We’ll start with the basics, including a few definitions that should help you understand these Terms. MemberVana offers an online membership management platform (the “App”) that allows you to manage your contacts, to create, send, and manage certain marketing campaigns, including, without limitation, emails, advertisements, and mailings (each a “Campaign,” and collectively, “Campaigns”), and to create and manage online stores, web pages and websites to reach your people and sell your things (each, a “Site,” and collectively, “Sites”) among other things. As a customer of the Service or a representative of an entity that’s a customer of the Service, you’re a “User” according to this Agreement (or “you”). A “Contact” is any person that you, a User, may contact through our Service. In other words, a Contact is anyone on a User’s distribution list about whom a User has given us information or is anyone who has otherwise interacted with a User via the Service.
These Terms (collectively, the “Agreement”) define the terms and conditions under which you’re allowed to use the Service and how we’ll treat your account and the data we collect and process about you, your end users, and your contacts and customers while you’re a User. If you don’t agree to these Terms, you must immediately discontinue your use of the Service.
In order to use the Service, you must:
- be at least eighteen (18) years old and able to enter into contracts;
- complete the account registration process;
- agree to these Terms and the other terms and conditions linked in these Terms that form part of the Agreement;
- provide true, complete, and up-to-date contact and billing information;
- be based in the United States;
- and not be included in lists maintained by the United States or other applicable jurisdictions prohibiting transactions with and the export of US products to certain entities, people and jurisdictions.
By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise. MemberVana may refuse service, close accounts of any Users, and change eligibility requirements at any time.
When you sign up for an account and agree to these Terms, the Agreement between you and MemberVana is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a MemberVana account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. If you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.
3. Closing Your Account
You or MemberVana may terminate the Agreement at any time and for any reason. You may do so by terminating your MemberVana account or we may do so by giving notice to you that we are terminating the Agreement. We may suspend the Service to you at any time, with or without cause. We won’t refund or reimburse you in any situation. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns.
We may change any of the Terms by posting revised Terms on our MemberVana Site. Unless you terminate your account, the new Terms will be effective immediately upon posting on the effective date indicated in the new Terms, as applicable, and apply to any continued or new use of the Service. We may change the Service, Add-ons, or any features of the Service at any time, and we may discontinue the Service, Add-ons, or any features of the Service at any time.
5. Account and Password
You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that MemberVana is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate. We may contact you, or any seat, authorized user, or login added to your account, based on the information provided in your account.
6. Account Disputes
We don’t know the inner workings of your organization or the nature of your personal relationships. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we’ll require you to resolve the matter through proper channels outside of MemberVana. When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account until the dispute is properly resolved.
If you sign up for a paid monthly plan, you will be required to self-select both your projected membership and your projected email usage. Each Plan offers different pricing and has varying usage limits. If you exceed your Plan usage limits (either by exceeding your membership or monthly email limits, or both), you will incur additional charges for the prior billing cycle based on your current Plan, which will be detailed on your bill and in your account. You will always have the option to upgrade to a higher Plan at any time. You will also have the option to downgrade to a lower tier at any time, but if you elect to downgrade during a billing cycle, your downgrade will not be effective until the end of that billing cycle, and you will still be charged for that entire billing cycle at the higher tier (including any applicable additional charges for the higher tier). When you sign up for a Plan, you agree to monthly recurring billing, starting on the date you sign up. Billing occurs on the same day each month, based on the date that you first started paying for any recurring monthly plan. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If any part of a month is included in the Term, then payment is required for the full month. If you exceed your self-selected usage limits for your Plan, then you’ll have to pay additional charges (as described above) for the prior billing cycle on or before the next Pay Date, even if the Term ends or you downgrade to a Free Marketing Plan before that payment is otherwise due. Billing for Plans may be paused, and you may choose to close your account permanently at any time.
If you create and publish a Store, you will be required to pay processing and other fees to your Merchant Processor for any transactions conducted through your Store. Those fees will be described in your contract with Merchant Processor. Your customers will not see these transaction fees during their checkout process. Transaction fees will not be returned or refunded by MemberVana to you or your customer under any circumstance, including in the event your customer returns or exchanges a product or in the event of a fraudulent transaction; however, in many instances, a fraudulent transaction will be detected and terminated by your Merchant Processor prior to completion, meaning no processing or transaction fees would have been charged for that transaction. Please refer to your contract with your Merchant Processor for information on their processing and other fees.
