Last Updated: December 3, 2021
1. PARTIES. The parties to this Agreement (as defined below) are MemberClicks, LLC, (“MemberClicks”) and the client (“Client” or “You”) accepting and agreeing to this Agreement through the ordering process for the Services (as defined below) on the MemberClicks website (www.memberclicks.com or any successor URL used by MemberClicks) (the “Website”) or through such other ordering process (including without limitation, through a written invoice or by email) as may be instituted by MemberClicks. Please review this Agreement carefully, as it governs Your purchases on the Website and constitutes a binding legal agreement between You and MemberClicks. By ordering the Services through the Website You signify Your acceptance of this Agreement, as it may be amended from time to time, in MemberClicks’ sole discretion. All capitalized but undefined terms will have the meanings set forth in the General Terms and Conditions (as defined below).
2. CONSTRUCTION. The “Agreement” includes these MemberClicks Job Board Terms (these “Terms”)), the General Terms and Conditions (available at https://www.memberclicks.com/billing/terms (the “General Terms and Conditions”)), the Standard Terms and Conditions for Compliance with the General Data Protection Regulation, the General Billing Policies (“Billing Policies”), any additional terms and conditions that may be set forth on the Website as part of the ordering process for the Services, and any amendments, addenda, purchase orders, or invoices agreed upon by the parties in writing, which are collectively incorporated herein and made a part of this Agreement by this reference. In the event of any conflict between these Terms and the General Terms and Conditions, these Terms shall control. Billing Policies can be found at www.memberclicks.com/billing/policies.
3. AMENDMENTS. Except as otherwise provided, this Agreement may be updated, modified, or amended in whole or in part by MemberClicks immediately upon posting the modification or amendment on the Website or through such other writing (including without limitation, through a written invoice or by email). If MemberClicks makes such an update, it will revise the “Last Updated” date at the top of this page. Client’s continued use of the Services following posting of the modification or amendment shall be conclusively deemed an acceptance of the modification or amendment, and Client’s only right with respect to any dissatisfaction with any such modifications is to terminate this Agreement.
4.1. Job Board. MemberClicks will provide Client with an online platform that will enable Client and third parties, approved by MemberClicks, to post jobs (“Job Posters”), for a fee, to Client’s (the “Job Board”). Provided that Client provides logos, trademarks, other proprietary branding materials, and other relevant information to MemberClicks to potentially include on the Job Board (collectively, with Advertisements (as defined in the General Terms and Conditions), the “Client Materials”) of suitable quality, size, and specifications as designated by MemberClicks, MemberClicks will design the Job Board so that it displays the Client Materials, as mutually agreed by Client and MemberClicks, on a “white label” basis. The Job Board, MemberClicks’ inclusion of the Client Materials on the Job Board and MemberClicks’ provision and hosting of the Job Board are collectively referred to herein as the “Services” and are deemed to constitute “Services” under the General Terms and Conditions. Client Materials are considered “Client Content” under the General Terms and Conditions.
4.2. Job Posts. MemberClicks does not prescreen the job posts, including personal information that may identify an individual, graphics and other material and services posted on the Job Board by Client and the Jobs Posters (collectively “Job Posts”), and MemberClicks is not responsible for any Job Posts that are inaccurate, unlawful, abusive, obscene, defamatory, libelous, fraudulent, tortuous, invasive, or offensive or for the usefulness of any Job Post. Client acknowledges that Client is solely responsible for the Job Posts posted or provided by Client and the Job Posters and that MemberClicks is not responsible for the accuracy, completeness, timeliness or usefulness of the Job Posts that are posted on the Job Board. Client and its members must evaluate and bear the risk associated with any reliance on the accuracy, completeness, timeliness or usefulness of any Job Posts. Please note that entering into this Agreement does not guarantee Client any minimum amount of Revenue (as defined below), minimum number of Job Posts, or amount of interest from Client’s members in the Job Posts. Job Posts are considered “Client Content” under the General Terms and Conditions.
4.3. Ownership. The Client Materials and other intellectual property rights in any of the Client Materials are the property of Client. MemberClicks is the owner of all right, title and interest in and to the Website, the Job Board, any software or technology used to provide the Services, the MemberClicks Marks, and all associated copyrights, trademarks, and other intellectual property rights in any of the foregoing.
4.4. Exclusivity. The Client agrees that it will exclusively use this Job Board for all jobs posting. Further, the Client agrees that all payments for Job Posts will be processed through the Job Board and MemberClicks’ ordering process.
5. PAYMENT OF FEES.
5.1. Revenue Share and Disputes. MemberClicks agrees to pay Client its share of the fees generated by the Job Posts as set forth and agreed upon through the ordering process on the Website (“Revenue”), which shall be due and payable in accordance with the applicable terms provided to Client through the ordering process. If Client in good faith disputes its share of the Revenue, it shall, within ten (10) days of MemberClicks’ providing the Revenue to Client, provide notice of the disputed Revenue and reason(s) therefore (“Dispute Notice”). MemberClicks shall review any such notice promptly. If MemberClicks determines that Client received less Revenue than it was owed, MemberClicks will provide the remainder of the Revenue that Client is owed. If Client does not timely submit a Dispute Notice to MemberClicks, the originally provided Revenue amount shall be deemed to be correct and final. Client shall be responsible for and shall pay any and all local, state, federal, and non-United States taxes or similar assessments or charges (including any interest and penalties imposed thereon) regardless of when such taxes are assessed and regardless of whether such taxes are assessed on MemberClicks or Client, other than taxes based on the income of MemberClicks, arising out of this Agreement.
5.2. Revenue Payments to Client. Client will receive its share of Revenue from MemberClicks on a monthly or quarterly basis depending on the Revenue generated by Client’s Job Board. Any renewal Term may be subject to changes in the Revenue share between Client and MemberClicks as set forth in this Agreement, the ordering process, and/or the Billing Policies. Following termination or expiration of this Agreement, MemberClicks will make the final payment of Revenue, if any, to Client in accordance with the payment procedures set forth herein.
5.3. Changes to Revenue Share. MemberClicks may change the split of Revenue between Client and MemberClicks upon the commencement of any Renewal Term by giving thirty (30) days-notice to Client, which may be given in writing or by email to the address on file. It is the Client’s responsibility to keep their account information current. MemberClicks is not responsible for notices that are undeliverable due to Client’s account information not being current.
6. ADDITIONAL DISCLAIMER OF WARRANTIES. IN ADDITION TO THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 11.1 OF THE GENERAL TERMS AND CONDITIONS AND WITHOUT LIMITING THE GENERALITY OF ANY DISCLAIMER SET FORTH THEREIN, CLIENT ACKNOWLEDGES AND AGREES THAT BY ENTERING INTO THIS AGREEMENT, MEMBERCLICKS DOES NOT GUARANTEE CLIENT ANY MINIMUM AMOUNT OF REVENUE (AS DEFINED HEREIN), MINIMUM NUMBER OF JOB POSTS, OR AMOUNT OF INTEREST FROM CLIENT’S MEMBERS IN THE JOB POSTS.
7. Indemnity. MemberClicks’ indemnification obligation under Section 11.3(iii) of the General Terms and Conditions is limited to exclude indemnification obligations that arise to the extent the applicable infringement is caused by MemberClicks’ use of the Client Materials.