Last updated May 10, 2022
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND KEENER.
By accessing the Site or Services, you agree to be unconditionally bound by these Terms. If you access the Site or Services on behalf of a company or other entity ("Entity"), you represent, agree, and warrant that you are authorized to act on behalf of the Entity and to bind such Entity to these Terms. You accept the Terms by clicking to accept or agree to the Terms where this option is made available to you in any agreement, electronic form, or user interface, or by simply visiting the Site or accessing our other Services. These Terms will remain in effect as long as you use the Site or Services. If you do not agree with any of these Terms, do not access the Site or use the Services. You acknowledge and agree that we may make changes to the Site or Services or to these Terms at any time and that you will be bound by such changes if you continue to access the Site or use the Services. If you have any questions, please contact us at firstname.lastname@example.org. BY ACCESSING THE SITE OR SERVICES, YOU AGREE TO BE UNCONDITIONALLY BOUND BY THESE TERMS.
2. Not Professional Advice
You understand and agree that the Site and Services are not medical, health care, legal, accounting, financial, or other professional advice (collectively, "Professional Advice"). Keener may offer content through the Site or Services that relates to employment or career development, wellness, and other topics of interest to our users. Keener will never offer diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness or any other form of Professional Advice. When you access the Site or use the Services, you agree that the results of such use are not Professional Advice, or an indication that you should take any particular action regarding your career, practice, or organization. Keener CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. KEENER DOES NOT OFFER PROFESSIONAL ADVICE, OR ANY TYPE OF COACHING, ADVISING, MEDICAL, OR PROFESSIONAL SERVICE. You are advised to seek diagnosis, treatment, and advice regarding medical or mental conditions or illnesses from physicians practicing medicine, psychotherapists, psychologists, and other licensed healthcare and mental health professionals. If you have employment or career questions, you are advised to speak with your supervisor or legal counsel. Keener advises all potential Sponsors to seek legal advice before offering our Services to others as an employment or other benefit.
To be eligible to access the Site or use the Services, you must be at least 18 years old and reside in the United States or any of its territories or possessions. You may access the Services as an individual end user ("Independent User"), or through your employer, educational institution, company, or other organization (your "Sponsor") that contracts with Keener to provide you with access to the Services (a "Sponsored User"). By accessing the Site or using the Services, you represent and warrant that you are of legal age to form a binding contract with Keener and you meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not use the Services.
To access certain features on the Site or use certain Services, you must first register with us and create an account, either yourself or by your Sponsor on your behalf and later completed by you. By registering, you agree to provide Keener with accurate and complete information. The information we collect during registration and how we use that information is described in our Privacy Statement. Only you are permitted to access the Services via your account. You are responsible for maintaining the confidentiality of your login and password. You accept responsibility for all activity that occurs under your account and password. Your credentials are for your personal use only and shall not, under any circumstances, be shared, distributed, or otherwise made available to any person or entity. You may not use false identities or impersonate any other person or use credentials that you not authorized to use. You are solely responsible for ensuring the security and confidentiality of your credentials and account. We are not liable for any loss or damage arising out of your failure to maintain your account security. You agree to notify Keener immediately of any suspected theft, loss, or fraudulent use of your login or password.
Keener offers an array of Services designed to assist users and Sponsors in the medical and healthcare field, as well all other Keener assets, services, Content (defined below), and tools provided to you by Keener. Your receipt of the Services you select is subject to these Terms, all applicable terms and conditions on the Site, as well as any supplemental notices we may provide to you. You agree and acknowledge that Keener does not guarantee any outcomes of your use of the Services.
You are only permitted to use the Services in compliance with these Terms and applicable laws. Keener cannot and will not be responsible for your use of the Services in an unlawful manner. If you are an Independent User, you are only permitted to use the Services for yourself.
Some Services may not be available to all users. We will explain which Services are available to you during the registration process. We reserve the right to change the Services or adjust our fees or any components thereof in any manner and at any time. We will give you at least 30 days' notice of any fee change by posting the change to the Site or otherwise providing you with notice.
Keener treats all personal information it collects or receives through the Site or Services in accordance with our Privacy Statement, incorporated herein by this reference. Some of our Services have additional, separate privacy notices or statements governing their use, each of which will be considered to form part of these Terms. For example, if you use myClinicalExchange, any personal information you submit to that Service is governed by the myClinicalExchange Privacy Notice. Please note that other Services may provide additional notices and disclosures related to your privacy. By visiting the Site or using the Services, you consent to the Keener Privacy Statement and any additional, separate privacy notices or disclosures applicable to the Services you use.
