Last updated September 11, 2020
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND HEALTHSTREAM.
Eligibility. You must be at least 18 years old to use Keener. By downloading or accessing Keener, you represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into and abide by these Terms.
Your Acceptance. By downloading or using Keener or creating a Keener profile, you agree to these Terms. You can also 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 within your Keener profile. These Terms will remain in effect as long as you have a Keener profile. You acknowledge that we may make changes to Keener at any time. If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT DOWNLOAD OR ACCESS KEENOR. IF YOU DO NOT ABIDE BY THESE TERMS, YOU UNDERSTAND AND AGREE THAT WE MAY IMMEDIATELY DEACTIVATE OR DELETE YOUR PROFILE AND ALL RELATED DATA AND RESTRICT ANY FURTHER ACCESS TO SUCH DATA AND KEENER, WITH OR WITHOUT NOTICE.
Your Privacy. At Keener, your privacy is of the highest priority. We keep your Keener user data separate from any data you may have with HealthStream. If you have an account with HealthStream, your Keener user account is not automatically connected to that HealthStream account. At some point in the future, we may offer features that allow you to elect to connect your Keener user account with other HealthStream products or services. At that time, we will explain the benefits and privacy implications of choosing to use those features. For more information, please review the Keener Privacy Notice, which is incorporated into these Terms by this reference.
Not Medical, Career, or Other Professional Advice. Keener may offer Content related to employment or career development, wellness and other topics of interest to our users. No diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness will be offered. We cannot offer you career, employment or legal advice or any other professional advisory or representation services. YOU UNDERSTAND AND AGREE THAT ALL KEENER CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. KEENER DOES NOT OFFER MEDICAL ADVICE, CAREER COACHING, LEGAL ADVICE, EMPLOYMENT ADVICE, OR ANY TYPE OF COACHING, ADVISING, MEDICAL, OR PROFESSIONAL SERVICE. Keener cannot substitute for, and is not an alternative to, medical, psychiatric, psychological, psychotherapy or other healthcare diagnosis and treatment when a medical or mental health condition or illness is present. 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.
Your Registration. To use Keener, you must register and create a user profile. Personal Information you provide to us is governed by the Keener Privacy Notice. Your profile will grant you access to the user dashboard where you can update or change the information in your profile, subscription level, and other options. You will be given login credentials, including a username and password. You are responsible for maintaining the confidentiality of your login credential, and you are responsible for all activities that occur using your access credentials.
Subscription Levels. We offer a free, limited access version of Keener (“Free Service”) and premium access versions of Keener provided in exchange for a monthly fee with differing functionality based on the subscription type (“Premium Service”). Premium Service fees are payable in advance against the payment method on file with us, and are either paid (i) by you as the Keener user (“Personal Premium Service”) or (ii) by a third party on your behalf (“Business Premium Service”). Free Service users may be precluded from using certain portions, components, content, features, or resources of Keener. We reserve the right to eliminate or modify any or all of the functionality of the Free Service at any time without any prior notice to you.
Personal Premium Service. If you are subscribed to Personal Premium Service, you will be responsible for the fixed and periodic charges and fees (including prepayment plan fees for multiple periods or recurring monthly fees) you selected at the time of subscription. Your Premium Service membership will automatically be extended for successive renewal periods of the same duration selected at the time of your purchase, at the then-current non-promotional subscription rate. Until you cancel, we will charge or debit your payment method at the beginning of your subscription. Your non-cancellation of Personal Premium Services or continued use of the paid subscription features of the Personal Premium Service will reaffirm that we are authorized to charge you. If your credit or debit account has been closed or your payment method is otherwise invalid, your subscription may not renew and your subscription will be automatically downgraded to the Free Service effective as of the end of your current billing cycle. The renewal charge will generally be the same as the prior period’s charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period as described above. If (i) you purchased a multiple-period prepayment plan or (ii) you were eligible for a promotional rate but are no long eligible for that rate, then your subscription will be offered to renew your subscription at our then-current non-promotional subscription rates at the start of the renewal period. If you wish to renew and we are currently offering promotional rates at such time, you must renew your subscription prior to the termination of your current plan. If you fail to renew your subscription for any Personal Premium Services before its scheduled expiration date, then the then-current non-promotional subscription rate will apply.
