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950 W Bannock Street Suite 1100 | Boise, ID 83702

 

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sales@realapros.com
(800) 416-1905

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Policies & Disclosures

TERMS OF USE

Last updated July 22, 2020

AGREEMENT TO TERMS

These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Member Marketing, Inc, doing business as Realapros ("Realapros", “we”, “us”, or “our”), concerning your access to and use of the http://realapros.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.

 

Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.

 

The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

 

 

The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).

 

The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.

 

 

INTELLECTUAL PROPERTY RIGHTS

 

Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

 

Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.

 

 

USER REPRESENTATIONS

 

By using the Site, you represent and warrant that: (1) you have the legal capacity and you agree to comply with these Terms of Use; (2) you are not a minor in the jurisdiction in which you reside; (3) you will not access the Site through automated or non-human means, whether through a bot, script or otherwise; (4) you will not use the Site for any illegal or unauthorized purpose; and (5) your use of the Site will not violate any applicable law or regulation.

 

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).

 

 

 

PRODUCTS

 

We make every effort to display as accurately as possible the colors, features, specifications, and details of the products available on the Site. However, we do not guarantee that the colors, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colors and details of the products. All products are subject to availability, and we cannot guarantee that items will be in stock. We reserve the right to discontinue any products at any time for any reason. Prices for all products are subject to change.

 

 

PURCHASES AND PAYMENT

 

We accept the following forms of payment:

 

-  Visa

-  Mastercard

-  American Express

-  Discover

 

 

You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.

 

You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.

 

We reserve the right to refuse any order placed through the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.

 

 

 

RETURN/REFUNDS POLICY

 

All sales are final and no refund will be issued.

 

 

PROHIBITED ACTIVITIES

 

You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

 

As a user of the Site, you agree not to:

 

  1. Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
  2. Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
  3. Use the Site to advertise or offer to sell goods and services.
  4. Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
  5. Engage in unauthorized framing of or linking to the Site.
  6. Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
  7. Make improper use of our support services or submit false reports of abuse or misconduct.
  8. Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
  9. Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
  10. Attempt to impersonate another user or person or use the username of another user.
  11. Use any information obtained from the Site in order to harass, abuse, or harm another person.
  12. Sell or otherwise transfer your profile.
  13. Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.
  14. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
  15. Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
  16. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
  17. Delete the copyright or other proprietary rights notice from any Content.
  18. Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
  19. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
  20. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
  21. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
  22. Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
  23. Use the Site in a manner inconsistent with any applicable laws or regulations.

 

 

 

USER GENERATED CONTRIBUTIONS

 

The Site does not offer users to submit or post content. We may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated in accordance with the Site Privacy Policy. When you create or make available any Contributions, you thereby represent and warrant that:

 

  1.  The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2.  You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use your Contributions in any manner contemplated by the Site and these Terms of Use.
  3.  You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Site and these Terms of Use.
  4.  Your Contributions are not false, inaccurate, or misleading.
  5.  Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  6.  Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
  7.  Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
  8.  Your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
  9.  Your Contributions do not violate any applicable law, regulation, or rule.
  10.  Your Contributions do not violate the privacy or publicity rights of any third party.
  11.  Your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
  12.  Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
  13.  Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  14.  Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

 

Any use of the Site or the Marketplace Offerings in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site and the Marketplace Offerings.

 

 

CONTRIBUTION LICENSE

 

 

You and Site agree that we may access, store, process, and use any information and personal data that you provide following the terms of the Privacy Policy and your choices (including settings).

 

By submitting suggestions or other feedback regarding the Site, you agree that we can use and share such feedback for any purpose without compensation to you.

 

We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.

 

 

 

 

GUIDELINES FOR REVIEWS

 

We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.

 

We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.

 

 

 

MOBILE APPLICATION LICENSE

 

Use License

 

If you access the Marketplace Offerings via a mobile application, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms of Use. You shall not: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.

 

Apple and Android Devices

 

The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Marketplace Offerings: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Use, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.

 

 

SUBMISSIONS

 

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Marketplace Offerings ("Submissions") provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.

 

 

 

THIRD-PARTY WEBSITES AND CONTENT

 

The Site may contain (or you may be sent via the Site or the Marketplace Offerings) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-PartyContent does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.