7. Billing and Payment
If you subscribe to one of our paid Services, either as an Independent User or as a Sponsor, you acknowledge and agree to the billing and payment provisions in this section. You are responsible for paying all fees associated with the Services you have selected, as well as any and all applicable sales and use taxes for your purchase of Services based on the address that you provide at registration. All fees are quoted in United States dollars. Your initial billing period may be less than a full month, in which case, your fees for that initial billing period will be prorated accordingly. We reserve the right to change our subscription levels or adjust our fees or any components thereof in any manner and at any time.
Each Independent User and Sponsored User is responsible for their own wireless and/or internet service provider fees, devices and equipment, sales taxes, and any other fees and charges necessary to access the Services.
b. Payment Method
You must maintain a valid payment method on file with us. You agree that we may charge your credit or debit card or withdraw amounts from your designated account at your depository institution or charge any other payment method that you have on file with the fees due hereunder, any sales and use taxes and any applicable late fees or interest. You represent and warrant that the payment information you provide to us is correct and accurate and you are using a form of payment that you are legally authorized to use for this purpose. You agree that you are solely liable for any payment or credit card fraud, abuse, or unauthorized use by you or others. Except for downgrades and cancellations by you in the manner permitted herein, payments are nonrefundable and there are no refunds or credits for partially used Services.
If you do not pay on time or if we cannot charge the payment method you have on file for any reason, we reserve the right to either suspend or terminate your access to the Services. In addition, if any payment is not received within 30 days after the due date, then we may charge a late fee of $10 and we may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date paid. If your unpaid fees are referred to an attorney or collections agency, you shall pay all reasonable attorney's fees or collections agency fees.
d. Payment Processing
8. Sponsor Access
a. Sponsored Users
If you are a Sponsored User, you gain access to the Services pursuant to your Sponsor's contract with Keener. As a Sponsored User, your Sponsor controls the scope and duration of the Services available to you, and you will be able to use your Sponsor's agreed-to Services until the expiration of the term of your Sponsor's agreement with us. You understand and agree that Keener is a service provider to your Sponsor, and has no control over your education, training, rotations, credentials, or any other outcomes related to your use of the Services. Please contact your Sponsor if you have any questions about your use of the Services as a Sponsored User, your User Data, or your relationship with your Sponsor. Additionally, Keener will not be liable to you or any third-party for any termination or cancellation of your access to, or use of, the Services that were originally provided to you by your Sponsor.
b. Sponsor Responsibilities
Sponsors will: (i) be responsible for compliance with these Terms by each Sponsored User; (ii) ensure that the number of Sponsored Users accessing the Services does not exceed permissible use of the Services pursuant to Sponsor's agreement with Keener; (iii) be responsible for the accuracy and legality of any data (including personal information) input to the Services by Sponsored Users; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Keener promptly of any unauthorized access or use; (v) use the Services only in accordance with these Terms, the documents referenced herein, and applicable law; and (vi) comply with the terms and conditions of any third party software with which you use the Services. Any use of the Services in violation of the foregoing by a Sponsor or its Sponsored Users that in our judgment threatens the security, integrity, or availability of the Services may result in immediate suspension of access to the Services.
c. Legal Compliance
If you are a Sponsor, you are solely responsible for using the Services in compliance with all laws and regulations that apply to you and your Sponsored Users, including without limitation the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Family Educational Rights and Privacy Act ("FERPA"), and the Fair Credit Reporting Act ("FCRA"), as applicable. You hereby grant Keener unlimited permission to parse, store, and manage any and all User Data provided to Keener by you, whether directly or via a third party at your instruction, in order to provide you the Services. You acknowledge and agree that you: (i) assume all responsibility for the potential identifiability of individual students whether by name or by inference according to FERPA, HIPAA, and FCRA guidelines; (ii) Keener is not responsible for misuse or misinterpretation of User Data by your organization, anyone else in connection in any other way with your account, or by the public; and (iii) if you provide User Data to us via a third party, Keener may only receive a link to view such User Data and, in such case we may not receive the actual User Data and therefore we cannot guarantee access to such User Data.
d. Minimum Requirements
As part of your obligations under this section, you agree to, at a minimum, take the following actions to the extent required by applicable law: (i) provide any and all necessary notices and obtain all required consents or authorizations from Sponsored Users to collect, process, transmit, or share User Data; (ii) upload or otherwise make available to Keener a copy of each consent or authorization to the Services;(iii) set up and maintain user permission profiles related to your provision of the Services to your Sponsored Users that appropriately restrict access to User Data according to your internal policies and your Sponsored Users' roles and responsibilities within your organization; and (iv) provide adequate training to your Sponsored Users under applicable state and federal laws regarding the use of User Data.
