Updated on August 31, 2015
This KeptMe Commercial Service Agreement (this “KeptMe Commercial Service Agreement” or this “Agreement”) governs use of the KeptMe service (the “KeptMe Service” or “KeptMe”) by the entity agreeing to these terms (“Customer”). Customer is one party to this Agreement. If Customer’s headquarters are located in or outside of Australia, then the other party to this contract is KeptMe Pty Ltd, a company headquartered in Australia (“KeptMe Australia”). (The term “KeptMe,” as used in this Agreement, refers to KeptMe Pty Ltd).
You are required to accept this KeptMe Commercial Service Agreement on behalf of the Customer as a condition to creating a KeptMe Account. The Agreement is effective as of the date KeptMe makes the KeptMe Account available to the Customer (the “Effective Date”). By accepting this Agreement, you confirm that you have reviewed the Agreement on behalf of Customer and you are warranting to KeptMe that you are authorized to accept and make legally binding this Agreement on behalf of Customer. If you do not have the legal authority to bind such Customer, please do not sign signifying that you accept the terms of this Agreement.
If Customer desires to utilize any other service or products provided by KeptMe, Customer may be required to enter into a separate written agreement or click “accept” or “agree” to become a party to another contract with KeptMe relating to such service and/or product (a “Separate Agreement”), and this Agreement shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and this Agreement, then the terms of the Separate Agreement shall take precedence over the contradictory terms in this Agreement with respect to the subject matter of such Separate Agreement. You should save a copy of this Agreement for your records.
1. Use of KeptMe Service
After successfully completing the account creation process and confirming acceptance of this Agreement, KeptMe will enable Customer to access a KeptMe Administrator Account (“Administrator Account”), which will include a console (“Admin Console”) that will permit Customer to perform a number of administrative functions relating to Customer’s KeptMe Account, end users (each, an “End User”) and Customer’s records (each, a “Record”), including, but not limited to, granting access, exporting account data, and suspending or terminating End User access to Records.
When the Customer creates a child profile, the Customer will be able to choose whether the child profile will be private, which is controlled by the customer, or a shared child profile, which is accessible by the End User. Customer acknowledges that it will not have any control over an End User’s personal profile or their contributions to a child profile. Customer acknowledges that providing an End User authority to contribute information, or obtain access to existing information, enables such End User to store data, text, images, software, sounds, graphics, video, messages, tags and other materials, in a variety of forms and technical structure (“Content”) in such child profiles. Customer also acknowledges that an End User may copy, transfer or otherwise export Content from the child profiles they are permitted to access and that while any suspension or termination of access to child profile will prevent the End User from accessing the previously accessible child profile records, it will not delete or otherwise affect any Content that such End User had previously copied from or transferred out of the child profile. Customer acknowledges that after a child profile is archived, an End User will retain access to view and contribute to Customer contributed records associated with the specified child profile unless the child profile is disabled. The Customer may request to disable a child profile at any time by contacting KeptMe. The Customer acknowledges that an End User may continue to access and contribute a disabled child profile in a private capacity after a child profile is disabled.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written statements made by KeptMe regarding future functionality or features.
2. Customer’s Obligations
Customer is responsible for (a) payment of all fees relating to Customer’s KeptMe Account (“Fees”); (b)administering all Educator or End Users’ access to Records through the Admin Console; (c) maintaining the confidentiality of the password of each Administrator and Educator Account; (d) maintaining accurate and current account and contact information for each Administrator and Educator Account; and (e) ensuring that any and all use of each Administrator and Educator Account complies with this Agreement and applicable laws. Customer may grant administrative or educator privileges to multiple Customer personnel (each, an “Administrator” or “Educator”), and shall be solely responsible for ensuring that it has designated necessary and appropriate individuals as Administrators or Educators and for removing privileges from individuals who no longer require administrative or educator privileges. CUSTOMER ACKNOWLEDGES THAT IF NO ACCOUNT ADMINISTRATOR(S) OR EDUCATORS IS/ARE ABLE OR WILLING TO FULFILL SUCH FUNCTION, AND/OR CUSTOMER OTHERWISE FAILS TO MAINTAIN CONTROL OF THE ADMINISTRATOR OR EDUCATOR ACCOUNT(S), CUSTOMER MAY BE UNABLE TO ACCESS OR CONTROL THE KEPTME ACCOUNT; IN SUCH EVENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES, COSTS AND EXPENSES. (See “Administrator Account Recovery” below for additional information.)
