Thank you for using Memphis Best Guide (“Memphis Best Guide,” “we,” “our,” or “us”). These Terms of Service (the “Terms”) are intended to make you aware of your legal rights and responsibilities with respect to your access to and use of the Memphis Best Guide website at www.memphisbestguide.com and any related mobile or software applications whether existing now or in the future that link to the Terms (collectively, the “Services”).
Please read this document carefully. It contains a provision for liquidated damages in Section 5.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT ACCESS OR USE THE SERVICE. BY VIEWING OR USING ALL OR ANY PART OF THE SERVICE, DOWNLOADING ANY MATERIALS OR BY COMPLETING THE SUBSCRIPTION AND INFORMATION REQUEST REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY ALL OF THE TERMS.
Eligibility to Use the Services
Compliance with Laws. You are responsible for complying with all laws and regulations in the country in which you live when you access and use the Services. You agree to use the Services only in compliance with these Terms and applicable law, and in a manner that does not violate our legal rights or those of any third party.
Age Requirements. The Services are not intended for children under 13 years of age, and you may not use the Services if you are under 13. You hereby represent and warrant that you are at least 13 years of age.
Memphis Best Guide Account
You may also be able to register to use the Services by logging into your account with your credentials from certain third party social networking sites (e.g., Facebook, Twitter, Google..). You confirm that you are the owner of this social media account and that you are entitled to disclose your social media login information to us. You authorize us to collect your authentication information, and other information that may be available on or through your social media account consistent with your applicable settings and instructions.
In creating an account and/or claiming your business’ listing, you represent to us that all information provided to us in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. If you are creating an account or claiming a listing on behalf of a business, then you represent to us that you are the owner or authorized agent of such business. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts or business listings except as otherwise authorized by us, or provide or use false information to obtain access to a business’ listing on the Services that you are not legally entitled to claim. You acknowledge that any false claiming of a business may cause Memphis Best Guide or third parties to incur substantial economic damages and losses for which you may be held accountable.
You agree to notify us immediately of any unauthorized use of your account by either completing the online form at https://www.memphisbestguide.com/contact-us/. You should also immediately change your password.
Our Content and Your License
Ownership of Our Content. We are the sole and exclusive copyright owners of the Services and our content, including, but not limited to, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate user review ratings, reports and other usage-related data in connection with activities associated with your account and all other elements and components of the Services excluding Your Content (as defined below) and third party content (“Our Content”). We also exclusively own the copyrights, trademarks, service marks, logos, trade names, trade dress and other intellectual and proprietary rights throughout the world (the “IP Rights”) associated with the Services and Our Content, which may be protected by copyright, patent, trademark and other applicable intellectual property and proprietary rights and laws. You acknowledge that the Services contain original works and have been developed, compiled, prepared, revised, selected, and arranged by us and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of us and such others. You agree to protect our proprietary rights and the proprietary rights of all others having rights in the Services during and after the term of this agreement and to comply with all reasonable written requests made by us or our suppliers and licensors of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. To the fullest extent permitted by applicable law, we neither warrant nor represent that your use of materials displayed on the Services will not infringe rights of third parties not owned by or affiliated with us. You agree to immediately notify us upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, intellectual, statutory, or common law rights by following the instructions contained below in Section 7.
Your License to Our Content. We grant you a personal, limited, non-exclusive and non-transferable license to access and use the Services only as expressly permitted in the Terms. You shall not use the Services for any illegal purpose or in any manner inconsistent with the Terms. You may use information made available through the Services solely for your personal, non-commercial use. You agree not to use, copy, display, distribute, modify, broadcast, translate, reproduce, reformat, incorporate into advertisements and other works, sell, promote, create derivative works, or in any way exploit or allow others to exploit any of Our Content in whole or in part except as expressly authorized by us. Except as otherwise expressly granted to you in writing, we do not grant you any other express or implied right or license to the Services, Our Content or our IP Rights.
Any violation by you of the license provisions contained in this Section may result in the immediate termination of your right to use the Services, as well as potential liability for copyright or other IP Rights infringement depending on the circumstances.
