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 (the order documentation related to such other ordering process shall hereinafter be referred to as “Order Documentation”)) 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 changes to this Agreement are effective when posted on the Website, provided that the Fees may not be amended or revised until the next applicable renewal Term.
3.1 MemberClicks will provide the services requested by Client through the online ordering and activation process set forth on the Website (the “Services”). Subject to the terms and conditions of this Agreement, MemberClicks grants to Client a non-exclusive, non-transferable license (without the right to sub-license) to access and use the Services in accordance with any related documentation and use rights as may be set out on the Website or otherwise communicated to Client during the term of this Agreement. Nothing in this Agreement shall be construed to grant Client any rights in MemberClicks’ software and services beyond those expressly provided herein. Client must not remove any notice of proprietary rights from the Services. MemberClicks may, in its discretion, utilize third party products, services, or technology in providing of the Services. Such licenses are subject to the usage limitations set forth on the Website and in the Order Documentation. In the event that you exceed such usage limitations, your pricing will be adjusted to reflect such excess usage as set forth on the Website or the Order Documentation.
3.2 The Services may allow a user to access or link to other sites on the Internet, including Client’s web site(s). MemberClicks does not control the content, services, or areas of the Client’s web sites(s) or any other third- party sites or sites that are linked from within the Services and Client acknowledges that MemberClicks is not responsible for the content of these sites. MemberClicks does not prescreen the information including personal information that may identify an individual, graphics and other material and services posted on the site and/or the Services by Client and its members (collectively “Content”), and MemberClicks is not responsible for any Content or Client Content (as defined below) that is inaccurate, unlawful, abusive, obscene, defamatory, libelous, fraudulent, tortuous, invasive, or offensive. Client acknowledges that Client is solely responsible for the Content and Client Content posted or provided by Client and its members and that MemberClicks is not responsible for the accuracy, completeness, timeliness or usefulness of the Content that is placed on or distributed through the Site. Client and its members must evaluate and bear the risk associated with any reliance on the accuracy, completeness, timeliness or usefulness of any Content.
3.3 The Client Content and Client’s data including the Personal Data of its members is the property of the Client and its members. MemberClicks is the owner of all right, title and interest in and to the Website, the Services, 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. PAYMENT OF FEES. Client agrees to pay MemberClicks the fees for the Services as set forth and agreed upon through the ordering process on the Website (“Fees”), which shall be due and payable in accordance with the Billing Policies. If Client in good faith disputes any charges, it shall timely pay all undisputed charges in accordance with the Billing Policies, and within ten (10) days of the invoice date give MemberClicks notice of the disputed amount(s) and rea-son(s) therefore (“Dispute Notice”). MemberClicks shall review any such notice promptly. If MemberClicks determines that Client was billed in error, a credit memo for the amount billed incorrectly will be applied to the invoice in which the incorrect charge appeared. If Client does not timely submit a Dispute Notice to MemberClicks, such invoice shall be deemed to be correct and final. In the event Client fails to timely pay an invoice and has not timely submitted a Dispute Notice in accordance with the Billing Policy, MemberClicks may immediately suspend the Services, in whole or in part (without any refund or credit to Customer), and/or terminate this Agreement as set forth herein in which event all outstanding Fees shall become immediately due and payable. 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 taxed are assessed on MemberClicks or Client, other than taxes based on the income of MemberClicks, arising out of this Agreement.
5. CHANGES TO FEES. MemberClicks may change any of the Fees upon the commencement of any Renewal Term, provided any such increase in Fees will be capped at the greater of 5% (against the preceding 12 months’ Fees) or the percentage
amount equal to the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index over the preceding 12 months. The CPI used for making such adjustments shall be the Consumer Price Index published by the U.S. Department of Labor Statistics for CPI for Urban Wage Earners and Clerical Workers (CPI-W).
7. TERMINATION; REMEDIES.
7.1 Termination for Convenience. If the Initial Term is equal to or greater than twelve (12) months in length, Client may terminate this Agreement or any Services prior to the end of the then-current Term for the particular Service(s) without cause subject to payment of eighty percent (80%) of the remaining charges payable during the then-current Term (the “Termination Fee”). Notice must be given to MemberClicks in accordance with the requirements set forth in the Billing Policies and the Termination Fee must be paid prior to such Termination being effective. MemberClicks may terminate this Agreement for any reason or no reason upon 60 (60) days written notice to Client, which notice may be done via email to Client.
