|Keen Member Agreement|
Last Revised March 6, 2015
Welcome to the Member Agreement. This is a legal agreement between you and Ingenio, LLC, doing business as Keen and hereinafter referred to as "Keen." If Keen accepts your Member Sign-up Form, you will become a "Member" having access to the Site and Advisor Services only under the policies, terms and conditions below.
YOU UNDERSTAND THAT BY CLICKING THE BUTTON TO CONTINUE ON THE REGISTRATION PAGE, BY USING THE SITE (AS DEFINED BELOW) AND ANY ADVISOR SERVICES (AS DEFINED BELOW) INCLUDING ANY CONTENT PROVIDED THEREIN, BY INITIATING ANY FORM OF COMMUNICATION WITH A MEMBER, OR BY POSTING ANY LISTINGS ON THIS SITE, YOU ARE AGREEING TO BE BOUND BY THIS MEMBER AGREEMENT AND YOU ARE BOUND IN THE SAME WAY THAT A PAPER CONTRACT BINDS YOU. ALL USE OF THE SITE AND ADVISOR SERVICES IS SUBJECT TO THE TERMS OF THIS MEMBER AGREEMENT AND THE POLICIES, RULES, TERMS AND INSTRUCTIONS ON THE SITE OR INCORPORATED HEREIN ARE PART OF THIS MEMBER AGREEMENT. YOU MUST ACCEPT WITHOUT MODIFICATION ALL OF THE TERMS, CONDITIONS, POLICIES AND NOTICES REFERENCED IN THIS MEMBER AGREEMENT IN ORDER TO ACCESS AND USE THE SITE AND ADVISOR SERVICES. IF YOU DO NOT ACCEPT THIS MEMBER AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR ADVISOR SERVICES.
For convenience, we will refer to the Keen.com website, "Mail" (any email you send from your Member account to another Member), "Chat" (any live chats conducted between you and another Member), phone services (including recordings posted by Advisors and services available through 1-800-ASK-KEEN and other numbers that Keen maintains for access by Members) and any other content therein as the "Site." We will refer to any advice, information, entertainment and other products or services you may receive from other Members (in their role as Advisors) or their listings on the Site as the "Advisor Services." All Members, whether they provide or receive Advisor Services from other Members, will be referred to as "Members." Members who create listings and/or provide Advisor Services will also be referred to as "Advisors."
1. Eligibility to use the Site and Advisor Services is limited.
The Site and Advisor Services are available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Without limiting the foregoing, the Site and Advisor Services are not available to temporarily or indefinitely suspended Members. Also, you shall also not use this Site if your use is prohibited by the trade laws of the United States or any other country.
2. You consult with Advisors or provide Advisor Services at your own risk.
(a) Keen does not evaluate, provide, produce or control the Advisor Services, or information or exchanges between Members, in any manner. Although Advisor listings may contain verified credentials, the verification services are provided by third parties. Keen does not itself provide any advice, information or entertainment services or other products or services, nor verify, guarantee or make any representations regarding the credentials, identity or qualifications of any Advisor. Further, Keen does not make editorial or managerial decisions concerning content. Nor will Keen be held responsible for any Advisor's failure to comply with laws or regulations concerning the content of listings. Instead, Keen acts as a technology service that allows Members to share advice, information and other products or services among themselves. Although Keen helps its Members connect with each other, it does not monitor the advice exchanged, and, as a result, Keen does not control, nor is it responsible for, the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said or written by Members, including without limitation any information contained in Advisor listings or made available through this Site. The Site is not intended for use as a payment service to exchange goods. Keen is not responsible for the use or exchange of any information, files or goods between Members. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Advisor Services, in evaluating the qualifications of, and statements made by Members in listings or through the Member feedback system, and in disclosing personal information to other Members. Keen prohibits disclosure of personal contact information to other Members, including Advisors. If you do, you do so at your own risk. Placement of a Member in a particular category does not mean that they are qualified in any such area or category. Keen assumes no responsibility for monitoring any Member feedback or otherwise policing its Members in any way. If you ever believe that a Member has violated the law or is defrauding, threatening or endangering anyone, Keen urges you to immediately contact the police directly for help. In addition, Keen prohibits Members from using the Site or Advisor Services to solicit other Members to meet with them in person. If you do meet with other Members, you do so at your own risk.
