The Field Terms of Use

Last updated: June 24, 2020

The most current version of these Terms of Use will supersede all previous versions.

PLEASE READ THESE TERMS OF USE CAREFULLY

These Terms of Use (this “Agreement”) are entered by and between Membership Drive LLC, a Delaware limited liability company having a principal place of business at 714 G Street NE, Suite 200, Washington, DC, 20003 (“MemDrive,” “We,” “Us,” or “Our”) and the individual or entity agreeing to these terms (“You” and together with MemDrive, referred to herein as “Parties” and sometimes individually as a “Party”) and is executed as of the date You agree to this Agreement by checking the box on the Salesforce AppExchange, our website, or a mobile application (“Effective Date”).

This Agreement, together with the order form or AppExchange Checkout agreement You completed (“Order Form”) to subscribe to the Services, our Privacy Policy, and all other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between You and Us regarding Your use of and access to Our application program interface called The Field (“The Field”) and any related scripts, widgets, embeddable snippets, and other tools provided in connection therewith (collectively with any software, content, products, services, related electronic documentation and media and applications provided by MemDrive relating to The Field, and all features, tools, and services related thereto, the “Services”). We reserve the right, in Our discretion and at any time, to change the terms and conditions of these agreements and will inform You of any change by sending You a notice. If You do not agree to be bound by these terms and conditions or any change, You shall not access or use the Services.

1) PAYMENT OF FEES; SERVICES

a) Payments

i) Fees. You agree to pay Us all fees and expenses in the amounts and at the times set forth in any applicable Order Form or in this Agreement.
ii) Payment Terms. We will bill or invoice You as set forth in the applicable Order Form. Unless otherwise set forth in an applicable Order Form, undisputed amounts are due within thirty (30) days after the invoice date; provided that any disputes must be made in good faith. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by Law, whichever is less.
iii) Use of Credit Card, Debit Card, Checking/Savings Account. You authorize Us to debit the credit card, debit card or checking/savings account You provided to MemDrive directly or through the Salesforce AppExchange. When a payment is processed, You agree that MemDrive is authorized to debit Your credit card, debit card or bank account for the amount of Your payment. Your agreement with Your bank or credit card issuer and/or other financial institution where You have Your account governs use of Your bank or credit card and/or bank account, and You must refer to that agreement to ascertain Your rights and liabilities as an account holder or cardholder.
iv) Taxes. All fees and other amounts payable by You under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, You are responsible for all sales, use, SaaS, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts that You owe Us pursuant to this Agreement (collectively, “Taxes”), other than taxes imposed on Our income. In some instances, the application of state taxes may not be known at the time the Services are purchased, and notwithstanding this, You shall be and remain responsible for payment of any and all such taxes. MemDrive shall be entitled at any time with or without notice to withhold, bill or charge any such taxes, and You agree to promptly pay any such amounts.

b) Grant of License. Subject to Your payment for the Services in accordance with Section 1(a) and to the terms and conditions of this Agreement, MemDriveʼs Privacy Policy, Salesforce’s Privacy Policy, and the Order Form, (a) MemDrive will use commercially reasonable efforts to provide the Services to You, and (b) MemDrive grants You a limited, non-exclusive, non-transferable, non-sublicensable right to (i) access and use the Services and (ii) implement, configure, and permit Your authorized users to access and use the Services (to the extent You have purchased subscriptions or obtained licenses for such users in accordance with this Agreement).

c) Term. The term of this Agreement will begin on the Effective Date and will last until it expires or is terminated by either Party in accordance with this Agreement.

d) Eligibility. By agreeing to this Agreement, You represent and warrant to Us that (i) You have not previously been suspended or removed from the Services, and (ii) Your registration and Your use of the Services are in compliance with any and all applicable laws and regulations.

