Terms of Service
This Terms of Services was updated on and its effective date is: October 24, 2024
MemberUp is a customizable, easy to use, all in one platform that allows you to build a premium course, community or membership site, without the tech headache.
These Terms of Services (these “Terms”) are a binding contract between you and MemberUp, LLC. (hereafter “we”, “us”, “our”, “Company”, or “MemberUp”). The Terms apply to your access to, and your use of our MemberUp Website (“Website”), https://memberup.com, or our MemberUp Web Application (“App”) and other online products or services that link to these Terms (collectively, the “Services”) through our Website or App.
NOTE THAT THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
Summary of Material Terms
As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
each component of our Services is licensed, not sold, to you, and you may use the Services only as set forth in these Terms;
the use of the Services may be subject to separate third-party terms of service and fees, including, without limitation, terms of service and fees from your mobile network operator, including fees charged for data usage and overage, which are solely your responsibility;
the Services are provided “as is” without warranties of any kind and our liability to you is limited;
disputes arising under these Terms will be resolved by binding arbitration, as described below; and
if you are using our App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple” below.
Customers may access their Service data via the Application Program Interface (“API”). Any use of the API, including use of the API through a third-party product that accesses the Service, is bound by the Terms plus the following specific terms:
You may not sell, rent, lease, sublicense, redistrubte, or syndicate access to our API.
You may not (i) access our API or documentation in violation of any law or regulation (ii) access our API in any manner that comprises, breaks, or circumvents any of our technical processes or security measures associated with the Services or in a way that poses a security vulnerability to customers or users of the Services (iii) access our API or documentation in order to replicate or compete with the Services (iv) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of our API or Services or (v) attempt to use our API in a manner that exceeds rate limits or constitutes excessive or abusive usage.
You expressly understand and agree that the Company shall not be liable for any damages or losses resulting from your use of the API or third-party products that access data via the API.
If we believe that there is a violation of the Terms that can simply be remedied by your modification or update of your usage, we will, in most cases ask you to take direct action rather than intervene. In some instances, we may directly step in and take what we determine to be appropriate action if you are not responsive, or if we believe there is a credible risk of harm to us, the Services, our customers, users, or any third parties.
Notice Regarding Apple
You acknowledge that these Terms are between you and MemberUp only, not with Apple, and Apple is not responsible for any App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any App. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and request that Apple refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to any App. Apple is not responsible for addressing any claims by you or any third party relating to any App or your possession and/or use of any App, including, but not limited to: (i) product liability claims; (ii) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that any App or your possession and use of any App infringes that third party’s intellectual property rights. You will comply with any applicable third-party terms, when using any App. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this section of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this section of these Terms against you as a third-party beneficiary of these Terms.
You hereby represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. If MemberUp provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.
The software you download in connection with any App consists of a package of components, including certain third-party software provided under separate license terms. Your use of the third-party software in conjunction with the App in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable third-party terms and nothing in these Terms is intended to impose further restrictions on your use of the third-party software.
The Services are not targeted toward, marketed to, or intended for use by anyone under the age of 18. We encourage parents to supervise their children’s digital activities and to consider using parental control tools available from online services and software manufacturers that help provide a child-friendly online environment. These tools can also keep children from disclosing their name, address and other personal information without parental consent online.
If you are using the Services on behalf of any person, you represent and warrant that you are authorized to accept these Terms on such person’s behalf and that such person agrees to be responsible to us if you or such person violates these Terms.
Accounts and Account Security
Eligibility: You must be at least 18 years of age to use our Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from our Services; and (c) your registration and your use of the Services complies with all applicable laws and regulations. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity, organization, or company to these Terms and that you agree on behalf of that entity, organization, or company to be bound by these Terms.
Registration: Anyone who is otherwise eligible to use the Services in accordance with these Terms may browse the public-facing pages of the Services. But to use most features of the Services, you must create an account (“Account”). Each Organization will designate an administrator for that Organization’s Account (the “Administrator”). Each Administrator may authorize other individuals from the same Organization to create an Account associated with that Organization (those authorized individuals, “Authorized Users”). Organizations, Administrators, and Authorized Users are, collectively, “Registered Users” and Registered Users and non-Registered Users are, collectively, “Users.”
