ASP Terms of Use / Access Agreement
 
 
  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 BINDING LEGAL AGREEMENT. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE 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 time by posting the amended terms of this Terms of Use/Access Agreement at the 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 Privacy Policy, which can be found on the ASP Site. Except as permitted in this 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 accordance with the Privacy Policy found on the ASP Site. You acknowledge J. J. Keller acts as a passive third party data collector between you and those third parties.

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 Site.

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.



(Revised 07/2011)
 

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