Terms
Effective as of June 15, 2021
MEMBERSHIP AGREEMENT
AND TERMS OF USE
This MEMBERSHIP AGREEMENT AND TERMS OF USE (“Agreement”) constitutes a legally binding agreement entered into by and between you (“You” or “Your”) and EXEC, LLC, a Delaware limited liability company (“We” or “Company”) concerning, Your membership in the Company’s curated benefits program (the “Program”) and Your use of and access to the Benefits (as defined herein) and Site (as defined herein). The Company owns and operates JOINEXEC.COM (together with any and all information and content contained therein, navigational links, sub-domains, mobile applications or successor sites, collectively the “Site,” which may also include co-branded or white labeled versions of the Site).
THIS AGREEMENT GOVERNS YOUR MEMBERSHIP IN THE PROGRAM AND CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES, SO WE RECOMMEND YOU PLEASE CAREFULLY READ THE FOLLOWING BEFORE USING/ACCESSING THE SITE, THE BENEFITS OR ANY OTHER FEATURE OF THE PROGRAM OR MEMBERSHIP. PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND COMPANY ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER, A CLASS ACTION WAIVER, AND AN AGREEMENT TO ARBITRATE CLAIMS, AND WAIVER OF ANY RIGHTS TO SUE OR SEEK RELIEF OR HAVE ANY CLAIMS OR DISPUTES ADJUDICATED IN ANY COURT OF LAW.
ADDITIONALLY, PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN THE AUTOMATIC RENEWAL OF YOUR MEMBERSHIP AS SET FORTH IN SECTION 5 HEREOF.
By accessing the Program, the Benefits or the Site, You unconditionally and irrevocably agree and acknowledge that: (i) You are legally bound by all of the terms and conditions set forth in this Agreement; (ii) You have the legal capacity to enter into, be bound by and perform in accordance with this Agreement; and (iii) You are over the age of eighteen (18) years old and are of sufficient mental capacity to contract.
As used in this Agreement, “access” or “accessing” means (i) the application or completion of an application for membership in the Program; (ii) completion of the enrollment process for membership in the Program (“Membership”); (iii) use of the Benefits in Your own name; (iv) creation of an account on the Site for use of the Site or otherwise by clicking the “join”, “sign-up”, “I agree” or similar button in connection with Your use of the Site or Program; and/or (v) should You become a member by virtue of certain other membership in other organizations as provided for herein, by otherwise accessing, visiting, browsing, using or attempting to interact with any part of the Site or the Benefits. If You do not agree to any of the terms or conditions in this Agreement, You must not access or use the Site or the Program. This Agreement along with the Company privacy policy and any other existing or subsequently issued policies with respect to Your Membership (collectively, the “Policies”) sets forth the general terms and conditions governing Your Membership and use of the Program or Site.
MEMBERSHIP; ELIGIBILITY AND ENROLLMENT
To become eligible for Membership in the Program and to access the Benefits, (i) You must complete the enrollment process located on the Site, providing complete and accurate information in connection with the same; or (ii) You may become a member without completing the Company’s enrollment process on the Site by virtue of membership in certain other organizations accepted by the Company and/or as otherwise determined by Company from time to time, provided that You follow all requirements set forth by Company to “activate” such Membership including but not limited to setting up an account on the Site. Company may revoke such eligibility or change eligibility at any time in its sole and absolute discretion. In each case, Your Membership, as well as access or use of the Site is contingent upon Company’s acceptance of You as a member, which Company may withhold, condition or delay in its sole and absolute discretion for any reason or no reason, and the payment of the Membership Fee, unless waived by the Company in its sole discretion.
The Company shall have the right to designate different classes or tiers of Membership in the Company’s sole discretion. Each class or tier of membership shall carry with it certain rights to access and the availability of certain Benefits and/or eligibility which may differ. You hereby agree and acknowledge that should Company designate classes or tiers of Membership following Your enrollment and while You are a member, the Company may, without notice to You or Your consent, categorize, classify or designate Your Membership as within any one class or tier.
