What is covered by this Services Agreement?
This Services Agreement is a legally binding agreement between:
(1) MEMBERDIGITAL LIMITED, whose registered office is at c/o EFACTOR GROUP CORP 321 CHASE ROAD 3RD FLOOR, SOUTHPOINT HOUSE LONDON N14 6JT, registered company number 08259418 (“MemberDigital”); and
(2) The publisher of the Site, whether an individual or a legal entity, identified on the online sign-up form or alternatively on a written application form (“Siteowner”), together known as “the Parties”, as follows. The terms used in this Agreement are explained in the Schedule at the end.
1. Entering into Agreement
1.1 By clicking the box “I agree to the Web Services Agreement ”, or by indicating so in writing, Siteowner agrees to be bound by the terms of this Agreement from such date. If Siteowner does not agree to be bound by any term of this Agreement, Siteowner may not make use of the Services. If Siteowner proceeds to use the Services but does not accept the terms of this Agreement, Siteowner will be infringing on MemberDigital’s Intellectual Property Rights and MemberDigital may take appropriate legal action against Siteowner in respect of such infringement.
1.2 Subject to the terms and conditions of this Agreement, MemberDigital hereby grants Siteowner a non-exclusive, non-transferable, limited licence to use the Services in respect only of the Site (“the Licence”).
1.3 MemberDigital will provide the Services as limited by the terms of this Agreement.
2. Site Design Process
2.1 If the Custom Site Design option is selected by Siteowner, Siteowner will work with MemberDigital or with MemberDigital’s contracted design resource to complete a design based on the Design Brief.
2.2 As part of the Site Design Process, MemberDigital or its contracted design resource will provide to Siteowner a link to the Website Design Brief. Siteowner agrees to complete and return the Website Design Brief without unreasonable delay so that the custom design work may be completed in a timely manner. Siteowner accepts and understands that any delay in returning the Website Design Brief may result in a delay in preparing the site design and therefore in launch of the website.
2.3 MemberDigital accepts no responsibility for any delay on the part of Siteowner in completion and return of the Website Design Brief. Siteowner accepts and acknowledges that regardless of any such delay all applicable MemberDigital Service Fees shall nevertheless be paid by Siteowner in accordance with clause 5 below.
2.4 The Custom Site Design shall be deemed to be delivered when MemberDigital or the contracted design resource has written to the Siteowner confirming delivery of the Custom Site Design and no notice of any issues, problems or concerns has been received by MemberDigital from the Siteowner within seven (7) days of the aforesaid confirmation of delivery of the Custom Site Design. Any additional design work following delivery of the Custom Site Design shall be provided at such additional charges as may be notified by MemberDigital or the contracted designer to the Siteowner.
3. Limitations on Siteowner
3.1 Siteowner shall not sub-license, distribute, sell, supply, modify, adapt, amend, incorporate, merge, or otherwise alter the Services. Siteowner shall not attempt to decompile, reverse engineer, otherwise disassemble or attempt to derive any source code relating to the Services.
3.2 Siteowner shall not remove or replicate any logo, copyright or proprietary notices, legends, symbols, labels, watermarks, signatures or any other like marks affixed to or embedded in the Services. Siteowner shall not carry out any act or omission or permit that infringes or is likely to infringe upon any Intellectual Property Rights owned by or relating to MemberDigital or the Services.
3.3 Siteowner may terminate this Agreement within seven (7) days of the date of accepting this Agreement by emailing MemberDigital at support@MemberDigital.com. In the event that Siteowner so terminates within such period, Siteowner shall be entitled to a full refund of all Fees paid by Siteowner to MemberDigital under this Agreement, except where MemberDigital has already commenced work on the design and building of the Site in accordance with Siteowner’s requirements, and in which case Siteowner shall be liable to MemberDigital for the cost of all work already undertaken by MemberDigital prior to the date of termination, based on MemberDigital’s then prevailing daily rate.
3.4 By accepting these terms, Siteowner hereby warrants that it is not employed by a Competitor and is not intending to offer a service substantially comparable to the Services, whether alone or jointly with others. Siteowner further agrees and undertakes that it will not offer such a service within twelve (12) months of Siteowner entering into this Agreement.
3.5 Siteowner, unless a company, warrants that he or she is at least eighteen (18) years of age, has a valid credit or debit card and that all information provided by it to MemberDigital under this Agreement is correct and up to date. Siteowner agrees to ensure that MemberDigital is kept up to date in relation to such information from time to time.
