J. J. Keller Mobile Applications End User License Agreement ("EULA")

Last Modified on August 15, 2023

J. J. Keller & Associates, Inc. (“J. J. Keller” or “we”, “us” or “our”) provides and operates certain mobile applications (together with all software and code that comprise and operate such mobile applications, as well as all of the text, photographs, illustrations, images, graphics, audio, video, URLs, and other materials provided through such mobile applications, our “Applications”). This Mobile Application End User License Agreement ("EULA") applies to your use of our Applications. By downloading, accessing, or otherwise using one or more of our Applications, including, without limitation, those distributed through the Apple App Store and the Google Play Store, you agree to read, comply with, or be legally bound by: (1) this EULA; (2) any additional terms and conditions, agreements, and policies published by J. J. Keller or otherwise made available to you that are applicable to your access or use of the Applications (the "Rules"); and (3) the applicable agreement(s) between J. J. Keller and a business entity that has a current license to access and use, and permit such business entity's employees and other authorized users to access and use our Applications (such business entity is referred to herein as a "Client") pursuant to which you are permitted to access or use one or more of our Applications, which may include, without limitation, the J. J. Keller Terms of Use, available at https://www.jjkeller.com/legal/terms-of-use (collectively, the "Client Agreements"). This EULA, the Rules, and any and all Client Agreements are collectively referred to herein as the "Agreements".

REVIEW THIS EULA CAREFULLY. BY DOWNLOADING, INSTALLING, ACCESSING OR USING OUR APPLICATION(S), YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE THAT YOU ARE LEGALLY BOUND BY, THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THIS EULA OR ANY OTHER AGREEMENT(S), DO NOT DOWNLOAD, INSTALL, ACCESS OR USE ANY OF OUR APPLICATIONS. FURTHER, IF YOU ARE NOT ELIGIBLE TO ACCESS OR USE ONE OR MORE OF OUR APPLICATIONS PURSUANT TO ANY OF THE AGREEMENTS, YOU ARE NOT PERMITTED TO ACCESS OR USE SUCH APPLICATIONS.

THIS EULA REQUIRES DISPUTES TO BE RESOLVED ON AN INDIVIDUAL BASIS, RATHER THAN PARTICIPATION IN A CLASS ACTION. THIS EULA ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. THUS, CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THIS EULA BEFORE YOU DOWNLOAD, INSTALL, ACCESS, OR USE ANY OF OUR APPLICATIONS.

ACCEPTANCE AND APPLICABILITY OF AGREEMENTS
1. Representations and Warranties. Without limiting anything set forth in the Agreements, by downloading, installing, accessing, or using an Application, you represent to us that: (1) you are at least 18 years old; (2) you are legally able to enter into contracts; (3) you are not a person barred from accessing or using our Applications under federal, state, local, or other laws; and (4) you have not previously been suspended or prohibited from accessing or using any Application for any reason other than your cancellation of your access to or use of our Applications in accordance with the Agreements.
2. Client Use Only. Each Application is solely intended for use: (1) by the employees and other authorized users of a Client who: is a party to a then-current Client Agreement pursuant to which J. J. Keller provides certain services to such Client (the "Services"); and (2) where the applicable Services include the ability for such Client and its employees and other authorized users to access and use such Application. Any access to or use of our Applications for any purpose other than the applicable Client's internal business purposes is strictly prohibited, except as otherwise expressly approved by an authorized J. J. Keller representative, in writing. J. J. Keller's decision to grant or deny any such other purpose shall be at J. J. Keller's sole and absolute discretion.
3. Changes to this EULA. We may update or modify this EULA from time to time by, without limitation, posting a revised version of this EULA on our website and by publishing a general notice of such changes on our website or through our Applications. You can review the most current version of this EULA at any time by visiting https://www.jjkeller.com/legal/end-user-license-agreement or accessing this EULA through links within our Applications. By downloading, installing, accessing or using an Application after we have provided notice of changes to this EULA, whether by general notice or directly notifying you of such changes, you agree to be bound by such modifications with respect to such Application.