9. Websites and Domains
MemberVana-branded domains (e.g., yourcompany’sname.membervana.com) are offered to Members free of charge. Users may also purchase custom domains. Users are billed for custom domains on the date of purchase and then billed annually for the renewal of the custom domain prior to the custom domain’s expiration. To provide uninterrupted service, we will automatically charge for and renew a User’s custom domain unless the Member opts out of automatic renewal in the app or by contacting customer support.
10. Dedicated IP Addresses
In certain circumstances, Members may have the option to purchase access to a dedicated IP address or specifically designated shared IP address (collectively, a “Dedicated IP Address”) for email sending purposes. MemberVana, in its sole discretion, may determine whether to provision access to a Dedicated IP Address. Dedicated IP Addresses used to provide the Service are owned and operated by MemberVana and we reserve the right to revoke a User’s use of a Dedicated IP Address at any time. If your account uses a Dedicated IP Address and email sending for the account is paused or suspended for 30 days or more for any reason (including but not limited to compliance matters, failed or overdue payment issues, or voluntarily pausing your Plan), MemberVana may reclaim the Dedicated IP Address from the account and terminate any future use of the Dedicated IP Address by the User.
11. Debit and Credit Cards
As long as you’re a User with a Plan or are otherwise utilizing paid features of the Service or have an outstanding balance with us, you’ll provide us with valid debit or credit card (“card”) information and authorize us to deduct your charges against that card. You’ll replace the information for any card that expires with information for a valid one. If your card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new card. Anyone using a card represents and warrants that they are authorized to use that card, and that any and all charges may be billed to that card and won’t be rejected. If we’re unable to process your card order for any reason, we’ll try to contact you by email and may suspend your account until your payment can be processed.
You won’t be entitled to a refund or credit from us under any circumstance. However, we may, at our sole discretion, offer a refund, discount or credit.
13. Billing Changes and Taxes
We may change any of our fees, including our charges for Plans, at any time by posting a new pricing structure to our MemberVana Site or in your account and/or sending you a notification by email. Quoted fees don’t include sales or other transaction-based taxes of any kind. “Tax” or “Taxes” means all applicable taxes, including but not limited to indirect taxes such as goods and services tax (“GST”), value added tax (“VAT”), sales tax, fees, duties, levies, or other similar taxes. Unless otherwise stated, any consideration, amount payable, prices, fees, payment terms and/or any other amounts are exclusive of Taxes. In the event that any amount payable by you to MemberVana is subject to Taxes, MemberVana shall collect the full amount of those Taxes from you and said collection shall not reduce or somehow impact the amount to which MemberVana is entitled. You will reimburse and indemnify MemberVana for any Taxes, interest, and penalties that MemberVana may be compelled to pay on account of your non-payment. You must pay any applicable Taxes. In the event that any payments and/or amount payable by you to MemberVana is subject to (i) any withholding or similar tax; (ii) any Taxes not collected by MemberVana; or (iii) any other Taxes or other government levy of whatever nature, the full amount of that tax or levy shall be solely your responsibility and shall not reduce the amount to which MemberVana is entitled under the Agreement. You will indemnify and hold MemberVana harmless against any and all claims by any competent tax authority related to any such withholding or similar taxes and any penalties and/or interest thereon.
14. Right to Review Content, Campaigns and Sites
We may view, copy, and internally distribute Content from your Campaigns, your Sites, your Third-Party Integrations (as defined below) and your account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service, among other uses permitted by these Terms or our Privacy Statement. For instance, we use these Tools to find Members who violate these Terms or applicable laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts. We may aggregate and anonymize data, including data from the Content of your Campaigns, Sites, and Third-Party Integrations to create statistical information. We own all such aggregated and anonymized data and may use it, including, but not limited to, operating, analyzing, improving, or marketing our products and services and sharing such data externally for research, marketing, or other lawful purposes.
15. General Rules
By agreeing to these Terms, you promise to follow these rules:
- You won’t send spam!
- You won’t use purchased, rented, or third-party lists of email addresses.
- You’ll comply with our Acceptable Use Policy, which forms part of these Terms.