If you are a Sponsor subject to FERPA, you acknowledge and agree that: (i) Keener is a contractor working on your behalf and is therefore considered a "school official" for FERPA purposes; (ii) you are contracting with us to store information about students in your organization; and (iii) if required by state or federal law, you have specifically listed Keener and the applicable Services as one of your contractors. Additionally, you certify that you have indicated in your annual FERPA notification to parents that you use contractors to provide certain services on your behalf.
9. License Grant
In exchange for your agreement to these Terms, Keener hereby grants you a revocable, non-transferable, non-exclusive license to access the Site and any Services you subscribe to and for which you have paid fees. Any documentation that accompanies the Services, whether in printed, electronic, or any other form, is subject to this license and these Terms. This license grant is conditional on your full payment of the Services fees applicable to you.
Except as otherwise indicated on the Site or Services, you may view, copy, retransmit, and print the Contents (defined below) provided you (a) only use the Content for personal, informational, or internal business purposes; (b) do not provide, sell, license, or lease the Content for any fee or other consideration; (c) ensure all copyright, trademark, and other proprietary rights notices included in the Content as presented on this Site appear on all copies; (d) do not modify or alter the Content in any way; and (e) do not use any graphics separately from accompanying text.
Certain areas of the Site and Services are restricted to users that are party to a separate agreement with Keener or other applicable terms and conditions. All obligations regarding areas of the Site or Services governed by a separate agreement and these Terms shall not be construed to modify or alter any agreements relative to such areas. Keener reserves the right to modify or terminate your Site or Services access, impose limits on certain features, restrict your access to parts of or the entire Site or Services, or charge fees for access to portions of the Site or Services at any time and for any reason, without notice or liability. You acknowledge and agree that Keener will not be liable to you or any third party if Keener exercises this right.
10. Services Access
Keener will use commercially reasonable efforts to maintain availability of the Site, as well as the Services you sign up to receive during our agreed-to Service times. Notwithstanding the foregoing, you acknowledge and agree that there will be times when the Site or Services will not be available, such as scheduled maintenance times; outages; emergency maintenance; unavailability caused by software, hardware, other users; and causes beyond our reasonable control. You further agree that we cannot guarantee complete security for any online transfer of information, and we will not be responsible for any User Data (defined below) lost or stolen while transmitting information on the Internet. We will make commercially reasonable efforts to notify you of planned downtime and unavailability of the Services. It is your responsibility to keep copies of any User Data you upload to the Site or Services. You are also responsible for obtaining and maintaining all internet connections, computer hardware, printers, and other equipment needed for access to and use of the Site or Services, and for all charges related thereto. We will not be liable for any lack of Site or Services caused by your device or your internet or wireless service provider, nor any damages to your equipment resulting from your use of the Site or Services, nor for any delays, interruptions, or other transmission errors of any kind resulting from any lack of Site or Services.
11. Contents and Ownership
Unless otherwise expressly indicated, the information contained on this Site and in the Services, including but not limited to all images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information and screens appearing on the Site or in the Services, and other materials, as well as names, logos, taglines, trade dress, and other trademarks, on the Site or in our Services, are copyrights, trademarks, trade dress or other intellectual property (collectively, the "Contents") owned, controlled, or licensed by Keener or are the property of their respective owners. The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions. Neither these Terms nor your use of the Site or Services transfers any right, title, or interest in the Site or Services or Content thereof to you. All rights not expressly granted under these Terms are reserved by Keener. Only a duly authorized officer of Keener may grant permission or a license to use any of our Contents; any attempted grant or similar promise by anyone other than a duly authorized officer of Keener is invalid.
You do not have permission to copy, reproduce, make derivative works from, distribute, republish, download, display, perform, post electronically or mechanically, transmit, record, or mirror any of the Contents without the prior written permission of Keener. You may only display, download, or print the Contents for the purpose of using the Services as an internal or personal business resource.