Business Premium Service. The Business Premium Service is generally purchased by third-party commercial subscribers (“Business Subscribers”), such as your employer or another sponsoring organization, for a specified period. In such instance, your access to Business Premium Service has been paid for by our Business Subscriber, and you will be able to use Business Premium Service features until the expiration of a specified term agreed between us and such Business Subscriber. The Business Subscriber paying for your Business Premium Service subscription controls the scope and duration of the subscription by which you may access the Business Premium Service and may terminate your access to it. You agree that we will not be liable to you or any third-party for any termination or cancellation of your access to, or use of, the Business Premium Service that were originally provided to you by such Business Subscriber. If your had Business Premium Service subscriptions paid through a Business Subscriber but you are no longer eligible to receive such benefit from the Business Subscriber, it is also possible that your Business Premium Service account will terminate with us, and you will have to sign up for a new account.
Fees and Billing. Whether you subscribe to a Free Service or a Premium Service, you are responsible for all charges and fees associated with connecting to and using Keener, including without limitation all wireless and/or internet service provider fees, devices and equipment, sales taxes and any other fees and charges necessary to access Keener. 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. All fees are quoted in United States dollars. We reserve the right to change our subscriptions levels or adjust our fees or any components thereof in any manner and at any time.
You may contact us to upgrade, downgrade or cancel your subscription by adjusting your settings in your Keener profile or by contacting us at email@example.com. Your upgrade or downgrade is effective immediately and applies to the entire monthly billing period during which you contacted us.
Once you create a Keener profile, your subscription continues until terminated or cancelled in accordance with these Terms. If you cancel a Free Service, your cancellation is effective immediately. If you cancel a Premium Service, your cancellation is effective at the end of the then-current monthly billing period. We may terminate your subscription immediately upon giving notice to you if you breach any of these Terms. 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.
Beta Versions. We may make new versions of Keener 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 Keener or your ability to use a Beta Version 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, we do not grant any additional right to you under any copyrights, patents, trademarks or trade secret information.
Service Access. We will use commercially reasonable efforts to maintain Keener’s availability. You agree and understand that there will be times when Keener 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. We will make commercially reasonable efforts to notify you of planned downtime and unavailability. We are not liable for any delays, interruptions, or other transmission errors resulting from any lack of Keener access or caused by your device or your internet or wireless service provider.
Keener Mobile Application. To use Keener, 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.
Your Consent To Do Business Online. By downloading or using Keener, creating a Keener profile, 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) our 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 Keener. 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 firstname.lastname@example.org. Agreements and transactions executed prior to this request will remain valid and enforceable.
Communications. We may use your contact information to communicate with you about your use of Keener or our other services. For example, we may send you emails or other communications to facilitate your registration confirmation, password request and reset, account deletion, or to respond to your requests for support. You understand that you receive these communications as part of your use of Keener, and you will not be able to opt-out from receiving these messages. If you have a Business Premium Service, the Business Subscriber paying for your subscription may also send you periodic communications or post materials on Keener, subject to their applicable terms and conditions and privacy notice.
Your Texting Consent. By providing us with your wireless phone number, you consent to us sending you informational text messages related to Keener and other information you have requested from us. 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.
Marketing Communications. We may send you marketing communications by email, mail or other methods 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 from us.
License Grant. Subject to these Terms, we hereby grant you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to access, download, install, and use Keener for your own personal, non-commercial purposes. Keener is licensed to you, not sold. Nothing in these Terms is intended to, or may be construed as, conferring by implication, estoppel or otherwise any ownership, license or other grant of right to any copyright, trademark, or other intellectual property of HealthStream or any third party, except as expressly provided in these Terms. We reserve all rights not expressly granted in these Terms.
Updates. From time to time we may, in our sole discretion, develop and provide updates to Keener, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when a device is connected to the internet either: (i) Keener will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. You agree to promptly download and install all Updates and acknowledge and agree that Keener or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of Keener and be subject to these Terms.
