These Terms of Service (the “Terms of Service”) constitute a legal agreement between MemberHub, Inc., a Delaware corporation (“MemberHub”), and you, the user of the Services (as defined below) (“You” or “User”). MemberHub offers access to certain features of its websites (each, a “Website”), mobile applications, browser extensions, and other software applications (collectively, including the Websites, the “Applications”) and its “Givebacks” shopping, rebate, and deals offering (together with the Applications and as updated and modified from time-to-time, the “Services”) to third parties on the terms and conditions set forth herein.
By using the Services, including merely visiting a Website, downloading an Application, or creating an account, You are agreeing to these Terms of Service. MemberHub is willing to make the Services available to User only upon the condition that User agrees to or affirmatively accepts these Terms of Service in their entirety. Please read these Terms of Service carefully before using the Services and before creating an account. If You do not agree to these Terms of Service, then You must leave the Website or remove the Application immediately, and You should not create an account within the Services.
IMPORTANT: THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT, AS FURTHER SET FORTH IN SECTION 10 BELOW, REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT CUSTOMER IS GIVING UP THE RIGHT TO SUE IN COURT OR IN CLASS ACTIONS OF ANY KIND.
- ACCESS RIGHTS; SUBSCRIPTION SERVICES; OWNERSHIP
a. Right to Access. Subject to these Terms of Service and to any limitations set forth on the Website, MemberHub grants to User a nonexclusive, nontransferable, revocable, non-licensable limited right to access and use (the “Access Rights”) the Services through the Website, solely for the personal use of User, and solely during the Subscription Term (as defined below in Section 7.1 of these Terms of Service). MemberHub may, in its sole discretion, change, delete, or discontinue all or any part of the Services.
- Registration. In order to gain access to certain features and functionality of the Services, User must create a Givebacks account (an “Account”) by submitting all information requested by MemberHub on an Application. User represents that all information User provides to MemberHub in such submission and at any other time during or after the account creation process (the “Registration Information” and such process, the “Registration Process”) will be true, accurate, complete, and current and that User will promptly update its Registration Information as necessary such that it is, at all times, true, accurate, complete, and current. MemberHub may utilize third-party sign-on services, such as those made available by Facebook and Google, to make it easier for you to sign-in or create your Account. Any use of such a third-party sign-on service is subject to the terms and conditions and privacy policies of such third parties. MemberHub may use all Registration Information, subject to confidentiality limitations set forth in these Terms of Service. You represent and warrant that all Registration Information is about You. You may not create an Account on behalf of any person other than Yourself. You may only create one Account. You represent that you are at least the age of majority in your jurisdiction of residence and that you are a resident of the United State of America.
- Documentation. The Applications contains textual and/or graphical materials that describe the features, functions, and uses of the Services made available to Users from time-to-time (the “Documentation”). MemberHub may offer or limit certain features, functionality, and User rights within the Services on a differentiated basis to Users who have Accounts and those who do not and otherwise as described in the Applications from time to time.
- Proprietary Rights; No Implied Licenses. The Applications, the Services, including without limitation all software code thereto, the Givebacks Content (as defined below), Documentation, Analytics (as defined below), and all content and materials that are not directly associated with a User that appear in an Application or in the Services, and all improvements, modifications, derivative works or innovations made thereto and all Intellectual Property Rights therein (collectively, the “Givebacks Materials”), are, as between the parties, the exclusive property of MemberHub, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided by User. Except for the Access Rights expressly granted herein, all rights in and to all of the foregoing are reserved by MemberHub. These Terms of Service do not convey to User any rights of ownership or other Intellectual Property Right in, to, or under any Givebacks Materials. No right is granted to distribute, publish, modify, adapt, translate or create derivative works of the Givebacks Materials. User shall accurately reproduce all proprietary notices, including any copyright notices, trademark notices, or confidentiality notices that are contained within the Givebacks Materials. Nothing in these Terms of Service will be deemed to grant to User any right to receive a copy of any software underlying the Website or Services, in either object or source code form. MemberHub shall own all Intellectual Property Rights related to any feedback, comments, or suggestions User provides to MemberHub with respect to the Givebacks Materials, and User hereby assigns all such Intellectual Property Rights to MemberHub. As used herein “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including: (a) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (b) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods; (c) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (d) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law. User agrees that if User infringes MemberHub’s Intellectual Property Rights or exceeds the scope of permitted use under these Terms of Service, MemberHub will be irreparably injured and may terminate these Terms of Service.
