||BINDING AGREEMENT. This agreement (“Agreement”) is between J. J. Keller
& Associates, Inc. (“J. J. Keller”) and You (either as an individual or entity,
as applicable). If You are an individual acting on behalf of an entity, You
represent and warrant to J. J. Keller that You have all necessary authority to
bind such entity to the terms and conditions of this Agreement. THIS IS A
SUBMITTING YOUR REGISTRATION REQUEST OR USING THE APPLICATION SERVICES WEB SITE
(the “ASP Site”), AND THE APPLICATIONS CONTAINED IN OR DIRECTLY LINKED TO THE
ASP SITE (the “Applications”). REFERENCES TO THE ASP SITE INCLUDE THE
REGISTERED USER AREA AS WELL AS OTHER AREAS THAT MAY NOT REQUIRE REGISTRATION
FOR ACCESS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT SUBMIT
YOUR REGISTRATION REQUEST AND DO NOT USE THE ASP SITE OR THE APPLICATIONS. If
You have any questions about this Agreement, please contact J. J. Keller via
e-mail at the customer support email address specified on the ASP Site.
Amendment of Agreement. J. J. Keller may amend this Agreement at any
ASP Site. Except as stated in this Agreement, all amended terms shall
automatically be effective thirty (30) days after they are initially posted on
the ASP Site. You agree to review this Agreement periodically, but no less than
every thirty (30) days, to become aware of such revisions. If any such revision
is unacceptable to You, You must discontinue accessing the ASP Site and use of
the Applications. Your continued accessing of the ASP Site or use of the
Applications following the effective date of notice of any such revision shall
conclusively be deemed acceptance of all such revisions. This Agreement may not
be otherwise amended except in a writing signed by You and J. J. Keller.
J. J. Keller Services and Fees. For individual Application Services,
You may receive a Service fee quote by
completing the “Request for Pricing” form on the ASP Site. Upon evaluation of
your request, J. J. Keller will send You a Service fee schedule via electronic
mail. For J.J. Keller Mobile™, fees will be as specified in the J.J. Keller Mobile™
contract addendum. All fees are quoted in U.S. Dollars. If You register an account on the
ASP Site, the quoted fees are incorporated herein by reference. Service fee
quotes are valid for thirty (30) days from the date transmitted to You by J. J.
Keller. J. J. Keller may change its services and fees from time to time.
Changes to such fees are effective after J. J. Keller provides You with at
least thirty (30) days notice of the changes by sending an electronic mail
notification to the e-mail address You provided. Changes to J. J. Keller
services are effective immediately upon posting notice of such changed services
on the ASP Site.
Payments. You are responsible for paying all fees and applicable taxes
associated with Your access to and use of the ASP Site and the Applications. J. J. Keller will
charge Your account at the end of each monthly billing period commencing as of
the activation date of your account registration. Unless otherwise agreed by J.
J. Keller, You agree to provide J. J. Keller with and maintain a current and
valid credit card number and expiration date for the purpose of billing fees
due J. J. Keller under this Agreement. If Your credit card is denied for any
reason, J. J. Keller may, at its option, invoice You for any unpaid charges due
under this Agreement. In that event, or if J. J. Keller has otherwise agreed to
invoice You for charges under this Agreement, such invoices are due net upon
Your receipt of the invoice. All late payments are subject to late payment fees
equal to the lesser of 1.5% per month on any outstanding balance or the maximum
permitted by law. You will be responsible for all collection costs associated
with the collection of late payments, including reasonable attorneys’ fees.
Failure to maintain current and valid credit card information or to pay any
invoice when due may, at J. J. Keller’s option, result in suspension or
termination of Your right to access or use the ASP Site and the Applications.
Access to and use of the ASP Site and the Applications. Registration for
access to and use of the ASP Site and the Applications are available only to
persons who can form legally binding contracts under applicable law or
Corporate Users as defined below. You represent and warrant to J. J. Keller
that You are such a person. The ASP Site and the Applications may be used
solely for Your internal business purposes and only for those services for
which You pay the applicable fee. Any other use is expressly forbidden. Upon
registering for access to the ASP Site and use of the Applications, J. J.
Keller will provide You or Your Organization/Corporation (as applicable) with a
password and login name granting systems administrator permissions for Your ASP
service. Your designated systems administrator may authorize additional users
to use Your ASP account by creating logins and passwords and assigning
applicable permission levels. (All such passwords and login names referred to
as “Your Passwords” and “Login IDs”.) You are responsible for maintaining the
confidentiality of Your Passwords and Login IDs, and are responsible for all
activities that occur under Your Passwords and Login IDs.
