GO EXPLORE KC MEMBERSHIP AGREEMENT
Revised June 1, 2020
This Go Explore KC Membership Agreement (this “Agreement”) is entered into by and between COMPANY and CUSTOMER in connection with the Go Explore KC membership Services.
- “Authorized User(s)” means the individual(s) authorized to access and use the Services pursuant to the terms of CUSTOMER’S Order Form.
- “Content” means any and all materials published, offered, entered into, uploaded to, posted, transmitted, or displayed on the Go Explore KC website, including, without limitation, any hyperlink to other websites, unless such materials are credited to another person as the provider. These materials may include, but are not limited to, documents, files, electronic media, calendar dates, discussions, tasks, meetings, newsletters, articles, photographs, art work, images, illustrations, audio clips, video clips, articles, or other visual, written or audible data, or other information or materials.
- “COMPANY” means MAC Digital Media, LLC operating as Go Explore KC, a Kansas limited liability company.
- “CUSTOMER” means the individual or business entity that purchased the Go Explore KC membership Services and is a party to the Order Form on the Go Explore KC website.
- “Order Form” means any written or electronic document or registration form for the purchase of a Go Explore KC membership executed by CUSTOMER and COMPANY specifying the Services and Content to be delivered to CUSTOMER or its Authorized User(s).
- “Services” means those certain services offered by COMPANY and purchased by CUSTOMER pursuant to the CUSTOMER’S Order Form, including, but not limited to, (i) a one (1) year membership to Go Explore KC or a monthly membership to Go Explore KC; (ii) access to the Go Explore KC website, including all Content published or offered therein.
- Permitted Use. Conditioned upon CUSTOMERS compliance with the terms of this Agreement, including the payment of all membership fees hereunder, COMPANY grants to CUSTOMER, or its Authorized User(s), a personal, limited, revocable, non-exclusive, non-transferable and non-sublicensable license to use, access, view, print and/or store the Services and/or Content, as applicable, pursuant to the terms of this Agreement. Except as expressly permitted by COMPANY in writing, CUSTOMER and, if applicable, its Authorized User(s), shall not, directly, indirectly, alone, or with another party, (i) make commercial use of the Service, (ii) distribute, copy, scrape, download, create derivative works or make any other use of the Services or any portion thereof, or (iii) share, sell, license, transfer, or distribute the Services to or with any third parties.
- Authorized Users. CUSTOMER shall ensure that only those Authorized User(s) described in the Order Form will have access to and use the Services. CUSTOMER and, if applicable, its Authorized User(s), shall abide by and fully comply with all applicable provisions of this Agreement and with all federal and state laws, as applicable. Access to and use of the Services by any other third party is not permitted. In regards to any Authorized User(s), CUSTOMER is responsible for providing complete and accurate information to COMPANY on the Order Form and notifying COMPANY of any changes to such information. Further, CUSTOMER shall be solely responsible for maintaining the security of all user names and passwords, if any, granted to it by COMPANY. COMPANY reserves the right at any time to terminate or suspend CUSTOMERS use of the Services, including access to the Go Explore KC website, if COMPANY reasonably believes that such termination or suspension is necessary to preserve the security and integrity of its Services and Content.
- CUSTOMER Content. To the extent CUSTOMER is permitted to post any “CUSTOMER Content” to the Go Explore KC website, CUSTOMER represents and warrants that: (i) CUSTOMER will not upload to, or distribute or otherwise publish on the Go Explore KC website any defamatory, derogatory, obscene, pornographic, abusive, discriminatory, threatening or otherwise inappropriate or unlawful material; and (ii) no CUSTOMER Content submitted by CUSTOMER, or its Authorized User(s) will violate, plagiarize or infringe upon the rights of a third party. CUSTOMER further agrees and acknowledges that by submitting or posting any CUSTOMER Content to the Go Explore KC website that: (i) CUSTOMER is responsible for all of its CUSTOMER Content and that COMPANY is not liable for the same; (ii) CUSTOMER consents to the display of any CUSTOMER Content on the COMPANY’s Go Explore KC website and to COMPANY’s use of the same for any related online and offline promotional purposes; (iii) COMPANY, in its sole discretion, may edit, remove, modify, publish, transmit and/or display such CUSTOMER Content to other customers or users on its website and that CUSTOMER hereby waives any rights CUSTOMER may have in having the material altered.