- CUSTOMER RESPONSIBILITIES
- Access Credentials. User will safeguard the devices, computers, and networks used to access the Services and safeguard and keep confidential all login information, passwords, and security protocols through which User accesses and uses the Services (“Access Credentials”). MemberHub reserves the right, in its sole discretion and without liability to User, to take any action MemberHub deems necessary or reasonable to ensure the security of the Services and User’s Access Credentials and account, including terminating User’s access, changing passwords, or requesting additional information to authorize activities related to User’s account.
- General Restrictions on Use. User shall comply with all applicable laws in its use of the Services and agrees not to act outside the scope of the rights that are expressly granted by these Terms of Service. User will not (a) make the Services available to anyone else; (b) commercially exploit, sell, resell, license, sublicense, rent, lease, or distribute the Services or include any Services or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify, or make derivative works based upon the Services; (d) create internet “links” to the Services or “frame” or “mirror” any reports contained in, or accessible from, the Services on any other website, server, wireless or Internet-based device; (e) access the Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; (f) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component underlying the Services are compiled or interpreted; (g) access the Services by electronic agent, “bot”, or other automated means or otherwise scrape or index any part of the Services; or (h) interfere with or disrupt the integrity or performance of the Services, the Applications, or the data contained therein or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services. Compliance with the restrictions set forth in this Section 2.2 is an essential basis of these Terms of Service, and User agrees to reimburse MemberHub for attorneys’ fees and court costs incurred in connection with any lawsuit brought by MemberHub in which a court or arbitrator finds that User has breached any provisions of this Section 2.2.
- CONTENT; OFFERS
- Platform Content; Offers. MemberHub provides certain information, data, and other content as part of the Services (the “Givebacks Content”). The Services may include, feature, or link-to information, data, and other content or websites from third parties (collectively, the “Third-Party Content” and together with the Givebacks Content, the “Platform Content”). The Platform Content may include offers for User to receive discounts, rewards, cash back, or other incentives (each, a “Reward”) for the purchase of specified goods or services from participating third-party merchants [b](collectively, “Offers”), which Offers may be procured and made available directly by MemberHub or through third-party service providers (“Third-Party Providers[c]”), including Rakuten Card Linked Offer Network (“RCLON”), Fidel API, and Rewards Network. Offers may be available to User through one or more Application or may be provided to User by linking User’s Account to a payment card (a “Card-Linked Offer”). MemberHub and its Third-Party Providers may make Offers available to User in their sole discretion based upon factors of their choice, including without limitation fees paid to MemberHub or such Third-Party Provider by applicable merchants. Each Offer, and the payment of any Reward, is subject to the following: continued availability; current Account enablement at the time of purchase; technical requirements of web browsers, depending on each Application, such as the enablement of “cookies” or prompt completion of purchase after enabling certain Offers; the absence of other technical failures; Third-Party Provider and merchant approval and processing; and exclusions, such as with respect to certain products and services on a merchant-by-merchant basis, taxes, fees, shipping, gift-wrapping, discounts, credits, returns, and cancellations; and other limits or limitations imposed by MemberHub or applicable Third-Party Providers, in their sole discretion, such as relating to the aggregate number of Rewards obtained, timing or days of the week on which Rewards are available, or transaction size. For the avoidance of doubt, Offers are subject to recission and cancelation at all times, even after User completes the applicable transaction referenced in an Offer and even if the Services state that User has earned a Reward or User receives a notification that User has earned a Reward, due to the limitations set forth in the preceding sentence and otherwise.
- Payment Cards; Authorization.
- Not all Visa, MasterCard, and American Express cards are eligible for registration. Visa, MasterCard, and American Express Corporate cards, Visa, MasterCard, and American Express Purchasing cards, non-reloadable prepaid cards, government-administered prepaid cards (including EBT cards), healthcare (including Health Savings Account (HSA) or Flexible Spending Account (FSA) or insurance prepaid cards, Visa Buxx, and Visa-, MasterCard-, and American Express-branded cards whose transactions are not processed through the Visa U.S.A payment system, MasterCard payment system, and/or American Express payment system are not eligible to participate.