Contents and Ownership. Unless otherwise expressly indicated, the information contained on Keener and our other services, including but not limited to all images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information and screens appearing in Keener, and other materials, as well as names, logos, taglines, trade dress, and other trademarks on Keener, are copyrights, trademarks, trade dress or other intellectual property (collectively, the “Contents”) owned, controlled, or licensed by HealthStream or its affiliates, 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. No license to or regarding any of the Contents is granted in connection with your use of Keener. Only a duly authorized officer of HealthStream 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 office of HealthStream is invalid.
Copyright. 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 HealthStream. You may only display, download, or print the Contents for the purpose of using Keener as an internal or personal business resource.
Trademarks. The following is a non-exhaustive list of Keener’s registered and/or common law trademarks and service marks: Keener; www.keenerapp.com; and all logos, trademarks, service marks, product names and trade names associated with Keener or HealthStream, 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 HealthStream. You may not use any meta tags or any other hidden text utilizing a Keener or HealthStream name, trademark, or product name without HealthStream’s prior written permission. Third party trademarks and service marks used on Keener are the property of their respective owners, and we use them with their consent. Keener and the other licensors of the marks on Keener reserve all rights with respect to all Contents and all intellectual property.
Reports. We may, from time to time, deidentify the Personal Information (“Deidentified Information”) that we collect from your use of Keener and combine it with others’ Deidentified Information in order to generate reports and studies. We use these reports and studies for internal purposes only. Any such reports or studies are the sole and exclusive property of HealthStream. You hereby assign any rights you may have to such reports, studies, and your Deidentified Information contained therein to HealthStream in perpetuity throughout the world for any and all present or future uses in any and all languages and for no compensation. All Deidentified Information will be treated as nonconfidential and nonproprietary. We shall be under no obligation of any kind with respect to such Deidentified Information and shall be free to reproduce, make derivative works from, use, disclose, and distribute the Reports to others without limitation. Additionally, we may use any ideas, concepts, know-how, or techniques contained in generating reports or studies for any purpose whatsoever, including but not limited to developing, manufacturing, or marketing products incorporating such information.
Feedback. You may from time-to-time provide us materials, communications, suggestions, comments, improvements, ideas or other feedback related to Keener (“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 Keener, HealthStream’s website or other 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.
Acceptable Use. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market or transfer Keener or any portion thereof (including the Content) or use it in any manner not expressly authorized by these Terms. You further agree not to copy, reverse engineer, translate, port, modify or make derivative works of any portion of Keener. Tampering with Keener, conducting fraudulent activities on Keener and all other illegal activities are prohibited and may subject a user to legal action and/or termination of your access to Keener.
By using Keener and its features, you represent and warrant that (i) any information you submit to us is truthful and accurate; (ii) you will maintain the accuracy of that information; (iii) you will not do anything that might jeopardize the security of your account; and (iv) you will notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. Any information that you provide to us will also be subject to our Privacy Notice.
Upon termination of these Terms: (a) the rights and licenses granted to you herein shall terminate as to the terminated rights, (b) you shall cease all use of Keener that have been terminated, and (c) HealthStream may at its own discretion remove and/or purge data, account information, and any other information obtained by us in connection with providing you Keener. Keener reserves the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
User Content. With respect to any comments, Feedback, photos, shift reflections, or other materials (“User Content”) posted by you, you represent that (i) you created and own the rights to the content, or you have the owner’s express permission to post such content; and (ii) the content does not infringe any other person’s or entity’s rights (including, without limitation, copyrights, trademarks, rights of publicity or privacy rights) or violate any applicable laws, rules or regulations, these Terms, or any of our other posted policies. User Content must not (a) misrepresent your identity or affiliation with any person or organization; (b) seek to collect others’ Personal Information by any means; (c) seek to transmit chain letters, or bulk or junk email; (d) relate to contests, sweepstakes, or other sales promotions; (e) include information that may be used to track, contact, or impersonate another individual; (f) infringe any intellectual property or other proprietary rights of Keener or any other person; (g) seek to harm or exploit children; (h) contain any material that is false, defamatory, libelous, obscene, harassing, discriminatory, profane, or otherwise offensive, damaging, unlawful, or harmful; (i) violate our or any other person’s or entity’s legal rights, contain any material that could give rise to civil or criminal liability under applicable laws or regulations, or otherwise promote, advocate or assist any illegal activity or unlawful act; or (j) be otherwise objectionable as determined by us at our sole discretion.
