Last Updated as of January 10th, 2018.
- Definitions and Interpretation
Unless otherwise defined herein, or the context otherwise dictates, capitalized terms used in the Terms of Service shall have the indicated meanings set forth in Exhibit “A” attached hereto.
- The Vendor reserves the right to, at its sole discretion, amend the Terms of Service at any time and without notice, the most current version of which shall always be available at http://www.keyy.io/termsofservice. You acknowledge and agree that the continued use of the Services by you or your Agents, following any amendment of the Terms of Service, shall signify your assent to, and acceptance of, such amended terms and conditions.
- Subject to the Terms of Service, if you do not agree to the Terms of Service, or any subsequently amended term or condition thereof, you and your Agents cannot use the Services, and any Terms of Service previously entered into must forthwith be terminated by you pursuant to Section 10(a).
- Special Consents and Acknowledgements
- YOU ACKNOWLEDGE AND AGREE THAT:
- IF YOU HAVE AN EMERGENCY, HAVE AN URGENT HEALTH CONCERN OR NEED TO OBTAIN MEDICAL ADVICE, YOU SHOULD REFRAIN FROM USING THE SERVICES AND THE CONTENT AND SHOULD IMMEDIATELY CONTACT YOUR PHYSICIAN OR GO TO THE NEAREST HOSPITAL;
- THE INFORMATION CONTAINED WITHIN THE SERVICES AND THE CONTENT IS INTENDED TO BE GENERAL IN NATURE, NOTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT CONSTITUTES MEDICAL ADVICE AND YOU SHOULD NOT RELY ON ANYTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT AS A SUBSTITUTE FOR APPROPRIATE AND TIMELY CONTACT WITH YOUR PHYSICIAN;
- THE VENDOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO COACHES, INCLUDING WITHOUT LIMITATION THE QUALITY OR CERTIFICATION LEVELS THEREOF, AND THAT INTERACTIONS WITH COACHES THROUGH THE SERVICES OR OTHERWISE IS AT YOUR SOLE DISCRETION AND RISK;
- YOU SHOULD NEVER CHANGE OR STOP ANY COURSE OF MEDICAL TREATMENT WITHOUT FIRST CONSULTING YOUR PHYSICIAN; AND
- PARTICIPATING IN SPORTS AND CONTACT SPORTS SUCH AS JIU JITSU, KICKBOXING, MMA, AND EXERCISE PROGRAM OR DIET CAN CAUSE INJURY OR EVEN DEATH, AND YOU ELECT TO DO SO ENTIRELY AT YOUR OWN RISK.
- THE CONTENT CREATORS WITHIN THE SERVICE ARE OFFERING GENERAL KNOWLEDGE AND WILL NOT BE HELD LIABLE FOR ANY INJURY OR DEATH ASSOCIATED. ACTIVE PARTICIPATION IS AT YOUR SOLE DISCRETION AND RISK. CONSULT PHYSICIANS AND PROFESSIONALS BEFORE ATTEMPTING ANY ACTIVITY LEARNED IN THE SERVICE.
- License to Use Services
- Subject to your compliance with the terms and conditions of the Terms of Service, the Vendor hereby grants to you a revocable, personal, non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the Services procured and/or purchased by you, or for you, exclusively in the manner set out in the Terms of Service.
- All right, title, interest, ownership rights and intellectual property rights in and to the Services and the trademarks of the Vendor, are and shall remain the property of the Vendor and its licensors, as applicable.
- The Vendor reserves all rights to the Services not expressly granted to you herein, and without limiting the generality of the foregoing, nothing in the Terms of Service grants to you, by implication, estoppel, or otherwise, any license or right to use the Services, any Content other than Your Content and/or the Vendor’s name, domain names, trademarks, logos, or other distinctive brand features, other than as expressly set out in the Terms of Service.