e) MemDriveʼs Responsibilities. MemDrive shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, provided that MemDrive shall not be responsible for:

i) Planned downtime that MemDrive will communicate to You prior to such downtime;
ii) Downtime as a result of Your acts, Your Users, Your vendor(s) or any other customers, users or third-parties;
iii) Downtime due to any utilities, software, connections, equipment or service outside of MemDriveʼs control;
iv) Unavailability caused by circumstances beyond MemDriveʼs reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet or Salesforce service provider failures or delays;
v) Failures in any of MemDrive’s technology that are related to Your data (including any failure caused by delay or failure in providing Your data), or Your systems; or
vi) Unauthorized access, breach of firewalls or other hacking by third-parties of Your systems.

f) Updates. MemDrive reserves the right, in Our sole discretion, to automatically apply certain upgrades or updates to our Services and push such upgrades or updates to You, which may alter existing features. Notwithstanding the foregoing, no update to our Services provided to You hereunder will materially degrade the security, availability, or capabilities of such Services (as compared to the version immediately prior to the release of such update), unless (i) We have notified You of such update in advance or (ii) such update is, in Our sole discretion, necessary for compliance with applicable law or to protect the security of MemDrive, the Services, You, Your Users or any other parties.

g) Mobile Access to The Field. Users (as hereinafter defined) may access certain elements of the Services through mobile applications obtained from third-party applications provided by Salesforce, websites such as the Android or Apple app store, or the Salesforce AppExchange. The use of mobile applications may be governed by additional terms and conditions presented by such third-parties upon download/access to the mobile application.

h) Availability of Features. MemDrive reserves the right to limit the availability of its features for any of its users, no matter the subscription plan, and for any reason, including but not limited to compliance with local laws and regulations.

i) Content. Content accessible through and generated by the Services may include street maps, routes, topographic maps, population demographics, business data, residential data, imagery, or other information. You acknowledge and agree that MemDrive makes no warranties and provides no guarantees with respect to the accuracy and completeness of such content.

2) FREE TRIAL, PILOT PERIOD, AND BETA TEST SERVICES.

a) Free Trial and Pilot Period.

i) MemDrive may from time to time grant You and Your Users access to the Services at no cost for a defined period of time (“Free Trial” or “Pilot Period”).
ii) Either Party may suspend, limit or terminate the Free Trial or Pilot Period for any reason at any time without notice.
iii) During the term of the Free Trial or Pilot Period, You agree to: (a) test, evaluate and analyze the Services and its operation, features, capabilities and performance; (b) accommodate reasonable requests of MemDrive from time to time regarding testing; and (c) provide feedback, analysis, suggestions and comments to MemDrive. You grant MemDrive (and its designated affiliates and assigns) a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other Feedback provided by You or Users relating to the operation of the Services.
iv) Any data entered into the Free Trial services and/or Pilot Period services may be permanently lost at the termination of the Free Trial or Pilot Period unless You purchase a subscription to the Services or export the data before the Free Trial or Pilot period is terminated.

b) Beta Test Services.

i) From time to time, MemDrive may invite You to try, at no charge, MemDrive products or services that are not generally available to our customers and/or the public (“Beta Test Services”). You may accept or decline any such trial in Your sole discretion. Any Beta Test Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar meaning.
ii) Beta Test Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Beta Test Services are not considered to be “Services” hereunder and are provided solely and exclusively “AS IS” with no express or implied warranty of any kind. YOU ASSUME AND UNCONDITIONALLY RELEASE MEMDRIVE (AND ALL OF ITS AFFILIATES AND ALL OF MEMDRIVE’S AND ITS AFFILIATE’S OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, REPRESENTATIVES, AGENTS AND DIRECT AND INDIRECT OWNERS (all of which are collectively referred to herein as “Affiliated Parties”) FROM ALL RISKS ASSOCIATED WITH THE USE OF ANY BETA TEST SERVICES. MemDrive may discontinue the Beta Test Services at any time in Our sole discretion. MemDrive does not promise or represent that Beta Test Services will be made generally available at any time.

c) LIMITED LIABILITY. MEMDRIVEʼS (INCLUDING ITS AFFILIATED PARTIES’) ENTIRE LIABILITY IN CONNECTION WITH FREE TRIALS, PILOT PERIODS AND BETA TEST SERVICES WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT, AS TO ANY INDIVIDUAL CLAIM OR IN THE AGGREGATE, EXCEED $100. IF CLIENT DOES NOT AGREE TO THE ALLOCATION OF RISK IN THIS SECTION, ITS SOLE RECOURSE IS TO IMMEDIATELY DISCONTINUE THE USE OF THE FREE TRIAL SERVICES, PILOT PERIOD SERVICES OR BETA TEST SERVICES.

