Last Modified: May 2021
PLEASE READ THESE TERMS OF SERVICE CAREFULLY
These Client Terms of Service together with the Proposal is a contract (“Agreement”) between you (the “Client”) and CUSG Marketing Solutions LLC, d/b/a MemberXP (“MemberXP”). This Agreement describes the products and services (“Services”) we will provide to you and governs your use of the Services.
By accepting this Agreement and/or using the Services, you are agreeing to these terms and conditions. You are further agreeing that you are an employee, director, or agent of the Client; that you have confirmed that the Client has agreed to be bound by this Agreement; and the Client has authorized you to use the Services on its behalf.
1. DEFINITIONS
1.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 "Agreement" means these Client Terms of Service, the Proposal and the Privacy Policy.
1.3 "Billing Period" means the period for which you agree to pay fees under a Proposal.
1.4 “Client Data” means such data and information as MemberXP may reasonably request from Client from time to time in order for Member XP to provide the Services and the Consulting Services and for use by MemberXP as is permitted by these Terms of Service and applicable law. Client Data may include Nonpublic Personal Information, as that term is defined below.
1.5 “Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential. Confidential Information shall include all information concerning: (a) Disclosing Party's clients and potential clients, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Except for Nonpublic Personal Information, 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 the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Client Data shall be Confidential Information under this Agreement regardless of whether or not it is designated as confidential. Client Data and Nonpublic Personal Information shall be considered Confidential Information under this Agreement.
1.6 "Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
1.7 “Nonpublic Personal Information” means any information relating to an identified or identifiable individual protected under the Gramm-Leach-Bliley Act and/or other applicable data protection law.
1.8 "Proposal " means the MemberXP Proposal by which you agree to purchase the Services.
1.9 "Fee" or “Fees” means the amount you pay for the Services.
1.10 “Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
1.11 "Services" means our member experience management and reporting services, tools and platforms identified in the Proposal or that we otherwise make available to you, and are developed, operated, and maintained by MemberXP, accessible via memberxp.com.
1.12 "Term" means the initial term in which the Services are provided, as specified in the Proposal, and each subsequent renewal term (if any).
1.13 "Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Services for your benefit and have unique user identifications and passwords issued in connection with the Services.
1.14 "MemberXP ", "we", "us" or “our” means CUSG Marketing Solutions LLC d/b/a MemberXP.
1.15 "You", "your" or “Client” means the person or entity using or receiving the Services and identified in the Proposal as the client.
2. USE OF SERVICES
2.1 Access. During the Term, we will provide you with the Services as described in this Agreement and the applicable Proposal. We may provide some or all elements of the Services through third party service providers. Your Affiliates may access, use and receive the Services purchased under the Proposal, provided that all such access, use and receipt of Services by your Affiliates is subject to and in compliance with this Agreement. You shall at all times remain liable for your Affiliates' compliance with this Agreement.
2.2 Additional Features. You may subscribe to additional features of the Services by agreeing to such additional features/programs in a Proposal.
2.3 Modifications. We may modify the Services from time to time in our sole discretion, including by the addition or deletion of features and functions, in an effort to improve the Services.
2.4 Prohibited and Unauthorized Use. You will not (i) use the Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Services; (ii) attempt to gain unauthorized access to the Services; (iii) access the Services other than through our interface; or (iv) use the Services for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Services if you are legally prohibited from receiving or using the Services under the laws of the country in which you are reside or from which you access or use the Services.
2.5 Client Responsibilities.
2.5.1 You understand and agree that your participation and efforts are required in order for you to realize the full value of the Services. Your responsibilities shall include providing a project manager or other direct responsible individual to work with MemberXP to create, implement and deliver the Services. Your responsibilities shall include setting goals, developing surveys, developing mystery shops, creating a coaching schedule; providing top level internal goals for the use of the Services; attending optional success review meetings; and supporting the integration of the Services.
2.5.2 It shall be Client’s responsibility, and Client represents and warrants to MemberXP, that it has secured any and all permissions and authorizations as may be required from its members as may be required by Applicable Law in order for Client to share Client Data with Member XP. Client shall indemnify, defend and hold harmless MemberXP from and against any and all claims or demands related to Client’s breach of this representation and warranty.
2.5.3 Client shall hold MemberXP proprietary member surveys, mystery shops, offline reports, and online reporting portal in strict confidentiality in accordance with the Confidentiality provisions of this Agreement.
