Revised: July 20, 2020
PLEASE REVIEW THESE TERMS OF SERVICE AND THE BINDING ARBITRATION PROVISION CONTAINED IN SECTION 8.5 CAREFULLY BECAUSE THESE TERMS ARE A BINDING LEGAL CONTRACT BETWEEN YOU AND KEAP (“TERMS”). THESE TERMS GOVERN YOUR USE OF WEBSITES AND KEAP SERVICES THAT LINK TO THESE TERMS. BY USING THIS WEBSITE OR KEAP SERVICES, YOU ACCEPT THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE READ THESE TERMS, YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS THEN YOU MAY NOT USE THIS WEBSITE OR THE KEAP SERVICES. THESE TERMS ALSO INCLUDE AND INCORPORATE ANY KEAP TERMS OR POLICY POSTED ON https://keap.com/legal. IF YOU REGISTER FOR A FREE TRIAL OF KEAP SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
WE MAY MODIFY, UPDATE OR DELETE PROVISIONS OF THESE TERMS BY POSTING THOSE CHANGES ON OUR WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE AND/OR KEAP SERVICES AFTER SUCH CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF ANY SUCH CHANGES TO THESE TERMS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF SERVICE.
YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION BY EMAILING US AN OPT-OUT NOTICE TO [email protected] EMAIL ADDRESS (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE RECEIVED THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS. In order to opt-out, you must email your name, address (including street address, city, state, and zip/postal code), and email address(es) associated with your Keap Services Account(s) to which the opt-out applies as well as a clear statement that You do not wish to resolve disputes with Keap through arbitration to [email protected]. This procedure is the only way you can opt out of the Agreement to Arbitrate. If You satisfy these opt out requirements, all other parts of these Terms, and its Section 8.5 will continue to apply to You.
In these Terms, “Keap” “We”, “Us” or “Our” will refer to Infusion Software, Inc., d/b/a Keap and the terms “You” or “Your” or “Customer” will refer to you. You and Keap are each individually referred to as a “Party” and collectively as “Parties.”
Article I. Definitions
“Authorized User or User” means You and any of Your employees, consultants, contractors or agents authorized to access and use the Keap Service on behalf of Your business, in each case subject to such person's agreement to be bound by these Terms.
“Keap Materials” means any documentation, user guides, or other similar materials provided by Keap to You in connection with Your use of the Keap Service.
“Keap Service” means any of the Keap set of SaaS solutions that are developed, operated, and maintained by Keap (and its third party service providers) and that are subscribed to through a Keap branded or controlled website (or authorized Keap partner website) or that we otherwise make available to You that includes a link to or makes reference to these Terms. The definition of Keap Service does not include any separate Professional Services or Third Party Services (as defined below) that may be purchased by You from Keap.
“PHI” means (i) “protected health information” as defined in 45 CFR § 160.103, and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
“Professional Services” means any implementation, training or other professional services provided by or on behalf Keap to You pursuant to the terms of a Subscription Agreement.
“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; or (g) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Subscription” means Your right to use Keap Services and Professional Services that You have subscribed to or that we otherwise make available to You.
“Subscription Agreement” means these Terms and any online or written subscription order form or contract for the Keap Service or for Professional Services accepted by You either during an online subscription process or separately signed by You and submitted to Keap, and any future purchase order, contract, or order form that makes reference to these Terms.
“Subscription Term” means the use term for the Keap Service pursuant to Your Subscription Agreement and any additional renewals of such term.
“Third Party Services” means the products, content, including software code, software-as-a-service offerings, implementation, training, content or other Professional Services that a Keap partner or other third party may make available in connection with the Keap Service or on the Keap website or via a link to a third party website.
“Your Data” means registration information and other information relating to Your Authorized Users, and information relating to Your customers, contacts, business, marketing, and finances, and any similar data submitted by You, the persons to whom the data relates, or by Authorized Users to the Keap Service.