- Information and Access IDs
- In order to use the Services, you must provide certain information through the Services, including without limitation your full legal name, physical address, email address and phone number. If you are a Keyy user or customer you may furthermore be asked to choose a Plan to subscribe to and disclose your credit card details and certain other information. You represent and warrant that all information you provide to the Vendor through the Services, and otherwise, shall be true, accurate, current and complete, and you shall update such information as necessary to maintain its truth and accuracy. You furthermore represent and warrant that at no point shall you impersonate any person or entity or misrepresent any affiliation of a person or entity.
- You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a Keyy user, ensure that only the Coaches and Students who have been authorised to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Plan you subscribe to at such time; and (vi) if you are a Keyy user, ensure that the Access IDs are not shared between any Coaches, Students, and/or third-parties, unless agreed to in writing by the Vendor.
- Obligations Specific to KeyyPRO Paid Customers
- If you are a KeyyPRO (paid customers in a subscription plan) customer, then you acknowledge and agree that:
- UNTIL THE TERMS OF SERVICE IS TERMINATED BY YOU OR THE VENDOR IN ACCORDANCE WITH SECTION 10, YOU SHALL PAY TO THE VENDOR MONTHLY OR ANNUAL FEES IN ADVANCE BASED ON THE PLAN SUBSCRIBED TO BY YOU DURING THE APPLICABLE PERIOD AND ALL IN-APPLICATION PURCHASES MADE BY YOU AND YOUR AGENTS DURING SUCH PERIOD, CALCULATED IN ACCORDANCE WITH THE FEE SCHEDULE (collectively, the “Fees”);
- THE FEES SHALL BE PAID BY CREDIT CARD OR IN ANOTHER FORM OF IMMEDIATELY AVAILABLE FUNDS ACCEPTABLE TO THE VENDOR, ACTING REASONABLY, AND IF YOU PROVIDE YOUR CREDIT CARD DETAILS THROUGH THE SERVICES OR OTHERWISE, YOU AGREE TO THE VENDOR CHARGING THE FEES TO YOUR CREDIT CARD WITHOUT REQUIRING ANY FURTHER NOTICE TO, OR CONSENT FROM, YOU, AND YOU FURTHERMORE REPRESENT AND WARRANT THAT SUCH FEE PAYMENTS SHALL BE MADE WHEN DUE;
- if you fail to pay Fees when due, the Vendor shall be entitled to take any action set out in Section 10(b), including without limitation changing your PRO Plan to a Free Plan, and all overdue Fees shall accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and you shall reimburse the Vendor for all expenses (including reasonable attorneys’ fees) incurred by the Vendor to collect any amount that is not paid when due;
- you shall be responsible for any and all currency conversion charges as well as sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial or local governmental entity on any Fees other than any taxes imposed on, or with respect to, the Vendor’s income;
- notwithstanding termination of the Terms of Service, you shall not be entitled to a refund from the Vendor for any Fees or any pro rata portion of any Fees paid or payable to the Vendor pursuant to the Terms of Service: (A) in respect of any monthly billing cycle that had already commenced at the date of such termination, if you are subscribed to a monthly PRO Plan; and (B) in respect of any annual billing cycle that had already commenced at the date of such termination, if you are subscribed to an annual PRO Plan (by way of example, if you subscribe for an annual PRO Plan on July 5, 2017 and terminate the Terms of Service on July 10, 2018, then you shall be liable to pay the annual Fee for July 5, 2017 to July 4, 2017 and the annual Fee for July 5, 2017 to July 4, 2018, and you shall not be entitled to a refund from the Vendor in relation to any such Fees);
- NOTWITHSTANDING ANY OTHER TERM OF THE TERMS OF SERVICE, THE VENDOR SHALL BE ENTITLED TO AMEND THE FEE SCHEDULE FROM TIME TO TIME, BY GIVING YOU THIRTY (30) DAYS WRITTEN NOTICE OF SUCH AMENDMENT, WHICH NOTICE SHALL AMEND THE FEE SCHEDULE ACCORDINGLY, AND SHALL BE BINDING ON YOU, AS OF YOUR NEXT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE (the “Amended Fee Schedule”).
