Membee Subscription Agreement

As part of the Service, Membee will provide you with the use of the Service, including a browser interface, a smart client interface, data encryption, transmission, access, and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the membee.com website incorporated by reference herein, including but not limited to Membee’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

  1. Privacy & Security; Disclosure: Membee’s privacy policy may be viewed at https://www.membee.com/privacy-policy/. Membee reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Membee occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If you become a paying subscriber of the Service, you agree that Membee can disclose the fact that you are a paying customer and the edition of the Service that you are using.
  2. License Grant & Restrictions: With the payment of the applicable subscription fee, Membee hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Membee and its licensors. You are restricted from the following where these restrictions shall survive termination of this agreement:
    1. license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way
    2. modify or make derivative works based upon the Service, or
    3. reverse engineer or access the Service in order to
      1. build a competitive product or service
      2. build a product using similar ideas, features, functions or graphics of the Service
      3. copy any ideas, features, functions or graphics of the Service
  3. User Licensing: Your initial subscription to the Service shall include access the Service for one (1) named user. You may purchase access to the Service for additional named users prior to your initial implementation of the Service and at any time thereafter to reflect your needs.
  4. You may use the Service only for your internal business purposes and shall not:
    1. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws
    2. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights
    3. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs
    4. interfere with or disrupt the integrity or performance of the Service or the data contained therein
    5. attempt to gain unauthorized access to the Service or its related systems or networks
  5. Your Responsibilities: You are responsible for all activity occurring under your named user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall:
    1. notify Membee immediately of any unauthorized use of any password or account or any other known or suspected breach of security
  6. Account Information and Data: Membee does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not Membee, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Membee shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Membee reserves the right to withhold access to the Service for any breach, including, without limitation to, your non-payment. Upon formal notice of termination for cause by Membee, your right to access or use Customer Data immediately ceases, and Membee shall have no obligation to maintain or forward any Customer Data.
  7. Minimum Service Level: Membee will endeavor and extend best efforts to ensure certain specific levels of quality pertaining to the Service are maintained as follows:
    1. Access to the service shall be possible 99% of the time each Day with the exception of the following exclusions where notification for such exclusion is posted on Membee’s  http://membeestatus.com/ web site at least 48 hours in advance:
      1. Scheduled Network Maintenance
      2. Scheduled Hardware Maintenance
      3. Scheduled Software Maintenance
    2. Data Restoration if required due to a failure of the Service shall occur within 12 hours. In order to provide this capability, systematic backup operations will be performed on the Customer Data daily and copies of these redundant copies of Customer Data will be retained for seven (7) days
  8. Qualifying for a Service Level Remedy: In order to receive a remedy for a violation of the Minimum Service Level:
    1. you must notify Membee by sending an email to servicenotify@membee.com indicating that you believe that the Service is incurring an Outage
    2. the Outage has been verified by the external third party monitoring service employed by Membee as having began on or before the time of the receipt of your email notification
    3. the Outage has been continuous for more than one (1) hour
    4. the Service will be considered restored when the third party monitoring service verifies that Access to the Service has been restored
  9. Service Level Remedy: Membee shall provide a financial remedy in the form of a credit to your account against future billing provided you have qualified for the remedy. Such a remedy shall be limited to the amount arrived at using the formula of Outage Duration multiplied by the Outage Compensation Rate multiplied by a factor of twenty-five (25). This effectively provides you with compensation that is approximately 2500% greater than the average cost of the Service for the period of the Outage.
  10. Intellectual Property Ownership: Membee alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the Intellectual Property Rights owned by Membee. The Membee name, the Membee logo, and the product names associated with the Service are trademarks of Membee or third parties, and no right or license is granted to use them.
  11. Third Party Interactions: During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. Membee and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Membee does not endorse any sites on the Internet that are linked through the Service. Membee provides these links to you only as a matter of convenience, and in no event shall Membee or its licensors be responsible for any content, products, or other materials on or available from such sites. Membee provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
  12. Charges and Payment of Fees: You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable as they pertain only to the Service. Payments may be made quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. You are responsible for paying for all fees whether or not the Service is actively used. You must provide Membee with valid credit card or approved credit terms information as a condition to signing up for the Service. You or a person you designate as an Authorized Subscription Administrator may add subscriptions by executing an additional written support request or using an online order form provided by Membee. Added subscriptions will be subject to the following:
    1. added subscriptions will be added to your account immediately and coterminous with the pre-existing Term (either Initial Term or renewal term)
    2. the subscription fee for the added subscriptions will be the then current, generally applicable ongoing per subscription fee
    3. subscriptions added will also increase the ongoing fee for the Service which will not be charged on a prorated basis for the current term but will be charged in full for the following Renewal Term
  13. Revision of Fees: Membee reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
  14. Excess Data Storage Fees: There is no limit to the amount of disk storage space provided to you at no additional charge. Membee reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
  15. Billing and Renewal: Membee charges and collects in its entirety in advance for use of the Service for the upcoming renewal Term. Membee will automatically renew and bill your credit card or issue an invoice to you every quarter. The renewal charge will be equal to the then-current fee plus the then current fee for each additional named subscriptions purchased after the establishment of the original subscription. The fee for the Service is the same as the fee charged during the prior term, unless Membee has given you at least thirty (30) days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services such as ongoing support and software maintenance services will be charged on an as-quoted basis. Membee’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies.
