Last Modified: November 27, 2023
Service Nation, Inc. (“Company”) requires users of its websites and services, including any entity signing up for an account (“Member”) that references these terms to accept and adhere to these terms and conditions (the, “Membership Terms”). These Membership Terms govern the purchase and use of Company’s services and are accepted by executing a Membership Agreement that references these Membership Terms or by using or accessing Company’s services. Company may update these Membership Terms from time to time and Member will have 30 days to reject the updated terms by providing written notice to Company. If Member continues to use or receive the services following such period, the updated Membership Terms will be deemed accepted.
1. Sign up. Services will be ordered by Member by signing up online or through Member’s respective mobile device app store. Upon completion of an app download or online sign up process, Member’s use of the Service will be subject to all of the terms and conditions herein.
2.1. Services. Company offers Service Nation Edge, a membership group that includes access to its newsfeed, content and rebate program (collectively, the “Services”).
2.3. Accounts; Security. Access to or use of certain portions and features of the Services may require Member to create an account (“Account”). Member represents that all information provided by it is current, accurate, complete, and not misleading. Member further warrants that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Member is entirely responsible for maintaining the confidentiality and security of its Account(s), including the password(s). Accounts are not transferrable. Member agrees to promptly notify Company if Member becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Member is responsible for all activities that occur under its Account(s). Further, Member is the primary account holder and is responsible for all charges made by additional users added to the Account(s).
2.4. Restrictions on Use. In accessing or using the Services, Member will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (c) apply systems to extract or modify information in the Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Service any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Service that is regulated by the HIPAA Privacy Rules or the PCI Data Standards (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Service for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Company in any way; or (j) permit any third party to use or access the Service other than Company’s direct employees or agents who are acting on Company’s behalf.
2.5. Maintenance. Member agrees that Company may install software updates, error corrections, and software upgrades to the Services as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Services for purposes of this Agreement.
2.6. Applicable Laws. Member’s access to and use of the Services is subject to all applicable international, federal, state and local laws and regulations. Member may not use the Services or any information data or Member Content (as defined below) in violation of or to violate any law, rule or regulation. Ensuring Member’s use of the Services or any derivatives thereof is compliant with applicable laws is the responsibility of Member.
2.7. Suspension of Services. Company has the right to immediately suspend the Services (a) in order to prevent damage to or degradation of the Service or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Member has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Member prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.
3. Aggregated Data. Member agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may capture data regarding the use of the Service by Member and its end users and aggregate and analyze any metrics and data collected pursuant to this section (collectively, the “Aggregated Data”).
4. Third Party Services. Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Member is prohibited from linking to the Service, framing of all or any portion of the Service, and extracting data from the Service. Company reserves the right to disable any unauthorized links or frames. Company will not be responsible and expressly disclaims any liability for any third party services that Member may use or connect to through the Service. If Member, participates in the Rebate Program, activates any APIs or links to enable data sharing through the Service or directs Company to do so on its behalf, Member thereby authorizes Company to send and receive data collected from Member during the sign up process and data regarding Member’s use of the Services with any such activated third-party service and represents and warrants to Company that Member has all appropriate right and title to grant such authorization. Member will be solely responsible for any third-party fees related to the third-party services and compliance with any applicable third-party service terms.
5. Intellectual Property.
5.1. Proprietary Rights. Company’s intellectual property, including without limitation the Service, its trademarks and copyrights, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Member except for the limited rights expressly granted in this Agreement.
5.2. Feedback. Member agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Member to claim any interest, ownership or royalty in Company’s intellectual property.
6. Term and Termination.
6.1. Term. These Membership Terms will be effective as of the date Member signs up to use the Services online or through Member’s respective mobile device app store (“Effective Date”) and remain in effect until (a) all paid subscriptions have expired or been terminated or (b) terminated by either party as permitted by this Agreement.
6.2. Termination. Member may terminate its account at any time by providing notice to Company. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
6.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Member will immediately cease using the Service, (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.
6.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Member’s payment obligations under this Agreement.
7. Confidential Information.
7.1. Confidential Information. “Confidential Information” means any information disclosed by Company to Member whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the Company to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by Company to Member pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans are the Confidential Information of Company.
7.2. Non-Disclosure. Member agrees to maintain the confidentiality of Company’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. Member may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Member will be responsible for any improper use or disclosure of the Company’s Confidential Information by any such parties. Except as expressly permitted by this Section, the Member will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
7.3. Exclusions. The Member will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by Member, (b) is or becomes available to the Member from a source other than the Company or another member, provided that such source is not known to the Member to be bound by an obligation of confidentiality to the Company with respect to such information, (c) was in the Member’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the Member without reference to the Confidential Information.
8. Disclaimers. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET MEMBER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE THAT ARISE FROM MEMBER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THESE MEMBERSHIP TERMS, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THESE MEMBERSHIP TERMS OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THESE MEMBERSHIP TERMS WILL BE LIMITED TO $250.00. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THESE MEMBERSHIP TERMS.
10. Indemnification. Member agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Member Content or Member’s use of the Service.
11. Publicity. Member hereby consents to Company identifying Member as a customer by name and logo in Company’s promotional materials, subject to Member’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Member’s request.
12. Assignment. Member may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
13. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Member wishes to provide notice to Company, Member will send notice via email to: email@example.com. Company will send notices to one or more contact(s) on file for Member. Notices from Company, other than for a breach of this Agreement may be provided within the Service.
14. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
15. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
16. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
17. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
18. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
19. Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Member more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
20. FCPA Compliance. Member will comply with the United Stated Foreign Corrupt Practices Act (as amended) and any analogous law or regulations existing in any other country or region, in connection with its performance under this Agreement. Member shall not make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, candidates for government or political office, or representatives of other businesses or persons acting on behalf of the foregoing, that would violate any applicable law, rule or regulation.
21. Export Compliance. Member must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Service including technical data and any Service deliverables provided under this Agreement and Member agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Member is responsible for ensuring that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported directly or indirectly in violation of these laws. Member will indemnify Company for any violation by Member of any applicable export controls or economic sanctions laws and regulations.
22. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Texas, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Texas. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
23. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
24. Counterparts, Entire Agreement and Order of Precedence. These Membership Terms or any Membership Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. These Membership Terms, together with any Membership Agreement state the entire agreement of the parties regarding the subject matter of these Membership Terms, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of a Membership Agreement; and (b) the terms and conditions of these Membership Terms. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.