- IF YOU AGREE TO THE TERMS OF SERVICE AS AMENDED FROM TIME TO TIME BUT DO NOT AGREE TO A SPECIFIC AMENDED FEE SCHEDULE, YOU AND ALL COACHES AND STUDENTS WHO HAVE BEEN AUTHORISED TO ACCESS AND USE THE SERVICES PROCURED BY YOU CANNOT USE THE SERVICES AFTER THE END OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE, AND THE TERMS OF SERVICE MUST BE TERMINATED BY YOU PURSUANT TO SECTION 10(a) ON OR BEFORE THE LAST DAY OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE;
- you acknowledge and agree that the Vendor may, from time to time in its sole discretion, offer Free Plans and Paid Plans, and that: (i) you shall comply with any and all additional terms, restrictions and/or limitations imposed by the Vendor on any such Free or Paid Plan; and (ii) the Vendor may at any time and for any reason, without liability to you or any other person alter, amend, modify or cancel any aspect of such Free Plans and/or Paid Plans, including without limitation, the term, access rights, Fees, nature, scope, features, functionality, usage limits, operation and Content associated therewith; and
- notwithstanding any other term of the Terms of Service, including without limitation Section 4(a), no Keyy Customer, Coach or Student shall be allowed or permitted to access or make use of the Services, until such Keyy Customer, Coach or Student has entered into the most current version of the Terms of Service.
- General Use of the Services - Permissions and Restrictions
- You shall not use the Services to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right.
- You shall not copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services.
- You shall not use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services. You shall not collect or harvest any information in an automatic, bulk or systematic way, including any personally identifiable information, from the Services or Content.
- You shall not interfere with, or attempt to interfere with, the Services or the networks or services connected to the Services, whether through the use of viruses, bots, worms, or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware, or otherwise permit such activity.
- You shall use the Services in accordance with the Terms of Service and any and all applicable laws and regulations. The Vendor reserves the right to investigate and take appropriate action against anyone who, in the Vendor’s sole discretion, violates this provision, including without limitation, taking legal action or any action set out in Section 10(b).
4. In-Application (In-App) Purchases.
As a Keyy (free) user, you will be able to share one journal with your coaches every ninty days, review previous journal entries on a rolling six month basis, and creation of up to thirty lessons in the learning center.
If you enjoy these free features and find value in the app, you may upgrade to “KeyyPRO” to gain unlimited feature access. KeyyPRO is an auto-renewing subscription purchased through an In-App Purchase. KeyyPRO memebers recieve unlimited sharing, unlimited timeline, and unlimited modules. (If you do not maintain a subscription you can only access the free features listed above).
Here are some additional details related to the subscription:
- Subscription name: KeyyPRO
- Auto-renewable subscription
- 1-month ($9.99/mo) or 12-month ($95.88 for 12 months)
- Your subscription will be charged to your iTunes account at confirmation of purchase and will automatically renew (at the duration selected) unless auto-renew is turned off at least 24 hours before the end of the current period.
- Current subscriptions may not be cancelled during the active subscription period; however, you can manage your subscription and/or turn off auto-renewal by visiting iTunes Account Settings after purchase.
Terms of In-App Purchases:
a. The app may include in-app purchases that will allow you to access new content, programs, or features to use withing the app ("in-app purchases"). If it does, it will not be necessary to make any in-app purchases in order to use the basic app functionality.
b. The Keyy in-app purchase payments will be processed through the Google Play or iTunes App Store (both will be collectively referred as "App Store Provider") for which you originally downloaded the application. You may access the applicable "in-app" purchase rules and policies directly from the app stores.
c. You fully acknowledge and agree that you are fully responsible for managing your in-app purchases and the amount you spend on in-app purchases within Keyy.