Customer acknowledges and agrees that prior to an End User using the KeptMe Service, KeptMe will require each End User to accept KeptMe’s Terms of Service, and such Terms of Service will govern each End User’s use of KeptMe. Customer acknowledges that a violation of the Terms of Service by an End User may result in the termination of such End User’s personal account and Customer’s KeptMe Account. Customer shall not make any representation, warranty or guaranty for or on behalf of KeptMe, or otherwise obligate KeptMe in any manner, to any End User.
Customer will prevent unauthorized use of its KeptMe Account or Records and immediately terminate any unauthorized use of which it becomes aware. Customer will promptly notify KeptMe of any unauthorized use of or access to the KeptMe Service of which it becomes aware.
3. Administrator Account Recovery
If Customer desires to establish a specific authorization process independent of the Administrator Accounts, such as written direction from a corporate officer or other designated representative of Customer, Customer may contact KeptMe Customer Support to request agreement on such process (an “Approved Account Recovery Process”). KeptMe reserves the right, in its sole discretion, to accept or reject such proposal. If Customer and KeptMe have agreed upon an Approved Account Recovery Process, Customer may at any time or from time to time, request assistance using such Approved Account Recovery Process.
If Customer loses access to all Administrator Accounts and has not established an Approved Account Recovery Process, Customer should contact KeptMe’s Support Team and request assistance, as there may be measures available to Customer to recover access. If Customer is unsuccessful in obtaining access to an Administrator Account with assistance of KeptMe’s Support Team, KeptMe reserves the right to contact via email some or all End Users and any email listed in the Admin Console of the KeptMe Account (“Administrative Contact”) to request one or more of them to serve as an Administrator and receive credentials to enable access to an Administrator Account. The process and means by which an End User or other designated contact is selected and provided such credentials is subject to KeptMe’s discretion.
If no person is provided credentials for an Administrator Account through such process (a “Loss of Administration”), then KeptMe may, in its sole discretion, determine whether an individual requesting access to an Administrator Account may be provided the credentials necessary to do so on behalf of Customer. In such event, an individual may attempt to demonstrate to KeptMe authorization to act on behalf of Customer in regaining access to an Administrator Account by providing proof satisfactory to KeptMe. Customer acknowledges and agrees that, in the event of a Loss of Administration, KeptMe is empowered and authorized by this Agreement to use its discretion in determining whether to provide Administrator Account credentials to an individual offering proof of authority to act on behalf of Customer, and Customer hereby waives any and all claims against KeptMe as a result of, or in any way relating to, such actions.
Customer will not, and will ensure that End Users or third parties do not: (a) offer for sale or lease, sell, resell or lease access to the KeptMe Service through the KeptMe Account; (b) attempt to reverse engineer the KeptMe Service or any software or other component used therein; (c) use the KeptMe Service in a manner or under circumstances where use or failure of the KeptMe Service could lead to death, personal injury or environmental damage; or (d) use the KeptMe Service in a manner that would violate applicable laws protecting an individual’s privacy rights, health or financial data; or (e) attempt to create a substitute or similar service through use of, or access to, the KeptMe Service or KeptMe.
5. Third Party Requests
Customer acknowledges and agrees that, as between the parties, it is responsible for responding to a request from a third party for records relating to Customer’s or an End User’s use of, or Content contained within, KeptMe (a “Third Party Request”). If KeptMe receives a Third Party Request (including but not limited to criminal or civil subpoenas or other legal process requesting Customer or End User data), KeptMe will, to the extent allowed by the law and by the terms of the Third Party Request, direct the Third Party to Customer to pursue the Third Party Request. KeptMe retains the right to respond to Third Party requests for Customer data where KeptMe determines, in its sole discretion, that it is required by law to comply with such a Third Party request.
Customer will be required to select its method of payment when Customer sets up its KeptMe Account. Administrators and Billing Contacts of KeptMe accounts may change payment information for KeptMe Accounts by contacting KeptMe Customer Support. Billing Contacts will need to contact Customer Support and demonstrate to KeptMe’s satisfaction control of the payment method last used for Customer’s KeptMe Account to make any changes.
Customer is responsible for any taxes, including, without limitation, sales, use, excise, added value, withholding and similar taxes, as well as all customs, duties or governmental impositions, excluding only taxes on KeptMe’s net income (collectively, “Taxes”), and Customer will pay KeptMe all Fees due hereunder without any reduction for Taxes. If KeptMe is obligated to collect or pay Taxes, KeptMe will invoice Customer for the Taxes unless Customer provides KeptMe with a valid tax exemption certificate, VAT number issued by the appropriate taxing authority and/or other documentation providing evidence that no tax should be charged. If Customer is required by law to withhold any Taxes from its payments to KeptMe, Customer must provide KeptMe with an official tax receipt or other appropriate documentation to support such payments.
