with the intention to or be reasonably expected to harass, demean or negatively affect the personal or professional reputation of the Community or any other Member.
Additionally, as part of the Member Code of Conduct, You: (l) will refrain from sharing Your passwords for use of the Sites; (m) will at all times reflect positively on the Community and You will not take any action which will in the Company’s sole opinion reflect negatively on the Company and the Community; (n) will not, nor induce any third party to, attempt to disable or circumvent any security mechanisms used by the Company or otherwise attempt to gain unauthorized access to any portion of the Sites or to any Member Benefit for which You have not subscribed, or to any other systems or networks connected to the Sites, or to any server of the Company or its third party service providers, by hacking, password “mining,” or any other illegal means; (o) will not, nor induce any third party to, use any “deep-link,” “page-scrape,” “robot,” “spider,” or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Sites or any Member Benefits; (p) will not, nor induce any third party to, use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Sites or with any other person’s use of the Sites; (q) will not, nor induce any third party to, track or seek to trace any information on any other person who visits the Sites; (r) will not, nor induce any third party to, use the Sites in any connection with any illegal purpose under state or federal law; (s) will not, nor induce any third party to, copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise apply to the Sites, Member Content, the Company Content, Member Benefits, or Premium Services; (t) will not publish or reproduce any screenshots which include any personally identifying information of any the Company representative or employee; (u) will not publish, reproduce or describe the contents of any communications from the Company, including, but not limited to any descriptions or content describing the Member Benefits, Premium Services, or anything related to membership; (v) will not use the Sites for the purposes of developing or operating a product or service which is competitive with the Company or otherwise with the intent to solicit Members or otherwise encourage Members to discontinue their use of the membership.
10.2 You represent and warrant that (a) You are liable for any and all uses of the Sites or Member Benefits utilizing Your Account Information; (b) You will not copy or distribute in any medium any part of the Sites, including but not limited to the Company Content (as defined below) except where expressly authorized by the Company; (c) You will not re-sell, provide any part or portion of, or otherwise advertise access to the Community or Members, the Member Benefits, or the Premium Services to third parties for a fee or otherwise to compete with the Company, including, but not limited, offering to include a third party’s services, products or links in Member Content, to positively portray a third party’s products or services for a fee; and (d) You agree not to circumvent, disable or otherwise interfere with the security-related features of the Sites, including without limitation those features that prevent or restrict use or copying of any content or enforce limitations on the use of the Sites.
10.3 The Company does not guarantee that other Members are or will be complying with the Member Code of Conduct or any other portion of the Policies, and Your use of the Sites and Member Benefits or Premium Services are at Your own risk. Should You have a good faith belief that any Member is engaged in any activity which violates the Member Code of Conduct, We encourage You to contact the Community Contact and in the subject line, please type “Member Code Of Conduct”.
10.4 In addition to any and all other remedies at law, the Company may suspend or terminate Your membership at any time in the event that the Company believes in its sole discretion that You have violated the Member Code of Conduct, including during interactions with the Company, with other Members, or with third parties.
Section 11. USE OF COMPANY CONTENT AND MEMBER CONTENT
11.1 Member Content. Some of the features of the Sites, Member Benefits, or Premium Services may allow users to submit, post, publish, share, store, or manage certain text, stories, artwork, images, photographs, videos, messages, ideas, concepts, opinions, musical compositions, audio-visual works or other materials (“Member Content”). Any and all materials or content submitted through Your account or using Your Account Information shall be considered Member Content. By posting or publishing Member Content to the Sites, or otherwise making such Member Content publicly available in connection with the Member Benefits, You represent and warrant to the Company that (a) submission of Member Content is entirely voluntary; (b) You have all necessary rights to distribute Member Content via the Sites or otherwise as publicly published, either because You are the sole author of the Member Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owners of the Member Content without any restriction; (c) the Member Content is original and not previously published in any form; (d) the Member Content will not knowingly contain any untrue statements or material that is deceptive, fraudulent or intentionally misleading, and all statements in the Member Content which are asserted as facts are true and based upon reasonable research for accuracy; (e) the Member Content does not violate any rights of privacy or infringe upon any statutory or common law copyright or otherwise violate the rights of any third party or any applicable law or regulation; and (f) the posting or publishing of the Member Content shall not violate the Member Code of Conduct as provided herein. You shall indemnify the Company and hold the Company harmless against any liability, cost or expense, including reasonable attorneys’ fees, incurred as a result of any breach of the foregoing representations or warranties. For the purposes of this Section, any public communications between You and another Member using the Sites shall be deemed to be Member Content and shall not be reproduced, republished or otherwise utilized by You in contravention to this Section or the Member Code of Conduct. If You use third party content in the Member Content, it is Your responsibility, at your expense, to obtain all approvals, consents, licenses, or otherwise clear the third party content in the Member Content. If such third party content is not cleared, You shall not use it in the Member Content. Notwithstanding, the Company has no obligation to remove any published Member Content, except in its sole and absolute discretion.