Article II. Your Account, Use Rights, Responsibilities and Restrictions
2.1 Your Keap Account. You must be at least 18 years of age to purchase or use the Keap Services and Professional Services. To use the Keap Services You will be asked to register for an account. When You create an account for the Keap Services, You must provide accurate account information and promptly update this information if it changes. By creating a Keap account, You consent to receive electronic communications from Keap, via email, telephone (either by a live person, automatic dialer, prerecorded message or a combination of the foregoing) including marketing messages, newsletters, and other information regarding Keap Services and products. Further, You consent to receive such phone calls at the telephone number You entered on our website. You do not need to agree to this provision in order to use the website or purchase the Keap Services and if You would like us not to contact You by telephone, please contact Support at 1 (866) 800-0004. You may always opt-out of receiving future commercial emails and marketing communications from Keap by clicking on the “unsubscribe” link within any emails received. Please note that Your request not to receive unsolicited commercial emails from Keap will not apply to messages that You request or that are transactional in nature as they are related to Your Keap Subscription. For example, Keap may contact You concerning any services purchased, requested or received from Keap, even if You opt out of receiving unsolicited commercial messages. You are responsible for all activity under Your account using Your credentials. You are responsible for maintaining the security of Your account. Do not share Your account passwords and promptly notify Keap of any known or suspected unauthorized use or breach of the security of Your account.
2.2 Account Ownership. Keap has the right to rely on the account information You provide to us to determine account ownership. In cases where account information is inconsistent We will require You to resolve the matter. You agree that You will resolve any account-related disputes directly with the other party claiming the account and use channels outside of Keap. Keap is under no obligation to resolve disputes between individuals or entities regarding ownership of a Keap account. In the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and Keap is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute, You acknowledge and agree that; (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Keap may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Keap may assume that the person or entity that has been making payments on Your account has the authority to manage the account.
2.3 Use Rights; Responsibilities, Restrictions. Subject to these Terms, Keap grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the Keap Service (and any Keap Materials provided to You) to allow You to perform contact management, automated marketing, lead tracking and other related business functions included in the Keap Service, subject to the following restrictions: (i) except as expressly permitted herein or in a separate partner agreement between You and Keap, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Keap Service or the Keap Materials available to any third party; (ii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Keap Service or Keap Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the Keap Service or Keap Materials in order to build a similar or competitive product or service; (iii) Your use of the Keap Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Subscription Agreement for the level of Subscription purchased by You (Keap may monitor Your compliance with these limits and if it detects overuse upgrade You to the appropriate higher subscription level) and You shall not manipulate data in an attempt to circumvent these limits; (iv) Your use of the Keap Service must not cause undue strain or stress on the Keap network through excessive API calls or other non-standard use; and (vi) Your use of the Keap Service must comply with the separate Keap Acceptable Use Policy posted on the Keap website (https://keap.com/legal/aup) as updated by Keap from time to time (v) You will be responsible for each Authorized User’s use of Your Keap Service and for their compliance with these Terms. To realize the full value of the Keap Service and Professional Services, Your participation and effort are needed. Depending on Your skill set and available time, You may be required to use additional resources to plan and implement marketing campaigns; create content and supporting the interactions of the Services with Your other sales and marketing tools.
2.4 No Legal or Financial Advice. You acknowledge that from time to time Keap may provide You with marketing information and other coaching, templates, frequently asked questions and tips on best practices and financial and legal topics. Such information does not constitute, and should not be considered a substitute for financial or legal advice. We do not warrant or guarantee that use of or compliance with such information will be sufficient to comply with Your obligations under these Terms, applicable law or with third party requirements. Although we have no obligation to monitor the content provided by You or Your use of the Services, we may do so and may block any messages or campaigns, remove any content, including surveys, campaigns, promotions, business content, or otherwise prohibit any use of the Services that we believe may be in violation of these Terms, Acceptable Use Policy, applicable law, and any other relevant use documentation and restrictions made available to You. In no case, will the foregoing make Us responsible or liable for compliance with any such laws or obligations, for which You remain solely responsible and liable.
2.5 Technical Support. During the Subscription Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and other technical support resources for the Keap Service that may be offered by Keap from time to time.
2.6 Intellectual Property Rights. Your subscription is a right of access to and use of an online product, the Keap Service. You agree that You receive only a limited right to use the Keap Service and irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to You under this Agreement. You acknowledge and agree that Keap retains all proprietary rights in and to the Keap Services, the Keap Materials, the Keap website (https://keap.com) and the Keap Application which we may update from time to time. Keap also retains all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Keap Service and Keap Materials (including application development, business and technical methodologies, and implementation and business processes, used by Keap to develop or provide the Keap Service or Keap Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted to You under these Terms, You do not acquire any interest in the Keap Service or Keap Materials. Accordingly, You do not have any right to obtain a copy of the software that supports any Keap Service and that Keap at its option may make updates, bug fixes, modifications or improvements to the Keap Service from time-to-time.
