Keen User Agreement

Last Updated on November 6, 2017
Welcome to the User Agreement. This is a legal agreement between you and Ingenio, LLC, doing business as Keen and hereinafter referred to as "Keen"" (or "we" or "us"). If Keen accepts your Account Registration, you will become a "User" having access to the Site and Services only under the policies, terms and conditions below.
Information you provide is governed by our Privacy Policy.
BY CREATING AN ACCOUNT OR OTHERWISE USING THE SITE (AS DEFINED BELOW) AND ANY SERVICES (AS DEFINED BELOW), YOU ARE AGREEING TO BE BOUND BY THIS USER AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT THIS USER AGREEMENT IN ITS ENTIRETY, YOU SHOULD NOT ACCESS OR USE THE SITE OR SERVICES.
For convenience, we will refer to Keen.com website, "Mail" (any email you send from your User account to another User), "Chat" (any live chats conducted between you and another User), Phone Services (including recordings posted by Users and Services available through 1-800-ASK-KEEN and other numbers that Keen maintains for access by Users) 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 Users or their listings on the Site as the "Services." All Users, whether they access the Site or provide or receive Services from other Users, will be referred to as "Users."
The policies, terms and conditions below limit Keen's liability and obligations to you, and Keen may change, suspend or terminate your access to and use of the Site and Services at any time if in Keen's sole discretion you violate any terms and conditions of this User Agreement and Keen's policies. We urge you to carefully read the following terms and conditions, and all policies referenced below or elsewhere on the Site. The following policies and rules are incorporated into this User Agreement by reference and provide additional terms and conditions:
To the extent that there are any conflicts between the terms or conditions in such policies and this User Agreement, the terms and conditions of the User Agreement shall govern.
1. Eligibility to use the Site and Services is limited.
The Site and 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 Services are not available to Users who do not have a valid User Agreement in effect, or who Keen has suspended from use of the Site or Services. Also, you shall also not use this Site or Services if your use is prohibited by the laws of the United States or any other country.
2. You consult with Users or provide Services at your own risk.
(a) Keen does not evaluate, provide, produce or control the Services, or information or exchanges between Users, in any manner. Although User 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 User. Further, Keen does not make editorial or managerial decisions concerning content, nor will Keen be held responsible for any User's failure to comply with laws or regulations concerning the content of listings. Keen provides a technology service that allows Users to share advice, information and other products or Services among themselves. Although Keen helps its Users 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 Users, including without limitation any information contained in User 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 Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services, in evaluating the qualifications of, and statements made by Users in listings or through the User feedback system, and in disclosing personal information to other Users. Keen prohibits any User from requesting that another User disclose personal contact information. If you voluntarily disclose your own personal contact information to another User, you do so at your own risk.
Placement of a User in a particular category does not mean that they are qualified in any such area or category. Keen assumes no responsibility for monitoring any User feedback or otherwise policing its Users in any way. If you ever believe that a User has violated the law or is defrauding, threatening or endangering anyone, Keen urges you to immediately contact the law enforcement, welfare services or other appropriate authorities directly for help. In addition, Keen prohibits Users from using the Site or Services to solicit other Users to meet with them in person. If you do meet with other Users, you do so at your own risk.
(b) Keen does not refer, endorse, recommend, verify, evaluate or guarantee any advice, information, entertainment services or other products or services provided by Users, or any specific User or Services, and nothing shall be considered as a referral, endorsement, recommendation or guarantee of any User or group of Users by Keen. You must use your judgment to determine whether to initiate, receive and/or discontinue use of the Services. Users who initiate, receive and/or discontinue use of the Services do so entirely at their own risk, and Keen bears no responsibility in this regard. In accordance with its Privacy Policy, Keen does not monitor live telephone conversations between Users. However, Keen reserves the right to monitor pre-recorded calls, review Mail and Chat and to contact Users in order to evaluate compliance with the rules and policies set forth in this User Agreement and to take other action as set forth in the Privacy Policy. Therefore, we urge you to review and understand the Privacy Policy. As part of this User Agreement you are agreeing to the terms and conditions set forth in the Privacy Policy and are obliged to abide by its terms.
(c) If you have a dispute with another User, or suffer any harm arising out of or connected with any Services provided by another User, 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 such other User or his/her Services or with regard to disputes relating thereto. This provision is further supplemented by Appendix A relating to Release of Liability.