2.5.4 With respect to MemberView Services, Client will provide MemberXP with lists of members and employees to send such surveys. Client may update such information as it determines necessary. MemberXP and/or its third party service providers will provide a secure file transfer site for the exchange of this information. Client acknowledges that MemberXP does not require or accept non-public data such as social security numbers and account numbers,
2.5.5 With respect to MemberShoppers Services, MemberXP will compile member shopper applicants and Client employees and through its third party service provider will share the file with the Client via a secure file transfer site for the exchange such information. If Client elects to pay its member shoppers directly, MemberXP will provide a file with member information each month for payment. Client acknowledges that MemberXP does not require non-public data such as social security numbers and account numbers, unless the Client elects to have MemberXP to pay the members directly.
2.6 Free Trial. If you register for a free trial, we will make the applicable Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid Services. If we include additional terms and conditions, those will apply as well.
3. FEES
3.1 Fees. Fees shall remain fixed during the initial term this Agreement unless otherwise indicated in the Proposal. However, we may increase Fees if you upgrade products or base packages or purchase additional services, features or products.
3.2 Fee Adjustments at Renewal. Upon renewal, we may increase Fees up to our then-current price schedule. If this increase applies to you, we will notify you at least sixty (60) days in advance of your renewal and the increased fees will apply at the start of the renewal term.
3.3 Payment Due Date. We will invoice you immediately for any applicable implementation fees at the beginning of the Term and each subsequent Billing Period, and other times during the Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Proposal.
3.4 Payment Information. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement.
4. TERM AND TERMINATION
4.1 Term and Renewal. Your term of this Agreement will be set forth in the Proposal. Following the initial term, this Agreement will automatically renew for additional terms of either one (1) year or the same time period as the initial term, whichever period is shorter. By way of example and not limitation, if the initial term specified in the Proposal is ninety (90) days, then upon expiration of the initial term, this Agreement will automatically renew for a period of ninety (90) days. If the initial term specified in the Proposal is two (2) years, then upon expiration of the initial term, this Agreement will automatically renew for a period of one (1) year.
4.2 Notice of Non-Renewal. Either party may prevent the renewal of this Agreement by providing the other party with written notice of its intent not to renew the Agreement at least thirty (30) days prior to the end of the then current term.
4.3 Early Termination. You may terminate this Agreement at any time for convenience provided that, we will not provide any refunds of prepaid fees or unused Fees, and further provided that you must promptly pay all unpaid fees due through the end of the then current Term.
4.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
MemberXP may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our clients.
4.5 Suspension
4.5.1 Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend all or any part of the Services ten (10) days after such notice. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If is the Services are suspended for non-payment, we may charge a re-activation fee to reinstate the Services.
4.5.2 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Services. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Services after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the then current term. Fees are otherwise non-refundable.
5. CLIENT DATA
5.1 Client’s Proprietary Rights. You own and retain all rights to Client Data. This Agreement does not grant us any ownership rights to Client Data. You grant permission to us and our licensors to use and Client Data only as necessary to provide the Services to you and as otherwise permitted by this Agreement. If you are using the Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Limits on MemberXP. We will not use, or allow anyone else to use, Client Data to contact any individual or company except as you direct or otherwise permit. We will use Client Data only to provide the Services to you and only as permitted by applicable law and this Agreement.
5.3 Aggregate Data. We reserve the right to collect, compile, synthesize and analyze information and data gathered through the Services and reserve the right to disclose to and share such information and data with third parties in an anonymous and aggregated from at our discretion (“Aggregate Data”). In no event will any such Aggregate Data personally identify Client or Client’s members. To the extent that any Aggregate Data is collected by MemberXP, it will be solely owned by MemberXP and may be used by us for any lawful purpose, provided that we agree to comply with applicable privacy and other laws and regulations respecting the dissemination and use of such Aggregate Data. For more information please see the MemberXP Data Privacy and Security document, available upon request.
5.4 Protection of Client Data. The terms of the MemberXP Customer Data Policies are hereby incorporated by reference and shall apply to the extent any Client Data includes Nonpublic Personal Information. The MemberXP Customer Data Policies sets out how we will process Nonpublic Personal Information on your behalf in connection with the Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Nonpublic Personal Information.
6. INTELLECTUAL PROPERTY
6.1 This is an Agreement for the provision of and access to the Services. You are not granted a license to any software by this Agreement. The Services are protected by intellectual property laws. The Services are the exclusive property of MemberXP and its licensors (if any), and we will retain all right, title and interest in the intellectual property. You will neither acquire nor assert any ownership or other proprietary rights in our intellectual property or in any deviation, adaption or variation thereof. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Services in whole or in part, by any means, except as expressly authorized in writing by us.