7.2 Non-Renewal. Either party may elect to not renew this Agreement by providing the other party with written notice at least sixty (60) days prior to the commencement of any applicable Renewal Term. In the event that neither party provides such notice, the Term will automatically renew as set forth in Section 6 above.
7.2 Termination for Cause. MemberClicks may terminate this Agreement and all Services without notice in the event (a) Client is in breach of this Agreement, or (b) Client ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, or becomes the subject of any proceeding relating to liquidation or insolvency. You may terminate this Agreement in the event MemberClicks has materially breached this Agreement and does not cure such breach within thirty (30) days following written notice from You regarding the same.
7.3 Effect of Termination. In the event of termination of this Agreement, Client and its members’ passwords will be deactivated and Client and its members shall no longer have access to or be able to use any of the Services for any reason. Except for Client’s termination for convenience and subject to the payment of the Termination fee, in all other instances, the basic monthly fee will not be refunded or prorated for the remainder of the month in which the Agreement is terminated. Memberclicks shall continue to retain the Client’s data for a period of 30 days after such termination and shall make such data available for Client to download for such period. Following such 30-day period, MemberClicks is free to delete such data without liability to Client or any third party. In the event that Client fails to download its data prior to the effective date of termination, MemberClicks may provide a limited data set to Client based on the exportability of the data from the Services (as determined by MemberClicks), provided that (a) Client may be required by MemberClicks to have all fees (including without limitation any applicable Termination Fee), penalties and late fees paid in full, and (b) Client shall be responsible for paying all applicable service fees (including any data recovery fees). Client acknowledges, understands, and agrees that, in accordance with MemberClicks’ standard operating procedures, data for non-active accounts is permanently purged from the Services and system sixty (60) days after the Client’s use of the Services has been terminated or expired. Additionally, cancellation or termination of this Agreement (in whole or in part) or the Client’s access to or use of the Services shall not affect any agreement between Client and a third party service provider for any products or services related to the Services.
8. OBLIGATIONS AND COVENANTS OF CLIENT.
8.1 Compliance; Responsibility For Members. Client shall comply with all terms of this Agreement, including without limitation the restrictions contained in Section 10 below, and shall ensure that all of Client’s members and clients comply with the terms of this Agreement. Client shall comply with all applicable, international, federal, state/provincial and local laws and regulations, and will respect and not violate the rights of third parties (including any intellectual property rights of a third party in any Client Content and any and all privacy laws), in the performance of its obligations hereunder. Client represents and warrants that it will not provide or upload any materials, including the Client Content, to MemberClicks or the Services that actually, or could potentially, violate a third party’s intellectual property rights. Client is responsible for all acts or omissions of its members. Client will immediately notify MemberClicks if Client becomes aware of any violation of the terms of this Agreement by Client or any of its members or clients. MemberClicks reserves the right to terminate Client’s or any member’s access to all or any part of the Services if, in MemberClicks’ sole discretion, Client or such member is violating this Agreement.
8.2 License To Client Materials. Client hereby grants to MemberClicks a non-exclusive, worldwide, royalty-free, irrevocable (for the term), fully-paid, sublicensable license for the term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, process and otherwise use the Client Content as necessary to render
the Services to Client under this Agreement. “Client Content” means all text, pictures, sound graphics, video and other data including personal data as defined under the General Data Protection Regulation or copyrightable material, whether owned by Client or a third party, supplied by Client to MemberClicks to be included in the Services, as such materials may be modified from time to time. Client shall cause its members’ to assign to MemberClicks the same rights and privileges that Client has granted to MemberClicks pursuant to this Section 8.2.
8.3 Promotional Materials. Client shall have the right to use the MemberClicks name, trademarks, service marks and logo (together, the “MemberClicks Marks”) in order to promote any of the MemberClicks services to its members. Prior to any such use, Client must obtain MemberClicks written approval for all such uses. Client understands and agrees that any use of MemberClicks Marks in connection with this Agreement shall not create any right, title or interest, in or to the use of the MemberClicks Marks and that all such use and goodwill associated with the MemberClicks Marks will inure to the benefit of MemberClicks.
