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Terms of Service

Terms of service

                              1.         Introduction.

1.1.      Effective Date. The effective date of this Agreement is October 5, 2015.

1.2.      Agreement. Welcome to Members Only Supplements! Beyondsupplements.com, LLC (“Members Only” or “Company”) recommends that you read the following terms and conditions carefully. By accessing or using the Members Only Supplements website, the Members Only Supplements Service, including any software applications made available by Members Only (together, the “Website” or “Service”), however accessed or used, you agree to be bound by these Terms of Use (the “Agreement”). By using the Service, you agree to be bound by this Agreement, constituting a legally binding agreement between Members Only and you concerning your use of the Service. We encourage you to print the Agreement or save it to your computer for reference.

1.3.      Separate Privacy Policy. By using the Service, you represent and warrant that you have read and understood, and agree to be bound by, this Agreement and Beyondsupplements.com, LLC’s Privacy Policy (the “Privacy Policy”), which is incorporated into this Agreement by reference. The Privacy Policy is available at http://www.membersonlysupplements.com/privacy-policy.

1.4.      No Permission Without AgreementIf you do not understand this Agreement, or do not agree to be bound by it or the Privacy Policy, you may not access or use the Service, and you must immediately cease accessing or using the Service.

1.5.      Arbitration and RemediesThese terms contain a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 30 (Dispute Resolution) for full details.

2.         Privacy Policy. By using the Service, you consent to the collection and use of certain information about you, as specified in the Privacy Policy discussed in section Section 1.3 (Separate Privacy Policy). Members Only encourages users of the Service to frequently check Beyondsupplements.com, LLC’s Privacy Policy for changes.

3.         Changes to Agreement and Privacy PolicyInternet technology and the applicable laws, rules, and regulations change frequently. Accordingly, Members Only reserves the right to change this Agreement and its Privacy Policy at any time upon notice to you, to be given by the posting of a new version or a change notice. It is your responsibility to review this Agreement and the Privacy Policy periodically. If at any time you find either this Agreement or the Privacy Policy unacceptable, you must immediately cease accessing and/or using the Service. Unless Members Only obtains your express consent, any revised Privacy Policy will apply only to information collected by Members Only after the revised Privacy Policy takes effect, and not to information collected under any earlier versions of the Privacy Policy.

4.         Eligibility.

4.1.      By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.

4.2.      Corporate Use. If you are using the Service on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.

5.         Marketplace Platform.

5.1.      Members Only serves as a platform for users who comply with the Agreement and list, sell, and buy certain items from each other.

5.2.      Members Only’s role is limited because Members Only is not directly involved in marketplace sales. Without limitation, Members Only does not guarantee that it will pre-screen sellers or buyers. Nor does Members Only guarantee the identity of any user. Members Only does not necessarily prescreen the content and/or information provided by users. Members Only does not directly control the quality of any aspect of the items listed or the seller services and logistics associated with the sale, including the accuracy of any content related to any item listing. Members Only does not guarantee that any user, buyer or seller, will complete transactions. Unless stated otherwise in this Agreement, sellers are responsible for product warranties and customer service, and buyers are responsible for conducting their own due diligence. Members Only does not take or transfer ownership of items or liability attaching thereto. For additional information, please carefully review Section 27 (Disclaimers; Limitation of Liability).

6.         License. Subject to your compliance with the terms and conditions of this Agreement, Members Only grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Members Only websites (located at the following URL: http://www.membersonlysupplements.com/), and to use the Service. The Service, including any portion of the Members Only Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior, express written consent of Members Only. All rights not expressly granted herein are reserved by Members Only. Without limitation, this Agreement grants you no rights in or to the intellectual property of Members Only or any other party, except as expressly set forth herein. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate if you breach, actually or potentially, in the sole judgment of Members Only, any provision of this Agreement.

7.         Health Disclaimers.

7.1.      No Professional Medical Service or Advice. Members Only provides the Website for informational purposes only. The Website does not contain or constitute, and should not be interpreted as, medical advice or opinion. Members Only is not a medical professional, and does not provide medical services or render medical advice. The Website and Service are not a substitute for the advice of a medical professional, and the information made available on or through the Website and Service should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, you should consult a medical professional.

7.2.      No Doctor-Patient RelationshipYour use of the Website does not create a doctor-patient relationship between you and Members Only.

7.3.      No FDA or Other Government ReviewStatements on the Website have not been evaluated by the Food and Drug Administration.

7.4.      Not for Treatment of DiseaseThe products sold on the Website are not intended to diagnose, treat, cure, or prevent any disease.

