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By executing a Proposal and accessing the Service, you have entered into a legally binding contract with Member Lounge Inc., its parent company, subsidiaries or its Affiliates (“Member Lounge”, “us”, “we”, “our”), for access to and use of the Service, and you are agreeing, individually, and/or on behalf of the company/entity whose information you provided during the registration process, or within a Proposal (“User” or “You”), to by bound he the Agreement (as defined below) including the terms set out herein.
“Account” means the account created through the Member Lounge Platform and used by Clients (“Client Account”) as part of and to access the Service provided by Member Lounge.
“Agreement” means the Proposal, these Terms of Service, the Privacy Policy, the Security Statement, and all referenced documents within an applicable Proposal that combine to form the entire agreement between the Parties.
“Applicable Law” means all local, provincial, national and international laws, rules and regulations.
“Change Order” means a document, in the form of Exhibit 1, that amends the Agreement.
“Client” means the membership association or other corporate entity who has purchased Services for access by their Users.
“Client Data” means all electronic data or information uploaded or transmitted by the Client or Users, including Personal Information, in the process of using the Service.
“Member Lounge’s Content” means the text files, images, photos, videos, sounds, software code (including source code and all proprietary algorithms) or other materials or works of authorship belonging to Member Lounge.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Party” or “Parties” means either the Client or Member Lounge.
“Proposal” means a proposal entered into by the Parties describing the Service to be provided by Member Lounge under that proposal and any attached schedules.
“Service” means the customized membership portal access and related training and workshops provided by Member Lounge to Client, further described in the Proposal.
“Support Services” means additional support services, separate from the Services, which may be purchased separately by Client, including customizations, extensions and data migration, further described in the Proposal.
“Term” means the period from the effective date of your first Account for the first Service purchased, to the date of termination of the Service.
“User” means any person authorized by Client to access the Service under a valid Subscription Plan.
“Visitor” means any individual visiting Member Lounge’s Website, who is not a Client or User.
“Website” or “Site” means the website owned and operated by Member Lounge.
(a) Structure of Agreement. The Agreement consists of (i) the provisions set forth in these Terms of Service, (ii) any Proposal executed by the Parties pursuant to the terms of these Terms of Service; and (iii) any Change Order executed by the Parties pursuant to these Terms of Service, including the schedules referenced in each such Proposal.
(b) Definitions. All capitalized terms used in these Terms of Service shall have the meanings set forth in Section 1. Other capitalized terms used in the Agreement are defined where they are used and have the meanings so indicated.
(c) Proposal. The Service will be described in and be the subject of (i) one or more Proposals (each a “Proposal”, collectively “Proposals”) executed by the Parties, and (ii) these Terms of Service. In the event of a conflict, the terms of these Terms of Service shall be governed by the terms of the Proposal and any Change Order, unless an individual Proposal expressly and specifically provides otherwise. Each Proposal is incorporated into these Terms of Service, and the applications portions of these Terms of Service are incorporated into each Proposal. The several Proposals and these Terms of Service are herein collectively referred to as the “Agreement”.
(a) Member Lounge will perform the Service as more particularly described in the Proposal. No obligation to provide any Service shall be incurred by Member Lounge until such time that a Proposal has been executed by authorized representatives of both Parties.
(b) The Parties acknowledge and agree that during the term of the Proposal, the Service may be modified and/or expanded from time to time upon written Change Order executed by authorized representatives of the Parties expressly referencing the Agreement.
(c) Client acknowledges and agrees that Member Lounge may use subcontractors and consultants to perform the Service to be provided under the Agreement.
(a) Member Lounge’s Responsibilities. Member Lounge shall: (i) maintain the integrity of the Platform, related Service and Support Services (as applicable); and (ii) use commercially reasonable efforts to make the Platform and Service available 24 hours a day, 7 days a week, except for (each of the following being an “Exception”): (a) planned downtime (of which Member Lounge shall give at least 8 hours’ notice via the Service and which Member Lounge shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. EST Friday to 3:00 a.m. EST Monday); or (b) any unavailability caused by circumstances beyond Member Lounge’s reasonable control, including without limitation, acts of God, acts of government, government declared states of emergencies, government restrictions on businesses, epidemic, pandemic (including COVID-19), plague, flood, fire, earthquakes, tornado, tsunami, hurricane, civil unrest, war, insurgency, armed insurrection, civil war, riots, acts of terror, security breaches, strikes or other labor problems (other than those involving Member Lounge employees), computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Member Lounge’s possession or reasonable control.