Your Content and Our License
Your Content. You own all content you submit to the Services, including but not limited to profile information, reviews, images, messages, and any other materials (“Your Content”). By submitting Your Content you hereby irrevocably grant us a perpetual, world-wide, non-exclusive, royalty-free, sublicensable and transferable license and right to use Your Content for any purpose and in any media now existing or in the future. You also irrevocably grant the users of the Services and third party websites, mobile applications and other platforms who obtained Your Content from us (“Third Party Services”) the same rights you have granted to us herein to use Your Content in connection with their use of the Services and Third Party Services. By “use” we mean use, copy, display, distribute, modify, translate, reformat, incorporate into advertisements and other works, promote, create derivative works, and in the case of Third Party Services, allow their users and others to do the same. You grant us the right to use the name or username that you submit in connection with Your Content. You irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to Your Content brought against us, any Third Party Services and our and their users.
Representations Regarding Your Content. You are responsible for Your Content. You represent and warrant that you are the sole author of, own, or otherwise control all of the rights to Your Content or have been granted explicit permission from the rights holder to submit Your Content; Your Content was not copied from or based in whole or in part on any other content, work, or website; Your Content was not submitted via the use of any automated process such as a script bot; use of Your Content by us, Third Party Services, and our and their users will not violate or infringe any rights of yours or any third party; Your Content is truthful and accurate; and Your Content does not violate the Terms or any applicable laws. If Your Content is a review, you represent and warrant that you are the sole author of that review; the review reflects an actual dining experience that you had; you were not paid or otherwise remunerated in connection with your authoring or posting of the review; and you had no financial, competitive, or other personal incentive to author or post a review that was not a fair expression of your honest opinion.
You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. While we reserve the right to remove content, we do not control actions or content posted by our users and do not guarantee the accuracy, integrity or quality of any content. You acknowledge and agree that content posted by users and any and all liability arising from such content is the sole responsibility of the user who posted the content, and not us. You understand that by using the Services, you may be exposed to content that is offensive, indecent or objectionable.
Content Removal. We reserve the right, at any time and without prior notice, to remove, block, or disable access to any content that we, for any reason or no reason, consider to be objectionable, in violation of the Terms or otherwise harmful to the Services or our users in our sole discretion. Subject to the requirements of applicable law, we are not obligated to return any of Your Content to you under any circumstances.
Restrictions on Use
Without limiting the generality of these Terms, in using the Services, you specifically agree not to post or transmit any content or engage in any activity that, in our sole discretion:
Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, discriminatory, vulgar, profane, obscene, libelous, hateful or otherwise objectionable;
Constitutes an inauthentic or knowingly erroneous review, or does not address the goods and services, atmosphere, or other attributes of the business you are reviewing.
Contains material that violates the standards of good taste or the standards of the Services;
Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
Accuses others of illegal activity, or describes physical confrontations;
Is illegal, or violates any federal, state, or local law or regulation (for example, by disclosing or trading on inside information in violation of securities law);
Attempts to impersonate another person or entity;
Disguises or attempts to disguise the origin of Your Content, including but not limited to by: (i) submitting Your Content under a false name or false pretenses; or (ii) disguising or attempting to disguise the IP address from which Your Content is submitted;
Constitutes a form of deceptive advertisement or causes, or is a result of, a conflict of interest;
Is commercial in nature, including but not limited to spam, surveys, contests, pyramid schemes, postings or reviews submitted or removed in exchange for payment, postings or reviews submitted or removed by or at the request of the business being reviewed, or other advertising materials;
Asserts or implies that Your Content is in any way sponsored or endorsed by us;
Contains material that is not in English or, in the case of products provided in foreign languages, the language relevant to such products;
Falsely states, misrepresents, or conceals your affiliation with another person or entity;
Accesses or uses the account of another user without permission;
Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
Interferes with, disrupts, or destroys the functionality or use of any features of the Services or the servers or networks connected to the Services;
“Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
Violates any contract or fiduciary relationship (for example, by disclosing proprietary or confidential information of your employer or client in breach of any employment, consulting, or non-disclosure agreement);
Decompiles, reverse engineers, disassembles or otherwise attempt to derive source code from the Services;
Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Services;
Violates the restrictions in any robot exclusion headers on the Services, if any, or bypasses or circumvents other measures employed to prevent or limit access to the Services;
Collects, accesses, or stores personal information about other users of the Services;
Is posted by a bot;
Modifies, copies, scrapes or crawls, displays, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercialize any rights to the Services or Our Content; or Attempts to do any of the foregoing.