Organization/Corporate users of the ASP Site and the Applications are
responsible for their employees, directors, officers, representatives, and
agents (collectively, “Corporate Users”) as users of the ASP Site and the
Applications, and are specifically responsible and liable for any and all
damages created thereby. Organization/Corporate users are also responsible and
liable to pay for all products and services purchased through the ASP Site by
Corporate Users. Your registration for use of the ASP Site and the Applications
(including Your Passwords and Login IDs) may not be transferred or sold to
another party. You agree to immediately notify J. J. Keller via email at the
customer support email address specified on the ASP Site of any unauthorized
use of Your Passwords or Login IDs.
Access to Your Data. As between J. J. Keller and You, You will own all
data, information or material that You enter into the ASP Site or have entered
on Your behalf (“Your Data”). Only You or Your Guests can enter, edit and use
Your Data. J. J. Keller uses client data only as outlined in J. J. Keller’s
Agreement, J. J. Keller will not edit, delete or disclose the contents of Your
Data unless authorized by You or unless J. J. Keller is required to do so by
law or in the good faith belief that such action is necessary to: (i) conform
with applicable laws or comply with legal process served on J. J. Keller; (ii)
protect and defend the rights or property of J. J. Keller; or (iii) enforce
this Agreement. If You have subscribed to ASP services that allow third parties
(for example, Your applicants) to access ASP Applications for the purposes of
entering information into Your Data housed on the ASP Site (each of these third
parties is Your “Guest”), J. J. Keller (through the Applications) may provide
You with one or more links (“Guest Links”) or scripts, as applicable, to allow
You to make data entry forms available to Your Guests. You are responsible for
the conduct of Your Guests on the ASP Site and are responsible for all uses of
any Guest Link or scripts.
Security. J. J. Keller has taken reasonable steps to keep information,
materials and data housed on the ASP Site secure. J. J. Keller does not,
however, guarantee the security or integrity of Your Login IDs, Your Passwords,
Guest Links, the ASP Site, or any data housed on the ASP Site.
Privacy. J. J. Keller takes reasonable steps to ensure third parties’
privacy and protect the privacy of the information submitted to the ASP Site in
Keller acts as a passive third party data collector between you and those third
Your Responsibilities. You are responsible for Your Data that You or
Your Guest(s) post, enter, upload, or otherwise transmit to the ASP Site.
You are responsible for providing all hardware, software, telephone or other
communications equipment and/or service to connect to the Internet and access
the ASP Site and the Applications, and are responsible for all Internet access
charges, telephone charges or other fees or charges incurred in connecting to
the Internet and accessing the ASP Site and the Applications.
You agree to access and use the ASP Site and the Applications only for lawful
purposes. J. J. Keller does not control the content provided by any users that
is made available through the ASP Site. You are solely responsible for Your
Data. J. J. Keller is a passive conduit for online storage, retrieval and
distribution of Your Data. You are solely responsible for the knowledge of and
adherence to any and all laws, statutes, rules and regulations, pertaining to:
(i) Your Data; (ii) Your use of the ASP Site and the Applications, (iii) the
use of any networks or other services connected to the ASP Site and the
Applications, and (iv) the communications means by which You connect Your
modem, computer, or other equipment to the ASP Site and the Applications.
You agree that You and Your Guests will not do the following:
(1) except to the extent that You may regulate access of Your Guest(s) to the
ASP Site and Your Data as You deem appropriate, restrict or inhibit any other
user from accessing and using the ASP Site and/or the Applications;
(2) post or transmit any unlawful, threatening, abusive, libelous, defamatory,
obscene, vulgar, pornographic, profane, or indecent information or material of
any kind, including without limitation any transmissions constituting or
encouraging conduct that would constitute a criminal offense, give rise to
civil liability or otherwise violate any local, state, national, or
international law (collectively, the “Prohibited Postings”) and You further
agree that You will immediately notify J. J. Keller of any Prohibited Postings
of which You become aware and authorize J. J. Keller to remove any of Your Data
that may constitute Prohibited Postings;
(3) post or transmit any information or other material that violates or
infringes the rights of others, including material that is an invasion of
privacy or publicity rights or that is protected by copyright, trademark, or
other proprietary rights, without first obtaining permission from the owner or
right holder, as applicable, and You further agree that You will immediately
notify J. J. Keller of any such information or other material of which You
become aware and authorize J. J. Keller to remove the same to the extent that
it is Your Data;
(4) knowingly post or transmit any information, software or other material that
contains a virus or other harmful component, and You further agree that You
will immediately notify J. J. Keller of any such virus or other harmful
component of which You become aware and authorize J. J. Keller to remove the
same to the extent that it is Your Data;
(5) alter, damage, or delete any J. J. Keller Content or any content or other
communications that are not Your Data or to otherwise interfere with the
ability of others (excepting only Your Guest(s) to the extent that Your may
regulate Your Guest(s) access to the ASP Site and Your Data) to access the ASP
Site or the Applications;
(6) intentionally or negligently disrupt the normal flow of communication on
the ASP Site;
(7) claim a relationship with or to speak for any business, association,
institution, or other organization for which You are not authorized to claim
such a relationship; or
(8) violate any operating rule, policy, or guideline of Your Internet access
provider or online service.
