This Member Contract (“Agreement”) constitutes a legally binding agreement between Backpack Forever, LLC (“Backpack Forever,” “Company,” “We,” “Us,” or “Our”), a Texas limited liability company, and you (“You,” “Your,” or “Member”). You expressly acknowledge that You have read this Member Contract and agree to comply with and be bound by all of its terms and conditions as a requirement of creating and maintaining an account with Backpack Forever. If at any time You do not agree with any part of this Member Contract, You agree that Your sole remedy is to cease any further use of backpackforever.com and to terminate Your account, in which case You agree that any activity that transpired prior to the date of such termination shall be governed in full by this Member Contract and all incorporated documents which, together, constitute the Member’s agreement with Backpack Forever.
By checking the box stating that You have read and agree to the terms and conditions of this Agreement as part of Your registration with backpackforever.com, You agree and consent to be bound by the terms and conditions of this Agreement for as long as You are a member of backpackforever.com. You also represent by checking the box that you are 18 years or older and capable of entering into this Agreement.
License to Use
Subject to the terms and conditions of this Agreement, Backpack Forever hereby grants to You a non-exclusive, revocable, right and license to use Backpack Forever’s proprietary online platform made available at backpackforever.com (the “Site”).
Your Contributions to the Site
You license us the non-exclusive, perpetual, transferrable, irrevocable, worldwide, royalty-free rights to display, reproduce, distribute and redistribute, publish, communicate, translate, create derivative works, or otherwise use content You upload to the Site or submit to Us (Your “Content”) on the Site and in Our other products. This includes the right to sublicense to others at Our discretion. You acknowledge and agree Your Content is Your own work, original, non-confidential and non-proprietary.
You consent to Your Content being altered, edited, modified or adapted for such uses or to ensure that Your Content does not infringe these terms or breach the law as We see fit. You consent to use of Your real name. When it is not possible to attribute You as the author, You consent to Us not attributing authorship to You.
You further grant Backpack Forever the right to purse at law any person (or entity) who violates, in breach of this Agreement, Your rights, or rights We have, in Your Content.
You must ensure that Your Content does not contain anything that breaches any laws or rights, including:
- defaming any person;
- breaching any intellectual property rights or proprietary right of any party; or
If You would like to include someone else’s copyright material, trademark, or other intellectual property in Your Content, You must first obtain and keep their written permission.
We will not tolerate Content that includes profanity, obscenity, pornography, racist comments, threats, harassment, or promotes sex, drugs, or violence, and You expressly agree that You will not post, upload to, transmit, distribute, store, create or otherwise publish through the Site any Content that impersonates any person or entity or otherwise misrepresents Your affiliation with a person or entity, including Backpack Forever.
Although Backpack Forever has no obligation to screen, edit or monitor any Content posted to or distributed through the Site, We reserve the right, and have absolute discretion, to delete, move or edit Content without notice that We deem abusive, defamatory, obscene, unacceptable, or in violation of copyright, trademark, or other laws, including Content that would constitute, encourage or provide instructions for a criminal offense. You are solely responsible for creating backup copies of and replacing any Content You post or store on the Site at Your sole cost and expense.
Representations and Warranties
You represent, acknowledge, and warrant that:
- You will not, directly or indirectly: (i) invade the right of privacy or publicity of any person; (ii) contain any libelous, obscene, indecent or otherwise unlawful material; (iii) infringe any intellectual property rights or other proprietary rights in any jurisdiction or otherwise contravene any rights of any person; or (iv) violate any Law (defined below).
- You shall not: (i) frame, copy or mirror any content forming part of the services offered at backpackforever.com (“Services”); (ii) reverse engineer the Backpack Forever Services or otherwise attempt to derive its source materials; (iii) access the Backpack Forever Services for the purpose of (a) building a competitive product or service, or (b) copy any features, functions or graphics of the Backpack Forever Services; (iv) interfere with or disrupt the Backpack Forever Services or any data contained therein; (v) attempt to gain unauthorized access to the Backpack Forever Services, its related systems, or networks; or (vi) use the Backpack Forever Services for any unlawful purpose or in violation of the rights of any person.
Backpack Forever may at its sole discretion suspend or terminate Your account without notice if the Company suspects or has reason to believe or a person otherwise claims that You have been involved in any of the following:
- illegal activity which violates any international, federal, state, local or foreign constitution, treaty, law, statute, ordinance, rule, code, regulation, interpretation, directive, policy, order, writ, decree, injunction, judgment, opinion, ruling, decision, permit, license, registration and other operating authorizations, or any other requirement of, any federal, state, local or foreign government; legislature, governmental or administrative agency or commission, any self-regulatory association or authority, any court or other tribunal of competent jurisdiction, or any other municipality, governmental authority or instrumentality of quasi-governmental entity or authority, whether currently in effect or hereafter enacted or amended (“Law”);
- use of Our Services to attain personal benefits through fraudulent means;
- use of our Services for a political or commercial purpose, including publishing material containing any solicitation of funds, advertising or solicitation of goods or services;
- repeatedly posting off-topic reviews or “spamming”;
- for any other reason determined by the Company.
