LAST UPDATE: March 3, 2020
KEYWEE INC. AND ITS AFFILIATES (“KEYWEE”, “WE”, “OUR” AND “US”) PROVIDES VARIOUS CONTENT DISTRIBUTION RELATED SERVICES, INCLUDING: THE PLACEMENT OF ADVERTISEMENTS ON A NUMBER OF SOCIAL MEDIA AND OTHER WEB-BASED PLATFORMS; AUDIENCE IDENTIFICATION AND TARGETING SERVICES; CREATING ADVERTISEMENTS (“WORK PRODUCT”); AND ADVERTISEMENT PERFORMANCE TRACKING SERVICES (COLLECTIVELY, THE “SERVICES”). ADDITIONALLY, KEYWEE PROVIDES VARIOUS INTERNET-BASED PLATFORMS, INCLUDING A WEB-BASED PORTAL IN WHICH USERS OF THE SERVICES CAN ACCESS AND UTILIZE THE SERVICES (COLLECTIVELY, THE “SITE”)
These Terms of Service (“Terms” or “Agreement”) govern your access to and use of the Services. Please read these terms carefully.
The term “you,” as used in these Terms, means any person or entity who accesses or uses the Services, either pursuant to a purchase order for such services (“Insertion Order”) or pursuant to any other agreement with Keywee, and any person or entity who creates an Account (as defined in Section 2(a)) and accepts these Terms, including Owners, Authorized Users (as defined in Section 2(c)), and the parents or guardians of Authorized Users, as applicable (as described in Section 1(b)(ii)). These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. THE DISCLAIMERS, EXCLUSIONS, MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION, AND WAIVER OF PUNITIVE DAMAGES UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
- OVERVIEW, ELIGIBILITY, CUSTOMER SERVICE, TERM AND TERMINATION
- You may use the Services only if you have the legal capacity to form a binding agreement with us (except subject to the provisions of clause (1)(b)(ii) below), you accept these Terms by accessing or using the Services, and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules, and regulations. Only individuals age 18 and older are permitted to act as owners of Accounts.
- The Services are not available to any users previously prohibited from using the Services by Keywee.
- Customer Service. If you have any questions or concerns regarding the Services or these Terms, please contact Keywee. Please do not contact customer service or any customer care and support offered by Keywee with any life/safety emergency, medical emergency, or any other emergency. If you have any such emergency, you should immediately contact the police, fire department, 911 or appropriate emergency response service.
- Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with these Terms or any applicable Insertion Order. At any time, Keywee may (i) suspend or terminate your right to access or use the Services, (ii) terminate these Terms with respect to you if Keywee in good faith believes that that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules.
- Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate. Upon termination of these Terms or any applicable Insertion Order, all unpaid amounts due to Keywee under any Insertion Order shall immediately become due and payable.
- Survivability. The parties’ obligations under Sections 1 (Overview, Eligibility, Customer Service, Term and Termination); 3 (Grant of License); 4 (License Restrictions); 5 (Access to Services); 6 (Agreed Usage and Limitations of Keywee Services); 7 (Limitations of Keywee Services Due to Third Parties); 8 (Ownership, Intellectual Property, and Confidentiality); 9 (Indemnity for Third Party Actions); 10 (Warranty Disclaimers); 11 (Waiver of Subrogation); 12 (Limitation of Liability); 13 (Fees and Payment); 14 (Governing Law and Arbitration); and 16 (General) shall survive the termination and/or expiration of these Terms.
- Force Majeure. We shall have no liability to you under these Terms and any applicable Insertion Order if we are prevented from or delayed in providing the Services or performing our obligations under these Terms or any applicable Insertion Order or carrying on our business, by acts, events, omissions, or accidents beyond our reasonable control, including, strikes, lock-outs, or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule regulation or direction, accident, breakdown of equipment, plant or machinery, viruses, fire, flood, storm or default of our vendors or sub-contractors; provided that we provide you notice of such event.