To the extent You are in breach or violation of this Agreement or the Policies, the Company may immediately suspend or terminate Your membership and/or Your access to the Benefits. Memberships are personal and may not be assigned, sold or otherwise transferred to another person; provided, however, that the Company may authorize You to transfer, or grant access to Your Benefits, to another person(s) in its sole and absolute discretion (each a “Sub-User”). In that event, You shall remain liable and responsible for any Sub-User’s activities or use of the Site or Your Benefits and the Company shall have the right to deny or condition a Sub-User’s access to the Site and the Benefits in its sole discretion at any time. You shall immediately notify the Company of any unauthorized use of Your account. Upon the termination of Your Membership, any Sub-User access to the Program or the Benefits shall be automatically terminated.
ACCOUNT INFORMATION
In order to access the Benefits and/or certain features of the Site, You may be required to create a profile or account on the Site, which shall include, but not be limited to, Your username, password, contact information (including personal mailing, phone and/or personal email address), as well as Payment Method (defined herein) (“Account Information”). You represent and warrant to the Company that all Account Information as well as other information You submit when You create Your profile or account is current, accurate, complete, and that You will keep Your Account Information current, accurate and complete and notify the Company of any changes to Your Account Information. In the creation of Your profile or account, You are not impersonating any third party or otherwise using any third party’s information without their written approval. If the Company has reason to believe that Your Account information is untrue, inaccurate, out-of-date or incomplete, the Company reserves the right, in its sole discretion, to suspend or terminate Your Membership, and/or suspend Your use of the Site, Your membership and any Benefits. At all times, You shall keep Your profile or Account Information personal to You and not permit any third party to access Your profile, account, or Account Information or Membership unless otherwise permitted by this Agreement. You understand and agree that the Company may (and You grant the Company the authority to) assign to You an alias email address or other Account Information for the sole purpose of verifying Your membership to Business Partners (as defined herein) and other third parties.
MEMBERSHIP BENEFITS
The Company operates the Program to grant and provide its members with access to certain benefits, privileges, offerings and rewards programs (the “Benefits”) offered by unaffiliated third-party wholesalers, purchasing organizations, retailers and service and experience providers (each a “Business Partner”). Benefits are subject to change at any time, may contain black-out restrictions related to dates and times Benefits are made unavailable, to capacity limitations and any other modification, alteration, reduction, decrease or variation imposed by the Company or a Business Partner, and, in each case, without prior notice to the members. The Company does not make any representation, warranty or affirmation regarding the availability of Benefits existing at the time You become a member and/or when such Benefit is advertised or listed.
Please be advised that to the extent We provide any content from third parties, on the Site or otherwise in connection with the Program, We cannot and do not investigate or confirm the legitimacy, validity, accuracy and legality of any such information. Additionally, where We provide access from the Site to other websites that are not under Our control, We do not endorse or approve any products, services or information offered, made available or contained on or at any such third party websites. You are advised that the terms of use of such other websites govern Your use of those sites and, as a result, You are fully responsible for Your own use of such websites.
You understand and agree that the Company is not responsible in any way for Your use of any services or Benefits provided by Business Partners, and that Your use of the same is subject to the terms and conditions established by such Business Partners. Any such Business Partners may have separate eligibility requirements, require the execution of a separate agreement or other terms and conditions for use or purchase by You and shall have the right to refuse to provide the products, services or experience offerings to You. You agree that You shall review and verify the terms, rules or policies of any Business Partner prior to Your purchase of any goods, services or experiences provided by them and You shall be solely responsible for ensuring Your compliance thereof. You are solely responsible for the payment for any products, services, and/or subscriptions purchased through a Business Partner, and for complying with any terms or agreements You enter into in connection with the same. To the fullest extent permitted by law, Company disclaims any and all warranties, statutory, express or implied with respect to any Business Partners or any products and services or other Benefits offered thereby. While the Company may receive a financial or other benefits from Business Partners for permitting the Benefits, neither the Company nor its licensors have any liability or responsibility in connection with the management, redemption, provision or marketing of such Benefits nor the products and/or services purchased or obtained in connection thereto. In order for You to be eligible for certain Benefits, and/or to activate such Benefits, the Company may be required to register You for an account with a Business Partner. THIS AGREEMENT SHALL CONSTITUTE YOUR PRIOR EXPRESS WRITTEN CONSENT, IN ACCORDANCE WITH THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) AND ANY OTHER APPLICABLE LAW, TO COMPANY’S USE OF YOUR NAME, COMPANY, WORK PHONE, CELLULAR PHONE, EMAIL ADDRESS, AND ANY OTHER CONTACT INFORMATION YOU PROVIDE TO COMPANY, TO REGISTER YOU FOR AN ACCOUNT WITH A BUSINESS PROVIDER FOR THE PURPOSES OF MAKING SUCH BENEFIT POTENTIALLY AVAILABLE TO YOU IN CONNECTION WITH YOUR MEMBERSHIP. YOU AGREE THAT YOU MAY BE CONTACTED WITH SUCH BENEFITS, INCLUDING BY CALLS AND TEXT MESSAGES TO YOUR CELLULAR PHONE, AND BY THE USE OF ANY EQUIPMENT DEEMED AN AUTOMATIC TELEPHONE DIALING SYSTEM (ATDS) OR THROUGH THE USE OF AN ARTIFICIAL OR PRE-RECORDED VOICE. YOU MAY OPT-OUT OR REVOKE YOUR CONSENT TO RECEIVE THE COMMUNICATIONS AND OFFERINGS DESCRIBED IN THIS PARAGRAPH BY SENDING EMAIL NOTICE TO COMPANY AT concierge@exec.vip WITH THE SUBJECT HEADLINE “BENEFIT OPT-OUT”. If You opt-out as set forth in the foregoing sentences, You may not be eligible for certain Benefits that are available to other members.