- Not all transactions with your registered Visa, MasterCard and American Express card are tracked by Visa, MasterCard and American Express. You acknowledge that Visa, MasterCard, and American Express may be unable to monitor every transaction made with your enrolled Visa, MasterCard, or American Express card, including PIN-based purchases, purchases you initiate through identification technology that substitutes for a PIN, payments made through other payment methods (such as a digital wallet or a third party payment app, where you may choose your Visa, MasterCard, or American Express card as a funding source but you do not present your card directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the Visa U.S.A., MasterCard, and American Express payment systems, and that these transactions are not eligible.
- If you register a debit card, your transaction must be processed as a ‘credit’ (i.e., signature) transaction to make sure the transaction can be monitored. Do not use a Personal Identification Number (PIN) when paying for your purchases with your enrolled card if you want the transaction to be eligible for rewards or offer completion.
- Other Offers. MemberHub may offer Rewards or other incentives for referring other individuals to the Services or for other actions described from time to time in the Services. Each such bonus is subject to terms and conditions specified within the Services and payment of any such bonus is subject to review. MemberHub reserves the right to withhold, deny, or cancel any such bonus and/or terminate your Account if MemberHub, in its sole discretion, deems any bonus or activity as fraudulent, abusive, unethical, suspicious, or otherwise inconsistent with these Terms of Service or the terms of such program, or any applicable law or regulation. MemberHub’s decisions are final.
- Rewards. As a condition to receiving any Reward, you must: (i) maintain your Account; and (ii) maintain complete and correct Registration Information. Rewards you obtain will be held by a Third-Party Provider for your benefit until you elect to be paid such Rewards. Each such Rewards account will be subject to the terms of such Third-Party Provider, as well as laws and regulations related to abandonment and unclaimed property. Your receipt of Rewards may be subject to additional requirements and terms of Third-Party Providers. Limitations and legal restrictions may exist at the time of payment of any Rewards, including without limitation relating to minimum amounts and linking payment accounts. You further agree to provide additional information we may reasonably request to verify your identity as a condition for receiving payment. MemberHub is not responsible for payments delivered to the wrong address through no fault of MemberHub or for payment errors made by any Third-Party Provider or payment partners, like PayPal. Rewards paid as gift cards will be subject to the terms of each such gift card issuer and any terms specified within the Applications. MemberHub is not responsible for lost or stolen payments, including gift cards. In our sole discretion, we may adjust your Rewards account to make adjustments for returns and cancellations and with respect to Offers obtained, cancelled, or terminated. The determination of whether a purchase constitutes the fulfillment of an Offer and qualifies for a Reward is at the sole discretion of MemberHub and its Third-Party Providers. If a merchant or Third-Party Provider fails to report a transaction to MemberHub or fails to make payment to MemberHub for any reason, MemberHub reserves the right to cancel the Reward associated with that transaction. It is your responsibility to check your Account regularly to ensure that Rewards have been properly credited to your Account. If you believe that a Reward has not been correctly applied to your account, you must contact MemberHub within ninety (90) days of the transaction. In addition, MemberHub may make account adjustments for any Reward that MemberHub, in its sole discretion, deems as fraudulent, abusive, unethical, suspicious or otherwise inconsistent with this Agreement or any other applicable law or regulation. MemberHub decisions are final.
- Taxes; Charities. MemberHub may offer you the opportunity to donate Rewards to a charity or cause. Contributions made through MemberHub may not be tax-deductible. You understand that charitable donations are not refundable, and that donation refunds may only be granted in exceptional circumstances. You may be taxed on your receipt of Rewards depending on the tax laws of federal, state and local jurisdictions. You will be solely responsible for any and all tax liability arising out of the consideration received in connection with any member referrals or promotional activities.
- MemberHub Fees; Charities. MemberHub receives compensation from Third-Party Providers for referring you and other users to the merchants and Third-Party Providers to purchase goods and services. MemberHub gives a portion of its fees to charities as set forth in the Services from time to time. Additional fees may be paid or payable to Third-Party Providers in connection with the fulfillment of Offers and the collection or payment of Rewards.
