Agreement between You and Membean; Changes
1.2 In order to use the Service you must agree to these Terms. However, in addition to clicking the “I Accept” box, you may also agree to the Terms by actually using the Service. You acknowledge and agree that Membean will treat your use of the Service as acceptance of these Terms from the time you first use the Service.
Membean reserves the right to change any of the terms and conditions contained in these Terms, including the Service and/or any policies or guidelines governing the Service, at any time and in its sole discretion. While we will endeavor to provide direct notice to you of any changes, you are responsible for periodically checking the Site to determine if any changes have been made and we are not liable for your failure to do so or our failure to provide such direct notice to you. Your continued use of the Service following any revision to these Terms will constitute your acceptance of the changes or modifications to these Terms. If you do not agree to any changes to these Terms, do not continue to use the Service.
Membean Account Creation and Types; User Limitations
2.1 In order to use the Service, you must register with us to open a Membean user account (“Account”). By opening an Account, you represent and warrant that: (a) all information you submit in connection with your opening and use of your Account is true, accurate, current, and complete; (b) you will promptly notify us if your information changes so that we can update our records; (c) you are of legal age to form a binding contract (or, if you are a minor, you have your parent's permission to use the Service, and your parent has read and agrees to these terms on your behalf); and (d) your use of the Service does not violate any applicable law, rule or regulation, including the GDPR and COPPA (as defined below). You are responsible for maintaining this information current.
2.2 You are solely responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify Membean immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by Membean or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential. You are strictly prohibited from using anyone else's Account, user name or password at any time and for any reason. Membean is not liable to you or any third party for your failure to comply with your obligations under this paragraph.
2.3 The Service is made available by Membean to the following user categories (collectively, “Users”): (i) individual schools and/or school districts (each, a “School”) for use by School teachers and related staff members (each, a “Teacher”) in connection with students (each, a “Student”) enrolled at such School; and (ii) individual parents and/or legal guardians (each, a “Parent or Guardian”) for use by Students under such Parent or Guardian’s care. In connection with your Account, you hereby agree to comply with all of the terms and conditions described herein that are applicable to each such User type.
2.3.1 If you are accessing the Service on behalf of a School, the following terms also apply to you:
- You will only grant access credentials to Teachers who are current employees of your School. Upon termination of a Teacher’s employment with you, you will require such individual to return and cease using all such credentials he or she has in his or her possession. If at any time you learn a User of the Service claims to be affiliated with your School who is not, in fact, affiliated with your School, you will immediately notify Membean.
2.3.2 If you are accessing the Service as a Teacher, the following terms also apply to you:
- You represent and warrant that you have permission from your School to enter into these Terms and to use the Service as part of your curriculum. You further represent and warrant that you are entering into these Terms on behalf of your School, and that you have authority to bind your School to these Terms.
2.3.3 If you are accessing the Service as a Parent or Guardian, the following terms also apply to you:
- You agree not to access the Account or information about anyone other than your Student.
- You understand that your acceptance of these Terms indicates that you are agreeing to these Terms both on your own behalf as well as on behalf of your Student(s) who use the Service. Children under 18 must not use the Service, however, until after a Parent or Guardian has accepted these Terms on their behalf.
2.3.4 If you are accessing the Service as a Student, the following terms also apply to you:
- Remember, you must get your Parent or Guardian to read these Terms before using the Service.
- You will only register for and access the Service as a Student registrant, and not as a Teacher, School, Parent or Guardian, publisher, or any other category of User, whether offered by Membean now or in the future.
Your Privacy; Use of Service by Children
3.2 Membean collects limited personal information from minor Students, but only where that Student’s School or Parent or Guardian has contracted with Membean to collect personal information from Students for the use and benefit of the learning environment. Membean requires Schools and/or Teachers to obtain Consent from Students’ Parents or Guardians before collecting any such personal information. If you are a Student, please do not send any personal information about yourself to us, other than what we request from you when you are able to sign up for the Service. In the event that we learn that we have collected personal information from a Student without a Consent being obtained by his or her School and/or Teacher, or if we learn a Student has provided us personal information beyond what we request when he or she signs up for the Service, we will permanently delete that information as quickly as possible. If you believe that a Student may have provided us personal information beyond what is requested when signing up for the Service, or that a Student's School or Teacher has not obtained a valid Consent prior to our collection of any personal information, please contact us at email@example.com.