In order to publish Member Content to certain third-party websites or other media channels, You may be required to comply with additional guidelines or approvals and/or execute additional or acknowledge additional terms or agreements with such third party.
Further, if You submit, post, or publish Member Content, it is at Your own risk, and that You shall be solely responsible for any liability related thereto and further that the Company reserves the right, in its sole discretion, to: (a) review, edit, remove or refuse to post any Member Content for any or no reason; (b) take any action with respect to any Member Content that We deem necessary or appropriate, including if We believe that such Member Content violates these Terms, infringes any intellectual property right or other rights of any person or entity, threatens the personal safety of other Members, users of the Sites or the public or could create liability for the Company; (c) disclose Your identity or other information about You to any third party who claims that material posted by You violates their rights, including but not limited to their intellectual property rights or their right to privacy; (d) take appropriate legal action, including, without limitation, referral to law enforcement; (e) terminate or suspend Your access to all or part of the Sites or Member Benefits for any or no reason, including without limitation, any violation of these terms or the Policies.
Without limiting the foregoing, the Company has 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 Sites. YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, LICENSORS, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY 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 AUTHORITY.
You agree to cooperate in the defense of any legal action brought against the Company arising from the publication of the Member Content and You agree to retain all notes, drafts, and copies relating to the Member Content for three (3) years after publication.
11.2 Unsolicited Materials: In order to avoid the possibility of any future misunderstandings in connection with any products, services, projects or creative ideas which the Company or its licensors may develop, which may be similar to a third party’s creative materials, it is the Company’s long-standing policy to not allow, accept or consider creative ideas, proposals, suggestions or other materials which the Company does not request from You in writing (“Unsolicited Materials”). Therefore, We request that You do not provide any Unsolicited Materials in the Member Content or in any other manner to the Company in connection with Your membership or otherwise. Any Member Content shall not be made in confidence or with an obligation to review or provide any consideration or compensation. the Company and its licensors are constantly developing products, programs or services and that the development and exploitation thereof shall not entitle You to any compensation of any sort, regardless of the similarity to any Unsolicited Materials. Notwithstanding the foregoing, You agree that any Unsolicited Materials that You submit to the Company shall automatically become the property of the Company, without any compensation, accreditation or notice to You, that the Company may use or redistribute any submission of Unsolicited Materials either in the form which You submit them or in an altered form, that the Company has no obligation to keep any submitted Unsolicited Materials, and that, to the extent that the Unsolicited Materials are subject to a confidentiality agreement with any third party, that by submitting Unsolicited Materials to the Company, You may violate such confidentiality agreement, that the Company is not bound thereby, and that You will indemnify, hold harmless, and defend the Company from any third party legal action arising from Your disclosure of the Unsolicited Materials and/or the Company’s subsequent unrestricted right to use the Unsolicited Materials.
11.3 License in Member Content: By posting or publishing Member Content to the Sites, or to any sites in connection with Media and Personal Brand Building, the Community Knowledge Platform, or any other Member Benefit that allows publication of content, You hereby grant the Company and its licensees a perpetual worldwide, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, modify, and perform Your Member Content in connection with the Sites or otherwise as the Company determines in its sole discretion in any medium or manner without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to You or any third party. The above licenses granted by You in Your Member Content are perpetual and irrevocable and shall continue whether or not You are still a Member of the Community, and neither the Company nor any media platform to which it publishes shall be required to remove such Member Content upon a Member request or liable for the refusal or failure to do so. Notwithstanding anything to the contrary contained herein, the Company shall not use any Member Content that has been explicitly marked or designed in writing as “private” or “password protected”. Except as set forth in the preceding sentence, any other Member Content may be used, reproduced, displayed, modified, deleted, added to, adapted, and published by company for its own use.