Public Forums. Keener users may have the opportunity to publish, transmit, submit or otherwise post User Content of their choosing via Keener features that are accessible and viewable by other Keener users or the public such as chat, message board, blog, groups, emails or instant messaging features (collectively, “Public Forums”). All User Content posted to Public Forums is public, not private. You are, and shall remain, solely responsible for the User Content that you upload, submit, post, transmit, communicate, share or exchange by means of any Public Forum and for the consequences of submitting or posting same. Note that the Shift Reflections feature does not cause you to post your Shift Reflections in a Public Forum, and your Shift Reflections are not viewable by any other Keener user, your employer, or any other person or third party without your authorization.
You are solely responsible for your User Content and the consequences of posting it online. You assume all risks associated with dealing with other users with whom you come in contact through Keener, and, to the extent that the law permits, you release us from any claims or liability related to any User Content posted via Keener and from any claims related to the conduct of any other users. We do not endorse any User Content, and the User Content posted does not reflect our opinions, views or advice. We take no responsibility and assume no liability for any User Content that you or a third party posts or sends on or through Keener, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We reserve the right, but have no obligation to, monitor, review, screen, post, remove, reject, modify or store User Content at any time and for any reason without notice. We may refuse, alter, or remove User Content without notice for any reason at our sole discretion.
In consideration for your use of the User Content features, you grant to HealthStream an irrevocable, worldwide, royalty-free, fully-paid, sub-licensable, perpetual license to use, reproduce, make derivative works from, distribute, publish, display, or perform such User Content in whole or in part, by any and all means and media, in connection with advertising, marketing and promoting HealthStream, its products and services. You acknowledge that HealthStream may modify the User Content for any purpose. However, HealthStream has no obligation to use any User Content, and our use of any User Content does not create or imply any endorsement of or affiliation with you.
Keener Profile. In order to access Public Forum features or interact with other Keener users, you may be required to create a profile that may contain certain Personal Information about you as described in the Keener Privacy Notice. Users also have the option to post photographs, messages, videos and other information on their profiles. We rely on Keener users to provide current and accurate information, and we do not, and cannot, investigate information contained in user profiles. WE DO NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF PROFILE INFORMATION, AND HEREBY DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION PROVIDED BY USERS BY MEANS OF PROFILES OR OTHERWISE IN CONNECTION WITH THEIR USE OF KEENER.
Keener Community. Depending on your subscription level and type, you may have access to features that allow you to share your shift reflections and your other User Content, your profile information, Keener Content, and other materials with your colleagues, supervisor and/or other users (your “Keener Community”). These features take place in a Public Forum, and by using the feature, you may receive electronic communications, including group chat messages and/or private messages from members of your Keener Community. You agree to abide by these Terms at all times when you transmit User Content, whether via private message, group chat feature or any other Keener feature. You further acknowledge that by providing you with the ability to distribute User Content in Keener Public Forums, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any User Content or activity in any Public Forum, nor do we endorse any such User Content or activity.
Restrictions to Use. Using Keener does not authorize you to use any Contents in any manner other than specifically authorized by these Terms. You may not use our Contents for any purpose not expressly stated in these Terms, including in any way that might confuse or that disparages us. The permissions described herein will terminate automatically if you breach any of these Terms.