6.2 Neither party may, without the prior written approval of the other party, use such other party’s trademarks, trade name, logos and service marks (collectively “Marks”) in press releases or other public statements, on its web site or in any promotional materials. The parties acknowledge that such approval may be given on a case-by-case basis, or for a more general “pre-approved” type of use. Only to the extent consistent with any approval given under this Section 6.2, the approving party hereby grants the other party a nonexclusive right, during the term of this Agreement, to use the approving party’s Marks. Further, notwithstanding anything to the contrary above, each party agrees that the other party may publicly disclose that MemberXP is providing to Client, and Client is receiving from MemberXP, the Services. Except as specifically set forth in this section, each party shall retain all right, title and interest in and to its Marks and nothing in this Agreement shall vest in or transfer to the other party any rights in such Marks other than the limited right of approved uses set forth herein.
6.3 We encourage you to provide us with comments suggestions for improving the Services. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Services, without payment or attribution to you.
7. CONFIDENTIALITY
7.1 The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Services), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) Receiving Party will provide Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event shall Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
8. PUBLICITY
You grant us the right to add your name and company logo to our client list and website. If you object to this use, you must provide us notice in writing upon signing of the Proposal.
9. INDEMNIFICATION
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of:
(a) unauthorized or illegal use of the Services by you or your Affiliates, or anyone using or
accessing the Services utilizing your user information,
(b) your or your Affiliates' noncompliance with or breach of this Agreement, or
(c) your or your Affiliates' use of products/services offered by or through are third party service providers.
We will notify you in writing within thirty (30) days of our becoming aware of any such Action. We will give you sole control of the defense or settlement of such a claim, and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the Action. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. DISCLAIMERS; LIMITATION OF LIABILITY
10.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICES, DATA MADE AVAILABLE FROM THE SERVICES, FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.2 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.3 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SERVICEs IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
10.4 Third Party Products. WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL LIABILITY WITH RESPECT TO YOUR USE OF ANY AND ALL PRODUCTS AND/OR SERVICES OFFERED BY OR THROUGH OUR THIRD PARTY SERVICE PROVIDERS.
10.5 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
11. MISCELLANEOUS
11.1 Notices. All notices and other communications shall be in writing, and shall be personally delivered, or sent via US certified mail, or by any generally recognized overnight delivery service, and shall be deemed given upon delivery. Notices to you will be sent to your address as set forth in the Proposal, or such other address you may designate in writing by notice to us pursuant to this section. Notices to us must be sent to: 110 W. Michigan Ave., 4th Floor, Lansing, MI 48933, Attention: CEO/COO of MCUL.
Notice may also be given by email or other electronic communication provided that the recipient has acknowledged receipt.
11.2 Successors. This agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the respective parties hereto.
11.3 No Third Party Beneficiaries. No third party shall be deemed to be an intended or unintended third party beneficiary of this Agreement.
11.4 Survival. All rights and obligations of the parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
11.5 Assignment. This Agreement is binding upon the parties and their respective successors and permitted assigns. Neither this Agreement nor any interest therein may be sold, assigned, transferred, pledged, or otherwise disposed of by either party without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided however, that either party may, without consent, assign the Agreement and its rights and obligations hereunder to an affiliate or in connection with the transfer or sale of all or substantially all of its assets, or in the event of a merger or consolidation or change in control or similar transaction. This Agreement shall be binding upon, and inure to the benefit of, each party, its affiliates, and its permitted successors and assigns.
11.6 Governing Law. This Agreement shall be governed by the laws of the State of Michigan without regard to that state's choice of law provisions.
11.7 Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Michigan, Wayne County. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. The parties reserve the right to object to any individual arbitrator who shall be employed by or affiliated with a competing organization or entity
11.8 Captions. Captions contained herein are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of any provision hereof.
11.9 Amendment; No Waiver. We may amend any part or all of terms of service If we amend these terms of service, the updated terms of service will be posted at memberxp.com/terms of service (add link). We will notify you of such amendments via email.
The amended terms of service will become effective and binding on the next business day after it is posted on our website. When we amend these terms of service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these terms of service periodically.
11.10 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic or epidemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.11 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.12 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.13 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Services. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
11.14 Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.15 Entire Agreement. The Proposal and these Client Terms of Service constitute the entire agreement between you and us for the Services and supersedes all previous discussions, negotiations, understandings, and agreements, whether electronic, oral or written, between us. Our obligations are not contingent on the delivery of any future functionality or features of the Services or dependent on any oral or written public comments made by us regarding future functionality or features of the Services.
11.16 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.17 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
11.18 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. The Client further warrants and represents that it has the authority to procure its Affiliates compliance with the terms of this Agreement.
11.19 Precedence. In the event of a conflict between the terms of these terms of service and the Proposal, these terms of service shall control, but only as to that Proposal, and only to the extent of the conflict.