11.4 The Company Content. Except for Member Content, the content on the Sites and in connection with the Member Benefits, including without limitation text, stories, artwork, images, photographs, videos, messages, ideas, concepts, opinions, musical compositions, audio-visual works interactive features and the trademarks, service marks and logos contained therein (“the Company Content”), are owned by or licensed to the Company, and are subject to copyright, trademark, and/or patent protection in the United States, and other intellectual property rights under United States laws. the Company Content is provided to You “as is”, “as available” and “with all faults” for Your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of the Company. The Company Content shall be provided for informational and aesthetic purposes only. We do not warrant the accuracy, completeness or usefulness of the Company Content. Any reliance You place on the Company Content is strictly at Your own risk. We disclaim all liability and responsibility arising from any reliance placed on the Company Content by You or any other visitor to the Sites, or by anyone who may be informed of any of the Sites’ contents. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. the Company reserves all rights not granted in and to the Company Content, and Your membership in the Community and this Agreement do not transfer ownership of any of these rights.
11.5 Use of Member Content in Native Advertisements. COMPANY MAY, IN ITS SOLE DISCRETION, CAUSE ANY MEMBER CONTENT TO BE PUBLISHED AS “NATIVE ADVERTISEMENTS” UPON THIRD-PARTY WEBSITES AND/OR THE SITES, AND ACCORDINGLY MEMBER CONTENT SHALL NOT CONTAIN ANY ENDORSEMENT, ADVERTISEMENT, PROMOTION, RECOMMENDATION OR TESTIMONIAL IN CONNECTION WITH ANY BRAND, PRODUCT OR SERVICE UNLESS IT CONTAINS ALL DISCLOSURES REQUIRED BY RELEVANT GOVERNMENT REGULATORY AUTHORITIES AND REGULATIONS, INCLUDING BUT NOT LIMITED TO SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT, PART 255 OF THE FEDERAL TRADE COMMISSION GUIDES AND TRADE PRACTICE RULES, AND STATE UNFAIR AND DECEPTIVE ACTS AND PRACTICES LAWS. SUCH REQUIRED DISCLOSURES INCLUDE, BUT ARE NOT LIMITED TO (A) WHETHER YOU OR ANY OF YOUR RELATIVES, AFFILIATES, OR COMPANIES IN WHICH YOU HOLD GREATER THAN A 25% INTEREST HAVE RECEIVED OR WILL RECEIVE COMPENSATION, FREE OR DISCOUNTED PRODUCTS OR SERVICES, OR ANY OTHER CONSIDERATION FOR THE PUBLICATION OF MEMBER CONTENT, AND (B) IF YOU HAVE ANY OTHER MATERIAL RELATIONSHIP IN CONNECTION WITH ANY BRANDS, PRODUCTS OR SERVICES ENDORSED WITHIN SUCH CONTENT. IN ADDITION, YOU MUST NOTIFY COMPANY AT THE TIME OF SUBMISSION OF ANY MATERIAL CONNECTION YOU HAVE WITH ANY BRANDS, PRODUCTS OR SERVICES ENDORSED WITHIN ANY SUBMITTED MEMBER CONTENT.
Section 12. MONITORING OF CONTENT
The Company generally does not pre-screen Member Content. However, the Company reserves the right (but undertakes no duty) to do so and decide whether any item of Member Content is appropriate and/or complies with this Agreement or the Policies. The Company may with or without notice, in its sole discretion, remove any item of Member Content and/or terminate a Member’s access to the Sites or a Member’s membership in the Community for posting or publishing any material in violation of this Agreement or the Policies. The Company may also terminate or suspend a Member’s access to the Sites or its membership in the Community if the Company has reason to believe the Member has repeatedly violated this Agreement. If the Company terminates or suspends Your membership or access to the Sites or Member Benefits, the Company may, in its sole discretion, remove and destroy any data and files stored by You on its servers.