4.1 The fees, if any, that Schools and/or Parents or Guardians are required to pay to permit use of the Service are set forth in the applicable quote provided by Membean to you. Fees will be (a) billed periodically in accordance with such quote and (b) are payable as follows: (i) For Parents or Guardians, the credit card you maintain on file with Membean in your Account will be automatically charged on the first day of each month for the following month; and (ii) for Schools, you agree to pay applicable periodic fees for the Service within thirty (30) days of the date of each applicable invoice. You are responsible for maintaining up to date credit card information, if applicable, in your Account. Membean reserves the right to suspend or terminate your use of the Service (and access to your Content) if you fail to pay any fees due in connection with your use of the Service. Any outstanding fees are immediately due and payable upon termination of your use of the Service for any reason.
4.2 To the greatest extent permitted by applicable law, and without affecting your credit card issuer’s rights, you hereby waive all claims relating to fees unless you notify Membean of any dispute or other fee-related claim within thirty (30) calendar days of the fees being charged to your credit card, if applicable.
4.3 To the greatest extent permitted by applicable law, any refunds of fees are at the sole discretion of Membean, and refunds will only be provided in the form of a credit against future fees for the Service. Nothing in these Terms obligates Membean to extend credit to any person. You acknowledge and agree that any credit card and related billing and payment information that you provide to Membean may be shared by Membean with third party service providers who work on Membean’ behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Membean and servicing your Account. Membean may also provide information in response to valid legal processes, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Membean shall not be liable for any use or disclosure of such information by such third parties.
Service Availability & Support
5.1 Membean may temporarily suspend your and/or your Students’ access to any portion or all of the Service and related Content (as defined below) if Membean reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event that may create a risk to the Service, you or any other Service user; (b) your or your Students’ use of the Service or your Content disrupts or poses a security risk to the Service or any other Service user, may harm Membean’ systems or any other Service user, or may subject Membean or any third party to liability; (c) you or your Students are using the Service for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you or your Students are using the Site, Service or other Membean property in breach of these Terms; (f) you are in default of your payment obligations hereunder; or (g) there is an unusual spike or increase in your use of the Service (collectively, "Service Suspensions"). Membean will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to you (including notices posted on the Site or sent to your registered e-mail address) and to provide updates regarding resumption of the Service following any Service Suspension. Membean will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you or your Students may incur as a result of any Service Suspension.
5.2 Membean will provide customer support to you as is generally made available without charge to other users of the Service.
6.1 You and your Students are solely responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of your Content, including using encryption technology to protect your Content from unauthorized access and routinely archiving your Content. Membean is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, your or your Students’ Content or other data that you or your Students submit or use in connection with your Account or the Service.
Membean’s Proprietary Rights
7.1 You hereby acknowledge and agree that Membean (or its licensors) own all legal right, title and interest in and to the Site and Service, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and Membean, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for your Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Membean or licensors.
7.2 Nothing in these Terms gives you any right to use any of Membean’ trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by Membean under these Terms are reserved.
7.3 Subject to your compliance with these Terms, including, without limitation, your payment of all applicable fees, Membean hereby grants you and your Students a limited, personal, worldwide, royalty-free, non-transferable, non-sublicensable and non-exclusive license to use the Service for your educational purposes, to store and manage Content in such manner as permitted and/or specified by Membean from time-to-time in any applicable documentation or Service descriptions made available by Membean. This license is for the sole purpose of enabling you and your Students to use and enjoy the benefit of the Service as provided by Membean, in the manner permitted by these Terms.
7.4 During, and after the termination of, your use of the Service, you will not assert, nor will you authorize or assist any third party to assert, against Membean or any of the Membean Parties (as defined below), any patent infringement claim with respect to the Service.
Service Use Restrictions
8.1 You hereby represent and warrant that you will not, and will not permit any third party, including without limitation Teachers and/or Students, to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Service or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Service, or any other systems or networks connected to the Site or Service, or to any Membean server, by hacking, password "mining", or any other illegal means; (b) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Service; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service or any transaction being conducted on the Site or through the Service, or with any other person's use of the Site or Service; (d) breach any security measures implemented on the Site or in the Service; (e) track or seek to trace any information on any other person who visits the Site or uses the Service; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Membean in connection with the Service; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons; (i) use the Service or Site for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; (j) upload or otherwise process any malicious content to, or through, the Service; or (k) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the any Membean proprietary software used to provide, maintain, or otherwise applicable to, the Service, or made available to you in connection with the Service.