3) USERS

a) You may authorize only a person for whom a subscription to the Services has been purchased to access and use the Services pursuant to this Agreement (a “User”).
b) The Services are User subscription-based and may be accessed by no more than the number of Users specified subscribed for by You.
c) You may authorize User(s) to access and use the Services solely on behalf of and for Your benefit. You will remain liable for the compliance of Users with the terms and conditions of this Agreement.

4) USER ACCOUNTS

a) To access Services, You are required to register for an account. This may entail a requirement to provide Us with information about Yourself and/or Your company, including You name, email address, and/or other contact information. You agree to enter and maintain accurate and up-to-date information in The Field at all times.
b) By registering for the Services, You agree (i) You will not create more than one (1) profile for You any given individual or entity; and (ii) if MemDrive disables Your, any User or an entity account, You will not create a new account for such person without our permission.
c) MemDrive will provide You unique user ID You to Users upon account creation. You agree that everyone using the Services will have a unique user ID and will not share or allow Your Users or unauthorized individuals or third-parties to share user IDs. You agree to accept responsibility for all activities that occur under Your account, including for any and all activities engaged in using Your Usersʼ IDs, and for their compliance with this Agreement.
d) When You register, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password.

5) ACCEPTABLE USE POLICY. By using the Services, You agree not to, and not to allow any of Your users or any third-parties to:

a) Use Services for any illegal purpose, or in violation of any local, state, national, or international law;
b) Use Services to violate, or encourage others to violate, the rights of third-parties, including by infringing or misappropriating third-party intellectual property rights;
c) Make any Services available to, or use any Services for the benefit of, anyone other than the You;
d) Sell, resell, license, sublicense, distribute, rent or lease any Services, or include any Service in an outsourcing offering;
e) Use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to post, upload, or distribute any content that is unlawful, defamatory, libelous, untrue, or that any reasonable person might deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
f) Use Services to store or transmit Malicious Code. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, Trojan horses, corrupted files, or other items of a destructive or deceptive nature;
g) Interfere with or disrupt the integrity or performance of any Services or third-party data contained therein;
h) Attempt to gain unauthorized access to any Services or its related systems or networks;
i) Permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit
j) Copy the Services or any of MemDrive’s technologies, or any part, feature, function or user interface thereof;
k) Access any Services in order to build a competitive product or service, or allow access to any Service by an individual or entity where such access could reasonably be expected to be used to the competitive disadvantage of MemDrive;
l) Reverse engineer any Services (to the extent such restriction is permitted by law);
m) Use our Services to disable any licensing or control features associated with our Services;
n) Use services to make or prepare any derivative work using content associated with the Services, other than as expressly permitted by this Agreement;
o) Use or assist any Party in using any information, material or know-how obtained through the use of the Services to supply products, content or Services to compete with the products or Services offered by MemDrive;
p) Use our Services in a manner that gives any Party access to mass downloads or bulk feeds of any content, including but not limited to numerical latitude or longitude coordinates, imagery, visible map data, or places data (including business or residential listings);
q) Use our Services to post on any website or otherwise make available to the public any interactive maps; or a component of our Services, in a manner not authorized by Us; and
r) Infringe on the rights of any other Party.
s) Nothing in this Agreement will be construed to grant You any right to market or commercially exploit the Services or use the Services for the benefit of any parties other than You.