You agree that Your use of the Program, Benefits and the Site shall be for Your own personal purposes and that You (i) shall not use the foregoing for any commercial purposes; (ii) resell, advertise or make the Benefits available to any third party (except to Sub-Users as permitted by this Agreement); (iii) use the Program, Benefits or Site for any illegal, improper or fraudulent purposes at all times in compliance with applicable law; (iv) copy, republish, or otherwise improperly use any content found on the Site; (v) violate any of the Business Partners’ terms of use or otherwise make any false or fraudulent use of the Benefits; or (vi) will not publish or reproduce any screenshots of or terms of any Benefits; and (vii) will not use the Program, Benefit or Site for the purpose of developing or operating a product or service which is competitive with the Program.
MEMBERSHIP FEES; PAYMENT METHOD; AUTOMATIC RENEWAL
The Company may charge, and You hereby agree to pay, an annual membership fee for each year in which You are a member, which the Company may waive, in whole or in part, in its sole discretion (“Membership Fee”), it being understood and agreed that Company may also offer or permit members to have a shorter membership period. The Company reserves the right to change or modify its Membership Fee for the next Renewal Term upon thirty (30) days’ prior notice to You. Changes in Membership Fees will be effective when Your Membership is renewed, except that if Your Membership is not for a set term, the change will be effective no less than thirty (30) days after posting of the change. The Membership Fee may be waived, discounted or provided gratis in Company’s sole discretion, allowing You to receive the Benefits free or at a discount for a limited period of time (“Trial Pricing”). If You receive Trial Pricing at the time of enrollment, Your Payment Method (as defined herein) will be verified but not charged. The provision of Trial Pricing may be offered to some or all members as determined by the Company in its sole discretion, and because one member is offered Trial Pricing does not entitle You or any other member to such Trial Pricing. You acknowledge and agree that the Membership Fee does not include and You agree to pay any and all additional prices and fees in connection with products, services, or experiences in connection with the Benefits which shall be charged by any Business Partner, if applicable, and any and all applicable taxes imposed by state or federal law.
You shall provide a valid credit card to be stored on file in order to pay the Membership Fee and for any fee in connection with the Benefits which You choose to purchase or exercise (“Payment Method”). You hereby authorize the Company to charge Your Payment Method for the Membership Fee and any fees or charges due to Company related to the Benefits when due without additional notice and to store Your credit card information. The Company may charge $1.00 or less against Your credit card to test the validity of Your credit card account at any time during Your Membership or prior to a charge. Once Your credit card account is verified, the small charge will be refunded to such credit card. In the event of suspected fraudulent activity or erroneous charges on or in connection with Your account or Payment Method, You will contact the Company as soon as possible to report the same.