Keap’s intellectual property also includes Our user interface display and usability platform comprised in part of the layout, color scheme, HTML pages and source code, etc. You are expressly prohibited from using these for any purpose outside of the intended design and implementation of Your authorized use of the Keap Service. Any replication or use of Keap intellectual property for any purpose designed or intended to compete with Keap Services is strictly prohibited.
You agree that Keap can use and disseminate any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Keap Service or the Keap Materials for any purpose without restriction, obligation or compensation to You. Such information is non-confidential and will become the sole property of Keap and will not be considered Your Confidential Information.
2.7 Free Trial. If we offer You a free trial, the specific terms of Your free trial will be provided in the marketing materials describing the particular trial or at registration. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion. At the end of Your free trial, or if You exceed any limits described on the applicable fee schedule You will be subject to fees in accordance with any applicable free trial terms. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on You.
2.8 Professional Services. You may purchase Professional Services from Keap. The Professional Services we provide will be delivered in English only. Amounts charged for these Professional Services are in addition to Your Fee. If You purchase Professional Services that recur, they will be considered part of Your Subscription and will renew in accordance with Your Subscription. All Professional Services are performed remotely, unless You and we otherwise agree.
If the Professional Services purchased are a specific number of hours, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Professional Services purchased, it is estimated that those deliverables will be completed within the time period indicated in the applicable description (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be sixty (60) days after purchase. If the Professional Services provided are not complete at the end of the Delivery Period due to Your failure to make Yourself, Your Users, or the necessary resources available to us or to otherwise fail perform Your obligations, such Professional Services will be deemed to be complete at the end of the Delivery Period. If the Professional Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to You or to perform our obligations, the Delivery Period will be extended to allow us to complete such Professional Services. We might provide some or all elements of the Professional Services through third party service providers. Professional Services are non-cancellable and all fees for Professional Services are non-refundable.
2.9 Changes to the Services. Keap reserves the right to modify, add to, discontinue, and/or retire any Keap Service and/or any feature of a Keap Service at any time. We will make reasonable attempts to provide You with notice of such modifications by posting them on our website. We have no obligation to provide direct notice to You of any such changes. If You object to such change, Your sole remedy shall be to terminate the Keap Service pursuant to Article VI below. If we discontinue any Service You are using in its entirety, we will make efforts to provide You with advance notice and an opportunity to cancel your Keap account.
2.10 Alpha, Beta and Pre-Release. Keap may also provide You with access to features or services that are identified as alpha, beta or pre-release. You understand that such services are still in development, may have bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. Despite any other provision of this Agreement, any use of or reliance on alpha, beta or pre-release features or services is done at Your own risk and is provided “As Is” and without warranty of any kind, and the Keap indemnity in Section 7.5 does not extend to such alpha, beta or pre-release features or services. Alpha, beta, or pre-release features and services may be subject to additional terms made available to You at the time you access such features and services, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on You.
2.11 Suspension of Services. In addition to suspension of the Services for non-payment of fees as described in Section 4.4 (Non-Payment; Other Suspension Rights), We may also suspend the Services immediately upon notice for cause if: (i) You violate (or give us reason to believe You have violated) our Acceptable Use Policy or E-mail Policy; (ii) there is reason to believe the traffic created from Your use of the Services or Your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (iii) We determine, in our sole discretion, that providing the Services is prohibited by applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (iv) subject to applicable Law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if You become the subject of bankruptcy or similar proceeding. We will use commercially reasonable efforts to (a) provide You as much prior notice as possible of any situation that we are aware of that could lead to a right to suspend described in this paragraph, (b) work with You to remedy any situation that could lead to a right to suspend described in this paragraph if such situation can be remedied, and (c) limit any suspension as much a possible given the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic).
