|Group Manager Agreement|
Last Revised May 15, 2004
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND INGENIO, INC., DOING BUSINESS AS KEEN AND HEREINAFTER REFERRED TO AS "KEEN". BY CLICKING ON THE "I AGREE" BUTTON AT THE END OF THIS AGREEMENT YOU AGREE, ON BEHALF OF YOURSELF AND EVERY CURRENT AND FUTURE MEMBER OF YOUR GROUP, THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM AND CONDITION.
This Agreement contains the terms and conditions that apply to you becoming a member of the Group Manager Program on the Keen website (the "Site"). This Agreement will become effective upon your creation of a Group using the Group Management Tool. Keen reserves the right to accept or reject you as a Group Manager or your Group in Keen's sole discretion. Capitalized terms not defined herein will have the meanings set forth in the Member Agreement and related policies.
Eligibility to use the Site and Advisor Services is limited. The Site and Group Manager Program 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.
Keen may modify this Group Manager Agreement, or suspend or terminate your Group, participation in the Group Manager Program and/or use of the Site at any time without notice to you.
Payments of Fees from Keen to the Group Manager.
Compliance with Applicable Laws.
You are solely responsible for the accuracy and appropriateness of all materials posted on your Group's website, and for ensuring that materials posted on your Group's website are not defamatory, in violation of copyright laws or otherwise illegal. Keen disclaims all liability for these matters.
Group Manager Conduct.
Ownership and License.
As between the parties, Keen shall retain all ownership in the Site including all URLs and any content created or derived from the Site. You shall and hereby do assign to Keen all right, title and interest in any material, ratings, suggestions and/or comments submitted by you as part of the Member feedback system. You grant Keen the right to use or reference your username on the Site and elsewhere to promote the Site without your consent or compensation to you.
Term and Termination.
The term of this Agreement will begin upon creation of the Group and will end when terminated by either party. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and Group Manager will immediately cease use of, and remove from the Group's website, all links to the Site.
THE SITE AND ANY ADVISOR SERVICES OR OTHER SERVICES OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. KEEN EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SITE AND ALL COMMUNICATIONS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Some states do not allow the exclusion of warranty, so the above exclusions may not apply.
Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL KEEN BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE WHETHER OR NOT KEEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KEEN'S AGGREGATE LIABILITY WITH RESPECT TO THIS GROUP MANAGER AGREEMENT WILL NOT EXCEED THE GREATER OF:
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply.
Hold Harmless, Indemnity and Right to Withhold Payment.
YOU AGREE TO HOLD HARMLESS AND INDEMNIFY KEEN, AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SITE, 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, SUSPECTED AND UNSUSPECTED, 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.
Release and Waiver. YOU USE THE SITE, GROUP'S WEBSITE AND THE KEEN ADVISOR SERVICES AT YOUR OWN RISK.
To the maximum extent permitted by applicable law, you hereby release, and waive all claims against, Keen and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of the Site. 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes or regulations.
Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent party and not as a contractor, partner, joint venture, 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 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.
If any provision of this 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. The section headings and subheadings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement and proceedings pursuant to the arbitration clause in this Agreement. This Agreement and the terms and policies referenced herein constitute the entire agreement between Keen and you with respect to the subject matter hereof.
YOU ATTEST THAT YOU HAVE READ THIS AGREEMENT CAREFULLY, HAVE HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL AND UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. YOU FURTHER ATTEST THAT NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO SIGN THIS AGREEMENT AND YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.
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