- When accessing the Services and the Site, you will be directed to establish a User Account in association with your use of the Services and the Site (an “Account”) Establishing an Account requires that you provide to Keywee your designated email address and that you select and enter a password. Keywee will then request your permission to send you notifications. You may withhold your consent to receive notifications, but doing so may impact your ability to fully utilize the Services. After establishing an Account, you will be sent a verification email to the email address you provided for the purpose of verifying your account ID. You will be instructed to click on the link in the verification email to complete the registration process. In addition to the information collected in the registration process described above, once you have registered, we may ask you for additional information to create your Keywee user profile such as your telephone number, address, and in some cases, credit card or other billing information for additional services you may order which may be stored by a third party processor with which we have a business relationship. Answering these questions allows us to establish and maintain your Account, and helps us to set up and maintain a customized experience. Your email address will be stored and used as an identifier for you and for communications to you from Keywee.
- You represent and warrant that: (i) all required information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services will not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
- The individual who creates an Account is the “owner” of that Account. Individuals who are authorized to access or otherwise provided access by the owner to the Services are “Authorized Users.” Authorized Users may have the ability to use the Services. Authorized Users are responsible for their own actions in connection with the Services, but the owner of the applicable Account also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the owner’s the Services and the owner’s Account. If you are an owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use the Services set out above. As a result, you should authorize only those individuals that you trust to access your Account and the Services.
- GRANT OF LICENSE
Subject to the terms of this Agreement, we grant to you a limited, non-exclusive, non-transferable, non-assignable, revocable license to access and use the Site and the Services as described herein. In connection with the license of the Site and the Services, the parties acknowledge and agree that Keywee is expressly not selling to you, and you are not acquiring any right, title or interest in or to, any patents, copyrights, trade secrets, trademarks, service marks, trade names, the company name of Keywee, inventions, works of authorship, or any other intellectual property of Keywee (“Keywee Intellectual Property”), and you will use the Site and the Services strictly in accordance with our standards, policies, and procedures as specified by us from time to time.
You shall comply in full with all federal, state, local and foreign laws, rules, and regulations in connection with your access to, and use of, the Site and the Services. The Site and the Services may be accessed and used only in a form and manner approved by Keywee in its sole discretion, and only in accordance with the terms and conditions of this Agreement.
You acknowledge that the Site and the Services contain valuable trade secret and proprietary information of Keywee, that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to Keywee for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
- LICENSE RESTRICTIONS
In connection with the license of the Site and the Services, you shall not:
- make the Site or the Services available to or use the Site or the Services for the benefit of anyone other than yourself, except expressly permitted in this Agreement;
- market, sell, distribute, sublicense, use, modify, translate, reproduce, create derivative works from, dispose of, rent, lease, or authorize or permit access or use of any portion of the Site or the Services except as expressly permitted in this Agreement;
- reverse engineer, decompile, or disassemble the Site or the Services, except and only to the extent that such activity is expressly permitted by applicable law;
- interfere with or disrupt the integrity or performance of the Site or the Services;
- copy the Site or the Services or any part, feature, or function thereof;
- alter the Site or the Services or any part, feature, or function thereof;
- remove any copyright and other proprietary notices contained in the Site;
- use the Site or the Services in a manner which infringes or violates any of the intellectual property, proprietary, or other rights of any third party; or
- access and use of the Site or the Services in any manner that is inconsistent with terms of this Agreement.
- ACCESS TO SERVICES
- Access and Use. Subject to these Terms, Keywee grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services as detailed in this Agreement.
- Automatic Software Updates. Keywee may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and the Site (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Site. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Site and you agree to promptly install any Updates Keywee provides. Your continued use of the Services or the Site is your agreement (i) to these Terms with respect to the Services and the Site and (ii) any change or updates that Keywee may make to these Terms over time.
- Certain materials may be displayed or performed on the Services and Site (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations (“Content”). The Content also includes information that you and other users provide us in the course of using the Services and Site (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services the Site. Some content may be visible to others. You may also post feedback, comments, questions, or other information on Keywee’s websites. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you grant to Keywee an irrevocable, perpetual, worldwide, royalty-free, assignable, sublicenseable, transferrable license to use, modify, transfer, distribute, created derivative works from, reproduce, display, perform, or otherwise utilize such Content and any and all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Keywee reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence, and for any violation of any of Facebook’s policies), or for no reason at all.
- Open Source. Certain items of independent, third party code may be included in the Services and the Site that are subject to certain open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license agreement under which such Open Source Software is distributed or to which it is subject.