2.12 Your Products. You are solely responsible for Your products and services, promotions and campaigns, including any and all injuries, illnesses, damages, claims, liabilities and costs suffered in respect thereto. You agree to provide Your products and services, promotions and campaigns in a safe and professional manner, consistent with applicable laws and industry best practices, including keeping reliable records. You agree to comply with any and all statements and promises You make and for all user assistance, warranty and support of Your products and services, promotions. You further agree to provide contact information for any end-user questions, complaints or claims. You shall bear all costs of procuring and delivering Your products and services, promotions (including any prizes offered), running Your events and campaigns, including any associated shipping, taxes and any other fees associated therewith. You hold all necessary governmental and third party licenses, approvals, authorizations and registrations necessary to offer Your products and services, promotions, and campaigns.
Article III. Data Use and Protection
3.1 Ownership of Your Data. As between You and Keap, Your Data is and will remain Your property. You grant to Keap a non-exclusive right to use, copy, distribute and display Your Data in connection with Keap's operation of the Keap Service, in accordance with these Terms. We may monitor use of the Keap Service by all of our customers and You agree that we may use and publish such information, provided that such information does not identify You or Your customers. Please note that this license continues even if You stop using our Services. You, not Keap, have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Keap will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.
3.2 Data Processing Addendum. By accessing or using our Services, You consent to the processing, transfer and storage of information about You in and to the United States and other countries, where local law may apply. The terms of the data processing addendum at [https://keap.com/legal/dpa] (“DPA”) are hereby incorporated by reference and shall apply to the extent Client Data (as defined in the DPA) includes Personal Data, as defined in the DPA. Your acceptance of these Terms of Service shall be treated as its execution of the DPA its and Appendices.
3.3 Protection of Your Client Data. Keap will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data as described at [https://keap.com/legal/data-security]. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Data (other than by You or Your Authorized Users).
3.5 Sensitive Data. You acknowledge that the Services are not intended for the processing of Sensitive Data. You are responsible for ensuring that suitable safeguards are in place prior to transmitting or processing any Sensitive Data over the Services, or prior to permitting Authorized Users to transmit or process Sensitive Data over the Services. Transmission or processing of Sensitive Data is solely at Your own risk. Keap will have no additional liability, including, without limitation, any indemnification obligations, whatsoever in connection with any Sensitive Data transmitted or processed via the Services. You will not import or incorporate into any contact lists, Keap Service fields or other content You upload to the Service any Sensitive Data.
3.6 Protection of PHI. If You are a Covered Entity or Business Associate as defined in HIPAA, before You are eligible to include personal health information (“PHI”) in Your Keap application, You must first accept the Keap Business Associate Agreement (“BAA”), (https://keap.com/legal/hipaa-compliance), and comply with its terms. Unless a valid BAA is in effect governing the use of Your Keap application, You are prohibited from using the Keap Service to process PHI. You also acknowledge that (i) any services offered by any third party, including Keap partners, (ii) any services offered in the Marketplace by Keap (except Keap’s mobile software application for iOS and Android), (iii) the CustomerHub and GroSocial web and mobile applications, and (iv) the email, SMS, and VoIP functionalities of Keap’s application are not included in Keap's HIPAA-compatible offering nor are they covered by Keap's BAA.
3.7 Communications Not Confidential. Keap does not guarantee that Your communications made using the Services are confidential. Keap generally follows the accepted industry practices to secure the transmission of data to, from and through Our Services, however, You understand, agree and acknowledge that Keap cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with Your use of the Services.
Article IV. Subscription Term, Fees, Taxes and Non-Payment
4.1 Subscription Term. Your initial subscription period will be specified in Your Subscription Agreement, and, unless otherwise specified in Your Subscription Agreement, it will automatically renew. To prevent renewal of Your subscription, You must provide notice of non-renewal as provided in Section 6.3. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SUBSCRIPTION IS CONTINUOUS AND UNTIL YOU PROVIDE NOTICE OF NONRENEWAL OR KEAP STOPS PROVIDING THE SERVICES TO YOU CONSISTENT WITH THESE TERMS, KEAP IS AUTHORIZED TO CHARGE YOUR PAYMENT METHOD ON FILE FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES).