- DISCLAIMERS. The Platform Content is not intended to make any product recommendation, including with respect to quality, price, or usability. For the avoidance of doubt, MemberHub does not approve or endorse, is not responsible or liable for, and makes no representations as to any Third-Party Content or third parties, products, or services included within the Givebacks Content or any Offer. The inclusion of any such link or such content does not and shall not be interpreted to imply any association, sponsorship, endorsement, or affiliation with any third party, unless expressly stated within the Services. MemberHub shall have no liability whatsoever in connection with any Third-Party Content. MemberHub is not responsible for any Third-Party Provider or merchant modifying, withdrawing from, or discontinuing participation in any Offer. ALL PLATFORM CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE," AND NEITHER MEMBERHUB NOR ANY THIRD-PARTY PROVIDER, INCLUDING VISA, AMERICAN EXPRESS, AND MASTERCARD, MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE PLATFORM CONTENT OR ANY OFFER, INCLUDING WITHOUT LIMITATION WITH RESPECT TO COMPLETENESS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
- Deletion of Content. The Platform Content may change from time to time, and MemberHub reserves the right to permanently delete any and all Platform Content, including Platform Content that relates to User. User agrees that MemberHub has no responsibility or liability for the deletion or failure to store any such Platform Content.
- DOUBLE ENROLLMENT CONDITIONS
- Rakuten Card Linked Offer Network
There are no restrictions regarding enrollment of your Payment Card with respect to programs supported by Rakuten Card Linked Offer Network. As a result, as it relates to Rakuten Card Linked Offer Network, you may enroll your Payment Card in any, and all, programs operated by Rakuten Card Linked Offer Network including, but not limited to, Rakuten.com. Rakuten.ca and the Givebacks Card Link Program.
There are no restrictions regarding enrollment of your Payment Card with respect to programs supported by Fidel API. As a result, as it relates to Fidel API Linked Offer Network, you may enroll your Payment Card in any, and all, programs powered by Fidel API.
There are no restrictions regarding enrollment of your Payment Card with respect to programs supported by Rewards Network. All Card Linked Offers to Payment Card holders enrolled with Rewards Network from participating merchants in the Rewards Network Program will require “Activation” prior to a transaction in order for the transaction to be a “Qualified Transaction” and therefore eligible for earning rewards. Activation means that the holder of the Payment Card must select and attach the offer to their Payment Card. The Activation may be done at the merchant level specific to a participating merchant or at the local dining category level for all relevant local participating merchants. Further, the Activation will expire after a period of time determined by Rewards Network for each participating merchant or at the category level. The number of redemptions allowed during that activation period will also be determined by Rewards Network. The rules governing Activation will be set forth clearly in a communication to the holders of Payment Cards.
- Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MEMBERHUB, ITS AFFILIATES, THE THIRD-PARTY PROVIDERS, LICENSORS, AND SUPPLIERS (INCLUDING VISA, MASTERCARD, AMERICAN EXPRESS AND PAYMENT PROCESSORS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MEMBERHUB, ITS AFFILIATES, THE THIRD-PARTY PROVIDERS, LICENSORS, AND SUPPLIERS (INCLUDING VISA, MASTERCARD, AMERICAN EXPRESS AND PAYMENT PROCESSORS) DO NOT WARRANT THE DATA, CONTENT, ANALYTICS, FEATURES, OR INFORMATION PROVIDED THROUGH THE PROGRAM, INCLUDING WITHOUT LIMITATION TRANSACTION DATA OR USER SUBMISSIONS OR OTHER DATA PROVIDED BY OTHER USERS, TO BE UNINTERRUPTED, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. MemberHub and the Third-Party Providers shall not be responsible for ensuring and does not represent or warrant that: (a) the Services will meet User's requirements; (b) the Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (c) all deficiencies in the Services can be found or corrected. MemberHub and the Third-Party Providers will not be responsible for loss or corruption of data, in each case caused by acts within the control of User.
- User shall defend or settle any claim, suit or proceeding that is brought by a third-party (each, a “Claim”) against MemberHub or its affiliates, employees, officers, and directors or any Third-Party Provider arising from: (a) a breach by User of these Terms of Service; or (b) based on any failure or alleged failure of User to comply with any applicable law, rule, or regulation in connection with its use of the Services.