You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Services for violations of the Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with the Terms and to comply with applicable law or the order or requirement of legal process, a court, consent decree, administrative agency or other governmental body.
Liquidated Damages for False, Purchased, Or Otherwise Inauthentic Reviews. You agree and acknowledge that genuine, honest, and unbiased reviews, free of financial incentives and conflicts of interest, are critical to the success of our business, and that reviews that are not authentic pose irreparable harm to our business, including harm to our reputation and customer goodwill, which may be difficult to quantify as money damages. Accordingly, you agree that if you, or anyone acting on your behalf or in concert with you, posts a review that does not meet the criteria for reviews specified in Section 4 above (see Representations Regarding Your Content), you will be jointly and severally liable for liquidated damages in the amount of $100 for each day that each review remains posted on our Services. You further agree that this liquidated-damages amount is not a penalty but rather a fair approximation of the damage caused to us by the posting of an inauthentic review.
Injunction Against Future Violations. In addition to liquidated damages, you agree that if you, or anyone acting on your behalf or in concert with you, posts a review that violates the criteria specified herein, you consent to the entry of injunctive relief against further violations by you, or anyone acting on your behalf or in concert with you.
Third Party Content, Links, and Advertisements
Third party content, including that posted by our users, does not reflect our views or that of our parent, subsidiary, affiliated companies, employees, officers, directors, or shareholders. In addition, none of the content available through the Services is endorsed or certified by the providers or licensors of such third party content. We assume no responsibility or liability for any of Your Content or any third party content. In addition, we do not assume responsibility or liability for any claims, damages or losses resulting from your reliance or use of the Services, any Third Party Services or the materials contained herein or therein. Without limiting the generality of the foregoing, we expressly disclaim any liability for any offensive, defamatory, illegal, invasive, unfair, or infringing content provided by third parties.
Copyright Infringement Notices Under the DMCA
We respect the intellectual property rights of others and require those that use the Services to do the same. We may, in appropriate circumstances and at our discretion, remove or disable access to material on the Services that infringes upon the copyright rights of others. We also may, in our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In the event that any users of the Services repeatedly infringe on others’ copyrights, we may in our sole discretion terminate those individuals’ rights to use the Services pursuant to our Digital Millennium Copyright Act (“DMCA”) repeat infringer policy. If you believe that your copyright has been or is being infringed upon by material found in the Services, you are required to follow the below procedure to file a notification pursuant to the DMCA:
Identify in writing the copyrighted material that you claim has been infringed upon;
Identify in writing the material on the Services that you allege is infringing upon copyrighted material, and provide sufficient information that reasonably identifies the location of the alleged infringing material (for example, the user name of the alleged infringer and the business listing it is posted under);
Include the following statement: “I have a good faith belief that the use of the content on the Services as described above is not authorized by the copyright owner, its agent, or law.”;
Include the following statement: “I swear under penalty of perjury that the information in my notice is accurate and I am the copyright owner or I am authorized to act on the copyright owner’s behalf”;
Provide your contact information including your address, telephone number, and e-mail address (if available);
Provide your physical or electronic signature; and
Send the communication to:
Memphis Best Guide
Email: legal @ memphisbestguide.com
Attention: Legal Department – Copyright Notice
You may be subject to liability under Section 512(f) of the DMCA if you knowingly make any misrepresentations on a take-down notice.