Section 13. ADDITIONAL RESERVATION OF RIGHTS
The Company reserves the right to deny, cancel, terminate, suspend, lock, or modify access to the Sites or control of any account or Member Benefits for any reason as determined by the Company in its sole discretion, including, but not limited to, the following: (a) to correct mistakes made by the Company in offering or delivering any Member Benefits, (b) to assist with our fraud and abuse detection and prevention efforts, (c) to comply with court orders against You or other Members and applicable local, state, and federal laws, rules and regulations, (d) to comply with requests of law enforcement, including subpoena requests, (e) to comply with any dispute resolution process, (f) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, (g) to avoid any civil or criminal liability on the part of the Company, its officers, directors, employees, licensors or partners, including, but not limited to, instances where You have sued or threatened to sue the Company or its licensors; or (h) if the Company has reason to believe that any account is being used or intended to be used for a reason which would violate the Member Code of Conduct. the Company reserves the right to terminate, without advance notice to You, any and all Member Benefits or Your membership in the Community where, in the Company’s sole discretion, You are harassing or threatening the Company, and/or any of its employees, contractors, licensors or other Members or otherwise violating any terms of this Agreement without refund of any portion of Your Annual Membership Fee.
Section 14. INTELLECTUAL PROPERTY RIGHTS
The Sites and Member Benefits and their entire contents, features and functionality, including, but not limited to, all information, software, text, displays, images, video and audio, and the design selection and arrangement thereof, are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Your membership permits You to use the Sites and Member Benefits for Your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Sites, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to Your accessing and viewing those materials.
- You may store files that are automatically cached by Your web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Sites for Your own personal, non-commercial use and not for further reproduction, publication or distribution.
- If We provide desktop, mobile or other applications for download, You may download a single copy to Your computer or mobile device solely for Your own personal, non-commercial use, provided You agree to be bound by any end-user license agreement for such applications as applicable.
- If We provide social media features with certain content, You may take such actions as are enabled by such features.
- Provided that it is permitted by the Policies, You may use certain authorized badges or digital promotional materials provided by the Company to acknowledge Your membership in the Community, provided, however, that You may not alter the appearance, meaning or context of any such authorized badges or digital promotional materials, nor represent that Your affiliation with the Company is anything other than a membership in the Community at the time You are a Member only, nor sell or attempt to sell or trade the authorized badges or digital promotional materials for pecuniary gain.
You must not:
- Modify copies of any materials from the Sites.
- Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text as originally published on the Sites.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site.
The Company and Community name, trademarks, logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company and/or its licensors. You must not use, in any way, including but not limited to reproducing, printing, modifying, downloading, “sharing,” copying, transmitting, or otherwise giving access to such marks without the prior written permission of the Company, which may be withheld in the Company’s sole discretion, except as provided herein. All other names, logos, product and service names, designs and slogans on the Sites are the trademarks of their respective owners, and nothing herein shall provide You with the right to utilize the same.
If You print, copy, modify, download or otherwise use or provide any other person with access to any part of the Sites, Member Benefits, or Premium Services in breach of the Policies, Your right to use the Sites, Member Benefits, or Premium Services will cease immediately and You must, at our option, return or destroy any copies of the materials You have made. No right, title or interest in or to the Sites, Member Benefits, or Premium Services or any content on the Sites is transferred to You, and all rights not granted are reserved by the Company. Any use of the Sites, Member Benefits, or Premium Services which are not permitted by these terms is a breach of these terms and may violate copyright, trademark and other laws.