3.6 In the event that Siteowner is in breach of any warranties contained in this Clause 3, or if MemberDigital has reasonable grounds to suspect that Siteowner has breached such Clauses, MemberDigital may terminate this Agreement forthwith without notice and refuse all future requests by Siteowner to be supplied with the Services. Siteowner shall not be entitled to a refund of any Fees paid to MemberDigital in such circumstances.
4. Passwords and Security
4.1 When Siteowner registers to use the Services, Siteowner will be provided with a password in a format specified by MemberDigital (“the Password”). Siteowner shall not disclose such password to any other person or entity and shall ensure that the password remains confidential for the duration of this Agreement. In the event that Siteowner knows or has a reasonable suspicion that a third party knows Siteowner’s password, Siteowner shall notify MemberDigital immediately by contacting MemberDigital via: support@MemberDigital.com.
4.2 If MemberDigital has reasonable grounds for believing that Siteowner has misused or is misusing the Password, MemberDigital may require Siteowner to change the Password or may suspend Siteowner’s use of the Services until such time as MemberDigital is satisfied that the security of the Services is no longer compromised by Siteowner’s activities.
5. Fees and Payment
5.1 The Fees comprise the Initial Payment and the Service Fees. The Fees are set out in the Price List. Siteowner will pay on the date of this Agreement the appropriate Initial Payment in accordance with Siteowner’s purchase selections. In respect of payment of any Fees or any other sums due under this Agreement, time shall be of the essence and any non-payment thereof by Siteowner shall amount to a material breach of this Agreement. In respect of all Service Fees due under the terms of this Agreement, MemberDigital shall deduct the outstanding amount in full from the Siteowner’s credit card via MemberDigital’s chosen merchant services and payment processing providers, or may collect such Fees via standing order or direct debit.
5.2 Service Fees shall be payable thirty (30) days from the date of this Agreement if a monthly payment plan is chosen, and then monthly thereafter. If an annual payment plan is chosen, Service Fees shall be payable twelve (12) months from the date of this Agreement, and then annually thereafter. Service Fees are applicable regardless of whether the Site has been made live to public visitors.
5.3 Without prejudice to MemberDigital’s other rights and remedies, in the event that Siteowner does not pay the Fees in accordance with Clause 5.1 above, MemberDigital reserves the right to suspend the Services. Upon suspension of the Services, Siteowner shall be required to pay the outstanding Fees plus any Fees due for the period for which the Services is suspended. MemberDigital reserves the right to levy a Reactivation Charge for any resumption of the Services. After thirty (30) days of non-payment MemberDigital may permanently delete the Site and all associated data.
5.4 MemberDigital reserves the right to vary the Fees from time to time and on thirty (30) days’ notice. In the event that MemberDigital reduces the Fees, no prior notice shall be required.
5.5 MemberDigital processes all Fees paid by Siteowner to MemberDigital via a payment partner or directly via standing order or direct debit. The identity of the MemberDigital payment partner together with a link to its website is set out on the MemberDigital.com website. In entering into this Agreement with MemberDigital, Siteowner agrees to enter into an agreement with MemberDigital’s payment partner to pay the Fees. In the event that Siteowner does not enter into such an agreement with MemberDigital’s payment partner, for whatever reason, this Agreement shall terminate with immediate effect.
5.7 Siteowner is responsible for the payment of all taxes due in respect of any payment Siteowner makes to MemberDigital pursuant to this Agreement.
5.8 Refunds will not be issued once payment has cleared, usually 3-5 working days.
6. Content Supplied by Siteowner
6.1 As between MemberDigital and Siteowner, Siteowner will continue to own any Intellectual Property Rights in the text and aesthetic design of the Content. All Intellectual Property Rights in the other aspects of the Site, including without limitation its user interface, look and feel and functionality, are owned by MemberDigital SAVE THAT where such look and feel is designed by the Siteowner, it shall be entitled to use that look and feel in respect of other sites and using a designer other than MemberDigital. Upon termination of this Agreement, each party shall cease to use and to have any right to use the other party’s Intellectual Property Rights SAVE THAT MemberDigital shall have the right to use images of the Site for its own online and offline marketing, including but not limited to press releases, email newsletters, www.MemberDigital.com or any other form of advertising provided the above is not in breach of this agreement.
6.2 Siteowner agrees to be entirely responsible for the Content of the Site. Siteowner permits MemberDigital to use and copy the content for the purposes of providing the Services. Siteowner accepts and agrees that MemberDigital is not in any way responsible or shall be held liable for the Content or the way the Siteowner uses the Services. Without prejudice to this or to any other remedies it may have, MemberDigital shall have the absolute right at any time and without notice to Siteowner to remove any Content it considers in its complete discretion is in breach of any of the terms of this Agreement or may otherwise be harmful or prejudicial to MemberDigital or the Services, and/or may suspend the Services until such time as such material no longer forms a part of the Content.
