Applicable for The Cultivist Inc. in the USA and Cultivist Ltd. for the Rest of the World.
The Cultivist, Inc. Member agreements
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
This Member Agreement (the “Agreement”) is a legal agreement between you (“you” or “Member”) and The Cultivist, Inc. (“The Cultivist”). This Agreement specifies the terms under which Member may access and use our Services and Platform. Please read this Agreement carefully, because by accessing the Platform, using the Services, clicking “I Agree,” or otherwise manifesting assent to this Agreement, you agree to be bound by the terms of this Agreement and the terms and conditions of our Privacy Policy, which is hereby incorporated into this Agreement by reference. If you do not agree to (or cannot comply with) all of the terms of this Agreement, do not access the Platform or use the Services.
The definitions for some of the defined terms used in this Agreement are set forth in Section 17. The definitions for other defined terms are set forth elsewhere in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Member and The Cultivist (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
PERMISSION TO USE THE PLATFORM
Subject to the terms and conditions of this Agreement, The Cultivist hereby grants you the right to access and use the Platform during the Term. The Cultivist reserves the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability to you. In addition, The Cultivist may deactivate your account at any time if it determines that you have violated this Agreement.
COMMUNITY GUIDELINES
The Cultivist’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Platform or our Services, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
• When visiting any Museum or The Cultivist event: (i) you will present your Membership Card upon request; and (ii) you and your guest will comply with the policies of the applicable venue;
• You will comply with all applicable laws in your use of the Platform and will not use the Platform for any unlawful purpose;
• You will not upload, post, e-mail, transmit, or otherwise make available any content (collectively, “Member Content”) that:
o infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
• You will not “stalk,” threaten, or otherwise harass another person or Museum. Members must adhere to our code of conduct and any behavior deemed inappropriate reported to the team will be reviewed and action taken.
• You will not spam or use the Platform to engage in any commercial activities;
• If you post any Member Content, you will stay on topic;
• You will not access or use the Platform to collect any market research for a competing business;
• You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
• You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
• You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Platform;
• You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
• You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
• You will let us know about inappropriate content of which you become aware. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform, without notice, and to remove any content that does not adhere to these Community Guidelines.
SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS; MEMBERSHIP CARD
3.1 During the registration process for the Platform, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one member. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. The Cultivist will not be liable for any loss or damage caused by any unauthorized use of your account.
3.2 Only you can use your Membership Card. We reserve the right to suspend members who distribute their Membership Card to non-members. We reserve the right to recuperate losses and damages from any member who distributes their Membership Card to non-members with the intention of providing museum access to others without the member present.
DOWNLOADING THE APP FROM THE APP STORE
The following terms apply when you download the App from Apple’s App Store. These terms are in addition to all other terms contained in this Agreement.
• You acknowledge and agree that (i) this Agreement is concluded between you and The Cultivist only, and not Apple; and (ii) The Cultivist, not Apple, is solely responsible for the App and content thereof. Your use of the App must comply with the App Store Terms of Service.
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
• In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between The Cultivist and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of The Cultivist.
• You acknowledge that, as between The Cultivist and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• You acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between The Cultivist and Apple, The Cultivist, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
• You represent and warrant that: (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
• You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App against you as a third-party beneficiary thereof.
• Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App.
FEES AND PAYMENT
5.1 As consideration for your membership in The Cultivist, you shall pay The Cultivist its then-current membership fee (the “Membership Fee”) and any applicable taxes for the applicable subscription period you select. The Cultivist may modify the Membership Fees at any time on written notice to you (including via e-mail or through the functionality of the Platform), and any such modification shall go into effect for the following Renewal Term (as defined below). All Membership Fees are non-refundable, unless decided otherwise by The Cultivist. Discontinued members who wish to reapply for membership again in the future may be charged an administrative rejoining fee.
5.2 The Cultivist, or its third-party payment processor, shall authorize your credit card, bank account, or other approved payment facility you provided during the registration process for the full payment of the Membership Fees and any applicable taxes in advance of the applicable subscription period, and you hereby consent to the same. If the mailing address you provided us is in the United States, all payments will be charged and made in U.S. dollars. If the mailing address you provided us is outside the United States or any of its possessions or territories, all payments will be charged and made in yUSD. If the mailing address you provided is in the United Kingdom, all Membership Fees will be charged in GBP and VAT will apply. If the mailing address you provided is in the European Union, all Membership Fees will be charged in Euros and VAT will apply. If the mailing address you provided is anywhere else, all Membership Fees will be charged in USD.