7.5.      Consult Your PhysicianYou hereby agree that, before using the Website and Service, you shall consult your physician, particularly if you are at risk for problems resulting from exercise or changes in your diet.

8.         Payments.

8.1.      All transmissions of payment information between you and the Website are secured with Internet-standard SSL encryption.

8.2.      We collect your name, address, and payment information to process your order.

8.3.      You may also optionally provide your credit card and payment information by telephone.

9.         Shipping.

9.1.      We cannot warranty the condition of nutritional bars or snacks against damage caused by excessive heat. While these bars remain refrigerated in our warehouses, UPS trucks and shipping hubs are not refrigerated, and therefore we do not accept any returns on nutrional bars due to heat-related problems. Please keep this in mind when ordering these products.

9.2.      You will be provided with a shipping quote for your order when you have completed your shopping on our site.

9.3.      Most orders are shipped the same or next day.

9.4.      UPS does not deliver on weekends or holidays. Do not include these days when estimating your expected delivery date.

9.5.      We will charge you a $10.00 fee for shipments that are either re-routed after leaving our warehouse or are incorrectly addressed due to your error. Shipping labels are generated directly from the shipping information you have entered. If you provide us an incorrect zip code or other addressing error, e.g., incorrect or missing apartment number, you will be charged the $10.00 fee because the shipping company will charge us a fee for this correction.

10.       Returns.

10.1.    Before returning a product, you must receive a return authorzation number from Members Only.

10.2.    To obtain a return authorzation number, you must report all problems with your order within 24 hours of receiving your order.

10.3.    All returns must have the return authorization number visible on the package. Orders sent back without a return authorization number will be refused.

10.4.    You must ship returns back to Members Only within 14 days of your report.

10.5.    We do not accept any returns on merchandise that has been opened.

10.6.    A 25% restocking fee will be charged on all returns.

10.7.    Shipping charges will not be refunded.

10.8.    Any damaged product must be received by us before any credits are given or replacement product is shipped.

11.       No Reliance on Third Party Content.

11.1.    Opinions, advice, statements, or other information made available by means of the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Members Only does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party by means of the Service. Under no circumstances will Members Only be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.

12.       Assumption of Risk; ReleaseYou knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Beyondsupplements.com, LLC and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the “Company Parties”) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.

13.       User Account, Accuracy, and Security.

13.1.    User Account. To access and use certain parts of the Service, you may be asked to create a user account (“Account”), and to provide information that personally identifies you (“Personal Information”).

13.2.    Account Information Accuracy. You represent and warrant that all user information you provide in connection with your Account and your use of the Service is current, complete, and accurate, and that you agree that you will update that information as necessary to maintain its completeness and accuracy by visiting your personal Profile or by submitting a message through the following webpage: http://www.membersonlysupplements.com/contact-us. You agree that you will not submit any fake content (including without limitation any Account, username, likeness, or Profile) to willfully and credibly impersonate another person, whether actual or fictitious. As a non-exhaustive example, you agree that you will not upload a Profile image that is not your likeness. If Members Only believes in its sole discretion that the information you provide is not current, complete, or accurate, Members Only has the right to refuse you access to the Service and/or to terminate or suspend your access at any time. For additional information, see the Section concerning “User Ability to Access, Update, and Correct Personal Information” in Members Only’s Privacy Policy.

13.3.    Pseudonyms.    As an exception to Section 13.2 (Account Information Accuracy), Members Only Supplements allows you to use a pseudonym on your Profile and in communications with other users through the Service.

13.4.    Account Security. You will also be asked to provide a username, password, and possibly other information to secure your Account. You are entirely responsible for maintaining the confidentiality of your password. You may not use the username or password of any other user at any time, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Service. You agree to notify Members Only immediately of any unauthorized use of your Account. Members Only shall not be liable for any loss that you incur as a result of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by Members Only, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your Account.

14.       Interactions with Other UsersYou are solely responsible for your interactions with other Members Only Supplements users. You acknowledge and understand that Members Only has not, and does not, in any way guarantee that it will: (a) screen its users; (b) inquire into the backgrounds of its users; or (c) review or verify the statements of its users. You hereby agree to exercise reasonable precaution in all interactions with other users, particularly if you decide to meet another user or users in person. Members Only does not represent, warrant, endorse or guarantee the conduct of its users. In no event shall Members Only be liable for indirect, special, incidental, or consequential damages arising out of or relating to any user’s conduct in connection with such user’s use of the Service, including, without limitation, bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or any other damages resulting from communications or meetings between users.