 

 

 

 

ADVERTISERS

 

We allow advertisers to display their advertisements and other information in certain areas of the Site, such as sidebar advertisements or banner advertisements. If you are an advertiser, you shall take full responsibility for any advertisements you place on the Site and any services provided on the Site or products sold through those advertisements. Further, as an advertiser, you warrant and represent that you possess all rights and authority to place advertisements on the Site, including, but not limited to, intellectual property rights, publicity rights, and contractual rights. We simply provide the space to place such advertisements, and we have no other relationship with advertisers.

 

 

 

SITE MANAGEMENT

 

We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and the Marketplace Offerings.

 

 

 

PRIVACY POLICY

 

We care about data privacy and security. Please review our Privacy Policy: https://realapros.com/policies/. By using the Site or the Marketplace Offerings, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Site and the Marketplace Offerings are hosted in the United States. If you access the Site or the Marketplace Offerings from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.

 

 

 

 

 

TERM AND TERMINATION

 

These Terms of Use shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE AND THE MARKETPLACE OFFERINGS (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE AND THE MARKETPLACE OFFERINGS OR DELETE ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

 

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

 

 

MODIFICATIONS AND INTERRUPTIONS

 

We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Marketplace Offerings without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the Marketplace Offerings.

 

We cannot guarantee the Site and the Marketplace Offerings will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site or the Marketplace Offerings at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or the Marketplace Offerings during any downtime or discontinuance of the Site or the Marketplace Offerings. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or the Marketplace Offerings or to supply any corrections, updates, or releases in connection therewith.

 

 

GOVERNING LAW

 

 

These Terms of Use and your use of the Site and the Marketplace Offerings are governed by and construed in accordance with the laws of the State of Oregon applicable to agreements made and to be entirely performed within the State of Oregon, without regard to its conflict of law principles.

 

 

DISPUTE RESOLUTION

 

 

 

Binding Arbitration

 

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Multnomah, Oregon. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

 

If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Multnomah, Oregon, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.

 

In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

 

Restrictions

 

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. The the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

 

Exceptions to Arbitration

 

The Parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

 

 

 

CORRECTIONS

 

There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Marketplace Offerings, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.

 

 

DISCLAIMER

 

THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

 

 

LIMITATIONS OF LIABILITY

 

IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

 

INDEMNIFICATION

 

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of the Site; (2) breach of these Terms of Use; (3) any breach of your representations and warranties set forth in these Terms of Use; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

 

 

USER DATA

 

We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

 

 

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

 

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

 

 

 

CALIFORNIA USERS AND RESIDENTS

 

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.

 

 

 

MISCELLANEOUS

 

These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

 

Delivery of ad to distributor constitutes fulfillment of advertising.

 

 

CONTACT US

 

In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:

 

Member Marketing, Inc

10260 SW Greenburg Rd, Tigard, OR 97223, USA Suite 400

Tigard, OR 97223

United States

Phone: (+1)800-416-1905

admin@membermarketinginc.com

 

Advertising Terms

Member Marketing, Inc.

ADVERTISING AGREEMENT STANDARD TERMS AND CONDITIONS FOR PLACEMENT OF PRINT and DIGITAL ADS.

Effective Date: July 24, 2020

1 Scope

These terms and conditions govern all Orders (as defined in Section 3) for print, digital and bundled Affiliate Membership, advertising placements fulfilled by Member Marketing, Inc entities that publish and/or distribute such advertising (“Publishers”). Each Order and these terms and conditions together constitute the agreement (“Agreement”) between the advertiser (“Advertiser”) and the Publisher(s). The terms and conditions apply to all Orders entered into after the Effective Date above, and may be updated from time to time.

2 Term

The Term of this Agreement is defined in each Order (as defined in Section 3), either expressly as “the Term” or as the timeframe of the advertising campaign.

3 Insertion Order / Order

Advertiser has contracted with one or more Publishers for the publication or distribution of advertising as described in an Insertion Order (“IO”) or as otherwise ordered by Advertiser (non-IO order) (collectively, “Orders”). All terms and conditions of this Agreement shall apply to every publication and/or distribution of an advertisement on Advertiser’s behalf (each, an “Ad”). No terms of an Order or other communication from Advertiser that contradict or are inconsistent with the terms and conditions of this Agreement shall be binding on Publisher, unless in writing and signed by both parties.