6) Proprietary Rights and Ownership

a) Proprietary Rights. The Services are owned and operated by MemDrive and are made available to You and Your Users subject to the limited rights expressly granted to You under this Agreement and all other terms and conditions contained herein.

i) Your Data and Content. Subject to MemDrive’s (and its licensors’) ownership of The Field and any other technology described herein, You own all content submitted, posted or displayed or provided by You and Your Users through the Services, including data, images, video or software, and You retain any copyright and other rights it holds in such information (“Content”). By submitting to Us, posting or displaying content in the Services, You and Your Users grant Us and our suppliers and licensors the right to use such content for the purpose of enabling Us and our suppliers and licensors to provide You with the Services in accordance with both our Privacy Policy and Salesforce’s Privacy Policy. You acknowledge that You are responsible for obtaining any necessary consents from Your Users to allow You, MemDrive and our suppliers and licensors to access, monitor, use or disclose any data submitted through the Services. You own all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Customer Application and Customer Content.

ii) MemDrive Technology. MemDrive (and its licensors) shall retain all rights, title, and interests (including all intellectual property and proprietary rights) in and to the MemDrive Technology. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license to the MemDrive Technology is granted, and no other use is permitted. MemDrive retains all right, title and interest, including but not limited to all rights of copyright, trademark, trade secret, patent, or other intellectual property right, in the Services. The visual interfaces, graphics, design, reports, analyses, informational content, computer code (including source code or object code) and any other copyrighted materials, products, software, services, and all other elements or contents of the Services provided by or on behalf of MemDrive (“Materials”) are protected by all applicable American and international intellectual property, proprietary rights, copyrights, patent and trade secret laws. All Materials contained in the Services or as presented on any MemDrive website or the Salesforce website, are the property of MemDrive or our third-party partners or licensors.

iii) Learning. You agree that MemDrive is free to use (including for research purposes) and disclose aggregate measures of usage and performance relating to MemDrive’s and The Field’s data, services and technology, and to reuse all generalized knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to or acquired during provision of the Services under this Agreement (including without limitation, that which it could have acquired performing the same or similar services for another customer), provided that MemDrive may not use such data and information in a way that discloses the identity of You or Users in breach of this Agreement or our Privacy Policy.

iv) Feedback. You grant MemDrive (and its designated affiliates and assigns) a worldwide, perpetual, irrevocable, sub-licensable, transferable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services (“Feedback”).

v) Permissions. If We determine, in Our sole discretion, to grant You permission to republish the Materials, this permitted use of the Materials must cite MemDrive (or its licensors as notified to You by MemDrive) as the source and copyright holder of the Materials in accordance with attribution and copyright guidelines provided to You by MemDrive. If We grant You republication rights, You are not able to use the Materials in any manner inconsistent with the written approval provided to You by MemDrive. MemDrive reserves all rights to the Materials not expressly granted in this Agreement. MemDrive does not grant any license or other permission for links or other use of the Site or its Content if such use or link: (a) suggests that the MemDrive promotes or endorses any third-party’s products, causes, ideas, campaigns, web sites, or services without MemDriveʼs express written consent, (b) copies, displays, disseminates or otherwise uses the Content without MemDriveʼs express written consent, or (c) uses the Content for commercial purposes without MemDrive’s express written consent. Furthermore, MemDrive does not grant its consent for links to the Site where the linking party engages in any prohibited conduct (as described in this Agreement). MemDrive reserves the right to withdraw permission for any link at any time.

vi) Perfection of Intellectual Property Rights. You shall cooperate with MemDrive as to enable MemDrive to perfect, record, defend, evidence and maintain the intellectual property rights assigned or granted under this Section 6, including without limitation, executing any and all documents and legal instruments as may be requested by MemDrive. You shall pay MemDriveʼs expenses in connection with perfecting our intellectual property rights.

b) Your Responsibilities. You shall (i) be solely responsible for the accuracy, quality, integrity and legality of Your data and of the means by which You acquire Your data; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and immediately notify MemDrive of any such unauthorized access or use at support@membershipdrive.com; and (v) use the Services only in accordance with applicable laws and the applicable agreements referenced herein. You shall maintain privacy policies on Your website and services for which You use the Services that (i) allow the use and provision of any customer content, end user content or any other data as contemplated hereunder; and (ii) are consistent with industry privacy, security standards, and all applicable legal requirements. You shall be responsible for ensuring that Your terms of use and privacy policy are consistent with and will not be violated by use of the Services.