15.       Consent to Receive Electronic Communications from Company. Without limitation, by registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you hereby expressly consent to receive electronic and other communications from Members Only, over the short term and periodically, including email and short-message service (“SMS” or “text message”) communications, regarding the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to [email protected].

16.       Consent to Receive Electronic Communications from Company Users. Without limitation, by registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you hereby consent to receive electronic communications, including email, short-message service (“SMS”) messages, instant messages, video conferencing, and other personal messages from other users of the Service.

17.       Application and Registration for Merchant Account Required for Commercial Activity.

17.1.    In order to engage in any activity through which you derive a commercial benefit or pecuniary gain from your use of the Services (“Commercial Activity”), you are required, and you agree that you are required, first to register for a special account (“Merchant Account”), and during which registration process, you will agree to all of the terms and conditions in the Merchant Account Addendum which shall be available upon the commencement of merchant accounts at the following hyperlinked address: https://www.membersonlysupplements.com/merchantaccounts .

17.2.    You agree not to engage in any Commercial Activity unless and until Members Only grants your application for registration of a Merchant Account.

18.       Fees.

18.1.    Membership Fees. In exchange for membership benefits, Members Only shall charge a base rate of $23.88 (U.S. dollars) per year, due and collected in full at the beginning of each year during which you subscribe to membership services.

18.2.    Automatic RenewalMembership packages renew automatically unless you cancel by contacting Members Only at the following email address: [email protected].

19.       Reserved Rights for Company’s Fees.

19.1.    You acknowledge and agree that Members Only reserves the right to charge for access to the Service, in accordance with the policies stated in this Section, and subject to amendment as specified in this Agreement.

19.2.    Members Only reserves the right, in Members Only’s sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds, nor are there credits for partially used membership periods.

19.3.    Members Only’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including without limitation the collection of regularly recurring fees from you, shall not affect Members Only’s subsequent ability to exercise such right or require such performance at any later time. Nor shall Members Only’s waiver of your breach constitute Members Only’s waiver of any later breach by you or any other user of the Service. By using the Service, you authorize Members Only, and/or its payment processor, to charge Members Only’s fees to the credit card, debit card, or other payment method you provide, in addition to applicable sales taxes and other taxes.

19.4.    Limited Period to Challenge Discrepancies. Your marketplace payments are tracked through Members Only and visible to you. In the event of a discrepancy pertaining to completed purchases and commission payment, you have 10 business days from the date of the completed purchase to send notification to Members Only about the discrepancy, after which all payments or lack of payments are otherwise final and no longer subject to change. You agree to waive, and hereby waive, any claims arising from such discrepancies by failing to provide timely written notification to Members Only within the ten business day time period. You can notify Members Only of discrepancies only by sending an email detailing the amount owed to you and the amount tendered to you. Members Only’s email address is [email protected].

20.       Third Party Websites. The Service is linked with the websites of third parties (“Third Party Websites”), some of whom may have established relationships with Members Only and some of whom may not. Members Only does not have control over the content and performance of Third Party Websites. Members Only has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, Members Only does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. Members Only disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.

21.       User Content.

21.1.    User Content Defined. “User Content” is any content, material, or information, not including personally identifiable information (e.g., first and last name, address, phone number, email address, etc.), that you submit, upload, and/or post to, or transmit, display, perform, or distribute by means of the Service, whether in connection with your use of the Service or otherwise. This includes, without limitation, personal photos and videos.

21.2.    You Own Your User Content. Members Only does not claim ownership of any User Content. You retain all right, title, and interest, including without limitation all worldwide intellectual property rights, in and to your User Content.

21.3.    License of User ContentBy submitting, uploading, or posting User Content in any form with, through, or to the Service, you thereby grant the Company Parties a royalty-free, perpetual, non-exclusive, unrestricted, fully paid-up, worldwide, sublicensable, revocable (as set forth in Section 6 (License) of this Agreement), assignable license to copy or otherwise reproduce, modify, adapt, translate, distribute, enhance, transmit, publicly display or perform, reformat, and/or otherwise use User Content in connection with the operation of the Service, or any other similar or related business, in any medium now existing or later devised, including without limitation in advertising and publicity. You further agree that the Company Parties may publish or otherwise disclose your personal information in connection with their exercise of the license granted under this section. You agree to waive, and hereby waive, any claims arising from or relating to the exercise by the Company Parties of the rights granted under this section, including without limitation any claims relating to your rights of personal privacy and publicity. You will not be compensated for any exercise of the license granted under this Section.