4 Representations and Warranties; Compliance with Laws

Advertiser represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) all materials and digital files submitted to Publisher (“Ad Material”) do not contain any computer viruses or other damaging code; (d) all Ad Material and campaigns do not violate any rights of any third parties, including but not limited to copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Ad Materials and campaigns comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Ad Material, and all statements and direct and indirect claims made in each Ad are accurate, not defamatory, and true and supported by competent and reliable substantiation.

Digital Advertiser also represents, warrants, covenants and agrees that (a) its Ads and ad campaigns will comply with Publisher’s privacy policy, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and the Self-Regulatory Principles for Online Behavioral Advertising at https://www.aboutads.info/obaprinciples; and (b) its email campaigns will comply with the 2003 CAN-SPAM Act.

5 Ad Preparation and Acceptance for All Placements

5.1 No Legal Review

Publisher does not assume any obligations to perform legal review of Ads.

5.2 Ad Preparation

On request, Publisher may assist Advertiser in preparing its Ads for publication. This assistance may include design, composition, text and artwork. Publisher retains all rights, including copyright, to all Ad layouts and other elements that represent the creative effort of Publisher or contain material prepared by Publisher. Advertiser shall not authorize photographic or other reproduction of any such Ad layout in any other publication without the express written consent of Publisher. Advertiser remains solely responsible for the contents of the Ad(s) and for compliance with any laws regulating such advertising as represented by Advertiser in Section 4 above.

5.3 Ad Acceptance

Submission of an Ad to Publisher does not constitute a commitment by Publisher to publish or distribute the Ad. Publisher in its sole discretion will decide whether to publish an Ad. Publisher accepts an Ad only by publishing or distributing such Ad.

5.4 Ad Material Delivery

Failure of Advertiser to meet any deadlines may result in additional charges and changes in publication or distribution dates.

Advertiser shall be responsible for timely providing to Publisher all Ad Material necessary for publication and distribution of the Ads, including all necessary artwork and/or digital files, the timing and formats of which may be more specifically set forth in the Order or in Publisher’s media kit. In the event that all necessary materials are not received in time for the scheduled run date, and unless otherwise specifically instructed by Advertiser, Publisher may, at its sole discretion, use artwork or other materials from previous Ads placed by Advertiser, if applicable. Publisher will not be responsible for Ad Material that is not properly formatted or displayed or that cannot be accessed or viewed because it was not received by Publisher in the proper form, in a timely manner, or in an acceptable technical quality for mobile or online publication.

Ad Materials that do not conform to the Order may result in a higher price. See Section 8.1 on Liability for Errors / Omissions / Cancellations.

Publisher prohibits, and may postpone, cancel or otherwise return, any Ad Material that violates its advertising standards, including but not limited to advertising that violates applicable laws, promotes pornography, illegal goods, illegal drugs, illegal drug paraphernalia, pirated computer programs, and instructions on how to assemble or otherwise make bombs, grenades or other weapons.

5.5 Rejection and Alteration of Ads

To ensure the integrity of our publications and for the benefit of our readers and advertisers, Publisher reserves the right to revise, reclassify, edit or reject any Ad Material or any portion thereof at any time. Publisher at all times reserves the right to refuse to publish any Ad text or other content for any reason and regardless of whether any such Ad Material was previously accepted by Publisher. Publisher reserves the right to alter any Ad Material in order for the material to conform to Publisher’s current mechanical or technical specifications. The rates stated in the Order or rate card shall remain the same upon a reduction in the size of any Ad as long as the Ad maintains the same proportion of the entire page. Print rates are based on column inch size rather than actual published size, which may have shrinkage related to the printing process.

5.6 Position Requests

For print Ads, placement or location of advertising is not guaranteed, unless noted on Order. Any specific ad placement condition not included in order shall not be legally binding upon Publisher but will be treated as a request only and Publisher shall not be deemed in breach of this Agreement if it does not publish or distribute an Ad in a requested position.

5.7 Labeling of Industry Type

When, in the opinion of Publisher, a company falls under a specific industry type Publisher may label the Advertiser by the specific industry type (ex. Plumber, roofer, etc.) Unless Advertiser indicated industry type in the Order.

6 Financial Terms

6.1 Rates

This Agreement expressly incorporates the terms and conditions of any rate cards that apply to the publications in which you have requested that Ads be placed. If there is a conflict between your Order and the rate card or the price quoted by Publisher, the Order will control. Unless otherwise specified in the Order, Advertiser agrees to pay Publisher’s published rates in effect for applicable advertising at the time of reservation.