AS OUTLINED IN SECTION 5, HEREOF, YOUR MEMBERSHIP IS SUBJECT TO AUTOMATIC RENEWAL AND/OR CONTINUOUS SERVICES. IN THE EVENT THAT YOU DO NOT CANCEL YOUR MEMBERSHIP PURSUANT TO SECTION 5, THE COMPANY WILL KEEP YOUR PAYMENT METHOD INFORMATION ON FILE, AND YOU HEREBY AUTHORIZE COMPANY TO CHARGE YOUR PAYMENT METHOD WHEN YOUR MEMBERSHIP TERM IS UP FOR RENEWAL THEREBY AUTOMATICALLY RENEWING THE SAME FOR THE SAME PERIOD OF TIME AS THE PRIOR TERM.
If for any reason the Company is unable to charge Your Payment Method for the full amount owed or if the Company receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to Your Payment Method, You agree that the Company may: (i) pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation of Your membership or any Benefit in connection thereto, without notice to You; (ii) suspend Your account; and (iii) in the event that the Company pursues any action for the collection of monies due to the Company from You hereunder, the Company will be entitled to reimbursement of its costs and expenses in connection with such actions, including any attorney’s fees.
TERM AND TERMINATION
Your Membership shall be effective upon the later of (a) the acceptance by the Company of all of Your materials and submissions in connection with the enrollment process, and (b) receipt by the Company of Your initial Membership Fee, if applicable. Unless otherwise agreed by the Company in writing, Your Membership shall continue for an initial term of one (1) year (the “Initial Term”). Upon the expiration of the Initial Term, Your Membership shall automatically renew for consecutive one (1) year period(s) (each a “Renewal Term) unless either You or the Company terminate the Renewal Term by written notice no later than fifteen (15) days after the commencement of that Renewal Term. Provided that You have timely terminated the Renewal Term, Your Membership Fees paid in advance for the Renewal Term shall be refunded by the Company. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term”. The Company may terminate Your Membership immediately on notice in the event You: (i) violate this Agreement or any of the Policies, as determined in the Company’s sole discretion; (ii) fail to pay any amount due to the Company when due; (iii) are the subject of complaints from members regarding Your conduct, the veracity of which will be determined by the Company in its sole discretion; (iv) misrepresent or include false information during Your enrollment process; (v) become the subject of a federal criminal investigation or civil investigation for actions a felony or any acts of moral turpitude or dishonesty; (vi) are charged with or convicted of any felony or any misdemeanor involving moral turpitude or dishonesty; (vii) solicit, market, or sell access to any Benefits to third parties, including, but not limited to, offering to include a third party’s services, products or links in Member Content (defined herein); (viii) do anything which, in the Company’s reasonable discretion, is harmful to or otherwise reflects negatively on the Company’s or the Programs reputation or goodwill.
If Your Membership is terminated for any reason, You shall not be entitled to a refund of any portion of Your Membership Fee, though the Company may refund all or a portion of Your Membership Fee with or without the requirement of the execution of a release in a form and upon terms determined by Company.
INTELLECTUAL PROPERTY
As a visitor to or user of the Site, You are granted a non-exclusive and non-transferable limited license to access and use the Site (and its associated content) strictly in accordance with this Agreement. Except as otherwise explicitly noted, all information, materials and other content on the Site, including, but not limited to, all text, images, designs, photographs, videos, and other materials (the “Materials”), are the property of the Company or its licensors. You acknowledge and agree that the Materials and the copyrights, trademarks, trade dress and/or other intellectual property in connection with such Materials is owned, controlled or licensed by the Company. The Materials on the Site are intended solely for Your personal, non-commercial use, and unless the Company explicitly authorizes otherwise in writing, You may not download, copy, transmit, reproduce, publish, distribute, modify, or otherwise exploit the Materials in any manner other than for Your non-commercial use of the Site. No right, title or interest in any of the Materials is transferred to You through Your use of the Site, regardless of whether or not the Materials are configured to enable the download or copying thereof. In no event shall You remove any intellectual property notices, or be permitted to utilize the Materials for any commercial purposes. Further, in no event shall You decompile, disassemble, or reverse engineer any code, function, or feature on the Site.
You shall not challenge or encourage anyone to challenge the Company’s ownership of or the validity of its trademarks, logos, trade dress, or service marks displayed on the Site or any application or registration thereof (the “Marks”). You shall not at any time or in any manner, knowingly or intentionally, engage or perform in any activity or permit any act, which may in any way adversely affect any of the Marks or the Company’s rights therein. Nothing contained on the Site grants or should be construed as granting, by implication, estoppel or otherwise any license or right to use any of the Marks without the Company’s prior written permission.