7. Use of the Site
7.1 Siteowner hereby warrants that it shall not in MemberDigital’s opinion and at its entire discretion use the Services or cause the Services to be used to:
7.1.1 upload, post, email or otherwise transmit any content that is unlawful, harmful, threatening, abusive, tortuous, defamatory, obscene or invasive of another’s privacy, racially, ethnically objectionable or
7.1.2 use the Services to impersonate or to cause to be impersonated any person or entity or to misrepresent Siteowner’s affiliation with or endorsement by any group, organisation or entity; or
7.1.3 upload, post, email or otherwise transmit any unsolicited or unauthorised advertising, promotional Services, spam or any other form of unlawful or illegal communications, including but not limited to any material containing software, viruses or any other code that causes any other digital code or file to act in a manner that is detrimental to the Services; or
7.1.4 infringe upon the Intellectual Property Rights of any third party.
8. Users of the Site
9. Product Support
9.1 The Services will be provided to Siteowner “as is” and “as available”. MemberDigital will make all reasonable commercial attempts to make the Services available to Siteowner without interruption but reserves the right to suspend the Services and the Site in order to perform maintenance of the Services at such intervals and for such periods as MemberDigital may in its complete discretion decide. Wherever reasonably possible, MemberDigital will provide Siteowner with prior notice of such activities.
9.2 From time to time, MemberDigital may establish or vary general practices and limits concerning use of the Services, including without limitation email usage, monthly maximum bandwidth usage numbers and sizes of emails sent to an account of the Services, disk space allocated to Siteowner as part of the Services and access by Siteowner to send emails. The current storage and bandwidth allocations can be found on the Pricing Page.
9.3 Siteowner agrees that MemberDigital has no responsibility or liability for the deletion or failure to store any messages, other communications or other Content maintained or transmitted by the Services. Siteowner agrees that it is its responsibility at all times to maintain its own back-up copies of all its Content and communications between Siteowner and other parties.
9.4 Siteowner agrees that MemberDigital has no responsibility or liability for the failure to send any automated e-mail messages set-up by Siteowner using the Services.
10.1 Siteowner acknowledges that the Services, including all documentation, techniques, methods, processes, drawings, specifications, plans, diagrams, notes, data, patterns, models, samples, contact details of MemberDigital employees, consultants and freelancers and all other information relating to MemberDigital or the Services, whether written or oral and whether disclosed by MemberDigital to Siteowner prior to or after the date of this Agreement (“the Information”), contain valuable trade secrets and confidential information that are MemberDigital’s property and that are also protected by laws relating to Intellectual Property Rights of various countries. Siteowner agrees that it will keep the Information in strict confidence and will not in any way:
10.1.1 disclose or make available the Information or any portion thereof to any person or entity. Siteowner will be responsible for ensuring that any third party who, with MemberDigital’s prior authorisation, accesses the Information, signs a confidentiality agreement on terms no less stringent than those contained in this Agreement in a form acceptable to MemberDigital that prohibits the unauthorised use or disclosure of any of the Information; or
10.1.2 copy, reproduce or duplicate the Information or any portion thereof in any form or medium, except as expressly provided in this Agreement.
10.2 Siteowner shall maintain the Information and any copies thereof in a secure fashion and will take all reasonable measures consistent with the highest standards of security generally used in the industry for the protection of valuable source code in order to protect the Information and any copies thereof from theft, copying, reproduction, or unauthorised distribution, disclosure, dissemination or use. Without limiting the foregoing, Siteowner shall:
10.2.1 use at least the same level of security for the Information that Siteowner uses for its own most valuable trade secrets and source code;
10.2.2 use the Information only in a secure area and on a secure workstation; and
10.2.3 store any copy of the Information in a safe (or equally secure storage place) when it is not using it.
10.3 Siteowner shall immediately notify MemberDigital of any unauthorised use or disclosure of, or of any unauthorised access to, or of any theft or loss of any copies of the Services or of any information that constitutes the Information it suspects or that comes to its attention.
10.4 MemberDigital accepts that this undertaking does not apply to any part of the Information that:
10.4.1 becomes generally available to third parties by publication or otherwise through no fault of Siteowner;
10.4.2 becomes lawfully known to the Third Party without confidential or proprietary restriction from a source other than MemberDigital;
10.4.3 is approved by MemberDigital for disclosure without restrictions in a written document signed by one of MemberDigital’s duly authorised managers or officers; or
10.4.4 Siteowner is able to prove that it was lawfully in possession of prior to such disclosure and that was not acquired directly or indirectly from MemberDigital or any of MemberDigital’s subsidiaries or holding companies.