(b) Client and Visitor Responsibilities. Client and Visitor, as the case may be, agree: (1) to use the Service only for lawful purposes; (2) not to take any action that might compromise the security of the Service, render the Service inaccessible to others or otherwise cause damage to the Website or the Intellectual Property, including the Member Lounge’s Content; (3) not to add to, subtract from, or otherwise modify the Member Lounge’s Content, or to attempt to access any of Member Lounge’s Content that is not intended for Client or Visitor, as applicable; and (4) not to use the Site in any manner that might interfere with the rights of third parties.
(c) Responsibility for Users. Client acknowledges and agrees that Client is responsible for ensuring User’s compliance with the Agreement. Client agrees to indemnify Member Lounge for any breach of the Agreement by User in accessing the Service and/or Support Services.
(a) Invoicing & Payment. Unless other invoicing and payment terms are provided for in a Proposal, fees for the Service must be paid for in accordance with the Proposal or Change Order. Member Lounge will issue an invoice to Client, which may be paid by direct deposit or cheque. You are responsible for maintaining complete and accurate billing and contact information through our automated payment system.
(b) Member Lounge Portal Configuration. If the Client requires assistance with the customization and configuration of the Member Lounge platform, the Client is asked to contact Member Lounge to explore available options. All fees associated with such customization and configuration will be detailed in the applicable Proposal.
(c) Suspension or Termination for Non-Payment. If timely payment is not provided by Client, Member Lounge reserves the right to suspend or revoke access to the Service, without liability to Member Lounge, until any outstanding amounts are paid in full.
(d) Effects of Suspension. If Member Lounge suspends Client’s ability to access the Service, (i) Client remains responsible for all fees and charges, including applicable interest rates as set out below, accrued during suspension period; and (ii) Client will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to Member Lounge’s error or omission.
(e) Interest. Interest will be charged on payments overdue for a period of thirty (30) days or more at a rate of 18% interest per annum, or the highest interest rate permitted by Applicable Law.
(f) Taxes. Unless otherwise stated, Member Lounge’s fees do not include any direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Member Lounge’s net income or property. If Member Lounge has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 5(e), the appropriate amount shall be paid by Client.
(g) Modification of Fees. Member Lounge may at any time, upon notice of 30 days, or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. If you have prepaid your month-to-month subscription service, price changes and institution of new charges implemented after your prepayment will go into effect for your next monthly subscription term after the 30 days’ notice and the updated fees will be subtracted from your prepayment. If you do not agree to any such price changes, then you must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
(h) Payment Disputes. Client must assert any payment dispute in writing to Member Lounge’s accounting department finance@memberlounge.app within 30 days after the due date of the invoice giving rise to the dispute. Member Lounge shall not exercise its suspension or termination rights or apply interest on late payments if Client disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
(a) Term and Automatic Renewal. The Agreement will remain in effect for as long as you have an active subscription to the Service.
(b) Termination for Cause. Member Lounge may suspend your access to the Service (for specific Users or the Client) and/or terminate the Agreement and your access to the Service at any time in the event that you materially breach the Agreement and do not cure such breach within 30 days of Member Lounge providing you with written notice of such breach (including notice by email). Material breach by Client or User includes the following: (1) Client has not paid all amounts owing for the Service; (2) Client or User’s use of the Service is in violation of Applicable Law; or (3) Client or User uploading Malicious Code to the Service. Client will not be entitled to any refunds of any payments to Member Lounge, pro rata or otherwise. Client and User acknowledge and agree that Member Lounge shall not be liable for costs, fees, damages, lost profits, penalties, or other costs incurred, as a result of termination, suspension or any reason whatsoever under this Section 6(b).
(c) Cancellation. Client may cancel the Service and terminate the Agreement at any time through the Platform. Upon such cancellation, Client shall pay to Member Lounge all undisputed amounts due and payable hereunder, if any. Client will not be entitled to any refunds of any payments to Member Lounge, pro rata or otherwise.