J. J. Keller Content. Excluding only Your Data and the data of other
authorized users of the ASP Site, the ASP Site and Applications and all
components thereof, including, without limitation, software, code, text,
images, video and audio, are the intellectual property of J. J. Keller or its
licensors (the “J. J. Keller Content”). Your use of J. J. Keller Content is
governed by this Agreement and applicable intellectual property laws.
Except as explicitly allowed hereunder, You may not modify, copy, reproduce,
transmit, distribute, publish, create derivative works from, display or
otherwise transfer or commercially exploit any of the J. J. Keller Content, in
whole or in part, provided, however, that You may make a reasonable number of
digital copies solely as required to permit Your computer hardware and software
to access, view and use the J. J. Keller Content as allowed herein. Any
permitted copies of J. J. Keller Content must reproduce in an unmodified form
any intellectual property and proprietary content notices contained in the J.
J. Keller Content. You acknowledge that J. J. Keller or its licensors, as
applicable, remains the owner of the J. J. Keller Content and that You do not
acquire any intellectual property rights by virtue of this Agreement other than
the right to use the J. J. Keller Content as explicitly provided herein.
FBI ANTI-PIRACY WARNING: The unauthorized reproduction or distribution of
this copyrighted work is illegal. Criminal copyright infringement, including
infringement without monetary gain, is investigated by the FBI and is
punishable by up to 5 years in federal prison and a fine of $250,000.
J. J. Keller and its licensors may make improvements and/or changes to the ASP
Site or the J. J. Keller Content at any time and from time to time.
Term and Termination. This Agreement begins on the date that You
indicate Your acceptance of this Agreement by signing this Agreement,
regardless of whether Your signature is in an electronic or non-electronic
form. If such a button is provided, clicking on the “I ACCEPT” or similar
button located at the bottom of this Agreement shall constitute a signature.
You may terminate this Agreement at any time by notifying J. J. Keller of such
termination via e-mail at the customer support email address specified on the
ASP Site. Except as noted herein, no refund will be paid for any termination of
this Agreement, regardless of the cause and your sole and exclusive remedy with
respect to dissatisfaction with any policies, practices, fees, or services of
J. J. Keller in accessing the ASP Site or in Your use of the Applications is
for You to discontinue accessing and using the ASP Site and the Applications.
J. J. Keller may terminate or temporarily suspend Your access to all or any
part of the ASP Site or the Applications, without notice, for conduct that J.
J. Keller believes is a breach of this Agreement or a violation of any policies
or guidelines posted by J. J. Keller, or for other conduct that J. J. Keller
believes, in its sole discretion, is harmful to J. J. Keller or other users. J.
J. Keller may discontinue operating the ASP Site or providing You with access
to or use of the Applications and terminate this Agreement at any time upon ten
(10) days notice for any reason in its sole discretion. In the event of
termination, You will no longer be authorized to access the ASP Site and the
Applications. Upon termination of this Agreement for reasons other than Your
breach, J. J. Keller will use reasonable commercial efforts to assist You, at
J. J. Keller’s then standard fee for such services, in obtaining any of Your
Data as may then be available on the ASP Site and transferring the same to a J.
J. Keller-approved storage media, provided You have provided J. J. Keller
notice prior to the termination date of this Agreement to make such a transfer.
Links. You understand that except for J. J. Keller Content, neither J.
J. Keller, its licensors, or affiliates, or their respective directors,
officers, employees, and agents controls, provides, or are responsible for any
content, goods or services available through sites on the Internet linked to or
from the ASP Site. All such content, goods and services are made accessible on
the Internet by independent third parties and are not part of the J. J. Keller
Content or controlled by J. J. Keller. J. J. Keller neither endorses nor is
responsible for the accuracy, completeness, usefulness, quality, or
availability of any content, goods, or services available on any site linked to
or from the ASP Site, all of which are the sole responsibility of such
independent third parties, and Your use thereof is solely at Your own risk.
Neither J. J. Keller, or its licensors, or their respective directors,
officers, employees, and agents shall be held responsible or liable, directly
or indirectly, for any loss or damage caused or alleged to have been caused by
Your use of or reliance on any content, goods or services available on any site
linked to or from the ASP Site or Your inability to access the Internet or any
site linked to or from the ASP Site.