  16. Billing and Contact Information: You agree to provide Membee with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact who by default shall be designated as your Authorized Subscription Administrator. You agree to update this information within 30 days of any change to it by using the functionality found at www.irm-systems.com/profile. If the contact information you have provided is false or fraudulent, Membee reserves the right to terminate your access to the Service in addition to any other legal remedies.
  17. Billing Error Remedy: If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
  18. Non-Payment of Fees : In addition to any other rights granted to Membee herein, Membee reserves the right to remove your access to the Service if your account becomes delinquent (falls into Arrears). At Membee’s sole discretion, delinquent invoices (accounts in Arrears) may be subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If you or Membee initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the payment terms outlined in paragraph 12 above. You agree that Membee may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
  19. Reconnection Costs: Membee reserves the right to impose a reconnection fee in the event you are in breach of this Agreement and thereafter request Access to the Service.
  20. Termination upon Expiration: This Agreement commences on the Effective Date for a period of time equal to the Initial Term and may be terminated at any time at Membee’s sole discretion. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at Membee’s then current service fee level. Either party may terminate this Agreement by notifying the other party in writing at least twenty (20) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), Membee will make available to you a file of the Customer Data in a standard and commonly used file format known as XML on or before the date of the invoice for the following term if you so request at the time of termination. You agree and acknowledge that Membee has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
  21. Termination for Cause: Any breach of your payment obligations or unauthorized use of the Membee technology or Service will be deemed a material breach of this Agreement. Membee, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Membee has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
  22. Representations & Warranties: Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Membee represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
  23. Your Indemnification: You shall indemnify and hold Membee, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
    1. a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party
    2. a claim, which if true, would constitute a violation by you of your representations and warranties, or
    3. a claim arising from the breach by you or your named users of this Agreement, provided in any such case that Membee:
      1. gives written notice of the claim promptly to you
      2. gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Membee of all liability and such settlement does not affect Membee business or Service)
      3. provides to you all available information and assistance; and
      4. has not compromised or settled such claim
  24. Membee Indemnification: Membee shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
    1. a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party
    2. a claim, which if true, would constitute a violation by Membee of its representations or warranties, or
    3. a claim arising from breach of this Agreement by Membee; provided that you:
      1. promptly give written notice of the claim to Membee
      2. give Membee sole control of the defense and settlement of the claim (provided that Membee may not settle or defend any claim unless it unconditionally releases you of all liability)
      3. provide to Membee all available information and assistance; and
      4. have not compromised or settled such claim. Membee shall have no indemnification obligation, and you shall indemnify Membee pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, and hardware or business process if such infringement is deemed to be the direct cause of the infringement
  25. Warranties: It is your sole responsibility to determine if the Service is appropriate for your needs. Membee warrants that when properly installed on a personal computer which meets or exceeds the Minimum Hardware Standard the Service will perform as represented. IRM will make reasonable efforts using commonly industry practices to maintain the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the service. Membee will also make reasonable efforts to:
    1. provide security for the Service as follows:
      1. physical security of the servers where the Service is located by limiting access only to authorized Membee staff and contractors
      2. electronic security to control access to the Service by implementing appropriate firewalls and physical network security configuration. Because the very nature of the Service requires that be exposed to the Internet, Membee cannot completely guarantee that the Service will be secure or uninterrupted
    2. errors or defects in Service will be corrected
    3. maintain constant checking for virus and/or malicious programs for the Service or the server(s) that makes the Service available by employing industry recognized anti-virus and malicious program detection and removal tools. Because the very nature of the Service requires that be exposed to the Internet, Membee cannot completely guarantee that the Service will be completely free of viruses or other harmful components.
  26. Internet Delays: MEMBEE’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MEMBEE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
  27. Limitation of Liability: IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  28. Additional Rights: Certain states and/or provinces do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
  29. Local Laws and Export Control: Membee and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Canada and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Canadian or European Union (including European Union Member States) law is prohibited.
  30. Notice: Membee may give notice by means of a general notice on the Service, electronic mail to your authorized Subscription Administrator’s e-mail address on record in Membee’s account information, or by written communication sent by either registered first class mail or facsimile to your address on record in Membee’s account information. Such notice shall be deemed to have been given upon the expiration of ninety six (96) hours after mailing or posting if sent by registered first class mail or overnight courier or forty eight (48) hours after sending if sent by email or facsimile. You may give notice to Membee at any time by any of the following: letter sent by confirmed facsimile to Membee at the following fax number: 403.250.8366; letter delivered by nationally recognized overnight delivery service or registered first class postage prepaid mail to Membee at the following address: Membee, Suite 134, 10615 48 Street SE, Calgary, AB T2C 2B7, addressed to the attention of: Manager, Client Services. Such notice shall be deemed to have been given upon the expiration of ninety six (96) hours after mailing or posting if sent by registered first class mail or overnight courier or forty eight (48) hours after sending if sent by facsimile.