(d) Outstanding Fees. Termination or cancellation shall not relieve Client of the obligation to pay any fees accrued or payable to Member Lounge prior to termination.
(e) Continued Use of Custom Member Portal. If the Client has a custom member portal built using the Member Lounge platform and would like to maintain access to their Account after the Agreement is terminated, the Client is asked to contact Member Lounge to discuss their options.
(a) Mutual Warranties. Member Lounge and Client each represent and warrant to the other Party that (i) it has the authority to enter into the Agreement and perform its obligations hereunder; and (ii) does not conduct business for any unlawful purpose.
(b) Member Lounge Warranties. Member Lounge represents and warrants that (i) it will provide the Service, including Support Services, in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the functionality of the Service and Support Services will not materially decrease during the Term; (iii) the Service and Support Services will not contain or transmit to Client any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); (iv) it owns or has a valid right in the Service and Support Services, including intellectual property rights, to grant to Client the rights to use same granted herein; and (v) the Service and Support Services do not infringe any intellectual property rights of any third-party.
(c) Client Warranties. Client represents and warrants that Client and its Users will not, through the upload of attachments or otherwise originating from Users, upload any Malicious Code to the Platform.
(d) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS,” AND MEMBER LOUNGE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICE (IN WHOLE OR IN PART) OR ANY OTHER SERVICE PROVIDED TO CLIENT BY MEMBER LOUNGE. MEMBER LOUNGE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR FREE. IF YOUR JURISDICTION DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THIS LIMITATION DOES NOT APPLY TO YOU.
(a) Reservation of Rights. Member Lounge retains all right, title and interest in all intellectual property including any patent, copyright, trademark, trade dress, industrial design, trade name, moral rights, trade secrets, and Member Lounge’s Content (the “Intellectual Property”) that is developed or produced under the Agreement. Member Lounge grants Client and User a royalty-free, non-exclusive, non-transferable and non-assignable license to access and use the Service. Member Lounge reserves the right to remove access to the Service in accordance with Section 5.
(b) Client Data. Client exclusively owns all rights, title and interest in all Client Data. Client Data is deemed Confidential Information under the Agreement. Subject to Section 11, Member Lounge shall not access Client Data without Client’s permission.
(c) Suggestions. Member Lounge shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client or its Users relating to the operation of the Platform and Service.
(a) Privacy Obligations. Member Lounge and Client agree to strictly abide by all such restrictions pertaining to the Personal Information, including laws related to the collection, use or disclosure of Personal Information (“Privacy Laws”) as they are promulgated and applied, currently and in the future. If Member Lounge or Client’s use (whether directly or indirectly) of the Personal Information is contrary to any Privacy Law, or contrary to any of the restrictions set forth in the Agreement, the non-violating Party shall have the right to: (a) terminate the Agreement in accordance with Section 6; and (b) pursue any other legal and equitable remedies. For greater certainty, Member Lounge’s Privacy Policy governs Member Lounge’s collection, use, disclosure, retention and disposal of Personal Information, and forms part of the Agreement.
(a) Each User is responsible for maintaining the confidentiality of your member identification and password information, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your member identification and password.
(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of one Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, or whether disclosed purposefully or inadvertently, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Client Data, accounting records, business processes, source code, any intellectual property and other records not available to the public. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to Receiving Party prior to disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) is received from a third party without breach of any obligation owed to Disclosing Party; or (iv) was independently developed by Receiving Party without any use of or reference to Disclosing Party’s Confidential Information.
(b) Confidentiality. Member Lounge shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Client Data, Confidential Information, or Personal Information. Member Lounge shall implement processes and maintain procedures designed to comply with Applicable Laws.
(c) Subcontractors. Either Party may use subcontractors to facilitate its obligations under the Agreement. Both Parties shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Confidential Information. Receiving Party and Receiving Party’s subcontractors shall not disclose or use any Confidential Information for any purpose outside the scope of the Agreement, except with Disclosing Party’s prior written permission, in accordance with this Section 11.