Keener's trademarks, including names, logos, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial or modified form, without the prior written permission of Keener. You may not use any meta tags or any other hidden text utilizing a Keener name, trademark, or product name without Keener's prior written permission. Third party trademarks and service marks used in our Services are the property of their respective owners, and we use them with their consent. Keener and the other licensors of the marks in our Services reserve all rights with respect to all Contents and all intellectual property.
d. Third Party Materials
Certain materials on the Site or in the Services may be furnished by third parties, and designations for companies other than Keener may be mentioned on the Site or Services for identification purposes only. Third-party trademarks, trade names, logos, product, or services names are the trademarks, registered or unregistered, of their respective owners. In particular, the American Red Cross name and logos including Resuscitation Suite™ are owned by and used with permission of the American National Red Cross.
e. User Data
Any data or information submitted or generated by you as an Independent User or Sponsored User or otherwise obtained from you as a result of your use of the Services, including without limitation biographical and demographic information and data about you, your education or employment information, and your continuing education courses ("User Data") is owned exclusively by you. In exchange for Keener making the Services available to you under these Terms, you hereby grant Keener an unrestricted, royalty-free, irrevocable license: (i) to maintain, distribute, and make available your User Data to your Sponsor or to current or potential employer(s), healthcare providers who may contract for your services, and accreditation or licensing organizations; (ii) to maintain, distribute, and use aggregate compilations of User Data; (iii) to fulfill and manage purchases of the Services; (iv) to provide you with information related to our other Services that may be of interest to you; and (v) to provide, maintain, protect, and improve the Services (including the development of new Services).
You may from time-to-time provide us with materials, communications, suggestions, comments, improvements, ideas or other feedback related to the Site or our Services ("Feedback"). You hereby additionally grant to us all rights, titles, and interests in and to any Feedback. In the event this grant is not sufficient for us to fully realize and use the Feedback, you grant us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into the Site or our Services any of the Feedback. By providing Feedback, you are representing that the Feedback is not subject to any intellectual property claim by a third party or any license terms which would require products or services derived from that Feedback to be licensed to or from, or shared with, any third party.
There may be opportunities to rate and public comment on the Site or Services (the "Ratings"). All Ratings are subject to the rules below:
i. When participating in the Ratings, please share your thoughts politely and constructively. While Keener encourages discussion of challenging topics, we want to make sure that they take place in a climate of mutual respect. User-generated content that is abusive, vulgar, racist, slanderous, harassing, misleading, irrelevant, or otherwise objectionable, or any comment that calls for unlawful or illegal behavior or might result in harm to others is strictly prohibited.
ii. User comments do not represent the professional advice or opinions of Keener or its personnel. The results of any actions you take based on the comments available in the Ratings are your responsibility alone. You are solely responsible and liable for all activities conducted by you in connection with the Ratings and for the content of your comments.
iii. Users are solely responsible for ensuring that they do not act in any manner that constitutes or forms a part of a course of conduct amounting to, a violation of any state, federal, or other applicable competition law. If you violate these Terms, you may have your access to the Ratings suspended and may permanently be banned from using the Ratings. In the event that any user has concerns that posted information is objectionable, the user is encouraged to contact Keener at email@example.com. Keener will make reasonable efforts to remove the comment if removal is necessary.
iv. You are not allowed to upload, post, or transmit any message, data, code, or software that would violate the proprietary rights of Keener or others, including unauthorized copyrighted text, images or programs, trade secrets, or other confidential proprietary information, or use any trademarks or service marks in an infringing fashion.
v. You are not allowed to upload, post, or transmit photos or video of any third party without its express permission. By uploading, transmitting, or posting any photo or video on the Site or Ratings, you warrant that you have express permission from all persons appearing in the media.
vi. You are not allowed to upload, post, or transmit any materials, data or media that includes your personal health information ("PHI") or the PHI of any third party.
vii. You are not allowed to upload, post, or transmit any advertisements or solicitations of business, chain letters, or pyramid schemes, or to upload, post, or transmit the same posting more than once.