21.4.    Your Representations About User Content. You hereby represent and warrant that you: (a) own all rights, title, and interest in and to any and all User Content you submit, or are otherwise authorized to grant the rights provided the Company Parties under this section, OR (b) have written consent, release, and/or permission of each and every identifiable individual person in any User Content you submit to use the name and likeness of each and every such identifiable person in the User Content. You agree that you will not submit any User Content that does not fully comply with Members Only’s prohibitions against Objectionable Content, as detailed in Section 24 (Objectionable Content).

21.5.    Company’s Right to Reject User Content. Members Only reserves the right, in its sole discretion, to reject any User Content for any reason. The categories specified in Section 24 (Objectionable Content) and Section 25 (Prohibited Uses) are not exhaustive lists of content that Members Only reserves the right to remove or deny.

22.       Public Forums.

22.1.    A “Public Forum” is any area, site, or feature offered as part of the Service (including without limitation blogs, photo and video sharing, and personal messaging features) that enables you (a) to upload, submit, post, display, perform, distribute, and/or view User Content, and/or (b) to communicate, share, or exchange User Content with other users or other visitors. You acknowledge that Public Forums, and features contained therein, are for public and not private communications. You further acknowledge that anything you upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Content you upload, submit, post, transmit, communicate, share, or exchange by means of any Public Forum and for the consequences of submitting or posting same. Members Only disclaims any perceived, implied, or actual duty to monitor Public Forums and specifically disclaims any responsibility or liability for information provided thereon.

23.       Your Responsibility for Defamatory Comments.

23.1.    You agree and understand that you may be held legally responsible for damages suffered by other users or third parties as the result of your remarks, information, feedback, or other content posted or made available through the Service that is deemed defamatory or otherwise legally actionable. Under Section 230 of the Federal Communications Decency Act of 1996, Members Only is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback, or other content posted or made available through the Service.

23.2.    If you raise or file any claim against Members Only for conduct that a Court of Competent Jurisdiction subsequently finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent thereof, you agree to fully and immediately compensate Members Only for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If you fail to compensate Members Only for any such claim, you hereby agree and authorize Members Only to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.

24.       Objectionable Content. You agree that you shall not use the Service to upload, post, transmit, display, perform, or distribute any content, information, or materials that: (a) are libelous, defamatory, abusive, threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, or pornographic; (b) constitute child pornography; (c) solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18; (d) incite, encourage, or threaten physical harm against another; (e) promote or glorify racial intolerance, use hateful and/or racist terms, or signify hate toward any person or group of people; (f) glamorize the use of illegal substances and/or drugs; (g) advertise or otherwise solicit funds or constitute a solicitation for goods or services; (h) violate any provision of this Agreement or any other Members Only agreement or policy, including without limitation Members Only’s Privacy Policy; (i) disclose another’s personal, confidential, or proprietary information; (j) are false or fraudulent; (k) contains images or videos of individuals captured or posted without their consent; (l) promote self-destructive behavior (including without limitation eating disorders or suicide); or (m) are generally offensive, rude, mean-spirited, or in bad taste, as determined by Members Only in its sole discretion (collectively, “Objectionable Content”). Members Only disclaims any perceived, implied, or actual duty to monitor content made available through the Service, and specifically disclaims any responsibility or liability for information provided on the Service. Without limiting any of its other remedies, Members Only reserves the right to terminate your use of the Service or your uploading, posting, transmission, display, performance, or distribution of Objectionable Content. Members Only, in its sole discretion, may delete any Objectionable Content from its servers. Members Only intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.

25.       Prohibited Uses. Members Only imposes certain restrictions on your use of the Service. You agree that you will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to Members Only or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection, or association with, any person or entity; (d) modify or change the placement and location of any advertisement posted through the Service; (e) harvest or otherwise collect information about Members Only users, including email addresses and phone numbers; (f) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites; (g) access content or data not intended for you, or log onto a server or account that you are not authorized to access; (h) attempt to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breach security or authentication measures without proper authorization; (i) interfere or attempt to interfere with the use of the Service by any other user, host, or network, including without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (j) use the Service to send unsolicited email, including without limitation promotions or advertisements for products or services; (k) forge any TCP/IP packet header or any part of the header information in any email or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Service; (l) while using the Service, use “ad blocking” software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; or (l) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable. Any violation of this section may subject you to civil and/or criminal liability.

26.       Intellectual Property.

26.1.    Compliance with Law.

26.1.1. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.

26.1.2. You hereby represent and warrant that you are the sole and exclusive owner of any User Content that you submit through the Service. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the Service. Members Only users bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.