10.5 Siteowner agrees to keep this Agreement and its contents confidential save where otherwise required by law.
10.6 This clause 10 shall survive termination of this Agreement.
11. Intellectual Property Rights
11.1 Siteowner hereby grants MemberDigital a non-exclusive, world-wide licence to use, copy, store, transmit, display or otherwise process all Content supplied by Siteowner to MemberDigital in relation to the provision by MemberDigital of the Services.
11.2 All title in the Intellectual Property Rights in the Services is owned by MemberDigital. Siteowner may not use the Services except as expressly permitted under this Agreement.
11.3 Except for the rights and licence granted under this Agreement, nothing contained in this Agreement shall be construed to grant Siteowner any right, title or interest in or to the Services. MemberDigital expressly reserves all right, title and interest in and to the Services not specifically granted to Siteowner under this Agreement.
12. Data Protection
12.1 MemberDigital agrees not to disclose or make available to any third party any Customer Data relating to the Site that MemberDigital receives in the course of its performance of its obligations under this Agreement, unless compelled to do so by court order.
12.2 Siteowner hereby acknowledges that for the purposes of the UK Data Protection Act 1998 and in respect of Customer Data, Siteowner is the data controller and MemberDigital is the data processor. Both parties agree at all times for the duration of this Agreement to comply with any and all relevant data protection legislation.
12.3 Siteowner hereby acknowledges and accepts that, solely for the purpose of provision of the Services, some or all of the Site content, or of the Customer Data relating to the Site, may be stored or hosted on servers located outside the European Union.
13. Limitation of Liability and Indemnity
13.1 To the maximum extent permitted by law, MemberDigital excludes all warranties, conditions or other terms that may be implied into this Agreement whether by law, statute or otherwise. MemberDigital gives no condition, warranty or other term whatsoever, either express or implied including, without limitation, as to the condition of any of the Services or of the Information, or as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement of Intellectual Property Rights, or use of reasonable care and skill. To the maximum extent permitted under applicable law, MemberDigital shall not be liable in contract, tort or otherwise for any loss or damage, howsoever arising in connection with the Services or this Agreement. MemberDigital shall not be liable for any indirect, special, or consequential damages, whether such damages or losses are known, foreseen, foreseeable or unforeseen. Nothing in this Agreement shall limit MemberDigital’s liability for negligently caused death or personal injury or fraud.
13.2 Siteowner hereby agrees to indemnify and hold MemberDigital and MemberDigital’s subsidiaries, affiliates, officers, agents and employees from and against any third party claim arising from or in any way related to Siteowner’s use of the Services, including but not limited to any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, and legal costs, of every kind and nature.
13.3 Siteowner shall ensure that Siteowner’s computer system, central processing unit or computer is compatible with the Services.
The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. Siteowner recognises that MemberDigital’s business relies upon the protection of its Intellectual Property Rights and that in the event of a breach or threatened breach of Intellectual Property Rights, MemberDigital may be caused irreparable damage. Siteowner agrees that MemberDigital will therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of MemberDigital’s Intellectual Property Rights without proof of unquantifiable loss or special damage.
15. Term and Termination
15.1 MemberDigital may terminate this Agreement forthwith on giving notice in writing to Siteowner if:
15.1.1 Siteowner commits any breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from MemberDigital to do so, to remedy the breach; or
15.1.2 Siteowner commits a material breach of this Agreement.
15.2 Either party may terminate this Agreement at any time by providing the other party with thirty (30) days’ written notice.
15.3 If this Agreement is terminated by Siteowner prior to the end of the monthly or annual payment period then in effect, any refund or credit given, if any, for the remainder of the payment period shall be at the sole discretion of MemberDigital.
15.4 Forthwith upon termination of this Agreement, Siteowner shall cease all use of the Services.
15.5 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement that is expressly or by implication intended to come into or continue in force on or after such termination.
MemberDigital reserves the right to amend this agreement at any time by posting a revised version on the website; www.MemberDigital.com.
Neither this Agreement nor any rights, licences or obligations under it, may be assigned by Siteowner without the prior written consent of MemberDigital. MemberDigital may assign this Agreement or any rights, licences or obligations under it in its sole discretion.