By uploading, transmitting, or posting any content including Ratings, you grant Keener a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute such content in its entirety or in part for any purpose. You also certify that any person appearing or referenced in the transmitted or posted content, including Ratings, has authorized Keener to use copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute the content in its entirety or in part for any purpose. Keener is not obliged to maintain back-up copies of any material submitted or posted on the Ratings.
h. Interactive Areas
Keener may provide interactive forums, chat rooms, bulletin boards and other interactive areas (collectively "Interactive Areas") on the Site or in the Services. You are solely responsible for your use of Interactive Areas, any User Data you upload or submit, and the consequences of such use. Keener does not assume any responsibility for the truthfulness, accuracy, or reliability of any material posted in any Interactive Area, or of consequences of any use of the Interactive Area by any person.
Keener has no obligation to monitor User Data, Feedback, or Ratings. However, Keener reserves the sole right to review, modify, distribute, remove, or delete any User Data, Feedback, or Ratings at any time. Keener also reserves the right at all times to disclose any information as Keener deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in Keener's sole discretion.
j. Unsolicited Submissions
Keener does not seek or accept unsolicited ideas, works, materials, proposals, suggestions, artwork, content or the like, including for advertising campaigns, promotions, products, services, technologies, product enhancements, processes, product names, or creative materials (collectively, "Unsolicited Submissions") in any form unless specifically provided in a separate written agreement. If you submit an Unsolicited Submission despite our assertion that it will not be accepted, then regardless of the contents of your Unsolicited Submission or correspondence, you understand and agree that the following terms will apply: (i) your Unsolicited Submissions and their contents will automatically become the property of Keener, without any compensation to you; (ii) there is no obligation for Keener to review, consider, or otherwise use the Unsolicited Submissions; (iii) Keener may use or redistribute the Unsolicited Submissions and their contents for any purpose and in any way; and (iv) there is no obligation to keep any submissions confidential.
12. Acceptable Use
a. Acceptable use Standards
Your use of the Site and Services must comply with Keener's Acceptable Use Standards described in this section. You hereby agree to not:
i. Send messages that violate the CAN-SPAM or other anti-spam laws;
ii. Use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide the Services to other Customers or potential Customers;
iii. Organize or participate in any Prohibited Programs (defined below);
iv. Transfer or attempt to transfer abnormally large files or streaming media presentations;
v. Use purchased, rented, or third-party lists of email addresses;
vi. Use a false e-mail address, impersonate any person or entity, or otherwise mislead us or other Customers as to your identity;
vii. Post false, inaccurate, misleading, defamatory, or libelous content (including Personal Information);
viii. Use the Services in a manner that might confuse others as to Keener's identity or disparage us;
ix. Commercialize, rent, retransmit, disclose, publish, resell, assign, lease, sublicense, market or transfer the Services or any portion of it (including the Contents);
x. Copy, reverse engineer, translate, port, modify, or make derivative works of any portion of the Services without Keener's permission;
xi. Harvest or otherwise collect information about other users, including email addresses, without their consent;
xii. Remove, change, or obscure any copyright, trademark, or other proprietary rights notice or any identification marks or notices of proprietary rights and restrictions from the Services, any elements of the Services, or materials, or documentation within the Services;
xiii. Redistribute, copy, reproduce, or disseminate to any person any information or content (except for content created by and about you for your personal use) without Keener's prior written consent; or
xiv. Use the Services for any unlawful activities, in violation of any third-party rights, or in any other manner that is deemed objectionable by Keener in our sole discretion.
Additionally, tampering with the Site or Services, conducting fraudulent activities on the Site or Services, and all other illegal activities are prohibited and may subject you to legal action and/or termination of access to the Site or Services. We reserve the right to establish and revise these Acceptable Use Standards from time to time in our sole discretion.
We reserve the right to interrupt or restrict Service at any time, without notice to you, if we suspect you have violated our Acceptable Use Standards or otherwise engaged in fraudulent, abusive, or unlawful activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe as set forth from time to time at the sole discretion of Keener. You also agree that we may report any activity that we suspect is unlawful to appropriate government authorities and to cooperate with any investigation conducted by any government authority.
b. Links to the Site
Unless you and Keener have agreed otherwise in writing, you may not link or hyperlink to the top-level home page of the Site from any website, unless: (i) you do not frame the Site or any portion of the Site; (ii) the hyperlink to the Site is not used in a way that suggests that Keener endorses you or your website; (iii) the link to the Site is not used or presented in any way that disparages Keener or tarnishes, blurs, or dilutes the quality of Keener's name or trademarks or any associated goodwill; and (iv) the link to the Site is not displayed on any web page that displays objectionable content or links, including but not limited to, any content or information that: (A) is libelous or defamatory, pornographic, sexually explicit, unlawful, or plagiarized; (B) a reasonable person would consider harassing, abusive, threatening, harmful, profane, obscene, racially, ethnically, or otherwise objectionable or offensive in any way; (C) constitutes a breach of any person's privacy or publicity rights, a misrepresentation of facts, hate speech, or an infringement of any third party's intellectual property or proprietary rights; or (D) violates or encourages others to violate any applicable law.