Section 15. TRADEMARK AND/OR COPYRIGHT CLAIMS
The Company supports the protection of intellectual property, including, but not limited to, the notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (“DMCA”), which applies to content reported and removed for violating U.S. copyrights. In the event You have a good faith belief that Your work has been copied or that any Member Content, the Company Content, the Member Benefits, or Premium Services infringe Your intellectual property rights, including trademarks and copyrights, please provide the following information in writing to the Community Contact, with the subject line “Intellectual Property Claims”:
- Identification and description of the infringing material or activity along with information sufficient to identify the location on the Sites of such material or activity;
- Identification and description of the trademark or copyrighted work that You claim has been infringed;
- Your name, address, telephone number, and email address;
- A statement by You that You have a good faith belief that such use in the manner complained of is not authorized by the trademark/copyright owner, its agent or the law;
- A statement made by You, under the penalty of perjury that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of the exclusive right which is being infringed;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the trademark/copyright.
the Company’s designated agent for notice of claims of trademark or copyright infringement for the Sites is the Community Contact, and in the subject section, please type “ATTN: COPYRIGHT/TRADEMARK AGENT”. If You wish to reach our designated agent through other methods, You can contact:
The Community Company
Attn: The Community Company Designated Agent
745 Atlantic Avenue
Boston, MA 02111
If You fail to comply with all of the requirements set forth above, Your notice may not be effective.
Please be aware that if You knowingly materially misrepresent that any content on the Sites is infringing Your copyright, You may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
If Your Member Content is removed from the Sites, the Company may give You notice that it has removed or disabled access to such Member Content by means of a general notice on the Sites, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to Your physical address in our records. If You receive such a notice, You may provide counter-notification in writing to the Company’s Community Contact within the time period prescribed therein that includes the following:
- An identification of the Member Content or material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from You under the penalty of perjury, that You are the trademark or copyright owner, licensee or otherwise have a good faith belief that the Member Content or material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
- Your name, address, telephone number, and email address;
- A statement that You consent to the jurisdiction of the Federal District Court located in the Southern District of New York, and that You will accept service of process at the address above from the person who provided notification of allegedly infringing material or an agent of such person in connection with such claims.
- Your electronic or physical signature.
You should only submit a counter-notification if the cited Member Content was removed because of a mistake or misidentification. When we receive an effective DMCA counter-notification, we may forward it, along with Your contact information contained in the counter-notification, to the party that reported the infringing Member Content, and which they may use to contact You.
It is our policy in appropriate circumstances to disable and/or to terminate the memberships of Members who infringe on the intellectual property rights of others.
Section 16. RELIANCE ON INFORMATION POSTED
The information presented on or through the Sites and Member Benefits is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance You place on such information is strictly at Your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by You or any other visitor to the Sites, or by anyone who may be informed of any of the Sites’ contents.
The Sites include content provided by third parties, including materials provided by other Members, users, bloggers, and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to You or any third party, for the content or accuracy of any materials provided by any third parties.
Section 17. LINKS TO THIRD-PARTY WEBSITES
The Sites and the Member Benefits may contain links to third-party websites that are not owned or controlled by the Company. the Company assumes no responsibility for the content, terms, and conditions, privacy policies, or practices of any third-party websites. In addition, the Company does not censor or edit the content of any third-party websites, including, but not limited to, the websites of the Marketplace Providers. By using the Sites or Member Benefits, You release the Company from any and all liability arising from Your use of any third-party website. Accordingly, the Company encourages You to be aware when You leave the Sites and to review the terms and conditions, privacy policies, and other governing documents of each other website that You may visit.
Section 18. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR MEMBERSHIP IN THE COMMUNITY, USE OF THE SITES AND THE MEMBER BENEFITS OR PREMIUM SERVICES ARE AT YOUR OWN RISK AND THAT THE SITES, THE MEMBER BENEFITS, AND PREMIUM SERVICES FOUND AT THE SITES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTIES INCLUDING COMPANY PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, COMPANY LICENSORS, PARTNERS AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (A) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SITES; OR (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITES, AND/OR (C) THE SERVICES FOUND AT THE SITES OR ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITES, AND COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, COMPANY PARTNERS OR AGENTS, EXCEPT AS SET FORTH IN THE POLICIES, SHALL IN ANY WAY LIMIT THE DISCLAIMERS SET FORTH HEREIN.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR MEMBERSHIP OR YOUR USE OF THE SITES OR THE MEMBER BENEFITS FOUND AT THE SITES.