8.4 Advertisements. Some services may include the ability for Client to upload and display banner advertisements (“Advertisements”). Client is solely responsible for the terms and conditions pursuant to which it provides the Advertisements, securing appropriate releases/permissions/licenses required in order to use, copy, perform and display the Advertisements, and the content of the Advertisements, which will be considered Client Content.
8.5 Payment Services. MemberClicks contracts with third-parties to enable Client to process and accept payments over the internet (“Payment Services”). In the event Client uses any Payment Services, Client agrees to abide by, and accept any applicable third-party terms and conditions. MemberClicks will not be liable to Client for any acts or omissions by Client’s Payment Gateway and Merchant Account vendor. Although MemberClicks may act as a reseller for any Payment Gateway or Merchant Account vendor, those resale services are available to Client only through its own direct agreement with the vendor.
9. OBLIGATIONS AND COVENANTS OF MEMBERCLICKS
9.1 Privacy And Security. MemberClicks will not transmit, modify, reproduce, display, copy, promote, use, sell, market to, or distribute Client’s member’s information to third parties, including members’ passwords, except to Member-Clicks’ third party service providers as may be needed in order to provide the Services. MemberClicks will not send any communications to Client’s members without the prior written or email consent of Client. MemberClicks uses industry standard measures to ensure; the ongoing confidentiality, integrity, availability and resilience or processing systems and services; the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; a process is in place for regularly testing, assessing and evaluating the effectiveness of technical and organization measures for ensuring the security of processing. Despite the above measures, MemberClicks cannot
and does not guarantee, and further disclaims any and all warranties regarding the security of the Services, the Website, the data stored on MemberClicks’ computer system, or the Client Content.
9.2 Services Maintenance. MemberClicks will use commercially reasonable efforts to ensure proper backups and maintain the hardware and/or software involved in providing the Services with a high level of quality and performance consistent with industry standards. MemberClicks reserves the right to designate time periods during which it may limit or suspend the availability of the Services to perform necessary backup, maintenance or upgrades (each, a “Scheduled Maintenance Window”). Scheduled Maintenance Windows, during which maintenance or upgrades may be performed, currently are each Wednesday and Sunday between the hours of 12:00 midnight and 6:00 am, Eastern Time. MemberClicks is not obligated to inform Client of any period of unavailability during Scheduled Maintenance Windows. In addition, MemberClicks and its subcontractors reserve the right to perform any required, emergency maintenance work outside of the Scheduled Maintenance Window without prior electronic mail or other notice to Client.
9.3. Backup Of Hosted Content. While MemberClicks may backup the Content and Client Content input through the Services under this Agreement, MemberClicks shall not be responsible for the preservation of any Content or Client Content. In addition to those backups maintained by MemberClicks, Client is responsible for maintaining its own, independent backups of all Content and Client Content. MemberClicks shall not be liable in any way for the destruction, corruption or other loss of any Content or Client Content. Any restoration of Content or Client Content from backups performed by MemberClicks at Client’s request may be subject to payment of applicable fees.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Client Representations and Warranties. Client represents and warrants to MemberClicks that: (a) it has the right to enter into this Agreement and to grant the rights granted in it; (b) it owns or has all rights to the Content and Client Content, and all other rights necessary to allow MemberClicks to provide the Services without violating any rights of a third party; (c) Client will only use the Services for lawful purposes and shall not under any circumstances use the Services to do any of the following: (i) upload or otherwise transmit any defamatory, harmful, obscene, threatening, vulgar, profane, or racially, ethically or otherwise objectionable material, as shall be defined and determined by MemberClicks in its sole discretion; (ii) upload or otherwise transmit files that knowingly contain a virus or otherwise corrupted data; (iii) violate the legal rights (including the rights of privacy and publicity) of others; (iv) transmit data in any manner that violates a state, federal or international law, rule or regulation against spamming or other prohibited communications, regardless of how such law defines spamming or other such prohibited activity; (v) send unsolicited email messages that provoke complaints from the recipients, which threaten harm to person or property, or which result in harassment of the recipient; (vi) send unsolicited email messages including, without limitation, commercial advertising, informational announcements, chain letters, or other solicitations; (vi) use resources not belonging to the customer, without the express permission of the resource owner, to relay email or other internet traffic; or (vii) falsify or forge email header information; (d) Client and its members shall not use any application or other means to add/ change/ delete or attempt to add/change/delete any data or content from MemberClicks’ databases; and (e) Client and its members shall not modify, merge, adapt, translate, reverse engineer, decompile, disassemble, or, create derivative works based upon, the Services or any of MemberClicks’ intellectual property. The representations and warranties set forth in this Section shall survive the termination of this Agreement.