6.2 Payments and Disputes

6.2.1 Payment

Advertiser shall pay all Invoices within 30 days of Invoice date or as otherwise stated on the Invoice. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”

6.2.2 Invoice Disputes

Advertiser waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to Publisher within thirty (30) days of the Invoice date. Send such notices to admin@membermarketing.com or call the number on the Invoice.

6.2.3 Late Payment and Collections

Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall be responsible for all costs incurred by Publisher in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.

6.3 Taxes

All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser pursuant to this Agreement. Advertiser shall be responsible for all such charges, costs and taxes and all amounts paid and payable by Publisher in discharge of the foregoing taxes. This provision shall survive the termination or expiration of this Agreement.

7 Liability for Errors/Omissions

7.1 For All Placements

It is Advertiser’s responsibility to check for errors in its Ads before and after publication or distribution. Publisher is not financially responsible for errors made by Advertiser in Ads. Advertiser shall check the first appearance of Ads for correction. If an error in an ad is attributable solely to Publisher, Publisher’s liability for an error shall not exceed the cost of the Ad, provided that Publisher shall not be liable for any error if, at Publisher’s option, Publisher subsequently publishes a corrected Ad in subsequent distributions.

Advertiser is responsible to approve the Ads, if approval is not received due to lack of response Publisher is not responsible for any errors in Ads.

Publisher is not responsible for errors on copy received after deadline. Publisher assumes no financial responsibility for typographical errors, or for omission of copy of Ads.

8 Indemnification

Advertiser shall defend, indemnify and hold harmless Publisher and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from its breach of this Agreement; negligence or willful act or omission of Advertiser or its personnel or affiliates in connection with its performance of its obligations under this Agreement; the content of, or representations made in any Ad or any website linked to from an Ad; and any other claims of any nature arising from or attributable to the publication or distribution of any Ad.

9 Limitation of Liability

Except with respect to Advertiser’s indemnification and confidentiality obligations, in no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Publisher be liable to Advertiser for any amount greater than the amount paid by Advertiser to Publisher under this Agreement.

PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON ANY PUBLISHER WEBSITE OR THE ADVERTISER WEBSITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (c) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE (d) ANY AMOUNT OF PRINTED COPIES NOT CIRCULATED.

10 License to Ad Materials

Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Ad Materials provided by Advertiser or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media.

Publisher has no obligation to return any material (including Ad Material) submitted to Publisher by or on behalf of Advertiser to Advertiser or any other party, and Publisher shall have no liability for its loss or destruction. Publisher and its service providers shall have the right to use any Ad published in or distributed by a Publisher publication for the purpose of promoting any of the products and services of Publisher or applicable service provider.

11 Confidentiality

Publisher may disclose or make available to the Advertiser (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including but not limited to the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Advertiser shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Publisher’s Confidential Information with at least the same degree of care as the Advertiser would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Publisher’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Advertiser’s representatives who need to know the Confidential Information to assist the Advertiser, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Advertiser shall be responsible for any breach of this Section caused by any of its representatives or agents. At any time during or after the Term, at the Publisher’s written request, the Advertiser and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.
12 Termination

Orders that specify a 12 month term can’t be cancelled, modified, or changed. Orders do not automatically renew for another term. In month 11 Advertiser will have the opportunity to renew or opt out. If Advertiser doesn’t respond to renewal any secured placement or exclusivity will be revoked even if Advertiser ultimately renews.

13 Other Terms

13.1 Force Majeure

Except for payment obligations, neither party will be liable for failure to perform any obligation required under this Agreement when such failure is due to fire, flood, labor disputes or strikes, unavoidable accident, government action, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product, or any other cause beyond the control of that party.

15.2 Relationship of Parties

Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

15.3 Governing Law & Venue

This Agreement, including all Order documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the substantive law (excluding choice of law provisions) of the state of the Publisher. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts in the county of the Publisher.

15.4 Complete Agreement, Modification, and Waiver

This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties with respect to all advertising and supersedes all prior and contemporaneous understandings or agreements of the parties, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an authorized representative of both parties. Waiver of any of the terms of this Agreement by Publisher in any instance shall not prevent Publisher from subsequently enforcing any provision of this Agreement in accordance with its terms.