3. Keen may modify this User Agreement, or suspend or terminate your use of the Site or Services, at any time.
(a) Keen may modify this User Agreement, or suspend or terminate your use of the Site or Services, at any time. Any User with an existing Account will be asked to confirm acceptance of the new terms upon his/her first visit to use the Site or Services after posting of the change as a condition of continuing to use the Site or Services. If a returning User does not agree to the new terms, such User may cease using the Site and Services and cancel his/her Account as the User's sole remedy.
(b) Without limiting other remedies, Keen may at any time suspend or terminate your right to use the Site or Services for any inappropriate activity as determined by Keen in Keen's absolute and sole discretion. In addition, Keen may notify your bank and/or authorities or take any actions it deems appropriate or as required by law if Keen: (i) suspects that you have failed to comply with any provision of this User Agreement or any policies or rules established by Keen; (ii) is unable to verify or authenticate any billing or payment information you provide to Keen; or (iii) suspects that your actions may be illegal or cause liability, harm or disruption for you, other Users, Keen or the Site. You have the right to cancel your User Agreement at any time 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 Users and as a third-party payment network. As a User, 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 Services, obtaining any licensing required to provide Services or use the Site, and for reporting and payment of all taxes associated with the use of the Site or provision of Services, including any fees transferred to you by Keen. Keen accepts no responsibility for reporting to law enforcement agencies any threats made by Users to harm themselves or third parties or take any illegal action. Any such responsibility lies with the User alone.
5. You are solely responsible for the use of your User account and agree to the following fee and payment terms:
(a) The rates for Services are as set forth in the applicable 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 User 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 a User who lists a fee for email responses (each a "Paid Mail"). You hereby authorize Keen to collect fees for each Transaction by debiting your User 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 User and are determined as set forth in the listings. You authorize Keen, directly or through third parties, to make any inquiries we consider necessary to validate your User 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-Users to use your User account. You agree to maintain the confidentiality of your password and User account information and to supervise all activities that occur under your User name, password or User account, including, but not limited to, any and all usage of the Site by other persons under your User name and password. You agree that you will not permit, enable, introduce or facilitate (i) non-Users to have access to or use of the Site or Services in any manner without first becoming Users and (ii) simultaneous use of Services by others with you.
(c) You are solely responsible for all use made of the Site and Services under your password and User account and agree to pay for all Services purchased using your password and User account information. You agree that Keen is not responsible for any loss that you may incur as a result of any unauthorized person using your User account or password. You agree that Keen may use information provided by you as described in the Privacy Policy.
(d) Based on User 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 or Services. 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 Services, you agree to comply with the following:
(a) You are solely responsible for the content provided and the content on listings created under your User account.
(b) You 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 will not record or otherwise store any voice call you conduct with a User. Notwithstanding the foregoing, Users 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 User in accordance with the User Services 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 User 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 User account.
(f) You will conduct all for-fee communications that you have with other Users only through the Site, and you will not circumvent or attempt to circumvent the Site using third-party payment or other services. Nothing in this User Agreement, however, prevents you from providing similar services through other channels.
(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 User.
(h) You will not attempt to harm, disrupt or gain unauthorized access to the computer systems or networks associated with the Site or another User'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 create obscene, offensive, tasteless, defamatory or hateful User names or content for listings.
(l) You will adhere to all applicable laws and regulations governing your actions in connection with the Site and for the provision of Services, including for meeting the requirements of applicable professional licenses and applicable advertising laws, regulations and guidelines.
(m) You will not encourage or instruct any other individual to do any of the foregoing or to violate any term of the User Agreement and Keen policies.
7. In using the Services, you agree that:
(a) Keen shall own all right, title and interest in 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, created by or derived from the Site. 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 User listing name and (iv) that phone numbers, toll free numbers, extensions and User listing names may be recycled by Keen to other Users if you are not actively using them or your User 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 non-exclusive right and license to do the following with any information you post for public display via the Site or Services, all as part of delivering its Services and for related advertising of the Site and Services: use, copy, distribute, display or reference in any media form, whether now existing or later developed, your listing information, including without limitation, your listing name, tags, descriptions, photos, Keen buttons, phone numbers and extensions, or your User information, including without limitation, your user name, registration date, conversation lengths, and submitted ratings and/or written feedback for Services.
(c) As a User, you are granted a nonexclusive, nontransferable, revocable and limited license to access and use the Site and Services in accordance with this User 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. Account Maintenance Fee.