10.2 MemberClicks Representations and Warranties. MemberClicks represents and warrants to Client that: (a) it has the right to enter into this Agreement and to grant the rights granted in it; and (b) MemberClicks is a PCI Compliant Level 1 Vendor and that MemberClicks shall provide the Services in compliance with all applicable laws, rules and regulations. The representations and warranties set forth in this Section shall survive the termination of this Agreement.
11. DISCLAIMER OF WARRANITIES, LIMITATION OF LIABILITY, AND INDEMNIFICATION
11.1 DISCLAIMER OF WARRANTIES. THE SERVICES, INCLUDING ALL CONTENT AND CLIENT CONTENT INCORPORATED IN THE SERVICES AND TECHNOLOGY USED TO PROVIDE THE SERVICES (INCLUDING ANY TECHNOLOGY, SOFTWARE, OR HARDWARE PROVIDED BY A THIRD PARTY), ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS.” MEMBERCLICKS DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT WITH RESPECT TO THE SERVICES AND ANY TECHNOLOGY, SOFTWARE, OR HARDWARE PROVIDED BY A THIRD PARTY. MEMBERCLICKS DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SERVICES OR THE MEMBERCLICKS WEBSITE WILL BE WITHOUT INTERRUPTION, SECURE OR ERROR-FREE.
11.2 LIMITATION OF LIABILITY. MEMBERCLICKS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES WILL NOT BE LIABLE FOR ANY LOSSES, DAMAGES, COSTS, OR EXPENSES RELATING TO (A) THE CLIENT CONTENT, (B) THE RESULTS THAT MAY BE OBTAINED OR DECISIONS MADE USING ANY PART OF THE SERVICES, OR (C) ANY DAMAGES RESULTING FROM UNAUTHORIZED THIRD PARTY MISUSE OF THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL MEMBERCLICKS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF DATA OR INFORMATION OR LOST PROFITS, RE-LATING TO OR ARISING FROM THIS AGREEMENT, INCLUDING THE USE OF, OR INABILITY TO USE ANY OF THE SERVICES, OR ACTION OR INACTION WITH RESPECT TO THE WEBSITE, EVEN IF MEMBERCLICKS IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY. MEMBERCLICKS’ AND CLIENT’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED FIFTY-PERCENT (50%) OF THE TOTAL AMOUNT PAID BY CLIENT TO MEMBERCLICKS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES. ALL LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
11.3 Indemnity. (a) Indemnity from Client. Client shall defend and hold harmless MemberClicks and/or its shareholders, officers, directors, attorneys and employees (each, a “MemberClicks Indemnified Party”) from and against any third party claim, suit, damage, action, or proceeding brought against any MemberClicks Indemnified Party, and Client agrees to indemnify MemberClicks against any damages and costs (including reasonable attorney’s fees) incurred by any of the MemberClicks Indemnified Parties which arise out of, result from or are related to: (i) any breach by Client of this Agreement; (ii) the results obtained, products obtained, transactions attempted or processed, or decisions made by Client or any of its users of any Service; (iii) any act, omission, misuse or use of any portion of the Services by Client or any of Client’s members; (iv) the Advertisements; (vi) any breach of any privacy laws or (vii) any claims of infringement of any copyright, patent or trade secret or other proprietary rights arising from the Content, Client Content, or from any unauthorized modification, enhancement or misuse of any Service by Client. If the Client receives Payment Services, the Client will additionally indemnify, defend and hold harmless the Indemnified Parties from and against any and all claims, losses, demands, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) either arising out of or relating to (i) the sale or use of any product or service sold by Client, (ii) claims brought or damages suffered by any third party relating to Client’s or its agent’s misuse of the Payment Services, (iii) claims by credit card holders that their credit cards were charged by Client without
authorization, (iv) Client’s breach of any third-party terms incorporated into this Agreement by reference; or (v) revocation of Payment Services. Client shall not settle any such claim without MemberClicks’ prior written consent. MemberClicks shall promptly notify Client in writing of any claim arising or potentially arising under this indemnity. (b) Indemnity by MemberClicks. MemberClicks shall defend and hold harmless Client and/or its shareholders, officers, directors, attorneys and employees (each, a “Client Indemnified Party”) from and against any third party claim, suit, damage, action, or proceeding brought against any Client Indemnified Party, and MemberClicks agrees to indemnify Client against any damages and costs (including reasonable attorney’s fees) incurred by any of the Client Indemnified Parties which arise out of, result from or are related to: (i) any breach by MemberClicks of this Agreement; (ii) any act, omission, misuse or use of the Content or Client Content; or (iii) any claims of infringement of any copyright, patent or trade secret or other proprietary rights arising from the Services. Client shall promptly notify MemberClicks in writing of any claim arising or potentially arising under this indemnity.