d. If you are under 18 then you must have your parents' or guardians' permission to make any in-app purchases. By completing an in-app purchase, you are confirming to us that you have any and all permission that may be necessary in order to allow you to make that in-app purchase.
e. In-app purchases can only be consumed within the app and within the purchasing user account. If you make an in-app purchase, that in-app purchase cannot be canceled or refunded. In-app purchases cannot be redeemed for cash or other consideration or otherwise transferred.
f. If you make any in-app purchases in Keyy, then the App Store Provider's terms and conditions/EULA applicable to in-app purchases will also apply.
g. If any in-app purchase is not successfully downloaded or does not work once it has been successfully downloaded or purchased, we will, after becoming aware of the fault or being notified of the fault by you, investigate the reason for the fault. We will act reasonably in deciding whether to provide you with a replacement in-app purchase or issue you with a patch to repair the fault. In no event will we charge you anything further to replace or repair the in-app purchase. In the unlikely event that we are unable to replace or repair the relevant in-app purchase or are unable to do so within a reasonable period of time and without significant inconvenience to you, we will authorize the App Store Provider to refund you an amount up to the cost of the relevant in-app purchase. Alternatively, if you wish to request a refund, you may do so by contacting the App Store Provider directly.
h. You acknowledge and agree that all billing and transaction processes are handled by the App Store Provider from whose platform you downloaded the Keyy app and are governed by the App Store Provider's terms and conditions/EULA. If you have any payment related issues withing in-app purchases then you need to contact the App Store Provider directly.
5. User Content.
Except as provided in this Agreement, Keyy, Inc. does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, “Content”) that you post or upload to the Site, Application (app), and/or through the Services (“User Generated Content”). After posting or uploading your User Generated Content to the Site, app, and/or through the Services, you continue to retain all your ownership rights in such User Generated Content except as set forth in this Agreement.
You are solely responsible for any third party Content in your User Generated Content and for the use of the User Generated Content, including on our Site and through the Services. We reserve the right to remove such Content, your User Generated Content and/or any other content in our sole and absolute discretion.
In addition, the Site, App, and/or Services may contain Content, under license to Keyy, Inc. from one or more third parties, in which you are featured and/or visible or which includes your name, sobriquet, professional name, image, likenesses, other identifications, and biographical material (“User Featured Content” and together, with User Generated Content, “User Content”).
You hereby grant to us and our licensees, distributors, agents, independent contractors, representatives and other authorized users (collectively, the “Agents”), a perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all media formats and channels now known or hereafter devised (including, without limitation, on the Site, App, or any related or affiliated sites, on third party web sites, cable networks and stations, broadband and wireless platforms, and or on any other products and services) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Content License”). You appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm, fully utilize, or enforce the grant of rights, consents, agreements, assignments and waivers set forth in this Agreement.
You represent and warrant to us that:
- (i) you own the User Generated Content or otherwise have the legal right to post or transmit the User Generated Content in accordance with the terms of this Agreement,
- (ii) the posting or other transmission of the User Generated Content on or through the Services or Site or otherwise by Keyy, Inc. or the Keyy, Inc. Entities does not violate the privacy rights, publicity rights, intellectual property rights (copyrights, patents, trademarks), contract rights or any other rights of any person or entity,
- (iii) without limiting this Agreement, you have provided your consent to the use of User Featured Content to your coaches, and/or applicable organization from which Keyy is connected, directly or indirectly, such User Feature Content. To the extent that any of the User Content on the Site and/or Services features a child of User under the age of 18, User is deemed to have consented to the Content License on such child’s behalf and the foregoing representations with regard to such Content, and such child shall also be deemed to be a User for purposes of this Agreement.;
- (iv) you have no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of this Agreement or the use or enjoyment by us of any of the rights herein granted You have secured and will maintain all rights necessary for us to use and enjoy the rights herein granted. You have not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to us; and
- (v) If you are under eighteen (18) years of age, you further warrant and represent that you either: (I) are an emancipated minor, or (II) possess legal parental or guardian consent to enter into this agreement and use the site and services.