5.3 You must provide current, complete, and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number, and expiration date) to keep your account current, complete, and accurate, and you must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Sign-In Name or Password). You hereby authorize The Cultivist to obtain or determine updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you to the same extent as the expired card. If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details.
INTELLECTUAL PROPERTY
6.1 The Cultivist owns and shall own all right, title, and interest in and to the Platform, including, without limitation, all content (excluding your Member Content), source code, object code, operating instructions, and interfaces developed for or relating to the Platform, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “The Cultivist Intellectual Property”). You will have no rights with respect to The Cultivist Intellectual Property other than those expressly granted hereunder.
6.2 The Platform provides you the ability to post and upload Member Content. You expressly acknowledge and agree that once you submit your Member Content for inclusion into the Platform, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Member Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT THE CULTIVIST, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR MEMBER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM AND YOU WILL INDEMNIFY US IN RESPECT OF ANY LOSS, LIABILITY, CLAIM, OR DAMAGE SUFFERED OR INCURRED BY US IN CONNECTION WITH YOUR MEMBER CONTENT.
6.3 You retain all copyrights and other intellectual property rights in and to your own Member Content. You do, however, hereby grant us and our sublicensees a perpetual, non-exclusive, royalty-free, freely sublicensable license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Member Content and all intellectual property and moral rights therein via the Platform throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. During the Term, You also grant us and our sublicensees the right, but not the obligation, to use your Sign-In Name, name, likeness, and photograph to advertise and promote the Services, the Platform, and/or The Cultivist. Without limiting the foregoing, you acknowledge and agree that uses of your Member Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Member Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
6.4 If you submit Member Content to us, each such submission constitutes a representation and warranty to The Cultivist that such Member Content is your original creation (or that you otherwise have the right to provide the Member Content), that you have the rights necessary to grant the license to the Member Content under Section 6.3 and that it and its use by The Cultivist and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
TERM; TERMINATION; AND AUTOMATIC RENEWALS
8.1 The term of this Agreement shall commence on the Effective Date and continue for the length of the membership you selected during registration (the “Initial Membership Term”), after which time the Initial Membership Term shall automatically renew for successive periods of equal length to the Initial Membership Term (each, a “Renewal Term” and collectively with the Initial Membership Term, the “Term”) unless either Party provides written notice to the other Party of its desire for the Term not to renew prior to the commencement of the applicable Renewal Term.
8.2 Either Party may terminate this Agreement upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such period.
8.3 IT IS IMPORTANT TO NOTE THAT WHEN YOU SIGN UP FOR A MEMBERSHIP, YOUR MEMBERSHIP WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL IT. YOU MAY CANCEL AT ANY TIME BY CONTACTING OUR MEMBERSHIP TEAM AT MEMBERSHIP.ADMIN@THECULTIVIST.COM, AND THE CANCELLATION WILL TAKE EFFECT AT THE EXPIRATION OF THE THEN-CURRENT TERM. BEFORE THE END OF SUCH TERM, WE WILL SEND YOU A REMINDER E-MAIL ABOUT THE MEMBERSHIP’S AUTOMATIC RENEWAL. AGAIN, IF YOU DO NOT CANCEL, THEN YOUR MEMBERSHIP WILL AUTOMATICALLY RENEW UNDER THE SAME TERMS.
8.4 Terminated memberships may be reinstated in the future if you choose to re-apply for membership again. You may be subject to a rejoining fee of $250/£185/€185 if your re-application is approved. This fee will be charged in the same currency as your new membership fee.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
9.1 Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; and (ii) it shall comply with all applicable laws, rules, and regulations in the performance of its obligations and exercise of its rights under this Agreement.
9.2 In addition to the representations and warranties set forth in Section 9.1, you represent and warrant that: (i) you are at least eighteen (18) years old; (ii) you own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your Member Content and any other works that you incorporate into your Member Content, and all the rights necessary to grant the licenses and permissions you grant hereunder; (iii) use of your Member Content in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, public