FAQ’s

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Policies & Disclosures

TERMS OF USE

Last updated July 22, 2020

AGREEMENT TO TERMS

These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Member Marketing, Inc, doing business as Realapros ("Realapros", “we”, “us”, or “our”), concerning your access to and use of the http://realapros.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.

 

Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.

 

The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

 

 

The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).

 

The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.

 

 

INTELLECTUAL PROPERTY RIGHTS

 

Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

 

Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.

 

 

USER REPRESENTATIONS

 

By using the Site, you represent and warrant that: (1) you have the legal capacity and you agree to comply with these Terms of Use; (2) you are not a minor in the jurisdiction in which you reside; (3) you will not access the Site through automated or non-human means, whether through a bot, script or otherwise; (4) you will not use the Site for any illegal or unauthorized purpose; and (5) your use of the Site will not violate any applicable law or regulation.

 

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).

 

 

 

PRODUCTS

 

We make every effort to display as accurately as possible the colors, features, specifications, and details of the products available on the Site. However, we do not guarantee that the colors, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colors and details of the products. All products are subject to availability, and we cannot guarantee that items will be in stock. We reserve the right to discontinue any products at any time for any reason. Prices for all products are subject to change.

 

 

PURCHASES AND PAYMENT

 

We accept the following forms of payment:

 

-  Visa

-  Mastercard

-  American Express

-  Discover

 

 

You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.

 

You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.

 

We reserve the right to refuse any order placed through the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.

 

 

 

RETURN/REFUNDS POLICY

 

All sales are final and no refund will be issued.

 

 

PROHIBITED ACTIVITIES

 

You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

 

As a user of the Site, you agree not to:

 

  1. Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
  2. Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
  3. Use the Site to advertise or offer to sell goods and services.
  4. Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
  5. Engage in unauthorized framing of or linking to the Site.
  6. Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
  7. Make improper use of our support services or submit false reports of abuse or misconduct.
  8. Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
  9. Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
  10. Attempt to impersonate another user or person or use the username of another user.
  11. Use any information obtained from the Site in order to harass, abuse, or harm another person.
  12. Sell or otherwise transfer your profile.
  13. Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.
  14. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
  15. Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
  16. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
  17. Delete the copyright or other proprietary rights notice from any Content.
  18. Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
  19. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
  20. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
  21. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
  22. Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
  23. Use the Site in a manner inconsistent with any applicable laws or regulations.

 

 

 

USER GENERATED CONTRIBUTIONS

 

The Site does not offer users to submit or post content. We may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions you transmit may be treated in accordance with the Site Privacy Policy. When you create or make available any Contributions, you thereby represent and warrant that:

 

  1.  The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  2.  You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use your Contributions in any manner contemplated by the Site and these Terms of Use.
  3.  You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Site and these Terms of Use.
  4.  Your Contributions are not false, inaccurate, or misleading.
  5.  Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  6.  Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
  7.  Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
  8.  Your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another.
  9.  Your Contributions do not violate any applicable law, regulation, or rule.
  10.  Your Contributions do not violate the privacy or publicity rights of any third party.
  11.  Your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
  12.  Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
  13.  Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
  14.  Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.

 

Any use of the Site or the Marketplace Offerings in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site and the Marketplace Offerings.

 

 

CONTRIBUTION LICENSE

 

 

You and Site agree that we may access, store, process, and use any information and personal data that you provide following the terms of the Privacy Policy and your choices (including settings).

 

By submitting suggestions or other feedback regarding the Site, you agree that we can use and share such feedback for any purpose without compensation to you.

 

We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.

 

 

 

 

GUIDELINES FOR REVIEWS

 

We may provide you areas on the Site to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organize a campaign encouraging others to post reviews, whether positive or negative.

 

We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.

 

 

 

MOBILE APPLICATION LICENSE

 

Use License

 

If you access the Marketplace Offerings via a mobile application, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms of Use. You shall not: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.

 

Apple and Android Devices

 

The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Marketplace Offerings: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Use, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.

 

 

SUBMISSIONS

 

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Marketplace Offerings ("Submissions") provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.

 

 

 

THIRD-PARTY WEBSITES AND CONTENT

 

The Site may contain (or you may be sent via the Site or the Marketplace Offerings) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-PartyContent does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.