13. Beta Versions
We may make new versions of the Services available prior to their release to the general public, for testing and evaluation purposes ("Beta Versions"). Beta Versions are subject in all respects to these Terms, except that we may discontinue a Beta Version or your ability to use it at any time, with or without notice and without further obligations to you. You agree to notify us of all comments or suggestions about Keener, including without limitation any problems and ideas for improvements, which come to your attention during its use of the Beta Version. By permitting you to access, download, install, or use a Beta Version, Keener does not grant any additional right to you under any copyrights, patents, trademarks, or trade secret information.
14. Copyright Infringement
In accordance with the US Federal Digital Millennium Copyright Act ("DMCA"), Keener has designated an agent to receive notifications of alleged copyright infringement associated with the Site or Services. Keener will, upon receiving proper notice as set forth below, use commercially reasonable efforts to investigate notices of copyright infringement and take appropriate action. If you believe that your copyrighted work or the copyrighted work of another party is being infringed, please notify the designated agent, HealthStream Deputy General Counsel at 500 11th Avenue North, Nashville, TN 37203, by email at firstname.lastname@example.org.
When notifying Keener of the alleged copyright infringement please provide Keener with the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is claimed to have been infringed; (b) identification of the copyrighted work alleged to have been infringed; (c) a description of the material that is claimed to be infringing and information sufficient to locate the material on the Site or Services; (d) information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address; (e) a written statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a written statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner's behalf. If material is believed in good faith by Keener to infringe a copyright or otherwise violate any intellectual property rights, Keener will remove or disable access to the material. If you knowingly misrepresent that material is infringing, you may be subject to liability.
15. Keener Communications
a. Service Messages
Keener may use your contact information to communicate with you about your use of the Services. You understand that you receive these communications as part of your use of the Services, and you will not be able to opt out from receiving these service announcements and administrative messages.
b. Text Messages
If you provide your wireless phone number, you consent to Keener sending you informational text messages related to the Services, including security authentication text messages. The number of texts that we send to you will be based on your circumstances and requests. You can unsubscribe from text messages by replying STOP or UNSUBSCRIBE to any of these text messages. Messaging and data charges may apply to any text message you receive or send. Please contact your wireless carrier if you have questions about messaging or data charges.
c. Marketing Messages
We may also send you marketing communications by email, mail, or other means in compliance with applicable law. As part of our policy to provide you total privacy, we provide you the option of opting out from receiving marketing communications.
16. Mobile Application
If you use our Services via a mobile application, you must have a compatible mobile telephone or handheld device, Internet access, and the necessary minimum specifications ("Software Requirements") to use the mobile application. The Software Requirements for Apple iOS devices and Android OS devices can be found on the relevant App Store page. Keener software may be upgraded from time to time to add support for new functions and services. Keener may request certain privacy permissions from time to time such as access to your calendar, device camera or microphone, or other apps and associated features on your device. You acknowledge that the terms of agreement with your respective mobile network provider will continue to apply when using Keener. Data and messaging charges may apply to your use of Keener or any text messaging or photo sharing features you use via Keener. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile telephone or handheld device being used to access Keener, you will be assumed to have received permission from the bill payer for using Keener.
You are strictly prohibited from violating or trying to violate Keener's security features, such as by:
a. Accessing data not intended for you or logging onto a server or an account which you are not authorized to access;
b. Attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures unless we expressly authorize that you do so in writing;
c. Attempting to interfere with service to any user, host or network, such as by means of submitting a virus to the Site, overloading, "flooding," "spamming," "mail bombing" or "crashing"; or
d. Sending unsolicited email, including promotions and/or advertising of products or services forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.