Member Content. Some of the features of the Program, Benefit or Site may allow users to submit, post, publish, share, store, or manage certain text, stories, artwork, images, photographs, videos, messages, ideas, concepts, opinions, musical compositions, audio-visual works or other materials (“Member Content”). Any and all materials or content submitted by You or through Your account or shall be considered Member Content. By posting, publishing or submitting Member Content to the Site or in connection with the Program, or otherwise making such Member Content publicly available in connection with the Benefits or Program, You represent and warrant to the Company that (i) submission of Member Content is entirely voluntary; (ii) You have all necessary rights to distribute Member Content, either because You are the sole author of the Member Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owners of the Member Content without any restriction; (iii) the Member Content is original and not previously published in any form; (iv) the Member Content will not knowingly contain any untrue statements or material that is deceptive, fraudulent or intentionally misleading, and all statements in the Member Content which are asserted as facts are true and based upon reasonable research for accuracy; (v) the Member Content does not violate any rights of privacy or infringe upon any statutory or common law copyright or otherwise violate the rights of any third party or any applicable law or regulation; and (vi) while We encourage the free flow of ideas, the posting or publishing of the Member Content shall not violate the terms herein. You shall indemnify the Company and hold the Company harmless against any liability, cost or expense, including reasonable attorneys’ fees, incurred as a result of any breach of the foregoing representations or warranties. For the purposes of this Section, any public communications between You and another member using the Site shall be deemed to be Member Content and shall not be reproduced, republished or otherwise utilized by You in contravention to this Section or this Agreement. If You use third party content in the Member Content, it is Your responsibility, at Your expense, to obtain all approvals, consents, licenses, or otherwise clear the third party content in the Member Content. If such third party content is not cleared, You shall not use it in the Member Content. Notwithstanding, the Company has no obligation to remove any published Member Content, except in its sole and absolute discretion. In order to publish Member Content to certain third-party websites or other media channels, You may be required to comply with additional guidelines or approvals and/or execute additional or acknowledge additional terms or agreements with such third party.
Further, if You submit, post, or publish Member Content, it is at Your own risk, and that You shall be solely responsible for any liability related thereto and further that the Company reserves the right, in its sole discretion, to (i) take any action with respect to any Member Content that We deem necessary or appropriate, including if We believe that such Member Content violates these terms, infringes any intellectual property right or other rights of any person or entity, threatens the personal safety of other members, users of the Site or the public or could create liability for the Company; (ii) disclose Your identity or other information about You to any third party who claims that material posted by You violates their rights, including but not limited to their intellectual property rights or their right to privacy; (iii) take appropriate legal action, including, without limitation, referral to law enforcement; or (iv) terminate or suspend Your access to all or part of the Site or Program for any or no reason, including without limitation, any violation of these terms or the Policies. Without limiting the foregoing, the Company has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, LICENSORS, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITY. You agree to cooperate in the defense of any legal action brought by or against the Company arising from the publication of the Member Content and You agree to retain all notes, drafts, and copies relating to the Member Content for three (3) years after publication.
License to Member Content. By posting or publishing any Member Content on the Site or in connection or to any sites of Business Partners, You hereby grant the Company and its licensees a perpetual worldwide, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display and modify Your Member Content in connection with the Program or otherwise as the Company determines in its sole discretion in any medium or manner without restrictions of any kind and without payment or other consideration of any kind. The above licenses granted by You in Your Member Content are perpetual and irrevocable and shall continue whether or not You are still a member, and neither the Company nor any media platform to which it publishes shall be required to remove such Member Content upon a member’s request or liable for the refusal or failure to do so.