4.2 Fees and Payment The fees for the Keap Service and any additional Professional Services (“Fees”) are set forth in the Subscription Agreement and are payable in advance, irrevocable and non-refundable except as set forth in the Subscription Agreement and these Terms. The then current pricing available on Our website on the date of renewal will apply to Your renewal subscription period. You are liable for all Fees You owe us under any Subscription Agreement. You acknowledge that failure to pay any Fees due under any account You have with us, or amounts under accounts associated with Keap Payments or another payment processor, is a breach of these Terms, and in such event You acknowledge we have the right to terminate your account or suspend access to the Keap Service or Professional Services associated with any account we have with You or which is under Your control. You agree to provide Keap with complete and accurate billing and contact information for Yourself and Your organization, as applicable, and update such information as necessary. Where payment by credit card is indicated in the Subscription Agreement, or You otherwise provide Keap with credit card information, You represent that You are authorized to use the credit card that You enter and You authorize Keap (or our third party payment processor) to retain Your payment information and to use the stored payment method and information to charge such credit card (a) at the time that You order the Keap Service or other Professional Services set forth in the Subscription Agreement, (b) for any billing frequency otherwise established in the Subscription Agreement, and (c) at the time of any renewal, for the amount of fees owing plus any applicable sales taxes for any renewed Subscription Term. Those credit card payments will be subject to any additional terms presented to you by our third-party credit card payment processor, which will be the merchant of record for that transaction. You acknowledge that the amount billed may vary due to usage levels for services such as contacts, users, fax and voice broadcast services and email overages; promotional offers, changes to Your subscription or changes in applicable taxes or other charges, and You authorize Us (or our third party payment processor) to charge Your payment method for the corresponding amount. Keap reserves the right to verify credit/debit card payments prior to acceptance of Your Order. We also reserve the right to (i) obtain and continue using updated credit card account information electronically, when applicable, from the card brands, (ii) retry failed payments in order to complete transactions, including but not limited to, retrying failed cards with extended expiration dates and, (iii) change or amend authorized third parties to assist with payment processing. If Keap, in its discretion, permits You to make payment using a method other than a credit card, Keap will invoice You at the time of the initial Subscription Agreement and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of Keap's invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. Keap reserves the right to revoke permission to use an alternate payment method at any time for any reason. We can set off any obligation You owe us, to the extent permitted by law, against any credit in any account we have with You or under Your control, and You will be liable for the costs we incur to pursue collections against You in order to collect any outstanding Fees, including without limitation attorneys’ and collection agency fees and expenses. For more information, see Keap’s Billing Policy (https://keap.com/legal/billing-policies).
4.3 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on Keap's net income) arising from the transactions described in these Terms, even if such amounts are not listed on a Subscription Agreement. To the extent You are exempt from sales or other taxes, You agree to provide Keap, upon request, with the appropriate exemption certificate.
4.4 Non-Payment; Suspension Rights. Keap may terminate the Keap Service if the billing or contact information provided by You is false or fraudulent. In the event any payment is 15 days past due Keap may, without liability to You, disable Your Keap account until balances are paid in full. When disabled, all access will be suspended and data will be unavailable. Keap also reserves the right, in its discretion, to immediately suspend, cancel Your access and/or use of the Keap Service and/or deny You the right to initiate an account for or otherwise order new or additional Keap Services: (i) where any payment is due but unpaid for sixty (60) days or more under any Subscription Agreement or account associated with You and You have been requested but failed to promptly cure such payment failure. If Keap suspends Your Keap Services in full or part, You continue to remain liable for all Fees during any suspension period. Keap may, at its sole option, choose to restore the Keap Services during any period of delinquency and such restoration shall not be construed as a waiver of Keap’s right to (i) receive full payment for Fees due or (ii) again suspend Your Keap Services at any time for non-payment of any unpaid charges. Once cancelled, You will not be able to recover any Keap Service information until You bring the Keap Account current. Keap Service data may be stored for up to sixty (60) days post-cancellation; however, after sixty (60) days, such data will no longer be available to You. Your delinquent Keap Account, the Keap Account record and delinquent balance may be submitted to a third-party collection service. You agree that Keap shall not be liable to You nor to any third party for any suspension or cancellation of the Keap Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your Keap Account. You may not create another Keap Services account if Your existing account is delinquent in payments or is otherwise not in good standing.
Article V. Confidentiality; Use of Names
5.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Subscription Agreement, Your Data, the Keap Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each Party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other Party or by a third-party; (b) not to use the Confidential Information of the other Party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Keap will restrict its employees' access to Your Confidential Information to only those employees necessary as determined in Keap’s sole discretion to successfully provide the Keap Service. Keap may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Keap in connection with the performance of this Agreement. Except for personal information within Your Data which is at all times understood to be Confidential Information notwithstanding anything to the contrary in these Terms, Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing Party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other Party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2 Credit Card Information. Keap agrees that it will retain and store Your provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
5.3 Use of Names in Marketing. You may not use Keap's name and credentials without prior written consent. If such consent is granted, You agree to cease or alter such use at Keap's request where such use is contrary to Keap's branding policies, could cause any brand confusion in the market or is otherwise objectionable to Keap. Keap may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Keap agrees to cease or alter such use at Your written request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and website presentation and promotion, etc.