Keen may in its sole discretion charge an Account Maintenance Fee of two dollars ($2.00) per month for all User accounts. Further, Keen may in its sole discretion terminate your account if you do not use the Site or Services for period of twelve (12) months from the date of the last use.
9. Keen disclaims any warranties or representations regarding the Site and Services.
THE SITE AND ANY 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, SERVICES AND ALL COMMUNICATIONS BETWEEN USERS 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. Such warranty is enforceable to the fullest extent of the law. To the extent that any jurisdiction limits this warranty, it is only limited to the extent required by such law, and any remaining portion of the warranty shall remain valid and in effect.
10. Keen's liability for your access to and use of the Site and 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 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 USERS 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. Such limitation is enforceable to the fullest extent of the law. To the extent that any jurisdiction does not allow limitations on such damages, this limitation extends only as far as such law allows. For resident of New Jersey, nothing herein limits your ability to recover damages or attorneys' fees if mandated by statute. 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 FOR YOUR PROVISION OF SERVICES TO OTHERS, 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.
11. Keen prohibits the unauthorized use of copyrighted materials and trademarks.
You shall not use the Site or 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:
  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe has been infringed or, if the claim involves multiple works on the Site, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA Notices is: Copyright Agent
c/o Keen
182 Howard Street #826
San Francisco, CA 94105
Email: [email protected]
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 accounts of Users who are repeat copyright infringers.
12. 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 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.
13. 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 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.
14. Notice.
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, and (b) by you via email to [email protected] (mailto: 182 Howard Street, #826, San Francisco, CA 94105). The date of receipt shall be deemed the date on which such notice is transmitted in the case of facsimile or Mail, and five (5) days after receipt by the U.S. Postal Service in the case of United States mail.
15. No Assignment.
You shall not assign this User 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 may be withheld in 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.
16. Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this User 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.
17. Electronic Records.
You consent to the use of (a) electronic means to complete this User Agreement, to use the Site and Services and to provide you with any notices given pursuant to this User Agreement, and (b) electronic records to store information related to this User Agreement or your use of the Site.
You can request a copy in paper form of this User Agreement and any other records relating to this User 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 User Agreement and any notices given pursuant to this User Agreement are enforceable in electronic format.
18. Miscellaneous.
If any provision of this User 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 User 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 User Agreement and the policies incorporated 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 User Agreement, together with the rules and policies of Keen, constitutes the entire agreement between Keen and you with respect to the subject matter hereof.
19. Legal Disputes and Arbitration
Arbitration
19.1
The choice of law provisions contained in Section 18 or 19.1 of this User Agreement do not apply to the arbitration clause contained in Section 3 of this Agreement, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 19.3, the interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or Keen Services that are not subject to the arbitration clause contained in Section 19.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 19.3, are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 19.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 19.3, the Federal Arbitration Act shall apply to any such disputes. The failure of Keen to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Keen in writing.
19.2
Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 19.3.ii, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to arbitration pursuant to Section 3.
19.3
Arbitration Provision
Important Note Regarding This Arbitration Provision:
  • Except as provided below, arbitration does not limit or affect the types of legal claims you may bring against Keen. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
  • Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties' dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
  • Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with Keen.
  • IMPORTANT: This Arbitration Provision will require you to resolve any claim that you may have against Keen on an individual basis, except as provided below, pursuant to the terms of the Agreement unless you choose to opt out of the Arbitration Provision. Except as provided below, this provision will preclude you from bringing any class, collective, or representative action (other than actions under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq. ("PAGA") against Keen, and also precludes you from participating in or recovering relief under any current or future class, collective, or representative (non-PAGA) action brought against Keen by someone else.
    • You should assume that there are now, and may be in the future, lawsuits against Keen alleging class, collective, and/or representative (non-PAGA) claims on your behalf, including but not limited to claims for unpaid wages, reimbursement of expenses, and employment status. Such claims, if successful, could result in some monetary recovery to you.
    • The mere existence of such class, collective, and/or representative lawsuits, however, does not mean that such lawsuits will ultimately succeed. But if you do agree to arbitration with Keen, you are agreeing in advance, except as otherwise provided, that you will not participate in and, therefore, will not seek to recover monetary or other relief under any such class, collective, and/or representative (non-PAGA) lawsuit, except as provided below.