(c) If you have a dispute with another Member, or suffer any harm arising out of or connected with any Advisor Services, you hereby waive all claims against and release Keen (and its parents, subsidiaries, employees, officers, directors, shareholders, suppliers, joint venturers and agents) from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Advisor Services or with regard to such disputes. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR" Residents of other states and jurisdictions waive their rights under analogous laws, statutes or regulations.
3. Keen may modify this Member Agreement, or suspend or terminate your use of the Site, at any time without notice to you.
(a) Keen reserves the right in its sole discretion and without notice to modify or discontinue the Site and/or modify the terms and conditions of this Member Agreement and incorporated rules and policies, and you agree to be bound by any such modifications. Any modifications will be effective immediately. We may choose to notify you by email regarding significant modifications. Changes to the Payment Policy are effective after Keen provides Advisors with at least five (5) days' notice of the changes by emailing Advisors. If any modification is not acceptable to you, your only recourse is to cease using the Site and Advisor Services. By continuing to use the Site or any Advisor Services following any posting of a new Member Agreement or policies on the Site, you accept and agree to be bound by the new Member Agreement or policies.
(b) Without limiting other remedies, Keen may at any time suspend or terminate your membership and refuse to provide access to the Site without reason or notice to you. In addition, Keen may notify your bank and/or authorities or take any actions it deems appropriate without notice to you, (i) if Keen suspects that you have failed to comply with any provision of this Member Agreement or any policies or rules established by Keen; (ii) if Keen is unable to verify or authenticate any billing or payment information you provide to Keen; or (iii) if Keen suspects that your actions may be illegal or cause liability, harm or disruption for you, other Members, Keen or the Site. You have the right to cancel your membership in Keen by filling out the Customer Support form and selecting "Cancel Account" in the subject line. Any suspension, termination or cancellation will not affect your obligation to pay any amounts due to Keen.
4. Keen's limited role.
Keen acts only as an interface to facilitate communications initiated between Members and as a third party payment network. As an Advisor, you are not an employee, agent or contractor of Keen, and you shall not represent that you are any of the foregoing. You are solely responsible for all equipment necessary to access and use the Site and Advisor Services, and for reporting and payment of all taxes associated with fees transferred to you by Keen. Keen accepts no responsibility for reporting to law enforcement agencies any threats made by Members to harm themselves or third parties or take any illegal action. Any such responsibility lies with the Advisor alone.
5. You are solely responsible for the use of your Member account and agree to the following fee and payment terms:
(a) The rates for Advisor Services are as set forth in the applicable Advisor listing. A "Conversation" refers to any live call or Chat. "Transaction" means any Conversation or pre-recorded call through the Site initiated using your password and Member account and any Mail response sent to your Mail account in response to a request for advice, information, entertainment services or other products or services from an Advisor who lists a fee for email responses (each a "Paid Mail"). You hereby authorize Keen to collect fees for each Transaction by debiting your Member account immediately upon conclusion of each Transaction, regardless of quality or completeness. Fees for Conversations and pre-recorded calls are calculated based on the per-minute rate listed and the duration of the transaction. Keen reserves the right to offer, from time to time and subject to change at any time, promotions or special offers and may limit eligibility for promotional or special offers. Fees for recorded calls are determined based on the listed fee. Fees for Paid Mail are collected immediately upon acceptance of the Paid Mail, regardless of quality or completeness, by the receiving Member and are determined as set forth in the Advisor listings. You authorize Keen, directly or through third parties, to make any inquiries we consider necessary to validate your Member account and/or listing information. This may include ordering a credit report and performing other credit checks or otherwise verifying the information you provide.