8. Support and Maintenance
KeptMe will provide support directly to the Administrator or End User in accordance with the then-current terms and conditions governing the support KeptMe provides for KeptMe.
Customer will, at its own expense, be responsible for providing support to its End Users regarding issues that are particular to their End Users’ access of records (e.g., resetting passwords, archiving accounts, sharing Customer’s notes, etc.). Customer will use commercially reasonable efforts to resolve any such support issues before escalating them to KeptMe. If Customer cannot resolve a support issue as set forth above, Customer’s Administrator may escalate the issue to KeptMe.
9. Data Security
If Customer intends to enable use of the KeptMe Service by End Users who are minors, Customer shall be responsible for obtaining any necessary parental / guardian or other permissions required under applicable laws prior to enabling such End Users’ access or use of the KeptMe Account.
KeptMe may, in its sole discretion, allow Customer to upload its logo or other trademarks (together, “Customer Trademarks”) for display in the version of KeptMe accessed by Customer’s End Users, either in conjunction with KeptMe’s trademarks or as a Customer-branded service. Accordingly, Customer hereby grants KeptMe a non-exclusive license to display, perform and distribute the Customer Trademarks and to modify (for technical purposes, e.g., making sure trademarks are viewable on smart phones as well as computers) such trademarks solely in connection with making KeptMe available to Customer’s End Users.
13. Reservation of Rights
Except as expressly set forth herein and in the Terms of Service, this Agreement does not grant either party any rights, implied or otherwise, to the other’s intellectual property. No title to or ownership of or other right in or to KeptMe or software provided by KeptMe to access KeptMe (“KeptMe Software”) is transferred to Customer under this Agreement.
14. Warranty to Contract
Each party represents and warrants to the other that it has the requisite power and authority under its organizational charter and governing agreements (if any) to enter into this Agreement and perform in accordance with the terms herein. Customer further represents and warrants that the individual who completes the KeptMe registration process and accepts this agreement is authorized to do so on Customer’s behalf.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN SECTION 14 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. KeptMe DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT OF THE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, KeptMe DOES NOT WARRANT THAT THE KeptMe SOFTWARE OR KeptMe SERVICE WILL MEET ALL REQUIREMENTS OF CUSTOMER OR ANY END USER, OR THAT THE OPERATION OF THE KeptMe SOFTWARE OR KeptMe SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE KeptMe SOFTWARE AND KeptMe SERVICE WILL BE CORRECTED. FURTHER, KeptMe IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE KeptMe SOFTWARE NOT DELIVERED BY KeptMe. KeptMe DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON – KeptMe PRODUCTS.
16. Indemnification by Customer
To the maximum extent permitted by applicable law, Customer agrees to indemnify and hold KeptMe, its subsidiaries, affiliates, officers, agents, employees, and partners harmless from and against any and all liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to (i) any Loss of Administration or (ii) claims (a) made by End Users; or (b) made by any third party relating to Customer’s use and Customer’s End Users’ use of any of the KeptMe Software or KeptMe Service in violation of this Agreement, the Terms of Service or applicable laws. In the event of such claim, we will provide notice of the claim, suit or action to Customer using the contact information we have for the account, provided that any failure to deliver such notice to Customer shall not eliminate or reduce Customer’s indemnification obligation hereunder, except to the extent Customer can establish that it was prejudiced by such failure.
17. Limitation of Liability
EXCEPT WITH RESPECT TO (A) CUSTOMER’S BREACH OF SECTION 2 OR 3 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 16, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL AND (II) EACH PARTY’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO KeptMe UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATON OF ANY CLAIM FOR DAMAGES.
This Agreement shall be effective upon the Effective Date and shall remain in effect until the end of the subscription period (the “Subscription Period”), unless and until terminated in accordance with the provisions of Section 19. The duration of a Subscription Period is (12) months.
At the end of the initial Subscription Period, the Subscription Period will automatically renew for an additional Subscription Period, except as set forth below. Customer will pay KeptMe the then-current Fees due for the Subscription Period. At any time prior to the end of the initial Subscription Period or any subsequent Subscription Period, Customer may cancel its KeptMe subscription or reduce the number of accounts with access to KeptMe though the Admin Console, which cancellation or reduction shall be effective as of the end of the then-current Subscription Period for the immediately following Subscription Period.
Customer may terminate this Agreement at any time by deactivating its KeptMe Account by notifying KeptMe, provided that in no circumstances will Customer be entitled to any refund for Fees it has paid or any credit against Fees that are due to KeptMe as of the date of such termination. KeptMe may terminate this Agreement by providing sixty (60) days written notice to Customer.
In addition, either party may terminate this Agreement in the event the other party commits any breach or default of the material terms of this Agreement, and fails to remedy such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party. Notwithstanding the foregoing, (i) either party may terminate this Agreement immediately in the event of a material breach by the other party of its obligations under Section 10 and (ii) KeptMe may terminate this Agreement immediately in the event of a material breach by Customer of its obligations under Sections 2 or 3.
If Customer: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Customer fails to have discharged or terminated within thirty (30) days after filing; (iii) proposes any dissolution, composition or financial reorganization with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all assets or business of Customer; or (iv) Customer makes a general assignment for the benefit of creditors, KeptMe may immediately terminate this Agreement by giving a termination notice.
Termination of this Agreement shall, as of the effective date of such termination, terminate Customer’s and its End Users’ access to KeptMe and all other rights granted to Customer hereunder; provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. Upon termination by KeptMe on less than thirty (30) days’ notice, and unless prohibited by law, KeptMe will provide a mechanism for Customer to download (in PDF format) the information that Customer has uploaded using KeptMe within a limited period of time.
The following provisions of this Agreement shall survive the termination of this Agreement: Sections 2 – 7, 9 – 13, 15 – 18 and 20.
20. General Terms
- Notices. Any notice required or permitted to be given hereunder shall be given in writing by personal delivery, by e-mail or by world-recognized courier delivery as follows: If to Customer:
At the email address(es) for the then current Administrator(s) for the account.
If to KeptMe:
19 Gwynne Street
Richmond, Victoria 3121
The date upon which such notice is delivered shall be deemed to be the date of such notice, irrespective of the date appearing thereon. A party, through the Admin Console (if Customer) or upon written notice to Customer (if KeptMe), may change the addresses, individuals and/or titles to which notices shall be sent.
- Governing Law. This Agreement shall be governed by and construed as an instrument under seal in accordance with the laws of the Australia governing contracts executed and to be performed therein, but without regard to any choice of law provisions.
- Agreement, Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without the other party’s prior written consent. This Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and KeptMe reserves the right to assign this Agreement to any KeptMe affiliate or successor. If Customer desires to request KeptMe to consent to an assignment of this Agreement, Customer shall send a formal request for consent by notice to KeptMe, and should send a message to KeptMe setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Customer shall ensure that it provides the then-current passwords for the Administrator Accounts to any successor or assignee under this Agreement as, notwithstanding any such assignment, KeptMe shall not provide any passwords to Customer’s Administrator Account to any party.
- No Relationship. No agency, partnership, joint venture or employment is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party’s methods of operation.
- Force Majeure. If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.
- Construction. The headings in this Agreement have been inserted for convenience and shall not modify, define or limit the express provisions of this Agreement. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. The parties hereto confirm that (i) they each had the opportunity to review this Agreement with legal counsel of their own choosing and (ii) they understand the terms of, and voluntarily and knowingly enter into, this Agreement with the intent of being legally bound by the terms hereof.
- Waiver and Amendment. KeptMe, in its sole discretion, may amend this Agreement at any time, and in such case, KeptMe will publish a new version of the Agreement (“Amended Agreement”) on the KeptMe website. In addition, KeptMe will provide Customer with at least 30 days advance notice by e-mail (sent to the address Customer has provided to KeptMe) of the change to the Agreement, except that if an update to the Agreement is required to satisfy applicable legal requirements, the Amended Agreement may be effective with less advance notice, as indicated in KeptMe’s communications about the Amended Agreement. Customer’s continued use of KeptMe after the effectiveness of any update will be deemed to represent Customer’s consent to be bound by, and agreement with, the terms of the Amended Agreement. If the Amended Agreement includes any material adverse changes to Customer’s rights or obligations and Customer does not wish to continue using KeptMe under the terms of the Amended Agreement, Customer may terminate the Agreement by providing KeptMe written notice within thirty (30) days of being notified of the availability of the Amended Agreement. In the event of such termination, Customer may request a partial refund, and KeptMe will refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination. Otherwise, no waiver, amendment or modification of any provision of this Agreement, and no variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification, shall be effective unless in writing and agreed to by the parties hereto. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition or default. This Agreement will not be supplemented or modified by any course of dealing or usage of trade.