  31. Modification to Terms: Membee reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
  32. Assignment; Change in Control: This Agreement may not be assigned by you without the prior written approval of Membee. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Membee directly or indirectly owning or controlling any portion of you shall entitle Membee to terminate this Agreement for cause immediately upon written notice. Agreement may be assigned without your consent by Membee to:
    1. a parent or subsidiary
    2. an acquirer of assets, or
    3. a successor by merger
  33. General: This Agreement shall be interpreted under the laws of the Province of Alberta, without adoption of the laws from other jurisdictions respecting choice of law, and disputes concerning its interpretation shall be resolved either by the Courts of that Province or the Courts of your place of business. The party initiating legal proceedings shall do so within the jurisdiction of the principal place of residence of the other party. No text or information set forth on any other purchase order, preprinted information form or document (other than the written Sales Order form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Membee as a result of this agreement or use of the Service. The failure of Membee to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Membee in writing. This Agreement, together with any applicable Sales Order form, comprises the entire agreement between you and Membee and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. There are no warranties or obligations assumed by either you or Membee, except as setout herein.
  34. Definitions: As used in this Agreement and in any Statement of Work now or hereafter associated herewith:
    1. “Access” means the ability to login to the Service.
    2. “Agreement” means these terms of use, any Statement of Work, invoice, whether written or submitted online via the Membee’s web site, and any materials available on the Membee website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Membee from time to time in its sole discretion.
    3. “Arrears” means that payment for the Service has not been received by Membee by the beginning of the term for which the payment applies.
    4. “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.
    5. “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service.
    6. “Data Restoration” means the need to the restore your data from backup where the need for restoration is the result of a corruption of the data brought about by a failure in the Service where such a failure generated an error message and/or the corruption was caused by a behavior in the Service which can be reproduced. Data Restoration shall not apply to situations where a named user has affected a change on your data and wishes to return to a version of the data prior to that change.
    7. “Day” means a continuous twenty four (24) hour period of time.
    8. “Effective Date” means the earlier of either the date this Agreement is accepted by executing this agreement or the date you begin using the Service.
    9. “Initial Term” means the period of the initial subscription contract as specified in the written Sales Order form, otherwise, the initial period during which you are obligated to pay for the Service is equal to the billing frequency selected by you during the subscription process. For example, if the billing frequency is quarterly, the Initial Term is the first quarter.
    10. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
    11. “Subscription Administrator(s)” means a named user designated by you who are authorized to purchase subscription(s) using an online order form or by executing a formal written request to create additional named user subscriptions and otherwise administer your use of the Service.
    12. “License Term(s)” means the period(s) during which a specified number of named subscribers are licensed to use the Service.
    13. “Named User” means you, your employees, representatives, consultants, contractors, volunteers, or agents who are authorized to use the Service and have been supplied usernames and passwords by you (or by Membee at your request).
    14. “Minimum Hardware Standard” means a personal computer capable of running Windows 2000 (or newer version) with 1.0 GHz (or faster) processor, 1 GB of RAM memory, 20 GB of free hard disk space, a broadband Internet connection, 100 Mbps (or faster) Local Area Network connection.
    15. “Online Order Form” means Membee’s online application that allows the Subscription Administrator designated by you to, among other things, add additional named subscribers to the Service.
    16. “Sales Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of subscriptions and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such order form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
    17. “Outage” means the inability to access the Service as a result of the failure of hardware, software, or network infrastructure owned and operated by Membee. Failure of hardware, software, or network infrastructure operated by Membee’s Internet provider, other providers in the infrastructure of the Internet, and/or operated by you shall not constitute an outage.
    18. “Outage Compensation Rate” means an amount of $0.0684 per hour.
    19. “Outage Duration” means the Outage End Time minus the Outage Start Time rounded to the nearest full hour.
    20. “Outage Start Time” means the time stamp on your email to Membee notifying us of an outage in the Service.
    21. “Outage End Time” means the time stamp on the email received from the third party monitoring service indicating that access to the Service has been restored.
    22. “Membee” means collectively IRM Systems, Inc., an Alberta corporation, having its principal place of business at Suite 134, 10615 48 Street SE, Calgary, AB T2C 2B7.
    23. “Membee Technology” means all of Membee’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Membee in providing the Service.
    24. “Service(s)” means the specific edition of Membee’s online membership management, billing, data analysis, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by Membee, accessible via http://www.irm-systems.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Membee, to which you are being granted access under this Agreement, including the Membee Technology and the Content.
    25. “User(s)” means you, your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Membee at your request).
    26. “XML” means Extensible Markup Language (XML) which is a markup language that defines a set of rules for encoding documents in a format that is both human-readable and machine-readable.

If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity.