Last Revised February 1, 2012
Welcome to the Member Agreement. This is a legal agreement between you and Ingenio, Inc. ("Ingenio"). If Ingenio accepts your Member Sign-up Form, you will become a "Member" having access to the Site and Advisor Services only under the policies, terms and conditions below. For convenience, we will refer to the Ingenio.com website, Mail (any email you send from your Member account to another Member), phone services (including services available through 1-888-INGENIO and other numbers that Ingenio maintains for access by Members) and any content therein provided by Ingenio as the "Site." We will refer to any advice, information and other products or services you may receive from other Members (in their role as Advisors) or their listings on the Site as the "Advisor Services." Members who enter into the Member Agreement and those who solicit or receive Advisor Services from other Members will be referred to as "Members." Members who create listings and/or provide Advisor Services will also be referred to as "Advisors."
YOU UNDERSTAND THAT BY CLICKING THE BUTTON TO CONTINUE ON THE REGISTRATION PAGE, BY USING THE SITE AND ANY ADVISOR SERVICES INCLUDING ANY CONTENT PROVIDED THEREIN, BY INITIATING ANY FORM OF COMMUNICATION WITH A MEMBER OR BY POSTING ANY LISTINGS ON THIS SITE, YOU ARE AGREEING TO BE BOUND BY THIS MEMBER AGREEMENT THAT BINDS YOU IN THE SAME WAY THAT A PAPER CONTRACT BINDS YOU. ALL USE OF THE SITE AND ADVISOR SERVICES IS SUBJECT TO THE TERMS OF THIS MEMBER AGREEMENT AND THE POLICIES, TERMS AND INSTRUCTIONS REFERENCED IN THE SITE, WHICH ARE INCORPORATED AND CONSIDERED AS PART OF THESE TERMS. YOU MUST ACCEPT WITHOUT MODIFICATION ALL OF THE TERMS, CONDITIONS, POLICIES AND NOTICES REFERENCED IN THIS MEMBER AGREEMENT IN ORDER TO ACCESS AND USE THE SITE AND ADVISOR SERVICES. IF YOU DO NOT ACCEPT THIS MEMBER AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR ADVISOR SERVICES.
1. Eligibility to use the Site and Advisor Services is limited.
The Site and Advisor Services are available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Without limiting the foregoing, the Site and Advisor Services are not available to temporarily or indefinitely suspended Members.
You shall not use the Site or become a Member if you are located or reside in a country (a) in which use or participation is prohibited by law, decree, regulation, treaty or administrative act or (b) is prohibited from entering into trade relations with the United States or its citizens. Such countries include, without limitation, Afghanistan, Burma, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria and Yugoslavia
2. You use or provide Advisor Services, and consult with Advisors, at your own risk.
(a) Ingenio does not evaluate, provide, produce or control the Advisor Services, or information or exchanges between Members, in any manner. Although Advisor listings may contain verified credentials, the verification services are provided by third parties and Ingenio does not itself provide any advice, information and other products or services, nor verify, guarantee or make any representations regarding the identity or qualifications of any Advisor. Further, Ingenio does not make editorial or managerial decisions concerning content. Nor will Ingenio be held responsible for any Advisor's failure to comply with laws or regulations concerning the content of listings. Instead, Ingenio acts as a technology service that allows Members to share advice, information and other products or services among themselves. Although Ingenio helps its Members connect with each other, it does not monitor the advice exchanged, and, as a result, Ingenio does not control, nor is responsible for, the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said or written by Members, including without limitation any information contained in Advisor listings or made available through this Site. The Site is not intended for use as a payment service to exchange goods. Ingenio is not responsible for use or exchange of any information, files or goods between Members. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Advisor Services, in evaluating the qualifications of, and statements made by, Members in listings or through the Member feedback system, and in disclosing personal information to other Members. Ingenio recommends that you do not disclose personal contact information to Members. If you do, you do so at your own risk. Placement of a Member in a particular subcategory does not mean that they are qualified in any such area or category. Ingenio assumes no responsibility for monitoring any Member feedback or otherwise policing its Members in any way. If you ever believe that a Member has violated the law or is defrauding, threatening, or endangering anyone, Ingenio urges you immediately to contact the police directly for help. In addition Ingenio does not recommend or encourage Members to use the Site or Advisor Services to solicit other Members to meet with them in person.
(c) If you have a dispute with another Member, or suffer any harm arising out of or connected with any Advisor Services, you hereby waive all claims against and release Ingenio (and its subsidiaries, employees, officers, directors, shareholders, suppliers, joint venturers and agents) from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Advisor Services or with regard to such disputes. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under analogous laws, statutes or regulations.
3. Ingenio may modify this Member Agreement, or suspend or terminate your use of the Site, at any time without notice to you.
(a) Ingenio reserves the right in its sole discretion to modify or discontinue the Site, or modify the terms and conditions of your use of the Site, without notice. All modified terms and conditions will be effective thirty (30) days after they are initially posted on the Site. Changes to the Payment Policy are effective after Ingenio provides Advisors with at least fourteen (14) days notice of the changes by emailing Advisors. If any modification is not acceptable to you, your only recourse is to cease using the Site and Advisor Services. By continuing to use the Site or any Advisor Services following any posting of a new Member Agreement or policies on the Site, you accept and agree to be bound by the new Member Agreement or policies.
(b) Without limiting other remedies, Ingenio may at any time suspend or terminate your membership and refuse to provide access to the Site without reason or notice to you. In addition, Ingenio may notify your bank and/or authorities or take any actions it deems appropriate without notice to you, (i) if Ingenio suspects that you have failed to comply with any provision of this Member Agreement or any policies or rules established by Ingenio; (ii) if Ingenio is unable to verify or authenticate any billing or payment information you provide to Ingenio; or (iii) if Ingenio suspects that your actions may be illegal or cause liability, harm or disruption for you, other Members, Ingenio or the Site. You have the right to cancel your membership in Ingenio by filling out the Customer Support form and selecting "Cancel Account" in the subject line. Any suspension, termination or cancellation will not affect your obligation to pay any amounts due to Ingenio.
4. The Site is only a venue for Member listings.
Ingenio acts only as an interface to facilitate communications initiated between Members. As a Member, you are not an employee, agent or contractor of Ingenio, and you shall not represent that you are any of the foregoing. You are solely responsible for all equipment necessary to access and use the Site and Advisor Services, and for reporting and payment of all taxes associated with fees transferred to you by Ingenio.
5. You are solely responsible for all use made of the Site and Advisor Services under your password and Member account information and agree to pay for all Advisor Services purchased using your password and Member account information.
(a) The rates for Advisor Services are as set forth in the applicable Advisor listing. A "conversation" refers to any live call or chat. "Transaction" means any live conversation or recorded call through the Site initiated using your password and Member account information and any Mail response sent to your Mail account in response to a request for advice, information or other products or services from an Advisor who lists a fee for email responses (each a "Paid Mail"). You hereby authorize Ingenio to collect fees for each Transaction by debiting your Member account immediately upon conclusion of each Transaction, regardless of quality or completeness. Fees for live conversations and recorded calls are calculated based on the per-minute rate listed and the duration of the transaction, from time to time may be offered by Ingenio for a single price listed for a bulk package of time. Time for conversations sold in bulk have an expiration date and you will not be entitled to receive a refund for any time remaining after the expiration date for the bulk minutes. Fees for recorded calls are determined based on the listed fee. Fees for Paid Mail are collected immediately upon acceptance of the Paid Mail, regardless of quality or completeness, by the receiving Member and are determined as set forth in the Advisor listings. When purchasing a package of bulk minutes, you authorize Ingenio to authorize your payment method for the entire price of the bulk package prior to connecting your next conversation and to subsequently charge your payment method for the entire cost of the bulk package once your conversation is connected. You authorize Ingenio, directly or through third parties, to make any inquiries we consider necessary to validate your Member account and/or listing information. This may include ordering a credit report and performing other credit checks or otherwise verifying the information you provide.
(b) You agree to maintain the confidentiality of your password and Member account information and to supervise all activities that occur under your Member name, password or Member account, including, but not limited to, any and all usage of the Site by other persons under your Member name and password. You agree that you will not permit, enable, introduce or facilitate (i) non-Members having access to or use of the Site or Advisor Services in any manner without such individuals first becoming Members and (ii) other Members to use a specific Advisor Service at the same time that you are doing so.
(d) Based on Member account use and other factors identified by Ingenio in its sole discretion, Ingenio may require verification of your credit, identity and/or other background information in order for you to continue using the Site. In such event, you agree to provide Ingenio with additional information that may be requested, you consent to Ingenio's disclosure of your personal information to third-party service providers in order to verify your credit, identity and/or other background information, and you authorize Ingenio to obtain a consumer credit report from consumer credit reporting agencies and to verify your identification.
6. In using or accessing the Site or Advisor Services, you agree to comply with the following:
(a) You (as an Advisor providing Speaker Services) are solely responsible for the content provided and the content on listings created under your Member account.
(b) You (as a Member receiving Advisor Services) will not record or otherwise store any live or pre-recorded voice Advisor Services that you receive through the Site. You (as an Advisor providing Advisor Services) will not record or otherwise store any calls you conduct with a Member. Notwithstanding the foregoing, Advisors may provide pre-recorded voice Advisor Services (each, a "Recorded Listing" as described further on the Help page of the Site) to Members in accordance with the Advisor Rules Policy.
(c) You will not use the Site for any purpose that is unlawful, fraudulent or contrary to this Member Agreement and the policies of Ingenio, and you will cooperate fully with Ingenio to investigate any suspected unlawful, fraudulent or improper activity, including but not limited to granting authorized Ingenio representatives access to any password-protected portions of your Member account.
(d) You will not solicit or provide advice, directly or through writings, as to the value of securities or as to the advisability of investing in, purchasing or selling securities or any report or analysis concerning securities.
(e) You will conduct all for-fee communications that you have with other Members only through the Site, and you will not circumvent or attempt to circumvent the Site using third-party payment services.
(f) You will not use the Site in any manner that harasses another Member or could interfere with any other party's use or enjoyment of the Site. You will respect the privacy of others and not use the Site for unwelcome, rude or abusive communications.
(g) You will not attempt to gain unauthorized access to any Member account information, computer systems or networks associated with the Site.
(h) You will not attempt to obtain any information or materials relating to the Site through any means not intentionally made available through the Site.
(i) You will not "frame," "mirror" or otherwise copy any portion of the Site without Ingenio's express written authorization.
(j) You will continue to provide true, accurate and complete payment registration information and will maintain as current and promptly update your personal contact information that you provide to Ingenio, as applicable. You will not use false identities or impersonate any other person or use a name that you are not authorized to use.
(k) You will not use the Site to solicit Members, to promote any product or services other than the information services described in your Member listing which are provided through the Site, to provide any product or services related to, claiming success with or offering information regarding lottery numbers or for purposes of multi-level marketing proposals (for example, offering to help participants "get rich quickly," "lose weight now" or "make money surfing the Web").
(l) You will not transmit "junk mail," "spam," "chain letters" or unsolicited mass distribution of email or bulletin board postings or transmit solicitation for employees, consultants, contractors or for participation on other websites. See our Anti-Spam Policy for further information.
(m) You will not use the Site to promote bonus items, giveaways, random drawings, prizes, contests or games of chance.
(n) You will not take any actions which may undermine the Member referral system, or the Member feedback system used to solicit feedback from Members, including without limitation leaving positive feedback for yourself or other Members, using secondary Member names or third parties or leaving negative feedback if a Member fails to perform some action that is outside the scope of the services described in his or her Member listing.
(o) You will not create obscene, offensive, tasteless, defamatory or hateful Member names or content for listings.
(p) You will adhere to all applicable laws and regulations governing your actions in connection with the Site and (as a Advisor providing Advisor Services) are responsible for meeting the requirements of applicable record keeping laws, including, but not limited to, meeting the requirements of 18 U.S.C. 2257 and related regulations.
(q) You will not encourage or instruct any other individual to do any of the foregoing or to violate any term of the Member Agreement and Ingenio policies.
7. As between the parties, Ingenio shall retain all ownership in the Site including all URLs and any content created or derived from the Site.
Ingenio shall own all right, title and interest in Advisor Services and the Site, including but not limited to, all methods, processes, content, formats, designs, URLs, buttons, phone numbers, toll free numbers and number extensions together with all inventions, patents, copyrights, trademarks and other intellectual property rights and derivative works and improvements pertaining thereto. No copyrights, patent rights, trademarks or licenses are conferred herein by Ingenio, either expressly or by implication.
You understand and agree that (i) You will have no right, title and interest to any of the toll free numbers, phone numbers or extension numbers assigned to You (ii) that Ingenio may change Your toll free number, phone numbers and/or extension number at any time in its sole and absolute discretion (iii) You will have no right, title and interest to any listing name in connection with Ingenio Services and (iv) that phone numbers, toll free numbers, extensions and listing names may be recycled by Ingenio to other users of Ingenio Services if You are not actively using them or Your agreement has been terminated. Further, You hereby grant to Ingenio, its distribution partners, affiliates and similar third party website/media providers of Ingenio's choice the right to use, copy, distribute, display or reference in any media form Your listing information, including without limitation, Your listing name, tags, descriptions, photos, Ingenio buttons, phone numbers and extensions.
8. If you act as an Advisor, you will comply with and be subject to Ingenio's Advisor Rules and Payment Policy.
9. Account Maintenance Fee.
Ingenio may charge an Account Maintenance Fee of two dollars ($2.00) per month for all Member accounts. However if the Member uses the Member account to purchase advice, information or other products or services, then for a period of twelve (12) months from the date of such use, Ingenio may waive the Account Maintenance Fee for all active Member accounts.
10. Ingenio disclaims any warranties or representations regarding the Site and Advisor Services.
THE SITE AND ANY ADVISOR SERVICES OR GOODS OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. INGENIO AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, ADVISOR SERVICES AND ALL COMMUNICATIONS BETWEEN MEMBERS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, Ingenio makes no representation or warranty that the operation of the Site will be error free. Some states do not allow the exclusion of warranty, so the above exclusions may not apply to you.
11. Ingenio's liability for your access to and use of the Site and Advisor Services is limited and you are responsible for your use of the Site.
UNDER NO CIRCUMSTANCES WILL INGENIO OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE OR ADVISOR SERVICES, WHETHER OR NOT INGENIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INGENIO AND ITS SUPPLIERS' AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (a) THE TOTAL FEES ACTUALLY EARNED BY INGENIO FROM YOU (AFTER PAYMENTS TO ADVISORS AND OTHER THIRD PARTIES) IN THE PREVIOUS TWELVE (12) MONTHS, AND (b) ONE HUNDRED DOLLARS ($100). INGENIO WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to you.
YOU FURTHER AGREE TO HOLD HARMLESS, DEFEND AND INDEMNIFY INGENIO, AND ITS EMPLOYEES, SUBSIDIARIES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SITE OR PROVISION OF ADVISOR SERVICES, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS' FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, FORESEEABLE AND UNFORSEEABLE, DISCLOSED AND UNDISCLOSED. In each case, Ingenio will provide you with written notice of such claim, suit or action. Ingenio shall have the right to withhold payments to you to offset liabilities and expenses covered hereunder.
12. Ingenio prohibits the unauthorized use of copyrighted materials and trademarks.
YOU SHALL NOT USE THE SITE OR ITS ADVISOR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS, TRADEMARKS, OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Ingenio has adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of Members who infringe or are believed to be infringing the rights of copyright holders or of holders of federally registered trademarks (and unregistered trademarks in certain circumstances).
Ingenio Copyright and Trademark Related Policy:
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Ingenio's Copyright Agent listed below with the following information required under 17 U.S.C. § 512:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Ingenio's Copyright Agent for notice of claims of copyright infringement on or regarding this Site can be reached as follows:
Phone: (415) 248-4000
Upon receipt of notice as described above, Ingenio will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Site, and/or termination of the Member's account.
If you believe that your federally registered trademark is being used by an Advisor or Member in a way that constitutes trademark infringement, please provide Ingenio's Trademark Agent with the following information:
(a) A physical or electronic signature of a person authorized to act on behalf of the registered trademark owner;
Upon receipt of notice as described above, Ingenio will confirm the existence of the federal registration of the trademark in question and will take whatever action, in its sole discretion, it deems appropriate, including following confirmation of the existence of the federal registration, removal of the challenged use from the Site, with notice to the Advisor or Member in question, if, in Ingenio's sole discretion, Ingenio concludes that the mark or name is identical to the registered mark and is used in connection with goods and/or services covered by the trademark owner's federal registration, unless, prior to such removal, the Advisor or Member in question demonstrates that it has its own trademark registration or approved trademark application covering the use in question.
Notwithstanding the foregoing, Ingenio will comply as appropriate with the terms of any court order relating to the behavior of the challenged party identified in such court order.
Ingenio's Trademark Agent for notice of claims of trademark infringement on or regarding this Site can be reached as follows:
Phone: (415) 248-4000
13. Links to Other Websites.
The Site may provide links to websites other than Ingenio. Such links are provided for reference only, and Ingenio neither controls such websites nor endorses any of the material on any such websites or any association with their operators.
Any notice or other communication to be given hereunder will be in writing and given (a) by Ingenio via facsimile, receipt confirmed, United States mail or email (in each case to the number or address that you provide), and (b) by you via email to firstname.lastname@example.org. The date of receipt shall be deemed the date on which such notice is transmitted in the case of facsimile or email, and five (5) days after receipt by the U.S. Postal Service in the case of United States mail.
15. No Assignment.
You shall not assign this Member Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Ingenio. Any such purported assignment or delegation by you without the appropriate prior written consent of Ingenio will be null and void and of no force or effect, unless otherwise expressly consented to by Ingenio at its sole and absolute discretion. Ingenio may assign this Agreement or any rights hereunder without your consent.
16. Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Member Agreement each party shall be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.
Any controversy or claim arising out of or relating to this Member Agreement, the breach thereof or its subject matter shall be settled by binding arbitration in accordance with the consumer commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary, Ingenio, the Member, or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
18. You consent to the use of (a) electronic means to complete this Member Agreement, to use the Site and Advisor Services and to provide you with any notices given pursuant to this Member Agreement, and (b) electronic records to store information related to this Member Agreement or your use of the Site.
You can request a copy in paper form of this Member Agreement and any other records relating to this Member Agreement or your use of the Site by sending a written request to: Ingenio, 182 Howard Street #826, San Francisco, CA 94105. You understand and agree that this Member Agreement and any notices given pursuant to this Member Agreement are enforceable in electronic format.
If any provision of this Member Agreement is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. Ingenio's failure to act with respect to a breach by you or others does not waive Ingenio's right to act with respect to subsequent or similar breaches. The failure of Ingenio to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. This Member Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties acknowledge that this Member Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Member Agreement. You agree that this Member Agreement and the Member rules and restrictions and policies contained herein, and Ingenio's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Ingenio. This Member Agreement together with the rules and policies of Ingenio constitutes the entire agreement between Ingenio and you with respect to the subject matter hereof.
© 2013 YP Intellectual Property LLC. All rights reserved. Trademark Notice
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