- Security. Keywee cares about the integrity and security of your personal information. Keywee endeavors to protect the security of your personal information in line with industry best practices. However, Keywee cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Modification. Keywee reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Keywee will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
- Access Outside Certain Countries. Although Keywee’s websites are accessible worldwide, the Services provided or accessed through or on the Keywee websites are not available to all persons or in all countries. If you choose to access the Keywee websites from outside a country in which Keywee supports the Services (“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Keywee websites are not designed for use in a non-Target Country and some or all of the features of the Keywee websites may not work or be appropriate for use in such a country. To the extent permissible by law, Keywee accepts no responsibility or liability for any damage or loss caused by your accessing or use of Keywee’s websites or Service in a non-Target Country. You will be bound by these Terms wherever you use the Services.
- AGREED USAGE AND LIMITATIONS OF KEYWEE SERVICES
- Intended Use of Keywee Services and the Site. The Services and the Site are intended to be accessed and used as described in these Terms and as further described in any information or documentation Keywee provides in regards to the use of the Services and the Site. While we aim for the Services and the Site to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services and the Site are subject to sporadic interruptions and failures for a variety of reasons beyond Keywee’s control, including Wi-Fi or Bluetooth intermittency, power disruptions, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Keywee is not responsible for any damages allegedly caused by the failure or delay of the Services and the Site.
- No Life-Safety or Critical Uses of the Services. You acknowledge and agree that the Services and the Site, whether standing alone or when interfaced with Third-Party Products or Services and the Site are not certified for emergency response. Keywee makes no warranty or representation that use of the Services and the Site with any Third-Party Product or Service will affect or increase any level of safety. YOU UNDERSTAND THAT THE SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL KEYWEE DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.
- Reliability of Services. You acknowledge that the Services and the Site, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through a Bluetooth connection, your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional Cellular Backup service, for which neither Keywee nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES OR THE SITE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. There is no way for Keywee to provide specific information relating to a situation at issue. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
- Service Interruptions; no refund or rebate. The Services and the Site may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Keywee does not offer any specific uptime guarantee for the Services and the Site.
- System Requirements. The Services and the Site may not be accessible without: (i) an Account and (ii) other system elements that may be specified by Keywee. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services and the Site may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Services and the Site.
- Information reliability. All information publicly posted or privately transmitted through the Services and the Site is the sole responsibility of the person from which (or from whose account) such Content originated and Keywee will not be liable for any errors or omissions in any Content. Keywee cannot guarantee the identity of any other users with whom you may interact in the course of using the Services the Site. Additionally, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services and the Site is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services and the Site.
- Representations. You warrant, represent and agree that you will not contribute any Content or otherwise use the Services and the Site in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Keywee; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services or the Site, or any processes that otherwise interfere with the proper working of the Services and the Site (including by placing an unreasonable load on the Services’ and the Site’s infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services and the Site; (xii) denigrates or disrupts any network capacity or functionality; (xiii) control equipment in hazardous environments or emergency services requiring fail-safe performance in which the failure of such software programs could lead directly to death, personal injury, or severe physical or environmental damage or (xiv) engages in remote monitoring to provide professional medical care for any individual, including without limitation, in any health care and assisted living environment. Further, you represent and warrant that you will comply with all applicable Facebook policies and any other third-party policy related to the use of the Services and the Site.
- Use. It is your responsibility to use the Services and the Site pursuant to the applicable manual, instructions, and any other documentation provided to you by Keywee for use of the Services and the Site.
- LIMITATIONS OF KEYWEE SERVICES DUE TO THIRD PARTIES
- General. The Services and the Site may rely on or interoperate with third party products and services. These third-party products and services are beyond Keywee’s control, but their operation may impact or be impacted by the use and reliability of the Services and the Site. You acknowledge and agree that: (i) the use and availability of the Services and the Site is dependent on third party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Services and the Site operate, and (iii) Keywee is not responsible for damages and losses due to the operation of these third-party products and services.
- Third Party Service Providers Used by Keywee. You acknowledge that Keywee uses third party service providers to enable some aspects of the Services and the Site– such as, for example, data storage, Cellular Backup, and synchronization. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS THIRD-PARTY SERVICE PROVIDERS FROM ALL LIABILITY, DAMAGES OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY OR LOSS OF LIFE ARISING FROM YOUR USE OF THE SERVICES AND THE SITE.