Any decision to suspend or terminate Your account is final and will not be subject to appeal.
Backpack Forever’s Intellectual Property (IP) Rights
- You shall not use Backpack Forever’s name, trademarks, service marks, or any other IP or proprietary right of Backpack Forever in any manner whatsoever to suggest association or affiliation with or endorsement by Backpack Forever without the express prior written consent of Backpack Forever, which Backpack Forever may withhold at its sole discretion. Promotional use of images without the express, written consent of Backpack Forever is prohibited.
- Subject to the following terms and conditions, Backpack Forever grants You a limited, revocable license to use Backpack Forever’s name: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text, or (iii) as a sub domain or second or third level domain name identifier.
- Backpack Forever may revoke the foregoing license and/or provide restrictions upon Your use of Backpack Forever’s name, including requiring the use of such disclaimers as Backpack Forever may provide, in connection with Your use of Backpack Forever’s name, at any time and for any reason in Backpack Forever’s sole discretion.
- Failure to comply with any restrictions imposed by Backpack Forever upon Your use of Backpack Forever’s name or failure by You to immediately cease all use of Backpack Forever’s name if so instructed by Backpack Forever shall constitute (1) a breach of the limited license set forth in this Section; and (2) a breach of this Agreement. In such case, Backpack Forever reserves the right to pursue any and all remedies available to it at law or in equity.
- Notwithstanding the limited revocable license set forth this Section, as between the parties, Backpack Forever shall be and remain the sole owner of all right, title, and interest in and to the Backpack Forever Services (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed, or controlled by Backpack Forever, and You hereby assign to Backpack Forever all right, title, and interest You may be deemed to have therein. Subject to the limited rights expressly granted in this Agreement, Backpack Forever reserves all right, title, and interest in and to the Backpack Forever Services (including, without limitation, all IP rights therein) and any other IP rights, materials or other properties owned, licensed or controlled by Backpack Forever. All rights not specifically granted to You under this Agreement are expressly reserved by Backpack Forever.
Liability and Disclaimer
- own all of the work You upload to the Site or submit to us to be uploaded or have the permission from the owner of the content to upload it;
- be able to grant Backpack Forever the rights under this Member Contract; and
- obtain the consent of the owner of any work incorporated into the content You upload on the Site or submit to Us to be uploaded because serious legal consequences can happen to You, Backpack Forever, and other parties if You do not (e.g., legal action for infringement).
You agree to indemnify Backpack Forever against all losses, costs, and expenses directly incurred by Backpack Forever, in connection with a demand, allegation, action, proceeding, or claim that You do not own all of Your work, You are not able to grant Backpack Forever rights, or You do not have the consent of an owner to incorporate their work into Yours. You agree that Backpack Forever must take reasonable steps to mitigate its losses.
To the fullest extent permitted by Law, You agree that:
- In the event that a Party commences any action or files any claim whatsoever (“Claim”) in connection with Your use of the Backpack Forever Services, You shall defend, indemnify, and hold harmless Backpack Forever, its related parties and affiliates, owners, officers, directors, managers, employees, representatives, agents, licensors, attorneys, heirs, successors, and assigns (the “Backpack Forever Party” or “Backpack Forever Parties”), from and against any and all losses, expenses, damages, liabilities, claims, or costs (including, without limitation, the costs of investigation and defense and reasonable attorneys’ fees and litigation and court costs) (“Losses”) incurred by any Backpack Forever Party as a result of such Claim, regardless of whether such Losses are direct, incidental, special, punitive, exemplary, consequential, or statutory.
- Upon receiving notice of any Claim for which Backpack Forever is entitled to indemnification by You, Backpack Forever shall provide You with written notification and opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at Your sole expense; provided, however, that (i) any settlement which would impose an unindemnified monetary obligation on and/or admission or finding of liability or wrongdoing by Backpack Forever will require Backpack Forever’s prior express written consent; and (ii) failure to provide timely notice, control, or assistance shall not relieve You of Your obligations; and (iii) Backpack Forever may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at Backpack Forever’s own expense, unless You fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case You shall pay all expenses related to Backpack Forever’s use of such counsel.