- (vi) To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the User Content exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or the Keyy, Inc. Agents, and you shall procure the same agreement not to enforce from any others who may possess such rights. You agree to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any User Content posted by you to or through the Services.
6. Infringing Content; Digital Millennium Copyright Act
We reserve the right to remove any User Content that is alleged to infringe the copyright of a third party or otherwise violates any third party rights and/or to suspend or terminate a User’s access privileges in the event of repeat infringement by a User.
If you are a copyright owner or authorized agent and believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, or if you believe that your rights have otherwise been violated by the Services, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or the person whose rights have been violated;
- (ii) a description of the copyrighted work that you claim has been infringed or the particular rights violated;
- (iii) if applicable, a description of where the material that you claim is infringing is located on the Site;
- (iv) your address, telephone number, and email address;
- (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law or with regard to the rights violated; and
- (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate.
Our designated (“Copyright Agent”) to receive notifications of claimed infringement is Luke Summerfield, who may be contacted by email at email@example.com. If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your User Content, you may send a counter-notice pursuant to the DMCA containing the following information to the Copyright Agent:
- (i) your physical or electronic signature;
- (ii) identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
- (iii) a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
- (iv) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Agile may, in its sole discretion, send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the User Content provider, member or user, the removed User Content may be replaced, or access to it restored.
- Unless otherwise expressly set out in the Terms of Service, all right, title, interest, ownership rights and intellectual property rights in and to Your Content, and your trademarks, are and shall remain your property, your Agents’ property and/or the property of its or their respective licensors, as applicable. Notwithstanding the foregoing, you hereby acknowledge and agree that some or all of Your Content may be inaccessible on or through the Services, including without limitation, due to an event set out in Sections 10 and 16(a)(iv).
- You hereby acknowledge and agree that Your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Services, and as such may be accessible to others including without limitation to: (i) your Agents; (ii) other users of the Services; (iii) the Vendor and the Vendor’s Agents; (iv) third-party service providers and their Agents; and (v) any other person to whom any of the foregoing persons have granted access to Your Content. The Vendor shall take commercially reasonable steps to ensure that Content is not shared between Keyy Users (unless you select otherwise), but you acknowledge and agree that the Vendor cannot and does not guarantee any confidentiality with respect to Your Content whatsoever.
- You represent and warrant that you own or have all of the necessary licenses, rights, consents and permissions to use and authorize the Vendor to use all patent, trademark, trade secret, copyright and other proprietary rights in and to any and all of Your Content, to permit inclusion and use of Your Content in the manner contemplated by the Services and the Terms of Service without violating, infringing or appropriating any person’s privacy rights, publicity rights, copyrights, trademark rights, contractual rights or any other legal right. You hereby grant the Vendor an irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of Your Content, exclusively for the purpose of providing the Services.
- The Vendor reserves the right to, with or without notice, remove Your Content for any reason whatsoever, including without limitation any of Your Content that: (i) allegedly infringes on another’s intellectual property rights; (ii) is patently offensive, exploitative, criminal, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) is considered adult or pornographic; (iv) harasses or advocates harassment of another person, or promotes illicit or criminal activity; (v) solicits personal information from anyone under 18; (vi) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vii) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”; or (viii) interferes or attempts to interfere with the proper working of the Services, disrupts or attempts to disrupt the normal flow of dialogue with an excessive number of messages (flooding attack) to the Services, prevents or attempts to prevent others from using the Services or otherwise negatively affects other persons’ ability to use the Services.