- Third Party Website Links and Referrals. Keywee’s websites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under our control. Keywee provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
- User’s Behavior. Keywee is not responsible for any user’s behavior, including an Authorized User’s behavior, or for any personal injury, death, property damage, or other harm or losses arising from or relating to their use of the Services and the Site.
- Release Regarding Third Parties. Keywee is not responsible for third parties or their products and services, including, without limitation, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. Keywee hereby disclaims and you hereby discharge, waive and release Keywee and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- Facebook. You hereby authorize us to (1) access your advertiser account and page with Facebook and (2) agree to Facebook’s advertiser terms on your behalf. Additionally, you hereby accept and agree to adhere to all applicable Facebook policies and terms and conditions and any other third-party policies and terms and conditions related to the use of the Services and the Site.
- As described further during the commencement of your use of the Services and the Site, you hereby authorized us to access your identified third-party accounts and to utilize such accounts as permitted by you and on your behalf.
- OWNERSHIP, INTELLECTUAL PROPERTY, AND CONFIDENTIALITY
- Keywee Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Services and any data, information or derivative works developed in connection with the Services are owned by Keywee or our affiliates or licensors. Your possession, access, and use of the Services, or any data, information, or derivative works, do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Keywee and its affiliates and licensors and suppliers reserve all rights not granted in these Terms.
Keywee understands that you are to use the Services and the Site for various purposes. Keywee hereby consents to your use of the Services and the Site as detailed during your order of the Services and the Site and as mutually agreed upon. You may not use the content of the Services or the Site in any other public or commercial way nor may you copy or incorporate any of the content of the Services or the Site into any other work, including your own web site without the written consent of Keywee. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions and Work Product, Keywee retains full and complete title to all content on the Services and the Site, including any downloadable software and all data that accompanies it and any data generated from the use of the Services and the Site. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
- Feedback. You may choose to, or Keywee may invite you to, submit comments, suggestions, or ideas about the Services and the Site, including how to improve the Services or the Site (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Keywee under any fiduciary or other obligation. Keywee may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Keywee does not waive any rights to use similar or related ideas previously known to Keywee, developed by its employees, or obtained from other sources.
- User submissions. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing the Services and as directed by you. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Keywee does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
- Confidential Information. You and Keywee may both be given access to Confidential Information of the other in order to perform specific obligations under these Terms and any applicable Insertion Order. You and Keywee shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than to perform obligations pursuant to these Terms or any applicable Insertion Order. “Confidential Information” as used herein shall mean all documents, materials, information and ideas of or about (i) Keywee or any of its past, current or prospective clients or suppliers or (ii) you, in each case that are not generally known to the public, including documents, materials, information and ideas relating to business plans, strategies, programs, operations, methodologies, policies, practices, procedures, products, services, equipment, systems, and facilities, whether in written, oral, electronic or any other form or media, which is designated as “Confidential,” “Proprietary” or a similar designation, or which the other party should reasonably know is confidential.
- INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD KEYWEE AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY THE “KEYWEE PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE KEYWEE PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE SERVICES AND THE SITE, (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS, (C) ANY USER SUBMISSIONS OR FEEDBACK YOU PROVIDE; (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY; OR (E) ANY ALLEGATION THAT THAT DATA YOU INPUT INTO THE SERVICE OR THE SITE INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, (COLLECTIVELY “THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE KEYWEE PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE KEYWEE PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE KEYWEE PARTIES, OR MADE BY ANY OF THE KEYWEE PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE KEYWEE PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE KEYWEE PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE KEYWEE PARTIES, OR GROSS NEGLIGENCE OF THE KEYWEE PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, INCLUDING WITHOUT LIMITATION, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE OR INSURANCE COMPANY. Keywee reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify Keywee and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Keywee’s prior written consent. Keywee will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- WARRANTY DISCLAIMERS
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, ANY INSERTION ORDER, OR ON THE SITE:
- THE SERVICES AND THE SITEARE PROVIDED “AS IS” AND “AS AVAILABLE” AND KEYWEE AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
- KEYWEE AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES AND THE SITE: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KEYWEE OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
- KEYWEE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND KEYWEE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH SERVICES.
- KEYWEE MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES OR THE SITE, AND KEYWEE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. KEYWEE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OFFERED.