Limitation of Liability
In no event shall any Backpack Forever Party be liable for any direct, incidental, special, punitive, exemplary, consequential, or statutory damages whatsoever arising out of, resulting from, or in connection with this Agreement and/or any (A) use of or inability to use the Backpack Forever Services, (B) personal injury, property damage, or losses of any kind whatsoever, resulting from Your access to and/or use of the Backpack Forever Services, (C) unauthorized access to or use of any and all personal information and/or financial information stored therein, (D) interruption or cessation or transmission to or from the Backpack Forever Services, and/or (E) bugs, viruses, Trojan horses, or the like, which may be transmitted to or through the Backpack Forever Services, including email sent from Us, whether or not Backpack Forever is advised of the possibility of such damages. Backpack Forever makes no representations about the suitability of the information, software, products, and services contained on the Site for any purpose, and the inclusion or offering of any products or services on the Site does not constitute any endorsement or recommendation or such products or services by Us. Notwithstanding anything herein to the contrary, the maximum cumulative and aggregate liability of Backpack Forever for all cost, loss, or damages from claims arising under or related in any way to this Agreement, whether in contract, tort, or otherwise, shall not exceed the amount You paid to use the Services. The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. Backpack Forever Services, and any services or information offered through the Backpack Forever Services, would not be provided without such limitations and You agree that the limitations of liability and disclaimers specified herein will survive and apply even if found to have failed of their essential purpose. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in such jurisdictions, You agree that the liability of Backpack Forever shall be limited to the fullest extent permitted by such jurisdictions.
General Terms and Conditions
- Governing Law; Dispute Resolution. You agree that the laws of the United States and the State of Texas will govern this Agreement, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Texas, and that any action, suit, proceeding, or claim arising out of or related directly or indirectly to this Agreement or other contemplated transactions, whether now existing or hereafter arising under this Agreement, must be first mediated in Houston, Texas, by a mediator selected by both parties to attempt a settlement. The parties agree that a mediator shall be selected by the 30th day following the date Backpack Forever is notified of a dispute. If no settlement is reached, the dispute shall be heard in arbitration in Houston, Texas under the rules of the American Arbitration Association (AAA). You agree that each of the arbitrators selected by the AAA will have at least ten (10) years of experience as a licensed attorney in the negotiation and performance of commercial contracts and disputes. You further agree that the discovery period shall last no more than 30 days after the arbitrators have declared the discovery period to commence, and that the determination of any such panel of arbitrators shall be final and binding on the parties. Alternatively, the parties may jointly agree, in lieu of arbitration, to resolve the dispute within the jurisdiction of the courts, in which case You agree that any action, suit, proceeding, or claim arising out of or related directly or indirectly to this Agreement or other contemplated transactions, whether now existing or hereafter arising under this Agreement, must be brought exclusively in federal or state courts located in Houston, Texas, and You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. You further hereby irrevocably waive any and all right to trial by jury in any action, suit, proceeding, claim, or counterclaim arising under or in relation to this Agreement.
- English is Governing Language. This Agreement is in English and any and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by Backpack Forever are for informational purposes only and it is Your obligation to obtain independent legal advice at Your own expense to ensure You understand the terms of this Agreement.
- Our Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary, or similar relationship between the parties. You are not authorized to make any promise, warranty, or representation on behalf of Backpack Forever or obligate or attempt to obligate Backpack Forever in any manner whatsoever. You shall not represent to any person that You are the agent of Backpack Forever, nor fail to correct any misunderstanding as to such status.
- Assignment. Backpack Forever may freely assign or transfer any or all of the rights and obligations described under this Agreement without Your consent and without notice to You. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of Backpack Forever. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, and assigns.
- Severability. If any provision of this Agreement is declared or determined by any court to be unenforceable or invalid: (i) the validity of the remaining parts, terms or provisions shall not be affected by that determination; (ii) the unenforceable or invalid part, term or provision shall not be deemed to be part of this Agreement; and (iii) such court may substitute a provision that is legal and enforceable and is as nearly as possible consistent with the intentions underlying the original provision. If the remainder of this Agreement is not materially affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by applicable law.
- Publicity. You shall not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using Backpack Forever’s name or referencing the Backpack Forever Services; or (iii) suggesting or implying any endorsement by Backpack Forever of You and/or any products or services without the prior written approval of Backpack Forever, which Backpack Forever may withhold at its sole discretion.
- Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive agreement between You and Backpack Forever relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. Backpack Forever reserves the right to amend this Agreement at any time without notice. You agree that You have the burden to periodically review backpackforever.com to inform Yourself of any such changes.
- Waiver. The waiver or failure by Backpack Forever to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of Backpack Forever set forth in this Agreement are cumulative and are in addition to any rights or remedies Backpack Forever may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
- Equitable Actions. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to Backpack Forever which would not be adequately and fully compensated by money damages and that Backpack Forever may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the federal or state courts of the State of Texas or any other court of competent jurisdiction anywhere in the world (at Backpack Forever’s sole discretion), and, You hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
- Force Majeure. Backpack Forever shall not be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, Backpack Forever.
- Notices. Except as otherwise expressly provided herein, any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to this Agreement shall be in writing and shall be delivered via email to email@example.com.
- Headings/Interpretation. The descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
Disclaimer. You assume all risk and responsibility for Your decision to use the Backpack Forever Services. The Backpack Forever Services and all related services are offered “as is” and Backpack Forever disclaims any express or implied warranties including, without limitation, any warranties of merchantability, fitness for a particular purpose, and non-infringement.
Last updated: 4/9/2012