Account Security: Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you will use reasonable efforts to prevent unauthorized access to or use of the Services and to preserve the confidentiality of your username or email address and password, and any device that you use to access the Services. You are solely responsible for maintaining the confidentiality of your password. Note, if you write into customer support requesting assistance, we are able to reset or set specific passwords for you. However, after you are able to login successfully, we encourage you to change your password. If you have any reason to believe that your account credentials have been compromised or that your Account has been accessed by a third party, you will immediately notify MemberUp via e-mail at email@example.com. Please note that MemberUp is able to mask into your account to see your account’s perspective for customer support and moderation purposes. You will be solely responsible for the losses incurred by MemberUp and others due to any unauthorized use of your Account.
Restrictions, Ownership, and License
The materials provided, contained in or made available for use in connection with the Services (collectively, the “Materials”) are protected by law, including, but not limited to United States (U.S.) and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. The Services are controlled and operated by MemberUp from its offices within the U.S. MemberUp makes no representation that any of the Services or Materials are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose and access any of the Services from other locations do so on their own initiative and are responsible for compliance with applicable local laws.
All rights, title and interest (including all copyrights, trademarks and other intellectual property rights) in the Services and the Materials belong to MemberUp or the original creator of the material. Further, all names, designs, graphics, data, images, pictures, logos and icons on the Services and the Materials are proprietary information or proprietary marks of MemberUp or the original creator of the material. The compilation of all content, including the look and feel of the Services (including the Materials), is the exclusive property of MemberUp and is protected by U.S. copyright law, as applicable. Except as may be expressly provided herein, nothing contained in these Terms or elsewhere shall be construed as MemberUp conferring any license or right, by implication, estoppels or otherwise, under copyright, trademark or other intellectual property rights, to any of the Materials to you.
You are hereby granted a personal, non-exclusive, non-transferable, limited license to use the Services in accordance with these Terms. You are not allowed to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information obtained directly from the Services (including the Materials). Further, you may not reproduce any part of the Services (including the Materials) and any such violation with respect to the Services will terminate the license(s) granted herein.
You also may not, without the permission of MemberUp, “mirror” any of the Materials on any other server. Any unauthorized use of any of the Materials may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes, and subject you to civil and criminal prosecution.
The following are the terms of idea submission under the Unsolicited Idea Submission Policy. All submissions, suggestions, ideas, artwork, or other information (the “Submission”), except your personal information, communicated to MemberUp through the Services become the sole and exclusive property of MemberUp. MemberUp is not required to treat any Submissions as confidential, and will not incur any liability as a result of any similarities that may appear in future MemberUp endeavors. MemberUp will have exclusive ownership of all present and future existing rights, including all commercial rights, to the Submission of every kind and nature in perpetuity throughout the universe, without acknowledgment or compensation to you. You acknowledge that you are responsible for whatever material you submit, and that you, not MemberUp, have full responsibility for the Submission, including its legality, reliability, appropriateness, novelty, and copyright.
MemberUp has the right but not the obligation to monitor and edit or remove any activity or content. MemberUp takes no responsibility and assumes no liability for any content posted by you or any third party.
The trademarks, service marks, and logos, including but not limited to MemberUp’s name, logo, and all related names, logos, and service names, service marks, designs, and slogans (the “Trademarks”) used and displayed on the Services (including the Materials) are registered and unregistered Trademarks of MemberUp or others. Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Services (including the Materials), without the written permission of the Trademark owner. MemberUp’s Trademarks may not be used in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without prior, written permission of MemberUp. MemberUp prohibits use of the MemberUp and/or MemberUp’s logo as a “hot” link to any website, unless MemberUp first approves the establishment of such a link writing.
As a specific condition of your use of any of the Services, you explicitly agree not to (a) use any of the Services for any purpose that is unlawful or prohibited by these Terms; (b) intentionally submit or transmit inaccurate information through the Services; (c) impersonate or pretend to be anyone else while using the Services; (d) use the Services in any way that could damage, disable, overburden, or impair any of the Services, or interfere with anyone else’s use of any of the Services; (e) attempt to gain unauthorized access to MemberUp computer systems or networks connected to MemberUp, through hacking, password mining or any other means; (f) attempt to reverse engineer any portion of any of the Services or attempt to infringe the intellectual property rights of others in any way; (g) obtain or attempt to obtain any materials or information through any means not intentionally made available through any of the Services; (h) attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access; (i) introduce any malicious or technologically harmful material into our Services; (j) develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services; and (k) use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Companies — Your Content: If you are using the Services on behalf of a company, you may be able to upload, post, or otherwise submit (“Submit”) content. MemberUp claims no ownership of your company content. You or your third-party licensor, as applicable, retain all copyright, patent, and trademark rights to any company content that you post on or through the Services.