Article VI. Term & Termination
6.1 Standard Term. Unless a different Term is specified in a signed Subscription Agreement between You and Keap, the Initial Term of Your subscription to an Keap Service will begin on the submission or execution of Your Subscription Agreement and shall continue on a month-to-month basis indefinitely, and You shall pay the applicable fees, until the subscription is terminated as provided for in this Article 6.
6.2 No Early Termination; No Refunds. The Subscription Term will end on the expiration date and You cannot cancel Your Subscription Agreement early without penalty. To prevent automatic renewal of your Subscription, You must provide notice of non-renewal as provided in 6.3 below. All payments are non-refundable, if You should stop using the Keap Services during Your Term.
6.3 Notice of Non-Renewal. You may prevent the renewal of the Subscription Term to a Keap Service by calling your Customer Success Manager directly or by calling Support at 1 (866) 800-0004 at least ten (10) days prior to the end of Your next billing date.
6.4 Termination. Keap, at its sole discretion, may terminate these Terms and cancel Your Keap Services account(s) in the event You commit any material breach of these Terms and fail to remedy that breach within five (5) days after Keap provides written notice of that breach to You.
6.5 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to Keap must be paid in full even if they have not yet been invoiced to you. Contingent upon its receipt of all such Fees, Keap will continue to make Your Data available for downloading for sixty (60) days after the termination date. Following this sixty (60) day grace period, Keap has no obligation to preserve or provide Your Data to You, and Keap may remove or delete Your Data in Our systems for the Keap Service. The provisions of these Terms which by their nature are intended to survive expiration or termination, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses, shall survive any termination.
Article VII. Warranties, Limitation of Liability, and Indemnity
7.1 Limited Warranties.
- By Keap. Keap warrants for a period of thirty (30) days following their delivery that all Professional Services provided hereunder will be performed in a workmanlike manner, in substantial conformity with the professional standards for comparable services in the industry. For any material breach of this warranty timely reported by You, Your exclusive remedy shall be the re-performance of the deficient Professional Services, and if Keap is unable to re-perform the deficient Professional Services as warranted, You shall be entitled to recover the portion of the Fees paid to Keap for such deficient Professional Services, and such refund shall be Keap's entire liability.
- By You. You warrant that Your business shall comply with these Terms and with all applicable federal, state and local laws and regulations, as well as all incorporated policies, in connection with Your access to and use of the Keap Service. You further represent and warrant that You will not violate any laws and/or regulations that govern Your entity, industry, or relationship with Your own Contacts, including but not limited to consumer protection, privacy, data security, advertising, intellectual property or other laws; or engage in unethical, false or misleading advertising, promotions, or sales efforts and practices in connection with Your use of Keap Services including but not limited to unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. You warrant and agree that You will be responsible for the accuracy, quality and legality of Your Data (including Client Data), including its content and use, obtaining and maintaining all necessary licenses and consents and comply with all relevant legislation in relation to the collection, transfer and disclosure of the Your Data, the means by which You acquired Your Data, Your use of Your Data with the Services, and any information technology infrastructure that interfaces or interoperates with the Keap Service. For more information and best practices tips, please see our Acceptable User Policy (https://keap.com/legal/aup).