4. Our Rights. Subject to any applicable terms in the other Agreements, we have the right, but not the obligation, to take any of the following actions in our sole discretion and without providing any prior notice to you and without liability to you or any third party:
  1. change or terminate all or any part of our Applications;
  2. restrict or terminate your access to or ability to use all or any part of our Applications;
  3. refuse, move, or remove anything that is available on or through our Applications; or
  4. deny access to all or any part of our Applications to anyone at any time in our sole and absolute discretion.
5. Conflicts. In the event of any conflicts between this EULA and any other Agreement, as between you and J. J. Keller, unless otherwise specified in such other Agreement, this EULA shall control.
OWNERSHIP AND LICENSE
1. Ownership. All rights, title, and interest in and to our Applications are owned by us or third parties who have licensed their content to us. Our Applications are protected under trademark, service mark, trade dress, copyright, patent, trade secret, and other rights under intellectual property laws. In addition, each Application, in its entirety, is a collective work under U. S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement, and enhancement of each Application.
2. Marks. The J. J. Keller names and logos (including, but not limited to, those of our affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing on or within our Applications, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of J. J. Keller (collectively, "Our Marks"). All other trademarks, product names, company names, logos, service marks, and/or trade dress (collectively, "Other Marks") mentioned, displayed, cited, or otherwise indicated on or within our Applications are the property of their respective owners. You are not authorized to display or use Our Marks in any manner without our prior written permission. You are not authorized to display or use any Other Marks without the prior written permission of the applicable third party.
3. Limited License.
  1. Subject to your acceptance of this EULA, your compliance with your obligations under the Agreements, and the applicable Client's acceptance of, and compliance with, its obligations under the applicable Client Agreement(s), including, without limitation, payment of any applicable fees or other charges, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license to download, install, access, and use the applicable Application(s) in a manner that is consistent with the Agreements and the intended purpose(s) of the applicable Application(s). You obtain no rights in our Applications except to use them in accordance with the Agreements. Without limiting the generality of the foregoing, you shall not access or use our Applications in violation of the term set forth in any of the Agreements, including, without limitation, the Acceptable use Restrictions set forth in this EULA (collectively, "Prohibited Activities"). Solely as between you and J. J. Keller, you will be liable for any damages, costs, or expenses arising out of or in connection with your commission of or engagement in any Prohibited Activity. You shall notify us immediately upon becoming aware of the commission of or engagement in a Prohibited Activity by any person and shall provide us with reasonable assistance upon our request with any investigations we may conduct in connection with any such Prohibited Activity. For clarity, the foregoing shall not limit, modify, or otherwise affect a Client's liabilities or obligations under a Client Agreement.
  2. You acknowledge and agree that any Application that is provided to you is provided under license, and not sold, to you.
ACCESS TO AND USE OF OUR APPLICATIONS
1. Accounts. You may be required to create an account, including a username and password, to access or use our Applications (in whole or in part). In addition to any applicable requirements under the Agreements, if you have an account that provides you with access to any of our Applications, the following applies to you:
  1. Each account is personal in nature and may only be used by the user assigned to the account. Thus, you will not allow any third party to access or use your account, unless otherwise provided in this EULA.
  2. You will not create more than one account for yourself; if J. J. Keller has disabled your account, you may not create another account without J. J. Keller's written permission.
  3. You are responsible for maintaining the confidentiality and security of your account.
  4. You will keep your password confidential and will be responsible for all use of your password and your account.
  5. You agree to change any password if the password is lost, stolen, or otherwise compromised and immediately notify of any such incident.
  6. If applicable, the Client who authorizes you to access and us one or more of our Applications pursuant to an applicable Client Agreement has the ability to control and access your account and J. J. Keller has no liability for any such control or access.
  7. You authorize us to access your account, including any data stored in or associated with your account, as necessary to provide the Services to the applicable Client and as otherwise necessary to administer, operate, or configure our Applications.
2. Acceptable Use. Without limiting anything set forth in the Agreements, your access to and use of our Applications must comply with the following (the "Acceptable Use Restrictions"):
  1. You are only allowed to access and use our Applications for their intended purposes, as determined by us in our sole discretion.
  2. Without limitation, you shall not access or use our Applications other than as set forth in the applicable Agreements. Further, you shall not access or use any Application to: (1) violate any laws; (2) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; or (3) engage in commercial activity except as expressly permitted under the applicable Agreements.