 

 

 

 

ADVERTISERS

 

We allow advertisers to display their advertisements and other information in certain areas of the Site, such as sidebar advertisements or banner advertisements. If you are an advertiser, you shall take full responsibility for any advertisements you place on the Site and any services provided on the Site or products sold through those advertisements. Further, as an advertiser, you warrant and represent that you possess all rights and authority to place advertisements on the Site, including, but not limited to, intellectual property rights, publicity rights, and contractual rights. We simply provide the space to place such advertisements, and we have no other relationship with advertisers.

 

 

 

SITE MANAGEMENT

 

We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and the Marketplace Offerings.

 

 

 

PRIVACY POLICY

 

We care about data privacy and security. Please review our Privacy Policy: https://realapros.com/policies/. By using the Site or the Marketplace Offerings, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Site and the Marketplace Offerings are hosted in the United States. If you access the Site or the Marketplace Offerings from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.

 

 

 

 

 

TERM AND TERMINATION

 

These Terms of Use shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE AND THE MARKETPLACE OFFERINGS (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE AND THE MARKETPLACE OFFERINGS OR DELETE ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

 

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

 

 

MODIFICATIONS AND INTERRUPTIONS

 

We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Marketplace Offerings without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the Marketplace Offerings.

 

We cannot guarantee the Site and the Marketplace Offerings will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site or the Marketplace Offerings at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or the Marketplace Offerings during any downtime or discontinuance of the Site or the Marketplace Offerings. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or the Marketplace Offerings or to supply any corrections, updates, or releases in connection therewith.

 

 

GOVERNING LAW

 

 

These Terms of Use and your use of the Site and the Marketplace Offerings are governed by and construed in accordance with the laws of the State of Oregon applicable to agreements made and to be entirely performed within the State of Oregon, without regard to its conflict of law principles.

 

 

DISPUTE RESOLUTION

 

 

 

Binding Arbitration

 

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Multnomah, Oregon. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

 

If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Multnomah, Oregon, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.

 

In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

 

Restrictions

 

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. The the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

 

Exceptions to Arbitration

 

The Parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

 

 

 

CORRECTIONS

 

There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Marketplace Offerings, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.

 

 

DISCLAIMER

 

THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

 

 

LIMITATIONS OF LIABILITY

 

IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

 

INDEMNIFICATION

 

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of the Site; (2) breach of these Terms of Use; (3) any breach of your representations and warranties set forth in these Terms of Use; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

 

 

USER DATA

 

We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

 

 

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

 

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

 

 

 

CALIFORNIA USERS AND RESIDENTS

 

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.

 

 

 

MISCELLANEOUS

 

These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

 

Delivery of ad to distributor constitutes fulfillment of advertising.

 

 

CONTACT US

 

In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:

 

Member Marketing, Inc

10260 SW Greenburg Rd, Tigard, OR 97223, USA Suite 400

Tigard, OR 97223

United States

Phone: (+1)800-416-1905

admin@membermarketinginc.com

 

Advertising Terms

Member Marketing, Inc.

ADVERTISING AGREEMENT STANDARD TERMS AND CONDITIONS FOR PLACEMENT OF PRINT and DIGITAL ADS.

Effective Date: July 24, 2020

1 Scope

These terms and conditions govern all Orders (as defined in Section 3) for print, digital and bundled Affiliate Membership, advertising placements fulfilled by Member Marketing, Inc entities that publish and/or distribute such advertising (“Publishers”). Each Order and these terms and conditions together constitute the agreement (“Agreement”) between the advertiser (“Advertiser”) and the Publisher(s). The terms and conditions apply to all Orders entered into after the Effective Date above, and may be updated from time to time.

2 Term

The Term of this Agreement is defined in each Order (as defined in Section 3), either expressly as “the Term” or as the timeframe of the advertising campaign.

3 Insertion Order / Order

Advertiser has contracted with one or more Publishers for the publication or distribution of advertising as described in an Insertion Order (“IO”) or as otherwise ordered by Advertiser (non-IO order) (collectively, “Orders”). All terms and conditions of this Agreement shall apply to every publication and/or distribution of an advertisement on Advertiser’s behalf (each, an “Ad”). No terms of an Order or other communication from Advertiser that contradict or are inconsistent with the terms and conditions of this Agreement shall be binding on Publisher, unless in writing and signed by both parties.