(b) You agree not to allow non-Members to use your Member account. You agree to maintain the confidentiality of your password and Member account information and to supervise all activities that occur under your Member name, password or Member account, including, but not limited to, any and all usage of the Site by other persons under your Member name and password. You agree that you will not permit, enable, introduce or facilitate (i) non-Members to have access to or use of the Site or Advisor Services in any manner without first becoming Members and (ii) simultaneous use of Advisor Services by others with you.
(d) Based on Member account use and other factors identified by Keen in its sole discretion, Keen may verify your credit, identity and/or other background information in order for you to continue using the Site. In such event, you agree to provide Keen with additional information that may be requested; you consent to Keen's disclosure of your personal information to third-party service providers in order to verify your credit, identity and/or other background information; and you authorize Keen to obtain a consumer credit report or information from consumer credit reporting agencies and to verify your identity.
6. In using or accessing the Site or Advisor Services, you agree to comply with the following:
(a) You (as an Advisor providing Advisor Services) are solely responsible for the content provided and the content on listings created under your Member account.
(b) You (as a Member receiving Advisor Services) will not record or otherwise copy or store any live or pre-recorded voice call or Chat that you receive through the Site, including any Paid Mail. You (as an Advisor providing Advisor Services) will not record or otherwise store any voice call you conduct with a Member. Notwithstanding the foregoing, Advisors may record and store their own pre-recorded voice calls (each, a "Recorded Listing" as described further on the Help page of the Site) to Members in accordance with the Advisor Rules Policy.
(c) You will not "frame," "mirror" or otherwise copy any portion of the Site without Keen's express written authorization.
(d) You will not use the Site for any purpose that is, or depict any content that is, unlawful, fraudulent or contrary to this Member Agreement and the policies of Keen, and you will cooperate fully with Keen to investigate any suspected unlawful, fraudulent or improper activity, including but not limited to granting authorized Keen representatives access to any password-protected portions of your Member account.
(e) You will not solicit or provide advice, directly or through writings, as to the value of securities or as to the advisability of investing in, purchasing or selling securities or any report or analysis concerning securities.
(f) You will conduct all for-fee communications that you have with other Members only through the Site, and you will not circumvent or attempt to circumvent the Site using third-party payment or other services.
(g) You will not use the Site to conduct or transmit any unlawful, harassing, libelous, privacy invading, abusive, threatening, defamatory, vulgar, obscene, racist, harmful, or otherwise objectionable communications or material of any kind. You will respect the privacy of others and will not (i) attempt to obtain the personal contact information (including usernames and IDs on other communication platforms) of another Member or (ii) divulge your personal contact information (including usernames and IDs on other communication platforms) to another Member.
(h) You will not attempt to harm, disrupt or gain unauthorized access to the computer systems or networks associated with the Site or another Member's computer or device.
(i) You will not attempt to obtain any information or materials relating to the Site through any means not intentionally made available through the Site.
(j) You will only use payment methods for which you are the authorized user. You will continue to provide true, accurate and complete payment registration information and will maintain as current and promptly update your personal contact information that you provide to Keen. You will not use false identities or impersonate any other person or use a name that you are not authorized to use.
(k) You will not use the Site to promote any product or services other than the services described in your Advisor listing on the Site, to provide any product or services related to, claiming success with or offering information regarding lottery numbers or for purposes of multi-level marketing proposals (for example, offering to help participants "get rich quickly," "lose weight now" or "make money surfing the Web").
(l) You will not transmit "junk mail," "spam," "chain letters" or unsolicited mass distribution of email or bulletin board postings or transmit any solicitation for employees, consultants, contractors or for participation on other websites. See our Anti-Spam Policy for further information.
(m) You will not use the Site to promote bonus items, giveaways, random drawings, prizes, contests or games of chance. Except during a Transaction or Conversation, Advisors have full discretion to adjust their per minute rates at any time.