18. Entire Agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the Parties relating to the subject matter of this Agreement. However, the obligations of the Parties under any pre-existing non-disclosure agreement shall remain in full force and effect insofar as there is no conflict between the same. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
19. Force Majeure
19.1 Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement that result from circumstances beyond the reasonable control of that Party. If such circumstances continue for a continuous period of more than thirty (30) days, either Party may terminate this Agreement by written notice to the other party.
19.2 Any costs arising from such delay shall be borne by the Party incurring the same.
20.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail, email or any other means of electronic communication, or by fax to the address of the relevant party set out at the head of this Agreement or such other address as that party may from time to time notify to the other party in accordance with this clause 23.1.
20.2 Notices sent in accordance with clause 20.1 above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of airmail), or on the same working day in the case of a fax or email transmission sent before 1600 hrs (in the case of fax messages, but only if a transmission report is generated by the sender’s fax machine recording a message from the recipient’s fax machine confirming that the fax was sent to the number indicated above and confirming that all pages were successfully transmitted).
20.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be.
If any provision of this Agreement is prohibited by law or judged by a court of competent jurisdiction to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances pertaining to this Agreement or the validity or enforcement of this Agreement.
22. Successors and Assignees
22.1 This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and expressly permitted assignees, and references to a party in this Agreement shall include its successors and expressly permitted assignees.
22.2 In this Agreement, references to a Party include references to a person:
22.2.1 who for the time being is entitled (by expressly permitted assignment, novation or otherwise) to that party’s right under this Agreement (or any interest in those rights); or
22.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and
22.2.3 in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party. For this purpose, references to a Party’s rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
No delay, neglect or forbearance on MemberDigital’s part in enforcing any term or condition of this Agreement against Siteowner shall be or be deemed to be a waiver or in any way prejudice any of MemberDigital’s rights under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for MemberDigital is exclusive of any other right, power or remedy available to MemberDigital.
24. Third Partie
The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
25. Proper Law and Jurisdiction
25.1 This Agreement and all matters arising from it shall be governed by and construed according to the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
The following terms when used in this Agreement shall have the following meaning:
“Additional Services” means such additional services as may from time to time be provided by MemberDigital to the Siteowner, as agreed between MemberDigital and the Siteowner from time to time and as defined on the MemberDigital website.
“Competitor” means any organisation, company, body corporate, individual or group of people that produces, writes, sells, markets, distributes or is otherwise involved in the business of offering for sale a Services substantially comparable to the Services;
“Content” means (without limitation) all data, images, words, logos pictures and all other information whether present or future and of whatever nature made available to third parties via the Site by Siteowner or by MemberDigital on Siteowner’s behalf
“Custom Site Design” means a unique design created by MemberDigital or by a designated third party at the Siteowner’s request and subject to an additional Fee.
“Customer Data” means information that relates to a living individual who can be identified
(a) from that information; or
(b) from that information and other information in the possession of, or is likely to come into the possession of, the parties.
“Fees” means the Annual Fee, Monthly Fees, Service Fees, Initial Payment and any other fees to be charged for use of the Service or individual features of the Service;
“Information” means as defined in Clause 10.1;
“Initial Payment” means either full or part payment of the Set-Up Fees;
“Intellectual Property Rights” means any copyright, database right, design right, patent, rights in inventions, trade mark, Services mark, domain name, confidential information, know-how, business name, trade name, get-up, trade dress, right to sue for passing off or for unfair competition and any other intellectual property rights whether applied for, registered or unregistered and wheresoever held in the world;
“Licence” means as defined in clause 1.2;
“Password” means as defined in clause 4.1;
“Price List” means the prevailing list of prices for the Services as varied by MemberDigital from time to time;
“Registration Details” means the url of the Site together with Siteowner’s name, address, contact telephone contact numbers and email address and all other relevant details collected from Siteowner’s by MemberDigital at the time of registration.
“Services” means services described as being provided by MemberDigital or by a third party on MemberDigital’s behalf on the www.MemberDigital.com website, which may include without limitation website design, content management, membership management, website management payment processing services, and support of the MemberDigital platform.
“Service Fees” means the Set-Up Fee, Monthly Fees and any other fees to be charged for use of the Service.
“Site” means the website Siteowner proposes to launch and operate using the Services.
“Site Design Process” means as set out on the MemberDigital website.
In this Agreement unless the context otherwise requires:
(a) words importing the singular number include the plural number and vice versa;
(b) words importing persons include firms, companies and corporations and vice versa;
(c) references to numbered clauses are references to the relevant clauses in this Agreement;
(d) the headings to the clauses and paragraphs of this Agreement will not affect the interpretation;
(e) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment;
(f) any Party that agrees to do something will be deemed to fulfil that obligation if that Party procures that it is done.