7) CONFIDENTIALITY

a) Confidential Information. For purposes hereof “Confidential Information” means any and all materials and information which a Party (“Disclosing Party”) makes available to the other Party (“Receiving Party”), whether orally or in writing, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of the Disclosing Party; the Terms and Conditions as well as Order Forms related to this Agreement; business plans and projections of the Disclosing Party; software programs, tools and enhancements, upgrades and modifications thereof of the Disclosing Party; models, algorithms, technical data, and research with respect to MemDrive’s Services and products; techniques, know-how and intellectual property, user and other manuals, documents, specifications, financial reports, statements and projections of the Disclosing Party; client lists, marketing material, data, data listing and other information of the Disclosing Party; project plans and case studies of the Disclosing Party; and all copies, summaries, outlines or other representations of any of the foregoing.

b) Limitations on Confidentiality. For purposes hereof “Confidential Information” does not include, and this Section does not apply to, any information, including information that would otherwise be deemed Confidential Information, disclosed by a Disclosing Party which (1) at the time of disclosure to the Receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in violation of this Agreement), (2) was available to a Receiving Party on a non-confidential basis from a source other than a Disclosing Party, provided that such a source is not and was not bound by any confidentiality or non-disclosure undertaking with respect to the Confidential Information, (3) has been independently acquired or developed without violating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exceptions of subparts (1) through (3) above merely because it is included in a document that also includes information that does fall within such exceptions, or (4) was known by or in the possession of the Receiving Party prior to it being disclosed to Receiving Party by Disclosing Party.

c) Restrictions on Disclosure and Use. Receiving Party agrees that it will not use any of Disclosing Partyʼs Confidential Information or any copies thereof, for any purpose other than those contemplated by this Agreement, provided that Receiving Party may share Confidential Information with its responsible employees, contractors and agents who have a need to know such Confidential Information to perform their duties. You will take security precautions as great as the precautions You take or that are deemed commercially reasonable, whichever is more secure, to protect Your confidential information to ensure that no one, other than a person authorized pursuant to this Section, gains access to Disclosing Partyʼs Confidential Information. In the event that Receiving Party becomes aware of any unauthorized use or disclosure of Disclosing Partyʼs Confidential Information, Receiving Party will immediately give notice to Disclosing Party. In such an instance, You shall pay MemDriveʼs expenses in connection with perfecting our intellectual property rights.

8) USE OF THIRD-PARTY CONTENT

a) Certain content is available through licenses with third-parties, including Google LLC, and is subject to copyright and intellectual property rights owned by or licensed to such third-parties. Your access and use of the Services is expressly subject to and You agree to be bound by Google Maps and Earth Enterprise Universal Acceptable Use Policy, and the additional restrictions set forth in Googleʼs Legal Notices for Google Maps/Google Earth and Google Maps/Google Earth APIs. You are responsible for Your Usersʼ compliance with these terms. Other than the limited license set forth in Section 1(b), nothing in this Agreement may be construed to grant You any rights, by license or otherwise, to any content associated with the Services.

9) THIRD-PARTY PROVIDERS

a) Third-Party Services. The Field may provide integrations to the Services with Salesforce and/or other web services made available by third-parties that enable You to transfer data information to and from said services (the “Third-Party Services”). These integrations are subject to the terms and conditions of those third-parties and by using these integrations, You agree that We may transfer such information to and from the applicable Third-Party Services. The Third-Party Services are not under our control, and We are not responsible for their use of Your exported information. Third-Party Services are provided to You only as a convenience and the availability of any Third-Party Services does not mean We endorse, support or warrant the Third-Party Services.

b) Third-Party Websites. The Services may contain links to third-party websites and services (the “Third-Party Websites”). MemDrive provides these links as a convenience, and neither controls nor endorses these Third-Party Websites. MemDrive Has not reviewed or approved the content of these websites and is not responsible for the Third-Party Websites, including the legality, accuracy or appropriateness of any content, advertising, products, service or other materials on or available from them. You acknowledge and agree that MemDrive shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the Third-Party Websites.

10) REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

a) Mutual representations and warranties. Each Party represents and warrants that: (i) if it is an entity, it is a validly organized and existing in good standing as an entity under the laws of the jurisdiction of its incorporation or organization; (ii) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action; and (iii) when executed and delivered by You and Us, this Agreement will constitute the legal, valid and binding obligation of You and Us, enforceable against such Party in accordance with its terms.

b) Your warranties. You represent and warrant that (i) You own all right, title and interest in and to Your data or otherwise have all rights and authorizations necessary to provide any data to MemDrive that You provide to MemDrive and/or to incorporate Your data with the Services for use as contemplated hereunder and (ii) the use of any data You provide to MemDrive by MemDrive as contemplated hereunder does not and shall not violate the privacy rights, publicity rights, copyright rights, contract rights, intellectual property rights, or any other rights of any person.

c) Disclaimer of Warranty. MEMDRIVE MAKES NO WARRANTY AS TO THE SPECIFIC RESULTS OF THE SERVICES. THE SERVICES ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS AND WE MAKE NO WARRANTY OF ANY KIND AS TO ITS USE OR PERFORMANCE OR THE ACCURACY OR COMPLETENESS OF ANY CONTENT ASSOCIATED WITH THE SERVICES.

YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE PERFORMANCE, QUALITY, AND RESULTS OF THE SERVICES OR ANY WEBSITES AND MOBILE APPLICATIONS THROUGH WHICH WE PROVIDE THE SERVICES AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. NEITHER MEMDRIVE, ITS THIRD-PARTY PARTNERS, ITS THIRD-PARTY LICENSORS, ITS CONTENT PROVIDERS, NOR ANY OF THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES OR ANY WEBSITES AND MOBILE APPLICATIONS THROUGH WHICH SERVICES ARE ACCESSED, ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE SERVICE OR, WEBSITES, OR MOBILE APPLICATIONS, (B) THAT THE MOBILE APPLICATIONS, SITE, OR SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR (C) THAT THERE SHALL BE ANY SPECIFIC RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, SITES, MOBILE APPLICATIONS, OR THE CONTENT. IF YOU OR ANY OF YOUR USERS ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 THAT PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MIGHT HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES SUCH AS THE OPERATION OF EMERGENCY SERVICE, NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE USE OR FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE.

11) INDEMNIFICATION

a) No MemDrive Indemnity. Neither MemDrive nor its Affiliated Parties shall have any obligations hereunder to indemnify or hold You or any third-party harmless, for any claims, liabilities, damages, losses or expenses of any kind relating to any third-party claim or right.

b) Your Indemnity. You agree to defend, indemnify and hold harmless MemDrive and each of its Affiliated Parties from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with:

i) Your (or any of Your User’s) use of, alleged use of, access to, or subscription to use the Services;
ii) Your violation of this Agreement: any representation, warranty, or agreements referenced herein; or any applicable law or regulation, including Your unauthorized use or processing of Your or another’s data;
iii) The unauthorized use of Third-Party Services by You or Your Users;
iv) Your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right;
v) Any disputes or issues between You and any third-party; or
vi) Negligence, reckless disregard or willful misconduct by You or any of Your Users.

c) Infringement. If Your use of any of the Services hereunder is, or in MemDriveʼs opinion is likely to be, enjoined then MemDrive may, in our sole option:

i) Procure for You the right to continue using the infringing items under the terms of this Agreement;
ii) Replace or modify the infringing items so that they are non-infringing; or
iii) If options (i) and (ii) above cannot be accomplished in MemDriveʼs sole discretion, then MemDrive may terminate Your rights and MemDriveʼs obligations hereunder with respect to such infringing itemsYou.
iv) If the infringement is likely to be found to be due to Our action or negligence, in our reasonable discretion, then We will refund pro rata any fees paid for the post-termination period.
v) Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 11(c) shall be our SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT ON OUR PART.

12) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL MEMDRIVE NOR ANY OF ITS AFFILIATED PARTIES NOR ANY OF THEIR RESPECTIVE PREDECESSORS, SUCCESSORS OR ASSIGNS, PAST OR PRESENT OFFICERS, DIRECTORS, SHAREHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS, LICENSORS OR INFORMATION PROVIDERS BE LIABLE FOR ANY LOST REVENUES OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION), WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR ANY WEBSITE, APP OR PLATFORM RELATING THERETO, IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHERWISE EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT THESE DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS OR AFFILIATED PARTIES BE HELD LIABLE UNDER THIS AGREEMENT FOR AN AMOUNT EXCEEDING THE FEES PAID BY YOU TO MEMDRIVE DURING THE 3 (THREE) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. Some jurisdictions do not allow the limitation or exclusion of certain damages, so the limitations and exclusions set forth above may not apply to You in full, but shall be interpreted to apply to the maximum extent permissible under applicable law.

13) SUSPENSION, TERMINATION, AND RENEWAL

a) Suspension and Termination. MemDrive, in Our sole discretion, reserves the right to immediately suspend or terminate Your or any User’s access to the Services Youimmediately in the event that You, or any User, violate the terms contained in this Agreement, our Privacy Policy, or our Order Form (including late or non-payments), or if You or any Users (a) violate any third-party agreement relating to these Services, or (b) use the Services (i) to harm or harass any individual or entity; (ii) to disrupt our provision of the Services or impede the ability of others to use the Services; or (iii) to engage in any unlawful conduct or activity. Upon termination of Your account, Your access to the Services will cease immediately.

b) Surviving Provisions. Upon termination of Your account, our Privacy Policy, the surviving sections of the Order Form, and Sections 2(c), 6, 7, 8, 9, 10, 11, 12, 13(a)-(b) and 14 of this Agreement survive the termination or expiration of Your subscription to the Services and remain in full force and effect.

c) Automatic Renewal. This Agreement will automatically renew at the end of each term for a further term of the same duration as originally subscribed unless and until either Party gives the other written notice of termination at least 30 days prior to the end of the relevant term. You may terminate this Agreement by writing to our customer service at support@membershipdrive.com.

14) MISCELLANEOUS

a) Export Compliance. The Services, Content, other technology MemDrive makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. You shall not permit users or anyone else to access or use any Services in a U.S. embargoed country or in violation of any U.S. export control law or regulation.

b) Non-Compete. You may not use our websites, mobile application, Material, software or Services to solicit subscribers to join other services that are competitive with the Services.

c) Assignment. You may not assign any of Your rights under this Agreement, whether voluntary or involuntary, without the prior written consent of Us. You may not assign any of Your rights under this Agreement. Any such assignment or delegation, or purported assignment or delegation, without our previous written consent, is void.

d) No Third-party Beneficiary Rights. All of the provisions of this Agreement shall be binding upon and inure only to the benefit of the Parties and their respective heirs, if any, permitted successors, and permitted assigns. No provision of this Agreement shall in any way inure to the benefit of any third-party (including the public at large) so as to constitute any such person a third-party beneficiary of this Agreement or any provision hereof, or otherwise give rise to any cause of action in any person not a Party.

e) Waiver. Waiver by one Party of breach or default of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default.

f) Section Headings. Section and subsection headings are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

g) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

h) Governing law. The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the District of Columbia in the United States of America without regard to conflicts of laws principles.

i) Dispute Resolution and Arbitration.

i) Submission to Arbitration. The Parties agree that any dispute arising under this Agreement, disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination and including suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort or otherwise, shall be submitted to final and binding arbitration in accordance with Section 14(i)(ii).