(n) You will not take any actions which may undermine the Member referral system, or the Member feedback system used to solicit feedback from Members, including without limitation leaving positive feedback for yourself or other Members, using secondary Member names or third parties or leaving negative feedback if a Member fails to perform some action that is outside the scope of the services described in his or her Member listing.
(o) You will not create obscene, offensive, tasteless, defamatory or hateful Member names or content for listings.
(p) You will adhere to all applicable laws and regulations governing your actions in connection with the Site, and you (as an Advisor providing Advisor Services) are responsible for meeting the requirements of applicable professional licenses and applicable advertising laws, regulations and guidelines.
(q) You will not encourage or instruct any other individual to do any of the foregoing or to violate any term of the Member Agreement and Keen policies.
7. As between the parties, Keen shall retain all ownership in the Site including all URLs and any content created for or derived from the Site.
(a) Keen shall own all right, title and interest in Advisor Services and the Site, its entire contents and functionality, including but not limited to, all methods, processes, content, formats, designs, URLs, buttons, information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof, phone numbers, toll free numbers and number extensions together with all inventions, patents, copyrights, trademarks and other intellectual property rights and derivative works and improvements pertaining thereto. Except as noted below, you are not granted any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Keen or any third party.
(b) You understand and agree that (i) you will have no right, title and interest to any of the toll free numbers, phone numbers or extension numbers assigned to you (ii) that Keen may change your toll free number, phone numbers and/or extension number at any time in its sole and absolute discretion (iii) you will have no right, title and interest to any Advisor listing name and (iv) that phone numbers, toll free numbers, extensions and Advisor listing names may be recycled by Keen to other Members if you are not actively using them or your Member account has been terminated. Further, you hereby grant to Keen, its distribution partners, affiliates, and similar third party website/media providers of Keen's choice, the right to use, copy, distribute, display or reference in any media form your Advisor listing information, including without limitation, your listing name, tags, descriptions, photos, Keen buttons, phone numbers and extensions, or your Member information, including without limitation, your member name, registration date, conversation lengths, and submitted ratings and/or written feedback for Advisor Services.
(c) As a Member, you are granted a nonexclusive, nontransferable, revocable and limited license to access and use the Site and Advisor Services in accordance with this Member Agreement. Keen may terminate this license at any time for any reason whatsoever. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site or any portion thereof.
8. If you act as an Advisor, you will comply with and be subject to Keen's Advisor Rules Policy and Payment Policy.
Keen's Advisor Rules Policy and Payment Policy are available on the Advisor Rules Policy and Payment Policy pages, and are incorporated into this Member Agreement by reference and may be accessed by clicking on them.
9. Account Maintenance Fee.
Keen may charge an Account Maintenance Fee of two dollars ($2.00) per month for all Member accounts. However, if the Member uses the Member account to purchase advice, information, entertainment services or other products or services, then for a period of twelve (12) months from the date of such use, Keen may but is not required to waive the Account Maintenance Fee for all active Member accounts.
10. Keen disclaims any warranties or representations regarding the Site and Advisor Services.
THE SITE AND ANY ADVISOR SERVICES OR GOODS OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. KEEN AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, ADVISOR SERVICES AND ALL COMMUNICATIONS BETWEEN MEMBERS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, KEEN MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE SITE WILL BE ERROR FREE. Some states do not allow the exclusion of warranty, so the above exclusions may not apply to you.
11. Keen's liability for your access to and use of the Site and Advisor Services is limited and you are responsible for your use of the Site.
UNDER NO CIRCUMSTANCES WILL KEEN OR ITS PARENTS, SUBSIDIARIES, AGENTS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE OR ADVISOR SERVICES, WHETHER OR NOT KEEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KEEN AND ITS PARENTS', SUBSIDIARIES', AGENTS' OR SUPPLIERS' AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (a) THE TOTAL FEES ACTUALLY EARNED BY KEEN FROM YOU (AFTER PAYMENTS TO ADVISORS AND OTHER THIRD PARTIES) IN THE PREVIOUS TWELVE (12) MONTHS, AND (b) TWO HUNDRED DOLLARS ($200). KEEN WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to you.