Messages: The Services may allow Registered Users to send messages (“Messages”) to other Registered Users. MemberUp may terminate the ability of a Registered User to send Messages at any time and for any reason, without notice or liability to that Registered User. If a Registered User sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You agree that MemberUp may monitor Messages for compliance with these Terms, and therefore, Messages are not confidential or proprietary and you understand that any information sent using Messages has been disclosed beyond the parties to the Messages.
Content Generally: All forms of content that Users share with one another or with MemberUp through our Services are collectively referred to as “User Content.”
Limited License Grant to MemberUp: You grant MemberUp a world-wide, non-exclusive, sublicensable, royalty-free, transferable, limited license to use, modify, host, store, remove, publish, perform, reproduce, transmit, or display User Content that you Submit to the Services in order to facilitate the display and use of Your Content in accordance with the applicable settings specified in your Account and the features of the Services you elect to utilize. MemberUp may use the content in an aggregated manner or for analytics purposes, but not in the manner that specifically identifies you. MemberUp will not intentionally display your content in a manner inconsistent with the applicable sharing settings in your Account or in a manner inconsistent with the published features of the applicable portions of the Services you utilize unless you tell us to.
Limited License Grant to Other Users: By posting or sharing User Content with other Users of the Services, you grant those Users a non-exclusive license to share that User Content with their employees, agents, representatives, and advisors, and to access and use that User Content as permitted by these Terms and the functionality of the Services.
Content Disclaimer: You understand that by using the Services, you may encounter data, information, applications, materials, and other content from third parties, including User Content from other Users (collectively, “Third-Party Materials”), and data, information, applications, materials and other content from MemberUp, that may contain errors, be offensive, indecent, or objectionable. You use the Services, and rely upon any Materials or Services, at your sole risk. MemberUp will not have any liability to you for any Materials may be found to be offensive, indecent, or that are inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise objectionable. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. MemberUp may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable.
Revision Date, Modifications
These Terms are effective and were last updated as of the revision date at the beginning of these Terms. At any time, MemberUp may revise these Terms at our sole discretion. If we make changes, we will post the revised Terms, and update the revision date date above. We may, but are not required to, notify you by sending an email notification to the address associated with your Account or providing notice through our Services. Revisions are effective and binding when posted on the Services. Any continued use of any of the Services following any revision means you agree to the revisions. MemberUp expressly reserves the right to terminate or discontinue any of the Services at any time and for any reason, with or without notice to you.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Services infringe your copyright, you (or your agent) may send MemberUp a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
a physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Services are covered by a single notification, a representative list of those works);
identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow MemberUp to locate the material on the Service;
your name, address, telephone number, and email address (if available);
a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send MemberUp a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA, see http://www.loc.gov/copyright for details.
Notices and counter-notices with respect to the Service should be sent to MemberUp LLC, 1014 S. Westlake Blvd, #14-369, Westlake Village, CA 91361 or email@example.com.
Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to MemberUp for certain costs and damages.
THE SERVICES AND ALL CONTENT THEREIN ARE PROVIDED ON AN “AS AVAILABLE” AND “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SERVICES AND MATERIALS ARE FREE OF ERRORS; (B) DEFECTS WILL BE CORRECTED; (C) THE SERVICES OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) INFORMATION COMMUNICATED THROUGH THE SERVICES ARE ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO, RELIANCE ON, AND USE OF THE SERVICES OR ANY CONTENT THEREIN IS AT YOUR OWN RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL AND/OR DATA. WITHOUT LIMITING THE FOREGOING, WE MAKES NO REPRESENTATION OR WARRANTY AS TO THE QUALITY, RELIABILITY, COMPLETENESS, ACCURACY, TIMELINESS, AVAILABILITY, SECURITY OR FUNCTIONALITY OF THE SERVICES OR ANY CONTENT THEREON. WE WILL NOT BE LIABLE FOR ANY HARM TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA, THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT, OR FOR THE DELETION OF, OR THE FAILURE TO STORE. MEMBERUP MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. THE SERVICES MAY NOT BE CONTINUOUSLY AVAILABLE DUE TO MAINTENANCE OR REPAIRS OR DUE TO COMPUTER PROBLEMS OR CRASHES, DISRUPTION IN INTERNET SERVICE OR OTHER UNFORESEEN CIRCUMSTANCES. THE SERVICES AND ASSOCIATED CONTENT ARE INTENDED FOR USE AND DISPLAY ONLY WHERE ITS USE AND DISPLAY ARE PERMISSIBLE IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
MEMBERUP DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF, OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS ON OR FROM ANY OF THE SERVICES AND CONTENT THEREIN, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) ANY THIRD-PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE SITES OR MATERIALS PROVIDED, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS CONTAINED THEREIN, (C) THE UNAVAILABILITY OF ANY OF THE SERVICES OR ANY PORTION THEREOF, (D) YOUR USE OF ANY OF THE SERVICES, OR (E) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH ANY OF THE SERVICES.