  3. You are also prohibited from: (1) reformatting or framing any portion of our Applications; (2) using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of our Applications; (3) taking any action that imposes, or may impose, as determined by us in our sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure; (4) modifying, adapting, disassembling, decompiling, translating or reverse engineering any portion of our Applications or otherwise attempting to reconstruct or discover any source code or underlying ideas, algorithms, file formats, or programming interoperability interfaces of our Applications; (5) disrupting or otherwise interfering with our Applications or the networks or servers we use; (6) impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity in connection with your access to or use of your account or our Applications, including, without limitation, in connection with any information you provide to create any account; (7) collecting or storing, or attempting to collect or store, personal information about other users of our Applications, except as expressly permitted under the Agreements; (8) engaging in any activity that is illegal under federal, state, local, or other laws; (9) creating a false identity on our Applications; (10) creating an account on our Applications for anyone else except, and only to the extent, specifically permitted under the Agreements; (11) releasing to any third party information related to your access to or use of our Applications for purposes of monitoring our Applications' availability, performance, or functionality, or for any other benchmarking or competitive purposes without our prior written approval; (12) copying our Applications, except as expressly permitted under the Agreements; (13) accessing or using our Applications in a service bureau or time-sharing environment (including, without limitation, accessing or using our Applications to provide third parties a service consisting solely of the collection and entry of data and other information through our Applications); (14) selling, assigning, transferring, sublicensing, pledging, renting, or otherwise sharing any of your rights under the Agreements; (15) creating any derivative works based on our Applications; (16) modifying, obscuring, or removing any proprietary notices on our Applications or copies thereof; and (17) harassing, annoying, intimidating or threatening any of our employees or agents.
3. Compliance with Applicable Laws. You certify that you will comply with all applicable laws (e.g., federal, state, local, and other laws) and the Agreements when accessing or using our Applications. Without limiting the foregoing, by downloading, installing, accessing, or using our Applications, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (2) you are not listed on any U.S. Government list or prohibited or restricted parties. If you download, install, access, or use our Applications outside the United States, you are solely responsible for ensuring that your download, installation, access to, and use of our Applications in such country, territory, or jurisdiction does not violate any applicable laws. We reserve the right, but have no obligation to, in our sole discretion, monitor where our Applications are accessed from, and the right, but not the obligation, to block or otherwise restrict access to our Applications, in whole or in part, from any geographic location.
4. Client Requirements. Without limiting anything in the Agreements, the applicable Client may provide you with additional terms that govern your access to or use of our Applications on behalf of that Client (“Client Requirements”). By downloading, installing, accessing or using our Applications, you acknowledge and agree that: (1) any Client Requirements are between you and the applicable Client and you and the applicable Client are solely responsible for, and J. J. Keller shall have no obligations with respect to, any Client Requirements, including, without limitation, resolving any disputes arising out of the Client Requirements; and (2) notwithstanding the foregoing, you will comply with any applicable Client Requirements through or in connection with your access to or use of our Applications.
5. Mistakes or Errors. Without limiting anything set forth in the Agreements, you acknowledge and agree that under no circumstances will we be responsible for any loss, damage, or liability arising out of any mistakes or other errors made by you as a result of your access to or use of our Applications.
6. Commercial Software. As defined in FAR section 2.101, our Applications and all associated documentation are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation". Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial computer software or commercial computer software documentation by the U.S. Government will be governed solely on the terms of the Agreements and will be prohibited except to the extent expressly permitted by the terms of the Agreements.
7. Equipment. As between you and J. J. Keller, you are solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Applications, including, without limitation, mobile devices and telecommunications services (collectively, "Equipment"). As between you and J. J. Keller, you shall also be responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without your knowledge or consent.
8. Support. We have no obligation under this EULA to provide support, maintenance, upgrades, modifications or new releases of our Applications.