Any other use of the Contents in Keener including reproduction for purposes other than as noted above, without the prior written permission of HealthStream, is strictly prohibited. Without limiting the foregoing, you are strictly prohibited from using Keener: (i) in a manner that violates any applicable law, rule or regulation, including without limitation the U.S. CAN-SPAM Act, the Canadian Anti-Spam Legislation, or the Children’s Online Privacy Protection Act, each as amended from time to time; (ii) to promote any goods or services or send communications that are illegal in the place offered to consumers; (iii) to promote adult services, illegal gambling, counterfeit or pirated goods or services, or violate any securities or commodities regulations (such as to support a “pump and dump” scheme); (iv) to defraud, deceive or mislead anyone; (v) to communicate or transmit content that is defamatory, dishonest, obscene, sexually explicit, pornographic, vulgar or offensive; (vi) to promote or engage in discrimination, racism, harassment or hate speech against any individual or group; or (viii) to threaten or promote violence.
Security. You are strictly prohibited from violating or trying to violate our security features, such as by (i) accessing data not intended for you or logging onto a server or an account which you are not authorized to access; (ii) 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; (iii) 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 (iv) 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 Keener or any activity being conducted on via Keener. 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 Keener other than the search engine and search agents that we make available via Keener 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.
Links to Other Websites. Links to websites from Keener are provided solely for your convenience. We are not responsible for the content of any other websites, nor do we make any representations about the content or accuracy of material on any other websites. Inclusion of any linked website on Keener does not imply our approval or endorsement of the website. 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 their privacy policies and practices and not ours. Any concerns regarding any such website, service or resource, or any hyperlink thereto, should be directed to the website’s owner or operator.
DISCLAIMER OF WARRANTIES. YOUR USE OF KEENER IS AT YOUR OWN RISK. WE MAKE NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH KEENER OR RELATING TO KEENER’S AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY OR COMPLETENESS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEENER IS 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. WE DO NOT WARRANT THAT KEENER WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECT WITHIN KEENER WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY WITHOUT A WRITING SIGNED BY HEALTHSTREAM REFLECTING THE CREATION OF SUCH WARRANTY.
LIMITATION OF LIABILITY. WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF KEENER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR 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, WE 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 US FOR YOUR USE OF KEENER OR OUR OTHER 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD US, OUR SUBSIDIARIES AND OUR AFFILIATES, AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, AGENTS, PARTNERS AND EMPLOYEES, HARMLESS FROM ANY LOSS, LIABILITY, COST, EXPENSE, CLAIM, DAMAGES, OR DEMAND, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES, DUE OR RELATING TO OR ARISING OUT OF (I) YOUR USE OF KEENER OR OUR OTHER SERVICES IN VIOLATION OF OUR TERMS, (II) YOUR BREACH OF OUR TERMS, OR (III) ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH IN OUR TERMS.
CLASS ACTION WAIVER. YOU HEREBY WAIVE ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST HEALTHSTREAM RELATED TO ANY CLAIM, DISPUTE OR CONTROVERSY, AND, WHERE APPLICABLE, YOU HEREBY AGREE TO OPT OUT OF ANY CLASS PROCEEDING AGAINST HEALTHSTREAM OTHERWISE COMMENCED ON OR AFTER THE EFFECTIVE DATE OF THESE TERMS.
Dispute Resolution; Arbitration. Any controversy or claim between you and HealthStream arising out of or relating to: (i) these Terms, or the breach thereof, or (ii) your access to or use of Keener, 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. The Federal Arbitration Act, Tennessee state law, and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. 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. However, judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. Arbitrations shall be held in Nashville, Tennessee but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. 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.
YOU AND HEALTHSTREAM EACH 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 HEALTHSTREAM 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.
General. We prefer to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by us, may result in immediate termination of your access to Keener without prior notice to you. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Keener’s failure to enforce any of these Terms is not a waiver of such term. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be freely assigned by Keener without restriction. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect. These Terms and the agreements incorporated by reference herein are the entire agreement between you and HealthStream and supersede all prior or contemporaneous negotiations, discussions or agreements between you and HealthStream about Keener. The proprietary rights, disclaimer of warranties, representations made by you, limitations of liability and general provisions shall survive any termination of these Terms.
Contact Us. If you have any questions about these Terms, please contact us at email@example.com or (855) 688-7582.