LIMITED WARRANTY. J. J. Keller warrants that for a period of thirty (30)
days following Your purchase of this license of rights to use the Applications
(the “Warranty Period”) that the Applications will substantially conform in all
material aspects to the specifications for the same as provide on the ASP Site
at the time the license is purchased. Any claim for breach of this warranty
must by made by You to J. J. Keller in writing or e-mail to the addresses
indicated herein during the Warranty Period. Your sole and exclusive remedy is
1) during the Warranty Period, to obtain a refund of the amounts paid to J. J.
Keller for access to the ASP Site and the Applications, and 2) thereafter, to
discontinue using the ASP Site and the Applications. THIS WARRANTY IS IN LIEU OF
ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR OTHERWISE.
EXCEPT AS NOTED IN THE PREVIOUS PARAGRAPH, YOU EXPRESSLY AGREE THAT YOUR USE OF
THE ASP SITE, THE J. J. KELLER CONTENT AND THE APPLICATIONS IS AT YOUR SOLE
RISK. NEITHER J. J. KELLER OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS
WARRANTS THAT THE ASP SITE AND THE APPLICATIONS OR ANY INTERNET SITE LINKED TO
OR FROM THE ASP SITE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE
CORRECTED, OR THAT THE ASP SITE, THE APPLICATIONS OR THE SERVER THAT MAKES SUCH
SITE OR TOOL AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NOR DO
ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE
USE OF THE ASP SITE, THE APPLICATIONS OR ANY INTERNET SITE LINKED TO OR FROM
THE ASP SITE OR AS TO THE TIMELINESS, SEQUENCE, ACCURACY, AUTHORITY,
COMPLETENESS, USEFULNESS, NON INFRINGEMENT, RELIABILITY, AVAILABILITY, OR
SUBSTANCE OF ANY CONTENT, INFORMATION, SERVICE, OR TRANSACTION PROVIDED THROUGH
THE ASP SITE, THE APPLICATIONS OR ANY SITE LINKED TO OR FROM THE ASP SITE.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL J. J. KELLER OR
ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE FOR ANY INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES UNDER OR ARISING FROM THIS AGREEMENT, THE ASP
SITE, THE APPLICATIONS, OR ANY INTERNET SITE LINKED TO OR FROM THE ASP SITE,
WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY
OTHER CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES
CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION,
INTERRUPTION, ELECTRICAL SURGE/DAMAGE/ INTERFERENCE, DELETION, DEFECT, DELAY IN
OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE,
BREAKDOWN OF EQUIPMENT, SOFTWARE ERROR, INFRINGEMENT, UNAUTHORIZED ACCESS TO,
OR THEFT, DESTRUCTION, ALTERATION, OR USE OF, RECORDS.
Indemnity. You agree to indemnify and hold harmless J. J. Keller, and
its directors, officers, employees, and agents from any and all liabilities,
claims, and expenses, including reasonable attorneys fees, arising from Your
breach of this Agreement, or Your or Your Guest’s access or use of the ASP
Other Services. In conjunction with Your implementation and/or use of
Applications and the ASP Site, J. J. Keller may provide You with certain
professional services such as, but not limited to, data migration,
configuration, and/or training services, as may be further described in a
statement of work or otherwise. Unless You and J. J. Keller have entered into a
separate written agreement covering such professional services, those services
are provided pursuant to this Agreement.
Miscellaneous. The validity, construction, and enforcement of this
Agreement shall be determined in accordance with the laws of Wisconsin, without
reference to its conflicts of laws principles, and any action arising under
this Agreement shall be brought exclusively in Milwaukee County, Wisconsin. You
consent to the personal jurisdiction of the state and federal courts located in
Milwaukee County, Wisconsin. This Agreement comprises the entire agreement
between J. J. Keller and You, and supersedes any prior agreements with respect
to the subject matter herein. The obligations of the parties under this
Agreement that by their nature would continue beyond termination of this
Agreement, including but not limited to the restrictions on the use of the J.
J. Keller Content, disclaimer of warranties, limitation of liability and
indemnification, shall survive any such termination. If any provision of this
Agreement or any other policy is held invalid or unenforceable, that portion
shall be construed in accordance with applicable law as nearly as possible to
reflect the original intention of the parties and the remaining portions will
continue in full force and effect. The failure of either party to insist upon
or enforce strict performance of any provision of this Agreement shall not be
construed as a waiver of any provision or right. This Agreement is personal to
You and You may not assign Your rights or obligations hereunder to anyone. All
logos, brand names, products, trademarks, and service marks appearing herein
may be the trademarks or service marks of their respective owners. References
to any trademark, service mark, and links to or from the ASP Site have been
done strictly for clarification and identification and do not constitute
endorsement by J. J. Keller of the products, services, or information offered
by the owner of such trademark, service mark, or link or endorsement of the ASP
Site or the Applications by such trademark, service mark, or link owner.