    • However, as discussed above and except as provided below, if you agree to arbitration, you will not be precluded from bringing your claims against Keen in an individual arbitration proceeding. If successful on such claims, you could be awarded money or other relief by an arbitrator (subject to splitting the cost of arbitration as mentioned above).
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
i.
How This Arbitration Provision Applies.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA") and evidences a transaction involving interstate commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Except as provided in Section 19.3(v), below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver or PAGA Waiver below, including their enforceability, revocability or validity.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and Keen, as well as all disputes between You and Keen's administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with Keen, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, privacy laws, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Keen and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
ii.
Limitations on How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
A representative action brought on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction;
Claims for worker's compensation, state disability insurance and unemployment insurance benefits;
Regardless of any other terms of this Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration;
Disputes that may not be subject to a predispute arbitration agreement pursuant to applicable Federal law or Executive Order are excluded from the coverage of this Arbitration Provision;
Disputes regarding Keen or your intellectual property rights;
This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2011 (Pub. L. 112-10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
iii.
Selecting the Arbitrator and Location of the Arbitration.
The Arbitrator shall be selected by mutual agreement of Keen and you. Unless you and Keen mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply; however, if there is a conflict between the JAMS Rules and this Agreement, this Agreement shall govern. JAMS hose rules are available here: http://www.jamsadr.com/rules-streamlined-arbitration/
The location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
iv.
Starting the Arbitration.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Keen at 182 Howard Street, Suite 826, San Francisco, CA 94105. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
v.
How Arbitration Proceedings Are Conducted.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.
You and Keen agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class, collective action, or representative basis ("Class Action Waiver"). The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreement, the Arbitration Provision or the JAMS Streamlined Arbitration Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. While Keen will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, Keen shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
Private Attorneys General Act.
Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and Keen agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis—i.e., where you are seeking to pursue a claim on behalf of a government entity—both you and Keen agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) ("PAGA Waiver"). Notwithstanding any other provision of this Agreement or the Arbitration Provision, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties' attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the PAGA Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
vi.
Paying for The Arbitration.
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, Keen will pay the Arbitrator's and arbitration fees. If under applicable law Keen is not required to pay all of the Arbitrator's and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. However, you will not be required to bear any type of fee or expense that you would not be required to bear if you had filed the action in a court of law. Any disputes in that regard will be resolved by the Arbitrator as soon as practicable after the Arbitrator is selected, and Keen shall bear all of the Arbitrator's and arbitration fees until such time as the Arbitrator resolves any such dispute.
vii.
The Arbitration Hearing and Award.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
viii.
Your Right to Opt Out of Arbitration.
Arbitration is not a mandatory condition of your contractual relationship with Keen. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying Keen in writing of your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreement is executed by you, electronic mail to [email protected] stating your name and intent to opt out of the Arbitration Provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to: Keen, 182 Howard Street, Suite 826, San Francisco, CA 94105.
In order to be effective, the letter under option (2) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by Keen. Should you not opt out of this Arbitration Provision within the 30-day period, you and Keen shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-out of coverage under this Arbitration Provision.
ix.
Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in subsection v, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
By clicking "I accept", you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with Keen.
Appendix A
In addition to the general release set forth in Section 2(c) of the User Agreement, User further agrees to waive any claims against Keen arising out of this Agreement as supplemented below:
In Massachusetts: the Massachusetts Fair Employment Practices Act, the Massachusetts Overtime Law, the Massachusetts Payment of Wages Law,
In New Jersey: the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination,
In West Virginia: the West Virginia Human Rights Act,
Further, as applicable, User further acknowledges and agrees that:
In California:
User is releasing all rights under section 1542 of the California Civil Code, which provides:
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.
In Montana:
User is releasing all rights under Montana Code Annotated Section 28-1-1602, which provides:
A general release does not extend to claims that the creditor does not know or suspect to exist in the creditor's favor at the time of executing the release, which, if known by the creditor, must have materially affected the creditor's settlement with the debtor.
In North Dakota:
User expressly waives any and all rights that User may have under any state or local statute, executive order, regulation, common law and/or public policy relating to unknown claims, including but not limited to North Dakota Century Code Section 9-13-02.
In South Dakota:
User expressly waives any and all rights that User may have under any state or local statute, executive order, regulation, common law and/or public policy relating to unknown claims, including but not limited to South Dakota Codified Laws Section 20-7-11.