ANY DEALINGS WITH ANY THIRD PARTIES (INCLUDING ADVERTISERS AND/OR SPONSORS) APPEARING ON THE SITES OR MATERIALS PROVIDED OR MADE AVAILABLE IN CONNECTION WITH PARTICIPATION IN ANY OFFERINGS AND ANY OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH ACTIVITIES ARE SOLELY BETWEEN YOU AND SUCH ADVERTISER OR OTHER THIRD PARTIES. WE ARE NOT RESPONSIBLE FOR EXAMINING OR EVALUATING, AND WE DO NOT WARRANT THE OFFERINGS OF, ANY OF THESE BUSINESSES OR INDIVIDUALS OR THE CONTENT OF THEIR WEBSITES. MEMBERUP DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR THE ACTIONS AND CONTENT OF ALL THESE AND ANY OTHER THIRD PARTIES. YOU SHOULD CAREFULLY REVIEW THEIR PRIVACY STATEMENTS OR POLICIES AND OTHER TERMS OR CONDITIONS OF USE OR SERVICE. MEMBERUP IS NOT RESPONSIBLE OR LIABLE TO ANY PARTY WHO PARTICIPATES IN ANY SUCH DEALINGS.
WE ATTEMPT TO DISPLAY THE MATERIALS AND INFORMATION YOU VIEW ON THE SERVICES AS ACCURATELY AS POSSIBLE. BUT WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION.
Limitation of Liability
IN NO EVENT WILL WE OR OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, MEMBERS, SHAREHOLDERS, AGENTS OR OTHER REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THE SERVICES. OUR TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF FORSEEABLE, WILL NOT EXCEED THE GREATER OF (I) THE TOTAL AMOUNT YOU SPENT ON YOUR BUSINESS DEALINGS WITH US DURING THE MOST RECENT TWELVE-MONTH PERIOD, OR (II) IF YOU HAVE NOT PAID US, THE AMOUNT OF $100. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF YOUR ACCOUNT. CERTAIN APPLICABLE LAWS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Disputes with Third Parties
MEMBERUP IS NOT AFFILIATED WITH ANY NON-EMPLOYEE WORKER, BUYER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY NON-EMPLOYEE WORKER, BUYER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE MEMBERUP FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES. YOU WILL TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON. YOU ASSUME ALL RISK WHEN ENGAGING THE SERVICES OF ANY OTHER USER AND IN CONNECTION WITH USING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY RISKS ASSOCIATED WITH SHARING CONFIDENTIAL INFORMATION WITH ANY OTHER USER. SHOULD YOU PERFORM WORK AS AN INDEPENDENT CONTRACTOR FACILITATED BY MEMBERUP FOR A THIRD PARTY, YOU ACKNOWLEDGE THAT THE THIRD PARTY FOR WHOM YOU PERFORM SUCH WORK IS THE PARTY ULTIMATELY RESPONSIBLE FOR PAYING YOU FOR THAT WORK. SHOULD MEMBERUP NOT RECEIVE PAYMENT FROM THE THIRD PARTY, MEMBERUP RESERVES THE RIGHT TO REQUIRE YOU TO SEEK ANY REIMBURSEMENT FOR YOUR WORK DIRECTLY FROM THE THIRD PARTY. IN SUCH INSTANCE, YOU AGREE TO HOLD MEMBERUP HARMLESS AND RELEASE MEMBERUP FROM ANY ASSOCIATED CLAIMS.