4 Representations and Warranties; Compliance with Laws

Advertiser represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) all materials and digital files submitted to Publisher (“Ad Material”) do not contain any computer viruses or other damaging code; (d) all Ad Material and campaigns do not violate any rights of any third parties, including but not limited to copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Ad Materials and campaigns comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Ad Material, and all statements and direct and indirect claims made in each Ad are accurate, not defamatory, and true and supported by competent and reliable substantiation.

Digital Advertiser also represents, warrants, covenants and agrees that (a) its Ads and ad campaigns will comply with Publisher’s privacy policy, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and the Self-Regulatory Principles for Online Behavioral Advertising at https://www.aboutads.info/obaprinciples; and (b) its email campaigns will comply with the 2003 CAN-SPAM Act.

5 Ad Preparation and Acceptance for All Placements

5.1 No Legal Review

Publisher does not assume any obligations to perform legal review of Ads.

5.2 Ad Preparation

On request, Publisher may assist Advertiser in preparing its Ads for publication. This assistance may include design, composition, text and artwork. Publisher retains all rights, including copyright, to all Ad layouts and other elements that represent the creative effort of Publisher or contain material prepared by Publisher. Advertiser shall not authorize photographic or other reproduction of any such Ad layout in any other publication without the express written consent of Publisher. Advertiser remains solely responsible for the contents of the Ad(s) and for compliance with any laws regulating such advertising as represented by Advertiser in Section 4 above.

5.3 Ad Acceptance

Submission of an Ad to Publisher does not constitute a commitment by Publisher to publish or distribute the Ad. Publisher in its sole discretion will decide whether to publish an Ad. Publisher accepts an Ad only by publishing or distributing such Ad.

5.4 Ad Material Delivery

Failure of Advertiser to meet any deadlines may result in additional charges and changes in publication or distribution dates.

Advertiser shall be responsible for timely providing to Publisher all Ad Material necessary for publication and distribution of the Ads, including all necessary artwork and/or digital files, the timing and formats of which may be more specifically set forth in the Order or in Publisher’s media kit. In the event that all necessary materials are not received in time for the scheduled run date, and unless otherwise specifically instructed by Advertiser, Publisher may, at its sole discretion, use artwork or other materials from previous Ads placed by Advertiser, if applicable. Publisher will not be responsible for Ad Material that is not properly formatted or displayed or that cannot be accessed or viewed because it was not received by Publisher in the proper form, in a timely manner, or in an acceptable technical quality for mobile or online publication.

Ad Materials that do not conform to the Order may result in a higher price. See Section 8.1 on Liability for Errors / Omissions / Cancellations.

Publisher prohibits, and may postpone, cancel or otherwise return, any Ad Material that violates its advertising standards, including but not limited to advertising that violates applicable laws, promotes pornography, illegal goods, illegal drugs, illegal drug paraphernalia, pirated computer programs, and instructions on how to assemble or otherwise make bombs, grenades or other weapons.

5.5 Rejection and Alteration of Ads

To ensure the integrity of our publications and for the benefit of our readers and advertisers, Publisher reserves the right to revise, reclassify, edit or reject any Ad Material or any portion thereof at any time. Publisher at all times reserves the right to refuse to publish any Ad text or other content for any reason and regardless of whether any such Ad Material was previously accepted by Publisher. Publisher reserves the right to alter any Ad Material in order for the material to conform to Publisher’s current mechanical or technical specifications. The rates stated in the Order or rate card shall remain the same upon a reduction in the size of any Ad as long as the Ad maintains the same proportion of the entire page. Print rates are based on column inch size rather than actual published size, which may have shrinkage related to the printing process.

5.6 Position Requests

For print Ads, placement or location of advertising is not guaranteed, unless noted on Order. Any specific ad placement condition not included in order shall not be legally binding upon Publisher but will be treated as a request only and Publisher shall not be deemed in breach of this Agreement if it does not publish or distribute an Ad in a requested position.

5.7 Labeling of Industry Type

When, in the opinion of Publisher, a company falls under a specific industry type Publisher may label the Advertiser by the specific industry type (ex. Plumber, roofer, etc.) Unless Advertiser indicated industry type in the Order.

6 Financial Terms

6.1 Rates

This Agreement expressly incorporates the terms and conditions of any rate cards that apply to the publications in which you have requested that Ads be placed. If there is a conflict between your Order and the rate card or the price quoted by Publisher, the Order will control. Unless otherwise specified in the Order, Advertiser agrees to pay Publisher’s published rates in effect for applicable advertising at the time of reservation.