YOU FURTHER AGREE TO HOLD HARMLESS, DEFEND AND INDEMNIFY KEEN, AND ITS EMPLOYEES, PARENTS, SUBSIDIARIES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SITE OR PROVISION OF ADVISOR SERVICES, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS' FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, FORESEEABLE AND UNFORSEEABLE, DISCLOSED AND UNDISCLOSED. In each case, Keen will provide you with written notice of such claim, suit or action. Keen shall have the right to withhold payments to you to offset liabilities and expenses covered hereunder.
12. Keen prohibits the unauthorized use of copyrighted materials and trademarks.
You shall not use the Site or Advisor Services to transmit, route, provide connections to or store any material that infringes copyrighted works, trademarks, or otherwise violates or promotes the violation of the intellectual property rights of any third party.
"Keen" and all related names, logos, product and service names, designs and slogans are trademarks of Keen or its affiliates or licensors. You must not use such marks without the prior written permission of Keen. All other names, logos, product and service names, designs and slogans on the Site are the trademarks of their respective owners.
Keen Copyright Policy:
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
Our designated Copyright Agent to receive DMCA Notices is:
182 Howard Street #826
San Francisco, CA 94105
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the Member accounts of Members who are repeat copyright infringers.
13. Carrier Transactions and Charges.
Your dealings with any wireless, telecommunications, or other carrier ("Carrier") in connection with accessing the Site and the use or provision of Advisor Services, including payment for usage charges, participation in any promotions offered by any Carrier and/or any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the Carrier. Keen is not responsible for any such Carrier dealings or promotions.
14. Links to Other Websites.
The Site may provide links to websites operated by third parties. Keen is not responsible for the content, terms and conditions and/or privacy policies on such websites. If you decide to visit any linked website, you do so at your own risk. Keen makes no warranties, either express or implied, concerning the content of any linked website, including the accuracy, completeness, reliability or suitability thereof for any particular purpose, nor does Keen warrant that such website or content is free from any claims of copyright, trademark or other infringement or that such website of content is free from viruses or other contamination.
Any notice or other communication to be given hereunder will be in writing and given (a) by Keen via facsimile, receipt confirmed, United States mail or email (in each case to the number or address that you provide), and (b) by you via email to email@example.com. The date of receipt shall be deemed the date on which such notice is transmitted in the case of facsimile or email, and five (5) days after receipt by the U.S. Postal Service in the case of United States mail.
16. No Assignment.
You shall not assign this Member Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Keen, which shall be at its sole discretion. Any such purported assignment or delegation by you without the appropriate prior written consent of Keen will be null and void and of no force or effect. Keen may assign this Agreement or any rights hereunder without your consent.
17. Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Member Agreement each party shall be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.
Any controversy or claim arising out of or relating to this Member Agreement, the breach thereof or its subject matter shall be settled by binding arbitration in accordance with the consumer commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary, Keen, the Member, or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
19. Electronic Records.
You consent to the use of (a) electronic means to complete this Member Agreement, to use the Site and Advisor Services and to provide you with any notices given pursuant to this Member Agreement, and (b) electronic records to store information related to this Member Agreement or your use of the Site.
You can request a copy in paper form of this Member Agreement and any other records relating to this Member Agreement or your use of the Site by sending a written request to: Keen, 182 Howard Street #826, San Francisco, CA 94105. You understand and agree that this Member Agreement and any notices given pursuant to this Member Agreement are enforceable in electronic format.
If any provision of this Member Agreement is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. Keen's failure to act with respect to a breach by you or others does not waive Keen's right to act with respect to subsequent or similar breaches. The failure of Keen to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. This Member Agreement and any dispute arising between you and Keen shall be governed by and interpreted in accordance with the laws of the State of California. You agree that this Member Agreement and the Member rules and restrictions and policies contained herein, and Keen's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and Keen. This Member Agreement together with the rules and policies of Keen constitutes the entire agreement between Keen and you with respect to the subject matter hereof.
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