7.2 Keap Not Responsible for Third Party Services. Keap may provide You with access to certain Third Party Services in connection with the Keap Services or via the Keap website. Use of any such Third Party Services may be subject to separate terms of service between You and such third party, and not these Terms. Keap does not warrant in any manner and will not be responsible for such Third Party Services and You agree to look solely to the relevant third party provider (and not Keap) if and to the extent that You have any complaints or issues relating to the Third Party Content or its interaction with an Keap Service. You agree that Keap is not responsible and will not be held liable for any Third Party Services available on other web sites accessed through links from Keap website or Keap Services. Links to third-party sites are for Your convenience only, and their inclusion on the Keap website does not imply any endorsement, guarantee, warranty or representation by Keap. KEAP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY SERVICES, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL KEAP BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY SERVICES OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
7.4 Warranty Disclaimers. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THROUGH THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” AND “AS AVAILABLE” AND KEAP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS TO THE FULLEST EXTENT OF THE LAW. ALPHA, BETA AND PRE-RELEASE OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND KEAP SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH OFFERINGS. YOU ACKNOWLEDGE THAT THE KEAP SERVICES MAY NOT BE DESIGNED, INTENDED OR RECOMMENDED AS A MEANS BY WHICH TO STORE OR TRANSMIT “PROTECTED HEALTH INFORMATION” (OR ‘PHI’) AS DEFINED UNDER THE UNITED STATES’ HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND RELATED OR SIMILAR LAWS (COLLECTIVELY, “HIPAA”). EXCEPT AS OTHERWISE AGREED IN A SEPARATE WRITING SIGNED BY KEAP, KEAP MAKES NO REPRESENTATION OR WARRANTY THAT THE KEAP SERVICES OR THEIR USE WILL COMPLY WITH HIPAA OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA, AND IS RELEASED FROM ANY LIABILITY FOR ITS ACTS OR OMISSIONS RELATING TO HIPAA. TO THE EXTENT THE FOREGOING DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- By Keap. Keap will defend, indemnify, and hold You harmless from and against all claims, demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions (“Claim”) brought or threatened against You by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (“Losses”) related thereto alleging the provision of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, or patent (“Infringement Claim”). However, Keap will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of Your use of the Services in breach of these Terms, or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing.
- By You. You will defend, indemnify and hold Keap, its officers, directors, employees, agents, stockholders, and affiliates (“Keap Indemnified Parties”) harmless from and against all Claims brought or threatened by a third party against a Keap Indemnified Party and any Losses related thereto alleging or arising out of (a) Your or any of Your Users’ breach of or activities under these Terms; (b) Your or any of Your Users’ use of the Services; or (c) Your acts or omissions in connection with the provision of Your products or services, including, without limitation, any related intellectual property Claims.
- Infringement Options. If Your use of the Services has become, or in Keap’s opinion is likely to become, the subject of any infringement Claim, Keap may at its option and expense: (a) procure for You the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 7.5 states your exclusive remedy for any infringement Claim by a third party.
- Indemnification Procedures. In the event of an indemnity obligation under this Section 7.6, the Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of such claim; (ii) allow the Indemnifying Party sole control of its defense and settlement (provided that a party may not settle, defend or resolve a claim unless it unconditionally releases the other party of all liability to any third party); and (iii) provide the Indemnifying Party all available information and reasonable assistance at the Indemnifying Party’s cost. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. A party’s indemnification obligations are expressly conditioned upon the Indemnified Party’s compliance with this Section 7.6, provided that, the failure to provide notice of a claim will not limit the rights of an Indemnified Party hereunder except to the extent that such failure materially prejudices the ability of the Indemnifying Party to defend such claim.
7.6 Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF YOUR OBLIGATIONS UNDER SECTION 2.3, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COVER, LOSS OF DATA, LOSS OF BUSINESS, , EVEN IF KEAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT WILL KEAP'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO KEAP DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT NEITHER KEAP NOR THE KEAP SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE RECOMMENDATIONS RELATED TO YOUR USE OF THE KEAP SERVICES. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY BASED ON YOUR RELIANCE ON OR USE OF ANY INFORMATION CONTAINED IN ANY KEAP SERVICES OR KEAP MATERIALS. KEAP WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE, PERSONAL, OR CLIENT DATA SENT TO KEAP.
Article VIII. General Provisions
8.1 Notice. Notices to Keap will only be effective when delivered to [email protected] with a copy to: Keap, Attn. General Counsel, 1260 S. Spectrum Boulevard, Chandler, AZ 85286 USA, or any subsequent address we may provide the Keap Service. We may give general notices within the Keap Service, which will be effective when posted. Alternatively, we may give You notice at our choice either (a) by email or mail to the last known email or physical address that we have on record for You, which will be effective when we send it; or (b) via telephone, by calling the number we have on record for You, which will be effective when we talk with You. You agree that any notices, agreements, disclosures or other communications that We send to You electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. It is Your responsibility to keep all Your contact information current and You waive Your right to receive such notices if You do not provide current contact information.