- WHEN YOU INSTALL, SETUP OR USE THE SERVICES YOU ARE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF YOUR SERVICES AND ANY CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS SERVICES, AND SETTING OR CHANGING DEFAULTS.
- WAIVER OF SUBROGATION
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE KEYWEE AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL KEYWEE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THE SERVICES OR THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN EVERY EVENT, KEYWEE’S TOTAL MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY YOU TO KEYWEE UNDER THESE TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM.
THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR KEYWEE TO ASSUME ANY RISKS BEYOND THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY KEYWEE, KEYWEE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.
- FEES AND PAYMENT
Certain Services and the Site may be provided for a fee. You shall pay all applicable fees regarding the Services selected by you, and access to the Site, in accordance with the terms of sale for such Services and access and any payment terms contained in any applicable Insertion Order. All amounts and fees due for the Services and the Site: (1) shall be payable in US Dollars; (2) are non-cancellable and non-refundable; and (3) are exclusive of all taxes, which shall be added to Keywee’s invoice(s) at the appropriate rate. You agree to make all payments without set-off or counterclaim and free and clear of any withholding or deduction (save as required by law) for any present or future taxes, levies, imposts, duties, or other charges. If you are obligated by law to make any such withholding or deduction, you will pay to Keywee in the same manner any additional amounts to ensure that we receive a net amount equal to the full amount which we would have received if no such deduction or withholding had been required. Unless otherwise agreed in the signed Insertion Order, any invoices issued will be payable within thirty (30) days from the date of such invoice. If we have not received payment within fifteen (15) days after the due date of such payment, we may, without liability, suspend your access to the Services until payment has been made in full and interest shall accrue on due and unpaid amounts at a monthly rate of 1%, commencing on the due date and continuing until fully paid, whether before or after judgment.
- GOVERNING LAW AND ARBITRATION
These Terms are governed by and construed in accordance with the laws of the State of New York and the United States of America, without regards to their respective principles of conflicts of law. Any disputes relating to these Terms or any applicable Insertion Order will – if it cannot be resolved informally by you and us – be resolved solely and exclusively by arbitration in New York City, New York under the then current rules of the American Arbitration Association in accordance with its Commercial Arbitration Rules (including the Optional Rules for Emergency Measures of Protection), and judgment upon the award entered by the arbitrator may be entered in any Court having jurisdiction thereof. The arbitration proceedings shall be conducted before one (1) neutral arbitrator selected by the American Arbitration Association. Costs of arbitration, including attorney’s fees in arbitration, as determined by the arbitrator, with attorney’s fees incurred by the prevailing party in Court enforcement of the arbitration award after the arbitrator renders it, must be paid to the prevailing party by the part designated by the arbitrator or Court. Either you or Keywee may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either your or Keywee also may, without waiving any remedy under these Terms, seek from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Should Keywee or you either dismiss or abandon their claim or counterclaim before the hearing, the other party will be deemed the “prevailing party” under these terms. Should both parties receive judgment or award on their respective claims, the party in whose favor the larger judgment or award is rendered will be deemed the “prevailing party” under these Terms.
- DIGITAL MILLENNIUM COPYRIGHT ACT
If you are a copyright owner of an agent thereof and believe that any Content infringes upon your copyrights, please sent notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
- A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
- A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The designated agent for notice of copyright infringement claims may be reached as follows: firstname.lastname@example.org
The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed. All other inquiries, such as questions related to the Services and requests or concerns regarding improper postings and/or content, will not receive a response through this process.
We reserve the right to make changes to these Terms. Any changes we make to these Terms will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the Keywee websites. Your use of the Services and the Site after such notice will be deemed acceptance of such changes.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms, any documents referred to in it, including any Insertion Orders, set out the entire agreement between us relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements between us. No term of any Insertion Order will be deemed to amend the terms of this Agreement unless an Insertion Order references a specific provision in this Agreement. Any Insertion Order amending a term of this Agreement shall amendment such term only with respect to the Service or the Site provided pursuant to such Insertion Order. These Terms are not assignable, transferable or sub-licensable by you except with Keywee’s prior written consent. These Terms shall not be construed as a teaming, joint venture, or other such arrangement, unless the parties expressly and explicitly execute an agreement to that effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.