- LIMITATION OF LIABILITY
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MEMBERHUB, ITS AFFILIATES, THE THIRD-PARTY PROVIDERS, LICENSORS, AND SUPPLIERS (INCLUDING VISA, MASTERCARD, AMERICAN EXPRESS, AND PAYMENT PROCESSORS) ARISING OUT OF OR RELATED TO THESE TERMS, THE APPLICATIONS, OR PROVIDING THE SUBSCRIPTION SERVICES, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MEMBERHUB, ITS AFFILIATES, THE THIRD-PARTY PROVIDERS, LICENSORS, OR SUPPLIERS (INCLUDING VISA, MASTERCARD, AMERICAN EXPRESS, AND PAYMENT PROCESSORS) HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
- Release. Use hereby releases all claims against MemberHub and each Third-Party Provider and each of their representatives and affiliates in connection with their provision of the Services, Offers, and Rewards, and the services provided by each of them, with each such third-party being a third party beneficiary of such release.
- TERM; SUSPENSION; TERMINATION
- Subscription Term. These Terms of Service become effective upon the date on which User accepts these Terms of Service (the “Effective Date”) and shall remain in effect until the Termination Date (as defined below) (the “Subscription Term”).
- Termination. User’s access rights to the Services will expire and terminate upon the earliest of the following (the “Termination Date”): (a) such date as set forth in an Application during the Registration Process; (b) such date as MemberHub provides notice to User of such termination, for any or no reason, including without limitation its cessation of providing the Services on a commercial basis; or (c) such date as User provides notice to MemberHub of such termination, for any or no reason, including through an Application.
- Effect of Termination; Survival. User’s right to access and use the Services shall terminate immediately upon the expiration or termination of the Subscription Term. Any provisions of these Terms of Service that by their nature should continue after the Subscription Term, will continue to apply even after the Termination Date, including without limitation, Sections 1.4 (Proprietary Rights; No Implied Licenses), 4.1 (Disclaimer of Warranties), 5 (Indemnification), 6 (Limitation of Liability), 7 (Term; Termination), 8 (Notices), 9 (Additional Terms Pertaining to Apple), and 10 (General).
- You consent to the use of: (i) electronic means to complete these Terms of Service and to deliver any notices or other communications permitted or required hereunder; and (ii) electronic records to store information related to these Terms of Service or your use of the Services. Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: (x) by us via email (in each case to the address that you provide) or (y) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
- The use of the Services may require use of a mobile device and phone service, wireless mobile data service, and text messaging capability, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Services, including without limitation, administrative messages, service announcements, and diagnostic data reports, from us, your mobile carrier or third-party service providers.
- If you agree to receive text messages from the Services, the frequency of messages will vary based on your organizations activity and Message and data rates may apply from your mobile carrier. By providing your consent to participate in this service, you approve any such charges from your mobile carrier. If you do not have an unlimited wireless mobile data plan or text messaging capability, you may incur additional charges from your wireless service in connection with your use of the Services. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Services, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the Services.
- The Services may not work with all devices or all mobile carriers. We make no representations that the Services will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Services, or other third-party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
- The information in any Services message may be subject to certain time lags and/or delays. You are responsible for managing the types of SMS texts you receive.
- Additional Terms Pertaining to Apple. The following terms pertain to your use of the Services through a download of our software applications to a device manufactured by Apple, Inc. (together with its affiliates, “Apple”):
- MemberHub and you acknowledge that these Terms of Service are concluded between MemberHub and you only, and not with Apple, and MemberHub, not Apple, is solely responsible for the Services and the content thereof. To the extent that any of these Terms of Service provide for usage rules for the Services that are in conflict with the Apple Media Services Terms and Conditions as of the date on which you agree to these Terms of Service, then such term shall be automatically modified to be made consistent with such terms.
- The license granted to you for the Services, with respect to the version of the Services downloaded from the Apple App Store, is a non-transferable license to use such version of the Services on any Apple-branded Products that you own or control and solely as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such version of the Services may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.
- MemberHub and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
- In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Services to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services. To the extent any warranty exists under law that cannot be disclaimed, MemberHub, not Apple, shall be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to the Services’ failure to conform to such warranty.
- MemberHub does not make any warranties concerning the Services. To the extent that you or any third party have any claim relating to the Services or the end-user’s possession and/or use of that Services, MemberHub, not Apple, is responsible for addressing such claim, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Services’ use of the HealthKit and HomeKit frameworks. These Terms of Service may not limit MemberHub’s liability to you beyond what is permitted by applicable law.