MemberVana doesn’t allow accounts that promote or incite harm toward others or that promote discriminatory, hateful, or harassing Content. To this end, we may suspend or terminate your account if you send a Campaign, create or manage a Site, or otherwise distribute any Content that we determine, in our sole discretion, contains either of the following:
- A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
- Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.
We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:
- an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
- a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
- a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.
MemberVana also does not allow the distribution of Content that is, in our sole discretion, materially false, inaccurate, or misleading in a way that could deceive or confuse others about important events, topics, or circumstances. If you violate any of these rules, then we may issue a warning to, suspend, or terminate your account.
15. Reporting Abuse
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a MemberVana User, please report it to us via the contact information at the bottom of this document. If you think anyone has posted material that violates any protected marks or copyrights, then please notify us.
16. Bandwidth Abuse/Throttling
You may only use our bandwidth for your Content, Campaigns and Sites. We may throttle your sending or bandwidth at our discretion.
17. Compliance with Laws and Regulations
You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLBA, Data Protection Laws (as defined in the Data Processing Addendum), anti-corruption and anti-bribery laws and regulations, United States and any other applicable economic sanctions, and export control laws and regulations (“Global Trade Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children’s Online Privacy Protection Act, or any other applicable laws.
If you collect any personal information pertaining to a minor and store such information within your MemberVana account, you represent and warrant that you have obtained valid consent for such activities according to the applicable laws of the jurisdiction in which the minor lives.
You agree, represent, and warrant to MemberVana that:
- You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that (a) satisfies the requirements of applicable Data Protection Laws, (b) describes your use of the Service, and (c) includes a link to our Global Privacy Statement.
- You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to MemberVana and to enable such data to be lawfully collected, processed, and shared by MemberVana for the purposes of providing the Service or as otherwise directed by you.
- You will comply with all laws and regulations applicable to the Campaigns sent through the Service, including those relating to (a) acquiring consents (where required) to lawfully send Campaigns, (b) the Content of Campaigns, and (c) your Campaign deployment practices.
- You will provide all notices and obtain all necessary consents required by applicable Data Protection Laws to enable MemberVana to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users in accordance with and as described in our Cookie Statement.
18. Limitation of Liability
To the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Service, including any downloads from the MemberVana Site; (ii) we and our Team won’t be liable for any indirect, punitive, special, or consequential damages, including any loss of data, profits, revenues, business opportunities, goodwill, or anticipated savings under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, the total liability of MemberVana and our third-party providers, licensors, distributors, or suppliers to you arising out of or relating to the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month. For the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of these Terms, regardless of whether we terminate or suspend your account due to such violation.
19. No Warranties
Except as expressly stated in these Terms, the Service is provided as-is and we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Service, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Users use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.
You agree to indemnify and hold us and our Team harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses in connection with any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses, in connection with any claims arising out of or relating to (i) your Content, Campaigns, or Sites, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any terms of the Agreement, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you’ve made to us.
21. Equitable Relief
Your violation of these Terms may cause irreparable harm to us and our Team. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate these Terms (meaning we may request a court order to stop you).
22. Subpoena Fees
If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
We and our Team aren’t responsible for the behavior of any third parties, agencies, linked websites, or other Users, including third-party applications, products, or services for use in connection with the Service (each, a “Third-Party Integration”). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.
24. Dispute Resolution
You and MemberVana agree that, except as provided below, any dispute, claim or controversy arising out of or relating in any way to the Service or this Agreement (a “Claim”) will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and MemberVana are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of the Agreement and/or the termination of your Service.
25. Force Majeure
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Even if the Agreement is terminated, the following sections will continue to apply: Feedback and Proprietary Rights, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Dispute Resolution, Choice of Law, Severability, and Entire Agreement.
If it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.
If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
29. No Changes in Terms at Request of Member
Because we have so many Members, we can’t change these Terms for any one Member or group.
30. Further Actions
You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
31. Notification of Security Incident
If we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we’ll notify you if required by law. In that event, we’ll also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we’re prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of MemberVana for such incident.
32. Entire Agreement
The Agreement, including these Terms and any Additional Terms you’ve agreed to by enabling any Add-ons, make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate or use the corresponding Add-on or feature of the Service.
Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will control to the extent of the conflict.
Updated August 1st, 2023 and effective as of August 1, 2023.