Modifications to the Services
We reserve the right to change or discontinue any aspect of the Services at any time. Upgrades or updates of the Services may be made available from time to time. We do this to improve the quality of the Services that we provide to you and other users. We, the software, or the software application store that makes the software available for download may include functionality to automatically check for updates or upgrades to the software. Unless your device, its settings, or computer software does not permit transmission or use of upgrades or updates, you agree that we, or the applicable software or software application store, may provide notice to you of the availability of such upgrades or updates and automatically push such upgrade or update to your device or computer from time-to-time. You may be required to install certain upgrades or updates to the software in order to continue to access or use the Services, or portions thereof (including upgrades or updates designed to correct issues with the Services). Any updates or upgrades provided to you by us under the Terms shall be considered part of the Services.
Disclaimer of Warranties, Limitation of Liability, and Indemnification
A. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ‘MEMPHIS BEST GUIDE’, AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“‘MEMPHIS BEST GUIDE’ PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE OF THEM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ‘MEMPHIS BEST GUIDE’ PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SERVICES HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES’ CONTENT AND ASSUME NO RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY, (VI) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SERVICES AND/OR (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THE ‘MEMPHIS BEST GUIDE’ PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES.
Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages and to the extent you are a consumer the limitations or exclusions in this section may not apply to you.
C. Indemnification. You agree to indemnify, defend, and hold harmless the Memphis Best Guide parties from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by us arising as a result of, or in connection with: (i) Your Content, (ii) your unauthorized use of the Services, or products or services included or advertised in the Services; (iii) your access to and use of the Services; (iv) your violation of any rights of another party; or (v) your breach of these Terms, including, but not limited to, any infringement by you of the copyright or intellectual property rights of any third party. We retain the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Termination of Your Access to the Services
You can terminate your account at any time by contacting us via the “Contact Us” link at the bottom of every page or by clicking here, and ceasing further use of the Services.
We may terminate your use of the Services and deny you access to the Services in our sole discretion for any reason or no reason, including your: (i) violation of these Terms; or (ii) lack of use of the Services. You agree that any termination of your access to the Services may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and/or bar any further access to your account or the Services. If you use the Services in violation of these Terms, we may, in our sole discretion, retain all data collected from your use of the Services. Further, you agree that we shall not be liable to you or any third party for the discontinuation or termination of your access to the Services.
Changes to the Terms
We may, at any time and for any reason make changes to the Terms. We may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of the Terms will be posted on the Services and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Services or via email. If you continue to use the Services after the changes become effective, then you shall be deemed to have accepted those changes. If you don’t agree to these changes, you must end your relationship with us (without penalty) by ceasing to use the Services. Additionally, if we update or upgrade the Services, you may be required to accept the most recent version of the Terms to access the updated or upgraded Services.
Interpretation. The section and subject headings in these Terms are included for reference only and shall not be used to interpret any provisions of these Terms.
Governing Law/Waiver. These Terms are governed exclusively by the laws of the State of Tennessee and the United States. Any controversy or claim relating to these Terms or the Services shall be submitted to the judicial courts located in Shelby County in the State of Tennessee. You consent to the exclusive jurisdiction of those courts. WHERE PERMITTED BY LAW, YOU HEREBY WAIVE YOUR RIGHTS TO A JURY TRIAL. You must commence any legal action against us within one (1) year after the alleged harm initially occurs. Failure to commence the action within that period shall forever bar any claims or causes of action regarding the same facts or occurrence, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by us to enforce or exercise any provision of these Terms or any related right shall not constitute a waiver of that right or provision.
Carrier Rates may Apply. By accessing the Services through a mobile or other device, you may be subject to charges by your Internet or mobile service provider, so check with them first if you are not sure, as you will be responsible for any such costs.
Severability. If any provision of these Terms is deemed unlawful, invalid, or unenforceable by a judicial court for any reason, then that provision shall be deemed severed from these Terms, and the remainder of the Terms shall continue in full force and effect.
Linking and Framing. You may not frame the Services. You may link to the Services, provided that you acknowledge and agree that you will not link the Services to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Services effective immediately.
If you have any questions or concerns with respect to these Terms or the Services, please contact us by clicking here.