(d) Compelled Disclosure. If Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide Disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
(a) IN NO EVENT WILL MEMBER LOUNGE BE LIABLE FOR ANY CLAIM FOR DAMAGES, PENALTIES, COSTS, AND THE LIKE ASSERTED BY OR AGAINST MEMBER LOUNGE, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AGGRAVATED, PUNITIVE OR OTHER INDIRECT DAMAGES ARISING OUT OF (I) THE USE OF OR INABILITY TO USE THE SITE, THE SERVICE, OR THE CONTENT, (II) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE; (III) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE, THE SERVICE AND/OR THE CONTENT, OR (IV) ANY OTHER MATTER RELATING TO THE SITE, THE SERVICE, OR THE CONTENT, EVEN IF MEMBER LOUNGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PENALTIES, COSTS, AND THE LIKE ASSERTED BY OR AGAINST THEM. IN NO EVENT SHALL MEMBER LOUNGE’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LOWER OF THREE (3) MONTHS OF SERVICE OR A MAXIMUM AGGREGATE AMOUNT OF $50,000.00.
(b) THESE EXCLUSIONS AND LIMITATIONS APPLY EVEN IF THE REMEDIES ARE INSUFFICIENT TO COVER ALL OF THE LOSSES OR DAMAGES OF CLIENTS OR USERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND THE PARTIES MAY HAVE ADDITIONAL RIGHTS.
(a) Indemnification by Client. Client is responsible for the behaviour of Client and Users of the Platform, Site, and/or Service. You agree to indemnify, defend and hold harmless Member Lounge, from and against all claims, losses, penalties, fines, expenses, damages and costs (including reasonable attorneys’ fees) resulting from or arising out of your use, misuse, or inability to use the Site, the Service, or the Platform, or any violation by Client or User of the Agreement.
(a) Relationship of the Parties. The Agreement (including the Proposals or Change Orders) do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
(b) Amendment and Notice Changes. Member Lounge reserves the right to update or modify these Terms of Service at any time. Any changes will be effective upon providing notice to the Client and User, which may occur through email, notification through the Service, or posting on the Member Lounge website. It is the responsibility of the Client or its User to ensure that their contact information is current and correct to receive such notices. Continued use of the Service after such notice constitutes acceptance of the updated Terms of Service. If the Client or User does not agree to the changes, the Client or User must cease using the Service and may terminate the Agreement in accordance with Section 6.
(c) No Third-Party Beneficiaries. Except as otherwise expressed herein, there are no third-party beneficiaries under the Agreement.
(d) Entire Agreement. The Agreement consists of the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede any previous understandings or agreements, whether written or oral, in respect of such subject matter.
(e) No Waiver. The failure of either Party to enforce any provision of the Agreement shall not be construed to be a waiver of such provision or the right of such Party thereafter to enforce such provision or any other provision of The Agreement.
(f) Governing Law and Venue. The Agreement is governed by the laws of the Province of Ontario, and the federal laws of Canada applicable therein, without giving effect to the conflicts of law principles thereof. Any legal action or proceeding with respect to the Agreement must be adjudicated by the Ontario Superior Court of Justice and the Parties hereto attorn to the exclusive jurisdiction of this Court for this purpose.
(g) Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, 5 business days after being mailed to the designated address by first class mail. Notices to you shall be made to the address recorded in the Client’s Account or via electronic mail to Client. Notices to Member Lounge should be delivered to: ATTN: Farhad Khan, CEO, Member Lounge Inc., 2821 Riverside Drive, Ottawa, Ontario, K1V 8N4.
(h) Severability. Any provision in the Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or the Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the Parties’ intent.
(i) Assignment. Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Member Lounge (not to be unreasonably withheld). Notwithstanding the foregoing, Member Lounge may assign the Agreement in its entirety, without consent of the Client, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Client to assign its rights or obligations under the Agreement is in breach of this Section 14(h) shall be void and of no effect. Subject to the foregoing, The Agreement shall bind and enure to the benefit of the Parties, their respective successors and permitted assigns.
(j) Dispute Resolution. All disputes arising in connection with the Agreement and its negotiation, performance, breach, existence or validity, shall be referred to and determined by arbitration with ADR Chambers in accordance with the ADR Chambers Arbitration Rules and the Arbitration Act, 1991 (Ontario). Notwithstanding the foregoing, neither Party shall be precluded from applying to a court of competent jurisdiction for any relief in the nature of injunction, specific performance, or other equitable remedy.
Last Updated: November 1, 2024.
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