Unsolicited Materials: In order to avoid the possibility of any future misunderstandings in connection with any products, services, projects or creative ideas which the Company, Business Partners or its licensors may develop, which may be similar to a third party’s creative materials, it is the Company’s long-standing policy to not allow, accept or consider creative ideas, proposals, suggestions or other materials which the Company does not request from You in writing (“Unsolicited Materials”). Therefore, We request that You do not provide any Unsolicited Materials in the Member Content or in any other manner to the Company in connection with Your Membership or otherwise. Any Member Content shall not be made in confidence or with an obligation to review or provide any consideration or compensation. The Company, Business Partner and its licensors are constantly developing products, programs or services and that the development and exploitation thereof shall not entitle You to any compensation of any sort, regardless of the similarity to any Unsolicited Materials. Notwithstanding the foregoing, You agree that any Unsolicited Materials that You submit to the Company shall automatically become the property of the Company, without any compensation, accreditation or notice to You, that the Company may use or redistribute any submission of Unsolicited Materials either in the form which You submit them or in an altered form, that the Company has no obligation to keep any submitted Unsolicited Materials, and that, to the extent that the Unsolicited Materials are subject to a confidentiality agreement with any third party, that by submitting Unsolicited Materials to the Company, You may violate such confidentiality agreement, that the Company is not bound thereby, and that You will indemnify, hold harmless, and defend the Company from any third party legal action arising from Your disclosure of the Unsolicited Materials and/or the Company’s subsequent unrestricted right to use the Unsolicited Materials.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS PARENTS, SUBSIDIARIES, RELATED COMPANIES OR THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL, ECONOMIC OR NON-ECONOMIC, LIQUIDATED OR UNLIQUIDATED DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM OR RELATED TO (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE OR OTHERWISE USED IN CONNECTION WITH THE PROGRAM, (III) THE BENEFITS FOUND AT THE SITE OR ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, INCLUDING THE CONDUCT OF ANY OTHER MEMBER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF THE SITE, BENEFITS, OR THE PROGRAM (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THE SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE, (IX) ANY MEMBER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, (X) TERMINATION OF YOUR MEMBERSHIP BASED ON A VIOLATION OF THIS AGREEMENT OR THE POLICIES AS DETERMINED BY COMPANY IN ITS SOLE DISCRETION, OR AS OTHERWISE PERMITTED HEREIN, AND/OR (XI) ANY LOSS OR DAMAGE OF ANY KIND INCURRED BY YOU AS A RESULT OF YOUR USE OF THE SITE, PROGRAM OR THE BENEFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, STATUTE, REGULATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, COMPANY’S TOTAL AGGREGATE LIABILITY SHALL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL MEMBERSHIP FEES PAID TO COMPANY BY YOU DURING THE 12 MONTH PERIOD PRECEDING THE OCCURRENCE OF THE LIABILITY OR CLAIM. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SITE OR ANY OF THE BENEFITS.
DISCLAIMER OF WARRANTIES
YOUR MEMBERSHIP, USE OF THE PROGRAM, SITE AND/OR THE BENEFITS ARE AT YOUR OWN RISK AND THAT THE SITE AND THE PROGRAM ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. COMPANY, ITS PARENT, SUBSIDIARIES, RELATED COMPANIES AND THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AND ALL THIRD PARTIES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY, ITS PARENT, SUBSIDIARIES, RELATED COMPANIES AND THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, COMPANY LICENSORS, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SITE; (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE; AND/OR (III) THE BENEFITS FOUND AT THE SITE OR ANY THIRD-PARTY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE, AND COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME; (IV) THE AVAILABILITY OF THE BENEFITS; OR (V) THE BENEFITS OR ACTIONS OR YOUR DEALINGS WITH ANY BUSINESS PARTNER.THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR MEMBERSHIP OR YOUR USE OF THE SITE OR THE BENEFITS FOUND AT THE SITE.
YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RELIABLE FOR ANY EQUIPMENT OR OTHER MATERIALS NECESSARY TO ACCESS THE SITE OR THE BENEFITS AND THAT ACCESS TO THE SITE MAY REQUIRE THIRD PARTY FEES TO TELECOMMUNICATIONS COMPANIES WHICH SHALL BE YOUR SOLE RESPONSIBILITY.
INDEMNITY
You agree to protect, defend, indemnify and hold the Company and its parents, subsidiaries, affiliates, related companies and their officers, directors, members, managers, employees, agents, successors and assigns, as well as the Company licensors (collectively the “Company Parties”) harmless from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable outside attorneys’ fees) imposed upon or incurred by the Company Parties directly or indirectly arising from (i) Your use of and access to the Site or the Benefits; (ii) Your violation of any provision of this Agreement or the Policies; and/or (iii) Your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this Section shall survive any termination or expiration of this Agreement or Your use of the Site or the Benefits.