- You acknowledge and agree that the Vendor typically does not, and has no obligation to, review, censor or edit Your Content or any other Content, or the contents of any third-party site or application, but may at the Vendor’s sole discretion do so at any time. The Vendor does not make any guarantees about the accuracy, currency, reliability, suitability, effectiveness, quality or correct use of Your Content (including without limitation any health tracking data, journal entry data, training videos or other data or information that you may make available to the Services from a third party site, application or product and any information you upload or otherwise make available through any document management features of the Services). You acknowledge and agree that the Vendor does not endorse Your Content or any other Content, the contents of any third-party site or application or any opinion, recommendation, or advice expressed therein, and the Vendor expressly disclaims any and all liability in connection therewith. You acknowledge and agree that the Vendor assumes no responsibility for the content, privacy policies, or practices of any third-party, including without limitation, any third-party service provider which may host Content.
- The Vendor contracts a third party to store Content, including Your Content, and, while these Terms of Service are in effect and you have an active account for access to the Services, will use commercially reasonable efforts to store and back up such Content at reasonable intervals as may be determined by the Vendor in its sole discretion. However, you should make your own interim back-ups of all of Your Content, including without limitation any and all Content you upload or otherwise make available through the document management features of the Services. Following any cancellation of your account, the Vendor is under no obligation to store Your Content and may delete your account and Your Content immediately upon such cancellation. Notwithstanding anything to the contrary set forth in these Terms of Service, the Vendor shall have no liability or responsibility for any loss or damage, however caused, arising from any loss of Your Content.
- You acknowledge and agree that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data, information and other output or feedback which you and your Agents provide to the Vendor related to the Services, the Vendor or the Vendor’s business, including without limitation in any user forums made available by the Vendor, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Services by you and your Agents (“Feedback”), shall become the Vendor’s property without any compensation or other consideration payable to you or your Agents, and you do so of your own free will and volition. The Vendor may or may not, in its sole discretion, use the Feedback, commercialize the Feedback and/or incorporate the Feedback in whatever form or derivative into the Services, its other products and services, or any future versions or derivatives of the foregoing. You shall and do hereby assign, and shall cause the assignment of, all rights on a worldwide basis in perpetuity to the Vendor in any and all Feedback and, as applicable, shall and do hereby waive, and shall cause the waiver of, all moral rights therein and thereto.
- Termination, Modification and Suspension
- SUBJECT TO SECTION 6(a)(v), YOU MAY TERMINATE THE TERMS OF SERVICE AT ANY TIME AND FOR ANY REASON BY INITIATING AND COMPLETING THE ACCOUNT CANCELLATION PROCESS SET OUT AT http://www.keyy.io/help AND DISCONTINUING YOUR USE OF THE SERVICES.
- THE VENDOR MAY AT ITS SOLE DISCRETION AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT NOTICE: (I) BAN ANY COMPUTER OR DEVICE FROM ACCESSING THE SERVICES; (II) PREVENT ANY PERSON FROM ACCESSING THE SERVICES; (III) TERMINATE, MODIFY, SUSPEND OR DISCONTINUE ANY USAGE PLAN, ACCESS ID, TERMS OF SERVICE OR SERVICES; (IV) REMOVE ANY OF YOUR CONTENT; AND/OR (V) CHANGE YOUR PAID USAGE PLAN TO A FREE USAGE PLAN.
- Warranty Disclaimer
- THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICES, AND ANY AND ALL INTERACTIONS BETWEEN YOU AND COACHES THROUGH THE SERVICES OR OTHERWISE, SHALL IN ALL CASES BE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED FROM THE VENDOR OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
- THE VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICES. THE VENDOR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED IN ANY USER SUBMISSION, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. THE VENDOR SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS OF ANY PRODUCT OR SERVICE.