Section 19. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ANY COMPANY PARTNER, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (A) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SITES, (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITES, (C) THE MEMBER BENEFITS FOUND AT THE SITES OR ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITES, (D) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (E) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (F) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (G) ANY INTERRUPTION OR CESSATION OF THE SITES OR MEMBER BENEFITS, (H) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THE SITES OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITES, (I) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, (J) TERMINATION OF YOUR MEMBERSHIP BASED ON A VIOLATION OF THIS AGREEMENT OR THE POLICIES AS DETERMINED BY COMPANY IN ITS SOLE DISCRETION, AND/OR (K) ANY LOSS OR DAMAGE OF ANY KIND INCURRED BY YOU AS A RESULT OF YOUR USE OF THE SITES OR THE MEMBER BENEFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, COMPANY’S TOTAL AGGREGATE LIABILITY EXCEEDS THE TOTAL ANNUAL MEMBERSHIP FEES PAID TO COMPANY BY YOU.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SITES, THE SERVICES FOUND AT THE SITES OR ANY OF THE MEMBER BENEFITS.
IF, NOTWITHSTANDING THE FOREGOING, COMPANY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITES, MEMBER BENEFITS OR OTHER SERVICES, THE CUMULATIVE TOTAL LIABILITY OF ANY AND ALL SUCH PARTIES FOUND LIABLE SHALL NOT EXCEED THE AMOUNT YOU PAID TO COMPANY FOR ANNUAL MEMBERSHIP FEES DURING THE 12 MONTH PERIOD PRECEDING THE OCCURRENCE OF THE LIABILITY OR CLAIM. THIS LIMITATION EXPRESSLY APPLIES TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE SITES, MEMBER SERVICES, AND YOUR MEMBERSHIP IN GENERAL AND DOES NOT APPLY TO PERSONAL INJURY CAUSED BY INTENTIONAL ACTS OR ANY INJURY CAUSED BY ALLEGED FRAUD.
Section 21. INDEMNITY
You agree to protect, defend, indemnify and hold the Company and its parents, subsidiaries, affiliates, related companies and their officers, directors, members, managers, employees, agents, successors and assigns, as well as the Company licensors (collectively the “Company Parties”) harmless from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable outside attorneys’ fees) imposed upon or incurred by the Company Parties directly or indirectly arising from (a) Your use of and access to the Sites or the Member Benefits; (b) Your violation of any provision of this Agreement or the Policies; and/or (c) Your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this Section shall survive any termination or expiration of this Agreement or Your use of the Sites or the Member Benefits.
Section 21. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
Section 22. U.S. EXPORT LAWS
The Sites and the Member Benefits are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users, including Members, shall not use the Sites or Member Benefits to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export or allow the export or re-export of, any portion of the Sites or Member Benefits in violation of any U.S. Export Laws. None of the content associated with the Sites may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By Your Application and use of the Sites, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). You are not permitted to access the Sites or utilize the Member Benefits from other countries or jurisdictions, and if You do so, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not access the Sites, Member Benefits or Premium Services. The obligations under this section shall survive any termination or expiration of this the Policies or Your use of the Sites.
Section 23. INDIVIDUALS IN THE EUROPEAN UNION
Our Sites and Community membership, in general, are for residents of the United States and are not intended for residents of the European Union or for the monitoring of the activities of European resident’s behavior as far as that behavior takes place within the European Union. We are not located in the European Union and are not subject to any provisions of the General Data Protection Regulation 2016/679 (GDPR). If You are a resident of the European Union, You should not be using our Sites or services.
Section 24. COMPLIANCE WITH LOCAL LAWS
the Company makes no representation or warranty that the content available on the Sites or any of the Member Benefits are appropriate in every country, state or jurisdiction, and access to the Sites or the Member Benefits from countries or jurisdictions where its content is illegal is prohibited. Members who choose to access the Sites or the Member Benefits are responsible for compliance with all local laws, rules and regulations and the Company shall not be liable in any way in the event any Member Benefits or the Sites are not permitted in any jurisdiction.
Section 25. MINOR USE OF THE SITES
Membership and the Sites are not directed to children under the age of 13, and We will not knowingly collect personally identifiable information from children under 13. Further, You must be 18 years or older to apply for membership and register or use the Sites or take advantage of the Member Benefits. You agree to abide by any such restrictions and not help anyone avoid such restrictions. We strongly recommend that parents participate in their children’s exploration of the internet and any online services and use their browser’s parental controls to limit the areas of the internet to which their children have access.