SUCCESSORS AND ASSIGNS
You shall not assign, license or other transfer Your rights, duties or obligations under this Agreement without Company’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
MODIFICATION OF AGREEMENT
The Company may, in its sole discretion, change or modify this Agreement, the Benefits, the Program, or the Policies at any time and from time to time without notice except to the extent required by applicable law. If the Company does change this Agreement, a notice of the changes will be posted on the Site and will indicate the effective date of each new version of this Agreement along with a list of the affected sections which were changed or modified. The changes or modifications of this Agreement will be effective immediately upon posting them unless otherwise provided in writing. In addition, the Company may, but unless otherwise required by law, does not have an obligation, to notify You of changes or modifications to this Agreement by email to Your email address listed in connection with Your account. Your continued access or use of the Program, Site and Benefits following the posting of a new version of this Agreement constitutes acceptance and agreement to the posted version of the Agreement and its incorporated changes. It is therefore important that You keep Your account information current. You will not hold the Company liable and the Company assumes no liability or responsibility for Your failure to receive any email notification. You acknowledge and agree that the Company has no obligation to provide You with an email notification of any modifications to this Agreement or the Policies except to the extent required by applicable law and that any email notification provided at any time shall not obligate or create an expectation for the Company to do so in the future. The Company reserves the right to modify, change, or discontinue any aspect of membership at any time. Only a specific, written waiver signed by an authorized representative of the Company shall have any legal effect as a waiver by the Company of any terms of this Agreement or the Policies.
ENTIRE AGREEMENT
This Agreement and the Policies constitute the sole and entire agreement between You and the Company with respect to Your Membership, access of and to the Program or Site and any services thereon and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Program or the Site and any services thereon.
GOVERNING LAW; DISPUTE RESOLUTION
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and the Policies and any claim or dispute that has arisen or may arise between You and the Company.
Agreement to Arbitrate: Your use of or access to or any dispute related to Your Membership, the Program, Benefits or use of the Site shall be resolved exclusively through final and binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate under procedures as set forth herein. BY AGREEING TO BINDING ARBITRATION, YOU AND THE COMPANY UNDERSTAND AND AGREE THAT YOU AND THE COMPANY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO SUE OR SEEK RELIEF OR HAVE ANY CLAIMS OR DISPUTES ADJUDICATED IN ANY COURT OF LAW, ADMINISTRATIVE PROCEEDING, OR ANY OTHER FORUM, WHETHER THOSE CLAIMS OR DISPUTES ARISE OR ARE BASED IN ANY CONTRACT, STATUTE, REGULATION, TORT, OR OTHERWISE. YOU AND THE COMPANY UNDERSTAND AND AGREE THAT YOU AND THE COMPANY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO A TRIAL BY JURY. As a sole exception to the provisions in this Section 13, You and the Company shall not be precluded from seeking emergency injunctive relief in a court of law in the event a time-sensitive matter causing irreparable harm cannot not be addressed through arbitration before the harm occurs. However any claims or disputes remain otherwise, including, but not limited to, the agreement to submit all claims or disputes, whether arising or based in any contract, statute, regulation, tort, or otherwise, to binding and final arbitration; the knowing, voluntary, and willing waiver of the right to sue or seek relief in any court of law, administrative proceeding, or any other forum, the knowing, voluntary, and willing waiver of the right to a jury trial, and the knowing, voluntary, and willing waiver of the right to participate or be represented in any class action or class arbitration.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS. YOU AND THE COMPANY KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVE THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION OR CLASS ARBITRATION, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING RELATED TO THIS AGREEMENT, YOUR MEMBERSHIP OR THE PROGRAM INCLUDING THE TERMINATION THEREOF. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED ON ANY INDIVIDUAL CLAIM SHALL NOT IMPACT OR HAVE ANY PRECEDENTIAL OR EVIDENTIARY EFFECT ON THE CLAIM OF ANY OTHER MEMBER(S). If applicable law precludes adjudication of any portion of any claim or dispute pursuant to the terms of Section 13 of this Agreement, then only that portion of the claim may be severed from the arbitration. All other claims shall remain subject to the terms of this Section to the fullest extent possible.