- Limitation of Liability
- IN NO EVENT SHALL THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS DIRECTLY OR INDIRECTLY, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONTENT CREATORS, COACH USERS, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, INCOME, PROFIT, REPUTATION, GOODWILL OR CUSTOMERS WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICES OR ANY CONTENT, INCLUDING WITHOUT LIMITATION RESULTING FROM ANY: (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES; (II) PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT; (III) UNAUTHORIZED ACCESS TO OR USE OF THE VENDOR’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN OR THEREON; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) TERMINATION OF ACCESS TO THE SERVICES OR REMOVAL OF ANY CONTENT BY THE VENDOR; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD-PARTY; OR (VII) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, WHETHER THE FOREGOING IS BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE AFFECTED PARTIES ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE TOTAL AGGREGATE LIABILITY OF THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE AND/OR USE OF, OR ACCESS TO, THE SERVICES SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY YOU, NOT TO EXCEED THE LESSER OF CAD $100.00 AND THE AMOUNT ACTUALLY RECEIVED BY THE VENDOR FROM YOU PURSUANT TO THE TERMS OF SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ANY ACTION COMMENCED AGAINST THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE, SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION SHALL HAVE FIRST ARISEN.
- THE VENDOR DOES NOT CONTROL CONTENT AND DOES NOT GUARANTEE THE ACCURACY OR INTEGRITY OF SUCH CONTENT. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE VENDOR SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
- YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE RELATED TO THE TERMS OF SERVICE YOU HEREBY GIVE UP YOUR RIGHT TO (I) HAVE A TRIAL BY JURY; AND (II) PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY DISPUTE RELATED TO THE TERMS OF SERVICE.
- ALL FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Indemnity by You
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTENT CREATORS, COACH USERS, AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY'S FEES) ARISING FROM: (I) YOUR OR YOUR AGENTS’ USE OF OR ACCESS TO THE SERVICES; (II) ANY THIRD PARTY USE OF, OR ACCESS TO, YOUR ACCESS ID; (III) YOUR OR YOUR AGENTS’ VIOLATION OF ANY TERM OF THE TERMS OF SERVICE; (IV) YOUR OR YOUR AGENTS’ VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY OR PRIVACY RIGHT; OR (V) ANY CLAIM THAT YOUR CONTENT CAUSED DAMAGE TO A THIRD-PARTY. THIS DEFENCE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THE TERMS OF SERVICE AND YOUR AND YOUR AGENTS’ USE OF THE SERVICES.
The Terms of Service, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by the Vendor without restriction.
- Data Usage and Charges
The Services may use information and data transmission networks operated by third-parties to send data, information and Content from a computer or device to the Vendor’s servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Services and/or as a result of data, information and Content submitted or received by your computer or device through the Services.
- Updates and Availability of Services
- You acknowledge and agree that:
- the Vendor may from time to time, at its sole discretion, make Updates available to you, both free and paid user plans, but is under no obligation to do so;
- Updates may alter, amend or modify the Services, including without limitation, its nature, scope, features, functionality, operation and Content, and you agree to such Updates being made to the Services from time to time, at the sole discretion of the Vendor;
- Updates may require you to enter into new terms of service or, alternatively, shall be subject to all terms and conditions of the Terms of Service; and
- there may be occasions when the Services may be interrupted, including without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
- Nothing in the Terms of Service shall be construed to constitute the Vendor and yourself as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. You shall have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of the Vendor or waive any right, interest or claim that the Vendor may have, other than as expressly set out herein, or with the prior written consent of the Vendor.
- If there is any dispute between you and the Vendor about or involving the Services or the Terms of Service, you hereby acknowledge and agree that the dispute shall be governed by and construed in accordance with the laws of California, United States, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in California, United States, with respect to any claim, proceeding or action relating to or otherwise arising out of the Terms of Service or your access to or use of the Services, howsoever arising, provided always that the Vendor may seek and obtain injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
- The Terms of Service constitutes the whole legal agreement between you and the Vendor and governs your use of the Services (but excluding any services which the Vendor may provide to you under a separate written agreement), and completely replaces and supersedes any prior and contemporaneous agreements between you and the Vendor in relation to the Services. Notwithstanding the foregoing, you and the Vendor shall be entitled to enter into an additional superseding agreement which by its terms may expressly alter, amend or terminate the Terms of Service.