Dispute Resolution; Binding Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MEMBERUP AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
General: Access to and use of any of the Services and these Terms are governed by the laws of the State of Texas and the United States as applicable therein, without resort to conflict of law provisions. MemberUp makes no representation that the contents of any of the Services are appropriate or available for use outside of the United States, and those who choose to access any of the Services from other locations are solely responsible for compliance with their local laws. Except for any disputes, claims, suits, actions, causes of action, demands, or proceedings (collectively, “Disputes”) arising out of or related to a violation these Terms or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents, you and MemberUp agree to (a) waive your and MemberUp’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services resolved in a court, (b) waive your right to proceed in a class, collective, or consolidated capacity, and (c) waive your and MemberUp’s respective rights to a jury trial. Your rights and MemberUp’s rights during the arbitration process may be more limited than the rights you or MemberUp would have in civil trial or appellate court. The Federal Arbitration Act and federal arbitration law apply to these Terms.
Exceptions: Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator: Any arbitration between you and MemberUp, or you and MemberUp’s customers, will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes or the Employment Arbitration Rules and Mediation Procedures (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be Administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. ANY SUCH DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY DISPUTE OF ANY OTHER PARTY.
Notice; Process: A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). MemberUp’s address for Notice is: MemberUp, Inc, 1014 S. Westlake Blvd, #14-369, Westlake Village, CA 91361. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or MemberUp may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or MemberUp must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, MemberUp will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by MemberUp in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees: If you commence arbitration in accordance with these Terms, MemberUp will follow the AAA’s fee requirements under the applicable AAA rules, as modified by this agreement, where applicable. Any arbitration hearing will take place at a location to be agreed upon in Austin, Texas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse MemberUp for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, you and MemberUp agree that the arbitrator shall decide all discovery and procedural matters and issue a reasoned award, and that the place of arbitration shall be Austin, Texas. You further agree that you will reimburse MemberUp and any third party beneficiaries of this agreement for any costs or fees associated with enforcing this Dispute Resolution and Arbitration provision. Unless you and MemberUp otherwise mutually agree in writing, you and MemberUp agree that discovery is limited to no more than five interrogatories, five requests for admission, five requests for production, and eight hours of depositions per side. You and MemberUp further agree that third-party subpoenas may be issued only after a showing of good cause, upon the arbitrator’s order allowing any such third-party subpoena to issue. You and MemberUp also agree that motions for summary judgment may only be filed upon a showing of good cause, upon the arbitrator’s order allowing such dispositive motions to be filed. All information and documents obtained during the arbitration will be treated as confidential and used only for purposes of the proceeding. You and MemberUp agree to negotiate in good faith and submit an agreed protective order to the arbitrator before making any potentially confidential disclosures. In the event that you and MemberUp cannot agree on a form of protective order, you and MemberUp agree to submit separate proposed protective orders and seek an extension of discovery and other deadlines, if necessary, to allow the arbitrator to enter a protective order before disclosures are made. You and MemberUp shall maintain the confidential nature of the arbitration proceeding and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or unless otherwise required by law or judicial decision. You and MemberUp agree that the arbitrator will render an interim reasoned award (“Interim Award”) on which you and MemberUp may comment for at least seven days concerning the law and reasoning of the Interim Award before an appealable, reasoned award (“Appealable Award”) is issued. You and MemberUp further agree that the Appealable Award may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Interim and Appealable Awards shall, at a minimum, be reasoned awards setting forth the findings of fact, conclusions of law, and the reasons supporting the arbitrator’s decision; that the Appealable Award may be overturned upon de novo review of legal errors and for clear errors of fact; and that the Appealable Award shall not be considered a final award until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of the Appealable Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office and notifying the other party in writing. Following the appeal process, the decision rendered by the AAA appellate tribunal may be entered in any court having jurisdiction thereof. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Governing Law and Venue
These Terms, your access to and use of the Services, and any claim or dispute you may bring against MemberUp, its affiliates, subsidiaries, parent companies, members, shareholders, agents and assigns, shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of law rules or principles (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Texas and the United States, respectively, sitting in the State of Texas, and Austin.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
If MemberUp sells its assets to or is acquired by another company, or if it merges with another company, you, by using the Services, authorize MemberUp to assign the information you provided to MemberUp or that MemberUp collected while you used the Services.
Consent to Electronic Communication
By using the Services, you consent to receiving electronic communications from us regarding your Account, or for operational and informational purposes. You also agree that by using the Services, you affirmatively consent to MemberUp using electronic records or your digital signature to satisfy any statute, regulation, or rule of law requiring that such information be provided in writing and that you have not withdrawn such consent.
These Terms constitute the entire agreement between you and MemberUp relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of MemberUp. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and MemberUp’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
If you have any questions, comments or concerns about the Terms, you may contact us using the information provided below:
1014 S. Westlake Blvd,
#14-369, Westlake Village,