Section 26 GOVERNING LAW AND JURISDICTION/ AGREEMENT TO ARBITRATE
26.1 Applicable Law: You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New York, without regard to principles of conflict of laws, will govern this Agreement and the Policies and any claim or dispute that has arisen or may arise between You and the Company, except as otherwise stated in the Policies.
26.2 Agreement to Arbitrate: Except for any claim for emergency injunctive relief, any and all disputes or claims that have arisen, or may arise, between You and the Company relating in any way to or arising out of this or previous versions of the Agreement, Your use of or access to Member Benefits, Premium Services, or membership shall be resolved exclusively through final and binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate under procedures as set forth herein.
26.3 Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MEMBERS. If a court decides that applicable law precludes enforcement of any of this Section’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, subject to Your and the Company’s right to appeal the court’s decision. All other claims will be arbitrated.
26.4 Arbitration Procedures: Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement, and/or the Policies as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 26.3, shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. In the event the Company initiates arbitration against You, it will send a copy of the completed form to the physical address we have on file associated with Your membership. Any settlement offer made by You or the Company shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in New York County, New York. If the value of the relief sought is $10,000 or less, You or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on You and the Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, You and/or the Company may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same the Company user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
26.5 Severability: With the exception of any of the provisions in Section 26.3 of this Agreement to Arbitrate, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
26.6 Opt-Out Procedure: YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”) TO THE COMMUNITY CONTACT WITHIN 30 DAYS OF THE COMMENCEMENT OF THE INITIAL MEMBERSHIP TERM, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WITH A COPY TO HARRIS BEACH PLLC, 333 EARLE OVINGTON BLVD # 901, UNIONDALE, NY 11553 ATTN: CRAIG M. SPIERER. BY NOT OPTING OUT, OF THIS AGREEMENT TO ARBITRATE, YOU AGREE TO SURRENDER YOUR RIGHT TO HAVE A CLAIM ADJUDICATED IN A COURT OF LAW.
You must complete the Opt-Out Notice by providing Your name, address (including street address, city, state, and zip code), and the user ID(s) and email address(es) associated with the membership to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way You can opt-out of the Agreement to Arbitrate. If You opt-out of the Agreement to Arbitrate, all other parts of the Agreement continue to apply to You. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that You may have with us.
26.7 Venue and Jury Waiver: In the event that the Agreement to Arbitrate above is found not to apply to You or to a particular claim or dispute, either as a result of Your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, or otherwise as expressly permitted herein, including for claims for emergency injunctive relief, You agree that any claim or dispute that has arisen or may arise between You and the Company must be resolved exclusively by a state or federal court located in the state, city, and county of New York, New York. You and the Company agree to submit to the personal jurisdiction of the courts located within the state, city, and county of New York, New York for the purpose of litigating all such claims or disputes and waive all defenses of lack of personal jurisdiction and forum non-conveniens thereto. YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS AGREEMENT.
Section 27. ENTIRE AGREEMENT
This Agreement and the Policies constitute the sole and entire agreement between You and the Company with respect to Your membership the Site and any services thereon and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Sites and any services thereon.
Section 28. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
Section 29. CONTACT INFORMATION
Section 30. ELECTRONIC COMMUNICATIONS
Whenever You visit the Sites or send emails to the Company, You are communicating with the Company electronically. For that reason, You also consent to receive communications from the Company electronically. the Company will communicate with You by email at the email address which You provide when You apply to become a Member, or through notices on Your dashboard on the Sites. You agree that all agreements, notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
Section 31. TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT – NEW JERSEY RESIDENTS.
The following provisions of this Agreement shall not be applicable to New Jersey residents: (i) provisions which limit the Company’s liability for any tortious action or breach of contract by the Company; (ii) provisions which limit the amount of damages which may be sought for any tortious action or breach of contract by the Company; and (iii) provisions which limit the time within which claims against the Company must be brought to a shorter time period than is otherwise provided for under New Jersey law.