- If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any term of the Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and the Vendor’s failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.
- Sections 4(b), 4(c), 6(a)(i), 6(a)(ii), 6(a)(iii), 6(a)(iv), 6(a)(v), 7(a), 7(b), 7(c), 7(d), 8 through 14, 17 and such other provisions of the Terms of Service which by implication from its nature is intended to survive the termination or expiration of the Terms of Service, shall survive termination or expiration of the Terms of Service.
- Contact the Vendor
You may direct any questions, complaints or claims with respect to the general functionality and operation of the Services to the Vendor at firstname.lastname@example.org.
DEFINITIONS AND INTERPRETATION
“Access IDs” means the unique identification names and corresponding passwords assigned to a Keyy User, Coach, and Employee who have been authorised to access and use the Services procured by such Keyy user, and allowing such persons to access and use the Services, and “Access ID” shall be construed accordingly.
“Agents” means, with respect to a Party, such Party’s agents, employees, consultants, contractors, content creators, licensees, and/or other authorized representatives, and “Agent” shall be construed accordingly.
“Content” means any material posted on, submitted on, uploaded to, made available to and/or appearing on the Services, including without limitation, data, information, text, graphics, photos, videos, charts, or location information.
“Fee Schedule” means the Vendor’s fee schedule, as provided by the Vendor to certain users of the Services from time to time, setting out the cost of the respective PAID Usage Plans, and/or the cost of the respective In-Application Purchases, as applicable.
“In-Application Purchases” means the supplementary products, services and/or functionality offered for sale by the Vendor, which is not otherwise included in the cost of the PAID Usage Plan subscribed to by a Keyy User.
“Parties” means the parties to the Terms of Service, and “Party” shall be construed accordingly.
“Services” means the services offered or made available by the Vendor, including without limitation the Keyy, Inc. software as a service platform, and any website, application or widget associated therewith, as modified by the Vendor by way of Updates from time to time.
“Student” means a person directly or indirectly accessing or making use of the Services procured by a Keyy User as a student or trainee, including without limitation, for the purpose of accessing, obtaining or otherwise acquiring fitness, mental, diet, sport, financial, spiritual training services from the Keyy Users, Employees and/or a Coach, and “Students” shall be construed accordingly.
“Coach” means a person directly or indirectly accessing or making use of the Services procured by a Keyy user as a coach or trainer, including without limitation, for the purpose of offering, providing or otherwise furnishing training services to one or more Students, and “Coaches” shall be construed accordingly.
“Free Plans” means the free or discounted Usage Plans, and “Trial Usage Plan” shall be construed accordingly.
“Keyy Customer” and “Keyy User” means a person who procures Services from the Vendor, including without limitation, by placing an order for a specific Usage Plan with the Vendor, thereby allowing access to, and use of, such Services by the Keyy Customer and the related Coaches and Students, and “Keyy Customers” and “Keyy Users” shall be construed accordingly.
“Updates” means versions of the Services that contain functional enhancements, modifications, error corrections and/or fixes relating to the Services, and “Update” shall be construed accordingly.
“Usage Plans” means the access plans to the Services offered for sale or, with respect to certain Trial Usage Plans and Free Usage Plans, on a no-charge basis, by the Vendor to Keyy Customers, each such plan allowing the Keyy Customer and a certain set number of Coaches and Students to access and use the Services or certain features thereof procured by the Keyy User, through the use of Access IDs, and “Usage Plan” shall be construed accordingly.
“you”, “your” and/or “yourself” means either the Keyy User, Coach or Student entering into the Terms of Service, as applicable.
“Your Content” means Content posted, submitted, made available, uploaded and/or displayed on or through the Services by you or your Agents, whether directly or through third party sites, applications or products (including without limitation any fitness, sports, health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any and all information you upload or make available through any document management features of the Services).
Questions? - Email email@example.com