- Privacy. COMPANY will use industry standard technical and organizational security measures in connection with the storage, processing and transfer of any CUSTOMER Data that are designed to protect the integrity of CUSTOMER Data and to guard against the unauthorized or unlawful access to, use of, or processing of such CUSTOMER Data. Notwithstanding the foregoing, CUSTOMER hereby consents to and authorizes COMPANY the right to use such CUSTOMER Data to promote and market future COMPANY Services to CUSTOMER. For purposes hereof, the term “CUSTOMER Data” shall mean any account and contact information, structured data, or any other files or attachments submitted to COMPANY by CUSTOMER in connection with the registration, use or access to the Services by CUSTOMER. COMPANY will use reasonable efforts, consistent with standard industry practices, to ensure that the Service and Content posted on the Go Explore KC website does not contain any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service or the operation of CUSTOMER’s computer and access to the Service.
- Fees and Payment. CUSTOMER shall pay COMPANY, in advance, all the applicable fees and charges (including taxes, if required by law) for the Services when due as set forth on the CUSTOMER Order Form and, if such fees are being paid via credit card or other electronic means, CUSTOMER authorizes COMPANY to charge such fees using CUSTOMER’s selected payment method. All payments once made by CUSTOMER are non-refundable, except as required by law or as explicitly set forth in this Agreement. By default, customer accounts are set to auto-renew and CUSTOMER agrees and acknowledges that COMPANY may automatically charge CUSTOMER for such renewal on or after the renewal date associated with CUSTOMER’s account unless CUSTOMER has cancelled the Service prior to its renewal date. COMPANY may revise fee rates for the Service from time to time and will provide CUSTOMER with such notice of any change in fees at least thirty (30) days prior to CUSTOMER’s Service renewal date. CUSTOMER is responsible for providing complete and accurate billing information to COMPANY. If fees become past due or if in the process of any renewal of this Agreement, CUSTOMER’s payment is returned or the credit card information is declined, then COMPANY may suspend or terminate CUSTOMER’s access to and use of the Service until full payment is made. In the event it becomes necessary to employ the service of a collection service and/or attorney to collect any sums due from CUSTOMER, CUSTOMER agrees to pay for all costs of collection, including reasonable attorney fees, through appeal.
- Term and Termination. COMPANY will provide the Services to CUSTOMER for the term as set forth in the applicable Order Form and any renewals thereof (initial term and any renewal terms collectively, the “Term”). CUSTOMER or COMPANY (in its sole discretion) may cancel this membership Agreement (upon 30 days written notice) at any time prior to the expiration of the then existing yearly Term, provided, however, in the event CUSTOMER terminates this Agreement for any reason other than a Qualifying Event (as defined herein), CUSTOMER shall remain liable for all membership fees through the end of the month that this Agreement is terminated and pay to COMPANY, as of the termination date, a cancellation fee equal to 30% of the then current annual membership fee (“Cancellation Fee”). Upon termination of this Agreement by CUSTOMER due to a Qualifying Event, CUSTOMER shall not be liable for a Cancellation Fee and shall receive a pro rata refund of any prepaid membership fees as calculated for the unused portion of the Term. For purposes herein, a “Qualifying Event” shall mean: (a) COMPANY is in material breach of this Agreement and fails to cure such breach within ten (10) days following receipt of written notice from CUSTOMER; (b) COMPANY ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) COMPANY cancels this Agreement for any reason other than: (i) as permitted under the terms of this Agreement, (ii) CUSTOMER’s material breach of this Agreement and failure to cure the same within three (3) business days, or (iii) CUSTOMER has engaged in activity that violates applicable law or any provision of this Agreement. Upon termination of this Agreement: (i) the rights granted to CUSTOMER pursuant to this Agreement (except as specifically set forth in this section) will cease immediately; and (ii) CUSTOMER shall immediately cease to use or access the Services hereunder. Notwithstanding the forgoing, the following sections will survive expiration or termination of this Agreement: Sections 5, 8, 9 and 10.