6.2 Payments and Disputes

6.2.1 Payment

Advertiser shall pay all Invoices within 30 days of Invoice date or as otherwise stated on the Invoice. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”

6.2.2 Invoice Disputes

Advertiser waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to Publisher within thirty (30) days of the Invoice date. Send such notices to admin@membermarketing.com or call the number on the Invoice.

6.2.3 Late Payment and Collections

Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall be responsible for all costs incurred by Publisher in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.

6.3 Taxes

All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser pursuant to this Agreement. Advertiser shall be responsible for all such charges, costs and taxes and all amounts paid and payable by Publisher in discharge of the foregoing taxes. This provision shall survive the termination or expiration of this Agreement.

7 Liability for Errors/Omissions

7.1 For All Placements

It is Advertiser’s responsibility to check for errors in its Ads before and after publication or distribution. Publisher is not financially responsible for errors made by Advertiser in Ads. Advertiser shall check the first appearance of Ads for correction. If an error in an ad is attributable solely to Publisher, Publisher’s liability for an error shall not exceed the cost of the Ad, provided that Publisher shall not be liable for any error if, at Publisher’s option, Publisher subsequently publishes a corrected Ad in subsequent distributions.

Advertiser is responsible to approve the Ads, if approval is not received due to lack of response Publisher is not responsible for any errors in Ads.

Publisher is not responsible for errors on copy received after deadline. Publisher assumes no financial responsibility for typographical errors, or for omission of copy of Ads.

8 Indemnification

Advertiser shall defend, indemnify and hold harmless Publisher and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from its breach of this Agreement; negligence or willful act or omission of Advertiser or its personnel or affiliates in connection with its performance of its obligations under this Agreement; the content of, or representations made in any Ad or any website linked to from an Ad; and any other claims of any nature arising from or attributable to the publication or distribution of any Ad.

9 Limitation of Liability

Except with respect to Advertiser’s indemnification and confidentiality obligations, in no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Publisher be liable to Advertiser for any amount greater than the amount paid by Advertiser to Publisher under this Agreement.

PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON ANY PUBLISHER WEBSITE OR THE ADVERTISER WEBSITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (c) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE (d) ANY AMOUNT OF PRINTED COPIES NOT CIRCULATED.

10 License to Ad Materials

Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Ad Materials provided by Advertiser or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media.

Publisher has no obligation to return any material (including Ad Material) submitted to Publisher by or on behalf of Advertiser to Advertiser or any other party, and Publisher shall have no liability for its loss or destruction. Publisher and its service providers shall have the right to use any Ad published in or distributed by a Publisher publication for the purpose of promoting any of the products and services of Publisher or applicable service provider.

11 Confidentiality

Publisher may disclose or make available to the Advertiser (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including but not limited to the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Advertiser shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Publisher’s Confidential Information with at least the same degree of care as the Advertiser would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Publisher’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Advertiser’s representatives who need to know the Confidential Information to assist the Advertiser, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Advertiser shall be responsible for any breach of this Section caused by any of its representatives or agents. At any time during or after the Term, at the Publisher’s written request, the Advertiser and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.
12 Termination

Orders that specify a 12 month term can’t be cancelled, modified, or changed. Orders do not automatically renew for another term. In month 11 Advertiser will have the opportunity to renew or opt out. If Advertiser doesn’t respond to renewal any secured placement or exclusivity will be revoked even if Advertiser ultimately renews.

13 Other Terms

13.1 Force Majeure

Except for payment obligations, neither party will be liable for failure to perform any obligation required under this Agreement when such failure is due to fire, flood, labor disputes or strikes, unavoidable accident, government action, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product, or any other cause beyond the control of that party.

15.2 Relationship of Parties

Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

15.3 Governing Law & Venue

This Agreement, including all Order documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the substantive law (excluding choice of law provisions) of the state of the Publisher. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts in the county of the Publisher.

15.4 Complete Agreement, Modification, and Waiver

This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties with respect to all advertising and supersedes all prior and contemporaneous understandings or agreements of the parties, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an authorized representative of both parties. Waiver of any of the terms of this Agreement by Publisher in any instance shall not prevent Publisher from subsequently enforcing any provision of this Agreement in accordance with its terms.

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