You hereby agree not to use any device, software, or routine to interfere or try to interfere with the proper working of the Site or Services or any activity being conducted on via the Site or Services. You further agree not to use or try to use any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Site or Services other than the search engine and search agents that we make available via the Services and other than the generally available third-party web browsers. If you violate our system or network security, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
18. Third Party Content
The Site or Services may contain access to content, features, or services or links to websites owned or operated by third parties ("Third Party Content"). This access is provided solely for your convenience. Keener is not responsible for Third Party Content, nor do we make any representations about the content or accuracy of material on any Third Party Content. Inclusion of any Third Party Content on the Site or Services does not imply Keener's approval or endorsement thereof. Please be aware that when you click on links that take you to external websites, you do so at your own risk, and you will be subject to third party privacy policies and practices, not ours. Any concerns regarding Third Party Content should be directed to the third party owner or operator.
19. Disclaimer of Warranties
YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK. KEENER MAKES NO EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE OR SERVICES OR RELATING TO THE AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY, OR COMPLETENESS THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WHERE-IS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. Keener does not warrant that the Site or Services will meet all your requirements or that its operations will be uninterrupted or error free, or that any defects will be corrected. No oral or written information, representation, or advice given by Keener shall create a warranty without a writing signed by Keener reflecting the creation of such warranty.
20. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEENER SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, KEENER SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AGGREGATE OF THE FEES PAID BY YOU TO Keener FOR SERVICES DURING THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY OR, IF NO FEES WERE PAID DURING SUCH THREE MONTH PERIOD, ONE HUNDRED U.S. DOLLARS ($100), IN EACH CASE, WHETHER OR NOT KEENER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If any exclusion, disclaimer or other provision contained in THESE TERMS is held to be invalid for any reason by a court of competent jurisdiction and WE become liable thereby for loss or damage that could otherwise be limited, such liability, whether in contract, tort, or otherwise, will not exceed the amount actually paid FOR YOUR USE OF the SITE OR Services. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to YOU.
Any claim or cause of action arising out of your use of the Site or Services or these Terms must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary.
You agree to defend, indemnify, and hold harmless Keener and its officers, directors, employees, licensors, representatives, and/or agents at all times from and against any and all claims, demands, actions, proceedings, damages, losses, liabilities, costs, and/or expenses (including, without limitation, reasonable attorney's fees) in connection with or as a result of any claim that arises from your breach of these Terms.
22. Dispute Resolution
a. Governing Law
These Terms will be governed by and construed in accordance with the laws of the State of Tennessee without regard to its choice-of-law provisions. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. You hereby consent to the exclusive jurisdiction of the state and federal courts located in Davidson County, Tennessee, USA to enforce these Terms.
b. Class Action Waiver
YOU HEREBY WAIVE ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST KEENER RELATED TO ANY CLAIM, DISPUTE, OR CONTROVERSY, AND, WHERE APPLICABLE, YOU HEREBY AGREE TO OPT OUT OF ANY CLASS PROCEEDING AGAINST KEENER OTHERWISE COMMENCED ON OR AFTER THE EFFECTIVE DATE OF THESE TERMS.
c. Arbitration Agreement
Any controversy or claim between you and Keener arising out of or relating to: (i) these Terms, or the breach thereof; (ii) your access to or use of the Services; or (iii) any alleged violation of any federal or state or local law, statute or ordinance (each such controversy or claim, a "Claim"), shall be resolved exclusively by a binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Claims shall be heard by a single arbitrator. Arbitrations shall be held in Davidson County, Tennessee but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the Federal Arbitration Act and by the internal laws of the State of Tennessee, without regard to conflicts of laws principles. The prevailing party shall be entitled to an award of reasonable attorneys' fees. In arbitration, the parties give up their right to have their Claim decided by a judge or jury, and their Claim is instead decided by an arbitrator. Discovery rights and appellate rights in arbitration are more limited than in court. The arbitrator shall issue a reasoned award in writing, including all findings of fact and law upon which the award was made. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
YOU AND KEENER AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND KEENER AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SECTION, AND IF THIS SECTION IS FOUND TO BE INVALID, UNENFORCEABLE, OR ILLEGAL BY A COURT OF COMPETENT JURISDICTION, THEN SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR. NOTWITHSTANDING THE FOREGOING, IF ANY CLAIM IS NOT SUBJECT TO ARBITRATION, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN DAVIDSON COUNTY, TENNESSEE, WHICH IS THE PLACE OF PERFORMANCE OF THESE TERMS.