- Proprietary Rights. CUSTOMER agrees and acknowledges that: (i) COMPANY owns and controls all Services provided and any Content published on the Go Explore KC web site and membership portal, unless such Content or materials are credited to another person as the provider; (ii) The Services and Content were developed, compiled, prepared, revised, selected and arranged by COMPANY and others (including certain information sources) through the application of methods and standards of judgment developed and applied through the expenditure of substantial valuable time, effort and money and constitute valuable intellectual property and trade secrets of the COMPANY and such other providers, if any; (iii) CUSTOMER has no ownership rights in or to the Services or Content and that no such rights are granted under this Agreement; (iv) CUSTOMER will take any and all necessary action to protect the proprietary rights of the COMPANY and other providers, if any, during and after the Term of this Agreement; (v) CUSTOMER shall honor and comply with all written requests made by COMPANY to protect its contractual, statutory and/or common law proprietary rights in the Services and/or Content with the same degree of care used to protect its own proprietary rights, which in no event shall be less than reasonable efforts; (vi) CUSTOMER shall notify COMPANY in writing promptly upon becoming aware of any claim that the Services or Content infringe upon any patent, copyright, trademark or other contractual, statutory or common law proprietary rights; (vii) COMPANY shall retain all rights to all data comprising or included in the Services and/or Content; (viii) the granting of this license does not affect the ownership of any data or materials, whether tangible or intangible; and (ix) All COMPANY information, data, software, functionality and Services are proprietary and are protected by copyright laws, international copyright treaties and other intellectual property laws and treaties; and (x) CUSTOMER shall not use any of COMPANY’s or its affiliates’ trademarks, trade names or service marks in any manner, including for any marketing materials, that creates the impression that such names and marks belong to or are identified with CUSTOMER or that CUSTOMER is associated with or licensed by COMPANY or its affiliates to use such names or marks, and CUSTOMER acknowledges that it has no ownership rights in or to any of these names or marks.
- Limitations on Liability. ALL SERVICES ARE PROVIDED TO CUSTOMER “AS IS.” COMPANY, ITS AFFILIATED COMPANIES AND ANY OF ITS SUPPLIERS OR VENDERS EXPRESSLY AND IMPLICITLY DISCLAIM ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS OR CLAIM OF ANY KIND RELATING IN ANY WAY TO THE USE OF THE SERVICES AND ANY CONTENT CONTAINED THEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY, ITS AFFILIATED COMPANIES AND ANY OF ITS SUPPLIERS OR VENDERS, neither warrant nor represent that the services AND ANY CONTENT or information will enable CUSTOMER to achieve any particular result or outcome, legal, economic, educational, or otherwise. CUSTOMER AGREES TO INDEMNIFY AND HOLD COMPANY, ITS AFFILIATED COMPANIES AND ITS VENDORS OR SUPPLIERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO ITS: (i) USE OF, OR RELIANCE ON, THE SERVICES OR ANY CONTENT CONTAINED THEREIN; OR (ii) CUSTOMERS BREACH OF THIS AGREEMENT OR ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR OBLIGATIONS UNDER THIS AGREEMENT. IN NO EVENT SHALL COMPANY, ITS AFFILIATED COMPANIES OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER, ANY USER, OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, lost revenues, lost profits, or loss of GOODWILL IN ANY WAY RELATING TO THE USE OF, OR RELIANCE ON, THE SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING ANY ACTION TAKEN BY COMPANY AS PART OF AN INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT, OR AS A RESULT OF A VIOLATION OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE SUSPENSION OR TERMINATION OF CUSTOMERS ACCESS OR USE OF THE SERVICES. IF THE FOREGOING LIMITATIONS OR DISCLAIMERS ARE HELD TO BE UNENFORCEABLE, CUSTOMER AGREES AND ACKNOWLEDGES THAT COMPANY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TO CUSTOMER, ANY USER, OR ANY OTHER PERSON SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF MEMBERSHIP FEES PAID BY CUSTOMER FOR ANY SERVICES PURSUANT TO ANY APPLICABLE ORDER FORM OR WEB ORDER ACKNOWLEDGMENT. IN NO EVENT MAY CUSTOMER OR ANY USER BRING ANY CLAIM OR CAUSE OF ACTION AGAINST COMPANY OR ITS AFFILIATED COMPANIES MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
- General Provisions.
- Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of principal and agent between the parties and CUSTOMER shall have no authority to buy or to make any representation or warranty on COMPANY’s behalf.
- Neither this Agreement nor any part or portion may be assigned, sub-licensed or otherwise transferred by CUSTOMER without COMPANY’s prior written consent.
- COMPANY may without the prior written consent of CUSTOMER assign any benefit or transfer, delegate or sub-contract any of its duties and obligations under this Agreement.
- COMPANY may without the prior written consent of CUSTOMER share user-identifiable data with suppliers offering discounts and savings; this is to ensure the efficacy of COMPANY marketing materials and allow the COMPANY to negotiate better terms with suppliers on behalf of CUSTOMER.
- Each provision of this Agreement will be deemed to be effective and valid under applicable law, but if any provision of this Agreement is deemed to be invalid, void, or unenforceable under any law, rule, administrative order or judicial decision, that determination will not affect the validity of the remaining provisions of this Agreement.
- Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
- Use of the Services implies acceptance of this Agreement by CUSTOMER and, if applicable, its Authorized User(s), even in the absence of a written Order Form or other agreement with COMPANY.
- COMPANY may amend this Agreement at any time by posting an amended Agreement on the THINK REALTY website. Such Amended Agreement will become effective immediately upon posting. CUSTOMER’s and, if applicable, its Authorized User(s) use of the Services after the Amended Agreement becomes effective will constitute acceptance of the Amended Agreement.
- For inquiries, CUSTOMER should contact COMPANY at P.O. Box 25742, Overland Park, Kansas 66225, Telephone: (913) 433-3347, or any successor operating agent or other party as specified by COMPANY from time to time.
- CUSTOMER recognizes that (i) COMPANY, (ii) its affiliated companies or subsidiaries, (iii) the respective partners and suppliers of COMPANY and its affiliated companies or subsidiaries, and (iv) the respective affiliates of the entities covered in subparagraph (iii) ((iii) and (iv) together, the “Covered Entities”), each have rights with respect to the Services, including but not limited to the Content, provided by COMPANY and its affiliated companies or subsidiaries by reason of CUSTOMER’s and, if applicable, its Authorized User’s(s’) use of the Services. COMPANY’s benefits under this Agreement shall be for the benefit of COMPANY, its affiliated companies and subsidiaries, the Covered Entities and the respective affiliates, successors, assigns, officers, directors, employees and representatives of the Covered Entities.
- CUSTOMER further recognizes that certain Services or Content provided pursuant to this Agreement, from time to time, may include opinions and/or information from outside third parties that are based on sources believed to be reliable by COMPANY, however, COMPANY cannot and does not guarantee the adequacy, accuracy, or completeness of any such third party information or opinions, or the suitability, profitability or potential value of any such third party informational source.
- This Agreement and the legal relationship among the parties hereto shall be governed by and construed in accordance with the laws of Kansas regardless of the laws that might otherwise govern under applicable choice-of-law principles. The parties hereto agree to submit to the jurisdiction of each of the federal and state courts located in Johnson County, Kansas in connection with any matters arising out of this Agreement and waive any jurisdictional, venue, or inconvenient forum objections to such courts or analogous doctrines in connection with any action.
- By using the Services, CUSTOMER affirms that he or she is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.