Arbitration Procedures: Arbitration is not a lawsuit in a court of law and is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement, and/or the Policies as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 13, shall be for a court of competent jurisdiction to decide. The arbitration will be conducted by the American Arbitration Association (“AAA”) by a single arbitrator under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. In the event the Company initiates arbitration against You, it will send a copy of the completed form to the physical address We have on file associated with Your membership. The arbitration hearing shall be held in New York County, New York. If the value of the relief sought is $10,000 or less, You or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on You and the Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, You and/or the Company may attend by telephone, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Opt-Out Procedure: YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”) TO THE COMPANY CONTACT WITHIN 30 DAYS OF THE COMMENCEMENT OF THE INITIAL MEMBERSHIP TERM, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WITH A COPY TO HARRIS BEACH PLLC, 333 EARLE OVINGTON BLVD # 901, UNIONDALE, NY 11553 ATTN: CRAIG M. SPIERER. BY NOT OPTING OUT, OF THIS AGREEMENT TO ARBITRATE, YOU AGREE TO BE BOUND BY THE TERMS OF SECTION 13 OF THIS AGREEMENT AND TO SURRENDER YOUR ANY RIGHTS TO HAVE ANY CLAIM ADJUDICATED IN A COURT OF LAW. If You elect to opt-out of the arbitration procedures set forth in Section 13 of this Agreement, You must complete the Opt-Out Notice by providing Your name, address (including street address, city, state, and zip code), and the user ID(s) and email address(es) associated with the Membership to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way You can opt-out of the Agreement to Arbitrate. If You opt-out of the Agreement to Arbitrate, all other parts of the Agreement continue to apply to You. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that You may have with Company.
Venue and Jury Waiver: In the event that any claim or a portion of any claim is not subject to arbitration, either as a result of Your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, or otherwise as expressly permitted herein, including for claims for emergency injunctive relief, You agree that any claim or dispute that has arisen or may arise between You and the Company must be resolved exclusively by a state or federal court of competent jurisdiction located in the state, city, and county of New York, New York. In the event that any claim or a portion of any claim is not subject to arbitration, You and the Company agree to submit to the personal jurisdiction of the courts located within the state, city, and county of New York, New York for the purpose of litigating all such claims or disputes and waive all defenses of lack of personal jurisdiction and forum non-conveniens thereto. YOU AND THE COMPANY KNOWINGLY, VOLUNTARILY, AND WILLINGLY AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS AGREEMENT AND THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS. YOU AND THE COMPANY KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVE THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION.
HEADINGS AND TITLES; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction or arbitrator holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, such provision will be reformed to be enforceable to the greatest extent permitted by law and the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT - NEW JERSEY RESIDENTS
Pursuant to the New Jersey Truth-in-Consumer Contract, Warranty and Notice ACT (“TCCWNA”), N.J.S.A. 56:12-14 et seq., certain businesses are not permitted to offer or enter into written consumer contracts with consumers or prospective consumers which include any provision that violates any clearly established legal right of a consumer, or responsibility of the business, as established by State or Federal law. The following provisions of this Agreement shall not be applicable to New Jersey residents: (i) provisions which limit the Company’s liability for any tortious action or breach of contract by the Company; (ii) provisions which limit the amount of damages which may be sought for any tortious action or breach of contract by the Company; and (iii) provisions which limit the time within which claims against the Company must be brought to a shorter time period than is otherwise provided for under New Jersey law. This Agreement is intended to comply with TCCWNA. In the event of a conflict between this Agreement and the TCCWNA, the terms of the TCCWNA take precedence and will control.
COMPLIANCE WITH LAWS OF OTHER JURISDICTIONS
The Company makes no representation or warranty that the content available on the Site or any of the Benefits are available or appropriate in every country, state or jurisdiction, and access to the Program, Benefits or Site from countries or jurisdictions where its content or offering/use is illegal is prohibited. members who choose to access the Site or the Benefits are responsible for compliance with all local laws, rules and regulations and the Company shall not be liable in any way in the event any Benefits or the Site are not permitted in any jurisdiction.
MINOR USE OF THE SITE
Membership, the Program and Site are not directed to children under the age of 13, and We will not knowingly collect personally identifiable information from children under 13. Further, You must be 18 years or older to apply for Membership and register or use the Program or Site or take advantage of the Benefits. You agree to abide by any such restrictions and not help anyone avoid such restrictions. We strongly recommend that parents participate in their children’s exploration of the internet and any online services and use their browser’s parental controls to limit the areas of the internet to which their children have access.