8.2 Assignment. You do not have a right to assign these Terms without providing prior notice to and obtaining the prior written consent of Keap. Any purported assignment in violation of this Section shall be void. We can assign these Terms without Your consent.
8.3 Integration; Modification. These Terms, as updated, along with the information incorporated into these Terms (information contained in an embedded URL or referenced policy), together with any applicable Subscription Agreement, become part of Your agreement with Keap relating to the Keap Service, the Keap Materials and the Professional Services, and will apply instead of any, conflicting or additional communications. We may modify, update, add or remove all or parts of these Terms at any time. If we revise these Terms, the modified version will not be retroactive and will be effective and binding the day after we post the revised Terms on https://keap.com/legal. We will give You notice of material changes to our Terms, most likely via email or within the Keap Service, though we may instead give You notice via other methods. If You object to our Terms as revised, You must give us notice within ten (10) days after the revised Terms are posted; in this event, Your continued use of the Keap Service and Professional Services will continue to be governed by the Terms in effect prior to Your notice, provided that those Terms will remain in effect only until the expiration or earlier termination of Your then-current Subscription Term. If Your subscription renews at the end of Your Subscription Term, the Terms posted on https://keap.com/legal at the time of Your renewal will apply to You upon such renewal. If You don’t timely object to changes we make to these Terms by giving us notice as described, Your continued access to or use of the Keap Service means You have agreed to be bound by the most current version of these Terms which will govern our relationship with You as soon as they become effective. You can always find our most up-to-date Terms at https://keap.com/legal (currently, specifically at https://keap.com/legal/terms-of-service). For other than material changes to these Terms, We shall make reasonable attempts to provide You with notice of such modifications by posting them on the website. We have no obligation to provide direct notice of any such changes. Since we might update these Terms from time to time or at any time, we suggest You review them occasionally and check the “Revised” date which will reflect the date the current version was posted.
8.4 Governing Law. These Terms shall be governed exclusively by the laws of the State of Arizona, USA, excluding its conflict of laws rules and, where applicable, will be governed by the federal laws of the United States. We and You agree to the exclusive jurisdiction and venue of the state or federal courts in Maricopa County, AZ, USA for any and all disputes, controversies and claims arising out of or relating to these Terms or concerning the respective rights or obligations of the parties.
8.5 Dispute Resolution; Binding Arbitration. Any legal disputes or claims arising out of or related to this Agreement (including without limitation claims related to the use of the Services, the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in Maricopa County, Arizona (the “Agreement to Arbitrate”). Notwithstanding the foregoing, either of us can bring a claim in small claims court either in Maricopa County, Arizona, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. Any arbitration under these Terms will be conducted by the American Arbitration Association under then prevailing American Arbitration Association Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules, or as otherwise mutually agreed by You and Keap. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims must be brought within the statute of limitations or other time required by applicable law. You agree that You shall bring any claim, action or proceeding arising out of or related to the Agreement in Your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREE THAT YOU AND KEAP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
Unless the Parties agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate, as a result of a decision by the arbitrator or a court order, or the Parties have reserved their rights to pursue legal action in a court of law, You agree that any claim or dispute that has arisen or may arise between the Parties must be resolved exclusively by a state, federal, or small claims court located in Phoenix, Arizona. The Parties agree to submit to the personal jurisdiction of a state court located in Maricopa County, Phoenix, Arizona or a United States District Court for the District of Arizona located in Phoenix, Arizona.
8.6 Force Majeure. Except for Your obligation to pay Fees, neither party will be responsible for failure of performance due to causes beyond its control.
8.7 Export. All or part of our services may be subject to U.S. export control and economic sanctions laws and other applicable export and import laws (“Export Controls”). You agree to abide by all Export Controls as they relate to Your access and use of our services. You may not access or use the Services if You are located in a jurisdiction where the provision of our Services is prohibited by law (a “Prohibited Jurisdiction”), and You may not provide access to our Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent and warrant that: (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction; and (iii) You will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You are located.
8.8 Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.
8.9 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between Keap and You as a result of these Terms or use of the Keap Service.
8.10 Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
8.11 Government End Use. If You are an agency or unit of the U.S. Government (“Government”), the Keap Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”), set forth in this Section. Government technical data and software rights related to the Keap Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data - Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Keap to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.