11.4 Cooperation with MemberClicks and Authorities. Each party will cooperate with law enforcement and other authorities in investigating claims of illegal activity or suspected illegal activity or violations of law. In addition, Client shall cooperate with MemberClicks in any corrective action that MemberClicks deems necessary to correct and prevent impermissible use of MemberClicks’ Services by any of Client’s end users, including without limitation, providing MemberClicks with all information necessary to investigate the suspected violation. In addition, MemberClicks may disclose information transmitted over its facilities where necessary to protect MemberClicks and its customers from harm, or where such disclosure is necessary to the proper operation of MemberClicks’ Services.
12.1 Disputes. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal or state courts located in the city of Atlanta, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
12.2 Notices. Except as otherwise specifically provided in this Agreement, all notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or by email or fax, upon confirmation of receipt, (b) on the first (1st) business day following the date of dispatch if delivered by a recognized next day courier service, or (c) on the third (3rd) business day following
the date of mailing if delivered by registered or certified mail return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
If to Client:
The address and/or email address listed on the Order Form If to MemberClicks: MemberClicks, LLC 3495 Piedmont Rd NE, Building 11, Suite 800 Atlanta, Georgia 30305 Facsimile No.: (404) 879-0017
12.4 Authority. By entering into the Agreement, the representative of Client represents and warrants that he or she is authorized by Client to enter into this Agreement, that Client has taken all necessary action to enter into this Agreement, and Client agrees to be bound by and subject to the terms of this Agreement.
12.5 No Agency; No Third Party Beneficiaries. This Agreement shall not be construed as creating a joint venture, partnership or any other cooperative joint arrangement between the parties, and it shall be construed strictly in accordance with its terms. Client is not authorized
express or implied, to conduct any business on behalf of MemberClicks. This Agreement is made solely for the benefit of MemberClicks and Client and does not and shall not be construed to grant any rights or remedies to any other person or entity.
12.6 No Waiver. The failure of either party to require the performance of any term, condition or portion of this Agreement or the waiver by either party of any breach of this Agreement will not prevent subsequent enforcement of such term, condition or provision, nor be deemed as a waiver of any subsequent breach.
12.7 Amendments. Except as otherwise provided, this Agreement may be 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). 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.
12.8 Force Majeure. If either of the parties is unable to perform or observe any or all of its duties or obligations or to exercise any or all of its rights hereunder, in whole or substantial part, because of an act of God, inevitable accident, fire, lockout, strike or other labor dispute, riot or civil commotion, act of public enemy, governmental act, regulation or rule, failure in whole or in part of technical facilities, national day of mourning, vicious attacks (including, but not limited to, hacks, denial of service attacks and malicious introduction of viruses and disabling devices), or because of any other reason beyond the control of Client or MemberClicks (or its subcontractors) that is generally regarded as “force majeure,” then all other obligations of the parties not so affected shall continue, and when such force majeure has ceased, then the parties shall in good faith negotiate a fair and equitable adjustment of the rights, duties and obligations under this Agreement with respect to the obligations that were affected by such “force majeure” event.
12.9 Assignment. Client shall not assign its right or obligations under this Agreement without the prior written consent of MemberClicks. In the event of any assignment, all covenants, stipulations, and promises in this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors. MemberClicks shall have full right to assign this Agreement.
12.10 No Setoff. The existence of any claim, demand, action or cause of action of Client against MemberClicks, whether or not based upon this Agreement, will not constitute a defense to the enforcement by MemberClicks of any covenant or agreement of Client contained herein.