- MemberHub shall not be obligated to indemnify or defend you with respect to any third-party claim arising out of or relating to the Services. In the event of any third-party claim that the Services or your possession and use of that Services infringes that third party’s intellectual property rights, and MemberHub or Apple is required by law to provide indemnification, then MemberHub, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You must comply with all applicable third-party terms of agreement when using the Services, including without limitation all phone, internet connectivity, and wireless data service agreements you use in connection with the Services.
- MemberHub and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third-party beneficiary thereof.
- Governing Law. The Terms of Service shall be governed and construed in accordance with the laws of the United States and the State of North Carolina, without giving effect to conflicts-of-law principles thereof. With respect to any disputes or claims not subject to arbitration, User agrees to submit to the personal jurisdiction of the state and federal courts located in Raleigh, North Carolina with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.
- Arbitration and CLASS ACTION WAIVER. User and MemberHub agree that any dispute, claim, or controversy that relates to or arises from these Terms of Service or the Services other than any claim or demand that relates to the Intellectual Property Rights of MemberHub or arising under Section 6 will be determined by mandatory binding individual (not class) arbitration. User and MemberHub further agree that the arbitrator shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of any provision of these Terms of Service or to the arbitrability of any claim or counterclaim. Notwithstanding the above, User and MemberHub both agree that neither of us waive or limit our rights to (a) bring an individual action in a U.S. small claims court or (b) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES, CLAIMS, AND CONTROVERSIES THAT RELATE TO THESE TERMS OR OUR SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND CUSTOMER AGREES THAT MemberHub AND CUSTOMER ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. CUSTOMER AGREES THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND CUSTOMER HEREBY AGREE THAT YOU MAY NOT AND WILL NOT PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION, AS A PLAINTIFF OR CLASS MEMBER IN ANY SUCH ACTION. Unless both User and MemberHub agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Either User or MemberHub may start arbitration proceedings. Any arbitration between User and MemberHub will take place under the Consumer Arbitration Rules of the American Arbitration Association ("AAA") then in force (the "AAA Rules"), as modified by these Terms. User and MemberHub agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). Any arbitration hearings will take place in Wilmington, Delaware. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for User, by email ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, User or MemberHub may commence an arbitration proceeding. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator's decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
- Severability. If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver; Remedies. Any waiver or failure to enforce these Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Notices. All notices by MemberHub to User under these Terms of Service shall be made by email to the email address provided by User during account registration when accepting these Terms of Service. All notices to MemberHub by User under these Terms of Service shall be made by email to email@example.com. All notices shall be effective upon receipt by the party to which notice is given. User may change their address for receipt of notice by updating their account contact information on the Website.
- Entire Agreement. To the maximum extent permitted by applicable law, these Terms of Service and the information submitted by User during the Registration Process constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms of Service. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to User’s acceptance of these Terms of Service. User acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private comments made by MemberHub with respect to future functionality or features for the Services. No terms or conditions stated in any other User order documentation, including for the avoidance of doubt any terms or documentation MemberHub is required to execute or agree to, shall be incorporated into or form any part of these Terms of Service, and all such terms or conditions shall be null and void.
- Amendment. MemberHub may, in its sole discretion, amend or modify these Terms of Service from time-to-time and continued use of the Services shall be evidence of User’s consent to any such amended or modified Terms of Service.
- Subcontractors. MemberHub may engage subcontractors to act on MemberHub’s behalf in connection with its provision of Services.
- No Assignment. User may not assign, delegate, or otherwise transfer these Terms of Service, or such party’s rights and obligations herein or therein, without obtaining the prior written consent of MemberHub, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. These Terms of Service will be binding upon the parties and their respective successors and permitted assigns.
- Construction. The titles of the sections of these Terms of Service are for convenience of reference only and are not to be considered in construing these Terms of Service. Unless the context of these Terms of Service clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) "or" has the inclusive meaning frequently identified with the phrase "and/or;" (c) "including" has the inclusive meaning frequently identified with the phrase "including but not limited to" or "including without limitation;" and (d) references to "hereunder," "herein" or "hereof" relate to these Terms of Service as a whole. Any reference in these Terms of Service to any statute, rule, regulation or agreement, including these Terms of Service, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time-to-time. The parties agree that these Terms of Service shall be fairly interpreted in accordance with their terms without any strict construction in favor of or against either party, and that ambiguities shall not be interpreted against the drafting party.
Effective: April 1, 2022