26.2.    Trademarks. Members Only and the Members Only logo (collectively, the “Company Marks”) are trademarks or registered trademarks of Members Only. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in or to, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Members Only, and you agree to assign, and hereby do assign, all such goodwill to Members Only. You shall not at any time, nor shall you assist others to, challenge Members Only’s right, title, or interest in or to, or the validity of, the Company Marks.

26.3.    Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the Members Only logo, design, text, graphics, and other files, and the selection, arrangement, and organization thereof, are either owned by Members Only or are the property of Members Only’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in or to any such materials.

26.4.    DMCA Policy.

26.4.1. As Members Only asks others to respect Members Only’s intellectual property rights, Members Only respects the intellectual property rights of others. Members Only follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”).

26.4.2. If you believe content located on or linked to by the Service violates your copyright, you are encouraged to please immediately notify Members Only by means of emailed DMCA takedown notice (“Infringement Notice”), providing the information described below. If Members Only takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available by means of the most recent email address that party provided to Members Only.

26.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. § 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure if content located on or linked to by the Service infringes your copyright, you should first contact an attorney.

26.4.4. The DMCA requires that all Infringement Notices must include the following:

26.4.4.1.          A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;

26.4.4.2.          An identification of the copyright claimed to have been infringed;

26.4.4.3.          A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit Members Only to find and positively identify that material;

26.4.4.4.          Your name, address, telephone number, and email address; and

26.4.4.5.          A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.

26.4.5. Infringement Notices should be sent to [email protected] with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.

26.4.6. Members Only will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.

26.4.7. Disclosure. All received Infringement Notices may be posted in full to the Chilling Effects Clearinghouse (https://chillingeffects.org/).

27.       Disclaimers; Limitation of Liability.

27.1.    No WarrantiesMembers Only, on behalf of itself and its licensors and suppliers, hereby expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Members Only nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. Members Only disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. Members Only shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Members Only, Company Parties, or Members Only users, or their agents or representatives.

27.2.    Your Responsibility for Loss or Damage; Backup of Data.

27.2.1. You agree that your use of the Service is at your sole risk. You will not hold Members Only or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.

27.2.2. Importantly, you hereby acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.

27.3.    Limitation of LiabilityIn no event shall Members Only or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Members Only or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Members Only and you. The Service would not be provided without such limitations.

27.4.    Application of DisclaimersThe above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Members Only or between you and any of Members Only’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Members Only’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.

28.       Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Members Only policies, and with any applicable laws or regulations.

29.       Indemnity by You.

29.1.    Without limiting any indemnification provision of this Agreement, you (the “Indemnitor”) agree to defend, indemnify, and hold harmless Members Only and the Company Parties (collectively, the “Indemnitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “Claim”, and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Members Only, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Members Only, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Members Only or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.

29.2.    The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.

29.3.    Without limitation, the Indemnitor also hereby agrees to compensate Members Only for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 25 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.

30.       Dispute Resolution.

30.1.    Binding Arbitration.

30.1.1. If you and Members Only cannot resolve a Claim through negotiations, either party may elect to have the Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).

30.1.2. You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.

30.1.3. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

30.1.4. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for herein, Members Only will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, you also hereby agree to reimburse Members Only for all payments disbursed that are your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The arbitration may be conducted in person, through document submission, through telephone, or online. The arbitrator will issue a decision in writing, but need only provide a statement of reasons if requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Members Only may litigate to compel arbitration in court, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall award costs to the prevailing party (including, without limitation, fees, expenses, and reasonable attorneys’ fees) at any time during the proceeding and upon request from either party, within 14 days of the arbitrator’s ruling on the merits.

30.2.    Restrictions Against Joinder of Claims.

30.2.1. You and Members Only agree that any arbitration shall be limited to each Claim individually. You and Members Only hereby agree that each may only bring claims against the other in your or Members Only’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

30.2.2. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures, and (3) there is no right of authority for any dispute to be brought in a purported representative capacity on behalf either of the general public or any other individuals.

30.3.    Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude you or Members Only from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Members Only from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. “Court of Competent Jurisdiction” means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in the State of MA.

30.4.    Venue for any Judicial Proceeding.

30.4.1. This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of MA, and shall be governed by and construed in accordance with the laws of the State of MA without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.

30.4.2. The proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in or nearest to Boston, MA. The parties hereby stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.

31.       Termination.

31.1.    By CompanyWithout limiting any other provision of this Agreement, Members Only reserves the right to, in Members Only’s sole discretion and without notice or liability, deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.

31.2.    Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Members Only.

31.3.    By You. You may terminate this Ag

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