23. General Terms
a. Geographic Limitations
The Site and Services are provided from Keener's headquarters in the United States. You acknowledge that you may not be able to access all or some of the Site or Services from outside of the United States and that access thereto may not be legal by certain persons or in certain countries. You agree to comply with all applicable local, state, federal, and foreign laws in accessing the Site and using the Services. Keener makes no representation that the Site or Services comply with legal or regulatory requirements of jurisdictions outside the United States. You are solely responsible for notifying Keener if your use of the Site or Services or these Terms violates any law, regulation, or rule of your locality. Use of the Site or Services from jurisdictions where such access is illegal is prohibited. Keener is not responsible for any violation of law in relation to your use of the Site or Services. If you or your Sponsored User choose to use the Site or Services from other jurisdictions, such use is at your own initiative and you are solely responsible for compliance with applicable local laws.
b. Export Controls
You agree to use the Services in compliance with U.S. export control laws, and that you will not export the Services to countries, persons or entities prohibited by such laws. You also agree to not submit the Services to any government agency for licensing consideration or other regulatory approval without our prior written consent.
c. Relationship; Assignment
The relationship of the parties hereto is that of independent contractors. No joint venture, partnership, employment, or agency relationship exists between you and Keener as a result of these Terms or your or your Sponsored Users' use of the Site or Services. These Terms and all of your rights and obligations under it are not assignable or transferrable by you without the prior written consent of Keener. We may, at any time, sell, transfer, or assign any or all of our rights and obligations under these Terms.
d. No Third-Party Rights
You acknowledge that the Site and Services and these Terms are for your exclusive benefit. Nothing in these Terms shall be interpreted as creating third-party beneficiary rights.
e. Consent to Do Business Online
By accessing our Site, subscribing to Services or creating a Keener account, or typing your name into any of our electronic forms and indicating your acceptance or submission of information by clicking a box, you consent to: (i) Keener communicating with you electronically; (ii) receiving all applications, notices, disclosures, and authorizations (collectively, "Records") from us electronically; and (iii) entering into agreements and transactions using electronic Records and signatures. Please note that federal law treats electronic signatures as having the same legal force and effect as if they were signed on paper by hand, and online contracts have the same legal force as signing an equivalent paper contract in ink. We will use electronic documents for all communications, notices, agreements, disclosures, authorizations, and other documents necessary to provide you with the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You must have a computer or other web-enabled device, an internet connection, an active email account, and the ability to receive and read PDF files to conduct business with us electronically. You agree to be responsible for keeping your own Records. If you require assistance with your Records or if you wish to receive Records in paper format or to withdraw your consent to receiving electronic records from us, please contact us at email@example.com. Agreements and transactions executed prior to this request will remain valid and enforceable.
f. Severability; No Waiver
If any provision in these Terms is found by a court or arbitrator to be invalid, the parties agree that the court or arbitrator should give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect. Keener's failure to act with respect to any breach hereof does not constitute a waiver of our right to act with respect to subsequent or similar breaches.
g. Entire Agreement
These Terms and the agreements referenced herein constitute the entire agreement between the parties with regard to the subject matter in these Terms and supersede all prior understandings and agreements, whether written or oral, as to the subject matter.
h. Term and Termination
These Terms will remain in effect as long as you access the Site or use the Services. If you subscribe to Services, your subscription begins on the date you subscribe to such Service and continues until terminated or cancelled in accordance with these Terms. You may change or cancel your Services by adjusting your settings in your account or by contacting us at firstname.lastname@example.org. We will notify you confirming your change or cancellation and any adjustments in billing.
These Terms and the license granted to you hereunder will terminate automatically if you are no longer eligible to access the Site or receive the Services, if you breach these Terms, or for any other reason at our sole discretion. In addition, we may terminate your subscription for any other reason or for no reason by giving you 30 days' notice. If you cancel your subscription or otherwise terminate your agreement with Keener, we will retain any fees you paid to us under these Terms.
The following provisions shall survive any termination of these Terms: Sections 8, 11, 12, and 17 through 23.
i. Changes to Terms
Keener reserves the right to change these Terms at any time. Please review these Terms periodically for any updates or changes. Your continued use of the Site or Services following the posting of any updates or changes to these Terms constitutes your acceptance of the changes. If you object to any provision of these Terms or any subsequent modifications to these Terms, your only recourse is to terminate your use of the Site and Services immediately.
j. Contact Keener
If you have any questions about these Terms, the Site or Services, or Keener's practices of Keener, please contact us at email@example.com or (855) 688-7582. You may also contact us to update your personal information.