ii) Arbitration. In the event of any dispute, controversy or claim between the parties hereto arising out of or relating to this Agreement, the parties shall attempt to resolve such dispute in good faith for a period of fifteen (15) days prior to bringing any action hereunder. If the parties fail to resolve the dispute within such period, the dispute shall be settled by binding arbitration, before one (1) arbitrator, which shall be the sole and exclusive procedure for the resolution of any such dispute. Within fifteen (15) calendar days after receipt of a notice of intention to arbitrate sent by one Party, each Party shall designate in writing one (1) arbitrator to resolve the dispute, which two (2) (or more, as applicable) arbitrators shall, in turn, jointly select an arbitrator within twenty (20) calendar days of their designation, failing which, the final arbitrator shall be appointed by the American Arbitration Association (the “AAA”) in accordance with the Commercial Arbitration Rules of the AAA (the “Commercial AAA Rules”). The arbitrators so designated shall each be experienced in commercial and business affairs and specifically have expertise with businesses of types similar to that of the Company, who is not an employee, consultant, officer or director of any Party. The arbitration proceedings shall be governed by the Commercial Rules of the AAA but need not be administered by that organization. The parties shall request the arbitrators to use their best efforts to rule on each disputed issue within thirty (30) calendar days after the completion of the hearings; provided, however, that the failure of the arbitrators to so rule during such period shall not affect or impair the validity of any arbitration award. The determination of the arbitrators as to the resolution of any dispute shall be final, binding and conclusive upon all parties. All rulings of the arbitrators shall be in writing, with the reasons for the ruling given, and shall be delivered to the parties. Each Party shall pay the fees of its respective designated arbitrator and its own costs and expenses of the arbitration and the fees of the third arbitrator shall be split between the parties; provided, that the arbitrators shall have the discretion to equitably allocate all fees and expenses of the arbitration (both of the arbitrators and the parties themselves) based on the nature and outcome of the dispute. The venue of the arbitration shall be the District of Columbia. Any arbitration award may be entered in and enforced by any court having jurisdiction thereof and the parties hereby consent and submit to the jurisdiction of the courts of any competent jurisdiction for purposes of the enforcement of any arbitration award. The parties agree that after a clear and specific result or factual finding has been made with respect to a particular matter by the arbitrators pursuant to this Section 9(e), such clear and specific result or factual finding shall be deemed to have been finally determined by the parties for all purposes under this Agreement and, thereafter, no Party shall have the right to seek any contrary determination in connection with any later arbitration procedure hereto.

iii) Litigation. If this Section 14(i) is held unenforceable, then sections 14(i)(i) and 14(i)(ii) of this “Dispute Resolution” section will be deemed void, and only in such case, the state and federal courts located in Washington, DC shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, in which event, each Party hereby consents to the exclusive jurisdiction of such courts. Each Party also hereby waives any right to a jury trial in connection with any claim or cause of action in any way arising out of or related to, directly or indirectly, this Agreement.

15) CHANGES: NOTWITHSTANDING THE PROVISIONS REGARDING THE MODIFICATION OF THIS AGREEMENT ABOVE, IF MEMDRIVE CHANGES THIS “DISPUTE RESOLUTION” SECTION AFTER THE DATE YOU FIRST ACCEPTED THIS AGREEMENT (OR ACCEPTED ANY SUBSEQUENT CHANGES TO THIS AGREEMENT), YOU MAY REJECT ANY SUCH CHANGE BY SENDING US WRITTEN NOTICE (INCLUDING BY EMAIL) WITHIN 30 DAYS AFTER THE DATE SUCH CHANGE BECAME EFFECTIVE, AS INDICATED IN THE “LAST UPDATED” DATE ABOVE OR IN THE DATE OF MEMDRIVEʼS EMAIL TO YOU NOTIFYING YOU OF SUCH CHANGE. BY REJECTING ANY CHANGE, YOU ARE AGREEING THAT YOU WILL ARBITRATE ANY DISPUTE BETWEEN YOU AND MEMDRIVE IN ACCORDANCE WITH THE PROVISIONS OF THIS “DISPUTE RESOLUTION” SECTION AS OF THE DATE YOU FIRST ACCEPTED THIS AGREEMENT (OR ACCEPTED ANY SUBSEQUENT CHANGES TO THIS AGREEMENT).

Contact Information. If You have any questions regarding The Field, MemDrive, the Services, this Agreement or any other matters pertaining to Your use of the Services, please contact Us at support@membershipdrive.com.

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