8.2 You hereby agree that you will notify Membean if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.
Your Content & License from You
9.1 You hereby agree that you are solely responsible and liable for any and all information, data files, written text, computer software, music, audio files or other sounds, photographs, videos, images, and other content (collectively “Content”) that you or your Students store, transmit, display, or otherwise use in connection with the Service, and for the consequences of your and your Students’ actions in connection with such Content and use of the Service. You agree that Membean has no responsibility to you or to any third party in connection with such Content. You are solely responsible for any losses or damage suffered by Membean in connection with your or your Students’ Content. You hereby represent and warrant that neither you nor your Students will store or otherwise use any Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; or (f) contains a virus, malicious code or any other harmful component.
9.2 Membean reserves the right, at any time in its sole discretion and without notice to you, to pre-screen, review, monitor, flag, filter, modify, refuse or remove any or all Content from the Service, but Membean has no obligation to do so. You agree to immediately take down, delete or modify any Content that is stored by you or your Students through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from Membean. In the event that you or your Students elect not to comply with a request from Membean to take down, delete or modify certain Content, Membean reserves the right to directly take down, delete or modify such Content. Membean assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Content that you store or otherwise use in connection with Service.
9.3 Membean claims no ownership or control over your right, title and interest in your Content. You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By submitting, storing, displaying, or otherwise using your Content in connection with the Service, you hereby grant Membean a worldwide, royalty-free, fully-paid-up, non-exclusive license to reproduce, perform, modifying display, distribute, and otherwise use such Content for the purpose of enabling Membean to provide the Service to you, including, without limitation, storing and retrieving the Content, making the Content available through the Service, adapting the Content for technical display and transmission, conforming the Content to the limitation and terms of the Service, and any other use related to the maintenance, provision and improvement of the Service.
9.4 You hereby agree that Membean, in its sole discretion, may use School trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) for the purpose of advertising or publicizing the Service.
9.5 Membean will not disclose any of your Content, except: (a) if you expressly authorize us to do so in connection with your use of the Service; (b) as necessary to provide the Service to you and your Students; or (c) to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy (except to the extent Membean’ compliance with the foregoing would cause it to violate a court order or other legal requirement). You are required to respond to third party requests about your Content, and we may provide your contact information to third parties, and suspend or terminate your access to the Service and your Content, if you fail to respond to such third party requests.
9.6 Membean may use usage patterns, trends and other statistical data derived from your Content and use of the Service for purposes of providing, operating, maintaining, or improving the Service.
10.1 If you send or transmit any communications or materials to Membean by mail, electronic mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to our Site or Service, including without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback are, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by Membean or its agents, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Membean uses such Feedback.
10.2 You hereby assign all right, title, and interest in, and Membean is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Membean is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
11.1 Membean respects the intellectual property and other proprietary rights of others and has a policy of removing content from the Site that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Site or Service in violation of copyright law, and where appropriate, blocking such user’s access to the Site and Service.
11.2 If you are a copyright owner, or an agent thereof, and believe that your work is the subject of copyright infringement and appears on our Site, or is being used through the Service, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our copyright agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Membean to locate such material; (d) information reasonably sufficient to permit Membean to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. Membean’ designated copyright agent to receive notifications of claimed infringement under the DMCA is:
11.3 Only DMCA or other intellectual property rights-related notices should be sent to the copyright agent; any other communications sent to the copyright agent will be destroyed.
Exclusion of Warranties
12.1 YOUR USE OF THE SITE AND SERVICE IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE AND SERVICE ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. MEMBEAN, ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND MEMBEAN’ AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS, (COLLECTIVELY, THE “MEMBEAN PARTIES”): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICE, OR DATA PROVIDED THROUGH THE SERVICE, WILL MEET YOUR REQUIREMENTS, OR THAT ITS OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE.
12.2 THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND MEMBEAN. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MEMBEAN or ANY PERSON ON BEHALF OF MEMBEAN SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
12.3 NOTHING IN THESE TERMS, THIS SECTION 12, OR SECTION 13 BELOW, SHALL EXCLUDE OR LIMIT MEMBEAN’ WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
Exclusion of Liability
13.1 SUBJECT TO SECTION 12.3 ABOVE, IN NO EVENT WILL MEMBEAN OR THE MEMBEAN PARTIES BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF MEMBEAN OR THE MEMBEAN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 MEMBEAN AND THE MEMBEAN PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICE. IF, NOTWITHSTANDING THE FOREGOING, MEMBEAN OR ONE OF THE MEMBEAN PARTIES IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, MEMBEAN OR THE RELEVANT MEMBEAN PARTY'S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO MEMBEAN DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO MEMBEAN’ LIABILITY.
