Revised: March 30, 2018
Hello! Please keep reading these important Terms. They apply when you buy a subscription or use any of our services. Speaking of which, thank you for your interest. We appreciate you (and your apparent love of legal terms).
Who are we? We are Infusion Software, Inc., d/b/a Keap. We might call ourselves “Keap” (“We”, “Us” or “Our”).
Who are you? You are a customer, or you represent a customer, of our Keap Service (as defined below). So, you be “You” (or “Your”).
A few things You should know right away:
Article I. Definitions
"Authorized User" means 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.
"Front End Code" means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
"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 an Keap branded or controlled website (or Keap partner website) that includes a link to or makes reference to these Terms. The definition of Keap Service does not include any separate Professional Services (as defined below) that may be purchased by You from Keap.
"Order Form" means any online or written subscription order form or contract for the Keap Service or for Professional Services submitted 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.
"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 Keap to You pursuant to the terms of an Order Form.
"Subscription Term" means the use term for the Keap Service set forth on Your Order Form and any additional renewals of such term.
"Third Party Content" means the content, including software code and software-as-a-service offerings, that an Keap partner or other third party may bundle with the Keap Service, for a specific market or niche offering.
"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 that You submit to the Keap Service.
Article II. Use Rights and Restrictions
2.1 Use Rights; 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 that the Keap Service is designed to perform, subject to the following restrictions: (i) Your use of the Keap Service may not be on behalf of third parties unless a separate agreement between You and Keap permits use of the Keap Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) 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; (iii) 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; (iv) 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 Order Form for the level of subscription purchased by You (Keap may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); (v) 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 (www.Keap.com) as updated by Keap from time to time.
2.2 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 any additional standard technical support resources for the Keap Service that may be offered by Keap from time to time.
2.3 Intellectual Property Rights. You acknowledge and agree that Keap retains all proprietary rights in and to the Keap website (https://keap.com) 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. You agree that Keap can use 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 without restriction or obligation to You.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the Keap Service. Any replication or use of any aspect of the Front End Code or other Keap application or Professional Services for any purpose designed or intended to compete with Keap's solutions is strictly prohibited.
Article III. Data 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 solely in connection with Keap's operation of the Keap Service on Your behalf. 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 Protection of PHI. If You are a Covered Entity or Business Associate as defined in HIPAA, before You are eligible to process PHI in Your Keap application, You must first accept the Keap 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.
3.3 EU Personal Data. As of May 25, 2018, if You have not executed the Keap Data Processing Addendum (“DPA”), You are prohibited from using the Keap Service to process data regulated by the General Data Protection Regulation of the European Union (GDPR).
3.4 Notification of Decreased Protection Standards Event. Keap agrees to promptly notify You if Keap becomes unable to satisfy its obligations under this Article III on Data Protection or Article V on Confidentiality.
Article IV. Fees
4.1 Fees. The fees for the Keap Service and any additional Professional Services ("Fees") are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and these Terms. You agree to provide Keap with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide Keap with credit card information, You authorize Keap to bill such credit card (a) at the time that You order the Keap Service or other Professional Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. 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 Order Form 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.
4.2 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 an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide Keap, upon request, with the appropriate exemption certificate.
4.3 Non-Payment; Other Suspension Rights. Keap may terminate the Keap Service if the billing or contact information provided by You is false or fraudulent. Keap also reserves the right, in its discretion, to suspend or cancel Your access and/or use of the Keap Service: (i) where any payment is due but unpaid under any Order Form or account associated with You and You have been requested but failed to promptly cure such payment failure; or (ii) 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 it a dispute arises as to management of Your account, then (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. 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 account.
Article V. Confidentiality; Use of Names
5.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, 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 any 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 use Keap's name and credentials in an appropriate and acceptable manner for Your standard marketing promotions, provided that 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. Similarly, 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 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 web site presentation and promotion, etc.
Article VI. Term & Termination
6.1 Standard Term. Unless a different Term is specified in a signed Order Form between You and Keap, the Initial Term of Your subscription to an Keap Service will begin on the submission or execution of Your Order Form and shall continue on a month-to-month basis until the subscription is terminated as provided for in this Article 6.
6.2 Notice of Non-Renewal. Either party may terminate the Subscription Term to an Keap Service by providing prior written notice of non-renewal to the other party at least 30 days prior to the end of the then-current Subscription Term. Keap's termination rights are in addition to any termination or suspension rights it may have under these Terms or any incorporated policy.
6.3 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to Keap must be paid in full. Contingent upon its receipt of all such Fees, Keap will continue to make Your Data available for downloading for 30 days after the termination date. Following this 30-day grace period, Keap may remove Your Data from the production environment 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 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 use of the Keap Service, and.
- Third Party Hardware. All third party hardware, including but not limited to card readers, and other products included or sold with the Keap Service are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, You should contact the manufacturer directly. KEAP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, 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 INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
7.2 Keap Not Responsible for Third Party Content. The Keap Service may be bundled by third parties (including but not limited to Keap marketing or content partners) with Third Party Content designed to facilitate use of the Keap Service in certain market niches or to customize the Keap Service for use by certain categories of target customers. To the extent that You either purchase the Keap Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though You may purchase the core Keap Service directly from Keap), Keap does not warrant in any manner and will not be responsible for such Third Party Content 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.
- WePay, Inc. (“WePay”). WePay's Payment Processor Terms are available here: https://go.wepay.com/terms-of-service#us. If You have questions regarding WePay or WePay’s Payment Processor Terms, please contact WePay at https://go.wepay.com/.
7.4 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT KEAP SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE KEAP SERVICE.
Indemnity. You agree to indemnify and hold Keap harmless from and defend Keap against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys' fees), that arise due to Your violation of law or breach of these Terms, including any losses that result from claims You make that are prohibited under any provision of these Terms, such as the Limitation of Liability section below, or any other section.
7.6 Limitation of Liability. IN NO EVENT WILL KEAP BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL KEAP'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO KEAP DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
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 South 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 (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. It is Your responsibility to keep all Your contact information current.
8.2 Assignment. You do not have a right to assign these Terms without providing prior notice to and obtaining the 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 and any amendments thereto, along with the information incorporated into these Terms (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties' entire understanding relating to the Keap Service, the Keap Materials and the Professional Services, and supersede any prior or contemporaneous, conflicting or additional communications. We may modify 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 by calling to discuss material changes with You. If You object to any changes we make to our Terms, You must give us notice within 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 above, 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-use). 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. 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 Force Majeure. Except for Your obligation to pay Fees, neither party will be responsible for failure of performance due to causes beyond its control.
8.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Keap Service, including Keap technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Keap Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
8.7 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.
8.8 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.
8.9 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.
8.10 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.