14.1 You hereby agree to indemnify, defend and hold harmless Membean and the Membean Parties (each an “Indemnified Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your or your Students’ use of the Service; (b) any breach or alleged breach by you or your Students of these Terms; (c) any Feedback or Content provided by you or your Students; (d) any breach or alleged breach by you of a third party’s rights, including, without limitation, any intellectual property, privacy or publicity rights; (e) any damage caused by or alleged to have been caused by you or your Students to the Site or Service; or (f) any actual or alleged violation or non-compliance by you or your Students with any applicable law, rule or regulation.
14.2 Counsel you select for defense or settlement of a claim must be consented to by Membean and/or the Indemnified Party(s) prior to counsel being engaged to represent you and Membean and/or the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. Membean and/or the Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of Membean or any Indemnified Party(s) without the prior written consent of Membean and/or the Indemnified Party(s).
Changes to Service
15.1 Membean is constantly striving to provide the best possible experience for its Service users. You acknowledge and agree that the form and nature of the Service which Membean currently provides may change from time-to-time without prior notice to you. Changes to the form and nature of the Service will be effective with respect to all versions of the Service. Examples of changes to the form and nature of the Service include, without limitation, changes to fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements.
Termination of Service
16.1 You may stop using the Service at any time by closing your Account, or ceasing to use the Service. In such event, you will not be entitled to any refund of any fees that you have paid prior to you ceasing to use the Service.
16.2 Membean reserves the right in its sole discretion to cease or suspend providing all or any part of the Service immediately without any notice to you, if: (a) you breach, or threaten or intend to breach, these Terms; (b) Membean is required to do so under any applicable law, rule or regulation; (c) the Service relies on data, services or another business relationship between Membean and a third party service provider, and such relationship terminates or changes in such a way that affects Membean’ ability to continue providing the Service; (d) continuing to provide the Service could create a substantial economic burden on Membean as determined by Membean in its sole discretion; or (e) continuing to provide the Service could create a security risk or material technical burden as determined by Membean in its sole discretion.
16.3 If your use of the Service is terminated or suspended pursuant to Sections 16.1 or 16.2 above, except to the extent prohibited by any applicable law, rule or regulation, you will have access to, and the ability to export, your Content for a period of thirty (30) calendar days following such termination or suspension. Fees will continue to be assessed based on your actual use of the Service during such period. Without limiting the foregoing, the rights set forth in this Section 16.3 are subject to your payment of any outstanding fees due upon and after termination of your use of the Service.
16.4 Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Service, shall continue to apply to you after you cease to use the Service.
16.5 Membean may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your violation of these Terms or unauthorized use of the Site or Service.
Governing Law & Venue
17.1 These Terms will be construed and enforced in all respects in accordance with the laws of the state of Oregon, without reference to its choice of law rules. Except as set forth below in Section 17.2, the federal and state courts seated in Portland, Oregon shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that Membean may seek to enforce any judgment in its favor in any court of competent jurisdiction.
17.2 Notwithstanding the foregoing, Membean may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to Membean for which there is no adequate remedy at law.
17.3 The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Service. Furthermore, these Terms (including without limitation, the Site and Service) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
17.4 Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.
Third Party Web Sites
18.1 The Site and Service may provide links to other web sites that are not owned or operated by Membean (“Third Party Web Sites”). Membean provides these links to you as a convenience only, and Membean does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, or the products or services offered through such third party web sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites, or products or services offered through such third party web sites.
18.3 Any reference on the Site, or through the Service, to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply Membean’ endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.
Miscellaneous Legal Terms
19.2 The failure of Membean to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
19.3 If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
19.4 Any notice or other communications by Membean relating to the Service may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
19.5 These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
19.6 Membean may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, Membean’ express prior written consent.
19.7 Membean will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, and Internet disturbances.
19.8 Membean may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, Membean may without limitation, immediately terminate or suspend your use of the Service and access to your Content, if Membean believes in its sole discretion that you are violating these Terms, or that you intend to do so.
19.10 You may not access the Service if you are a direct competitor of Membean’, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.