APPLICATION SPECIFIC TERMS
In addition to, and not in lieu of, any appliable terms set forth in the Agreements, your access to and use of a specific Application shall be subject, as applicable, to the following:
1. J. J. Keller^® Learning Center. The J. J. Keller Learning Center Application allows authorized users to complete online training as assigned by the applicable Client. If you access and/or use this Application, for purposes of this section, you will be deemed a "Student", and the following applies to you:
  1. The purpose of the trainings available within the J. J. Keller Learning Center Application is to provide a general overview of the subject matter and to help Students comply with governmental training requirements. J. J. Keller's training courses are intended to supplement employer training. Ensuring that Students meet training requirements is ultimately the employer's responsibility and the employer must also provide interactive, hands-on training (function-specific), company, or site-specific information, and additional testing. Students must check their employer's policy regarding site-specific or hands-on training. Any questions, misunderstandings, or conflicts that Students may have with their employer's rules should be directed to the employer. Although many of J. J. Keller's online training courses and video-based training programs are designed to meet federal regulations, the employer and all Students are responsible for making sure that all training requirements, state, and local regulations, are being met.
  2. A Certificate of Completion from J. J. Keller indicates that the Student has completed the requirements of an online course, which may include passing exams and spending the requisite amount of time in the course. A certificate from J. J. Keller does not guarantee that a Student possesses the minimum level of skills or knowledge regarding the subject matter. It is the employer's responsibility to assess each Student's level of skill or knowledge and determine whether or not they are qualified to perform a specific job or function.
  3. J. J. Keller trusts in the integrity of the Student to observe the honor code. The honor code assumes that the Student will be honest when taking an exam. The Student agrees that only he or she will take the exams and complete required exercises and that the Student will not distribute or share exam questions or provide answers to other Students enrolled in training.
CONTENT AND INFORMATION
1. Personal Information. For information about how we collect, use, and disclose personal information in connection with our Applications, please see our Privacy Policy, available at https://jjkeller.com/legal/privacy-policy. Please note, when we process personal information in order to provide the Services and other products and services to a Client: (1) we are acting in the capacity of a “data processor” or “service provider” as defined under applicable privacy laws; and (2) such Client may collect, use, or disclose such personal information for their own purposes. J. J. KELLER MAKES NO REPRESENTATION, WARRANTY OR COMMITMENT OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS ALL LIABILITY RELATING TO OR ARISING FROM A CLIENT’S PROCESSING OF ANY PERSONAL INFORMATION OR OUR PROCESSING OF PERSONAL INFORMATION AT THE DIRECTION OF A CLIENT.
2. Feedback. By submitting ideas, suggestions, documents, proposals, products, and/or technologies ("Ideas" or "Innovations") to us in any way, you acknowledge and agree that: (1) your Ideas and/or Innovations do not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Ideas and Innovations; (3) we shall be entitled to disclose (or choose not to disclose) such Ideas and Innovations for any purpose and in any way; (4) we may have something similar to the Ideas and Innovations already under consideration or in development; (5) your Ideas and Innovations which are not subject to a patent, automatically become our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances with respect to or in connection with any of your Ideas or Innovations.
3. Your Content. Our Applications may include features and functionalities that provide you with the ability to add, create, upload, submit, distribute, share, or generate data, information, or other content on or through our Applications (collectively, "Your Content"). With respect to any of Your Content, if any, you acknowledge and agree that: (1) we shall have the right to reproduce, translate, encode, publish, use, and distribute any and all of Your Content to the extent necessary to provide and operate our Applications and to provide the applicable Services to the applicable Client; (2) unless otherwise provided in the Agreements, as between you and J. J. Keller, the applicable Client will own Your Content; (3) unless otherwise provided in the Agreements, we shall have the right to aggregate any and all of Your Content and to use such aggregated data for any lawful purpose, including, without limitation, improving our Applications and Services; and (4) we are not responsible or liable in any way for any corruption, misdelivery, or other loss of any of Your Content.
4. Private Messages. Our Applications may provide you with the ability to send private messages to other users ("Private Messages"). Private Messages are not considered Your Content and, except as otherwise provided in the Agreements, we will not intentionally make any such Private Messages available to any party other than the intended recipient. However, you should remain mindful that there is an inherent risk in the use of the internet. Private Messages may be intercepted without our knowledge or consent, collected illegally, and/or forwarded by recipients to others. We cannot guarantee the security of any information, including your Private Messages, that you disclose online, and you do so at your own risk.
5. Links to Third Party Websites and Resources. Solely for your convenience, our Applications may include links to websites and other online resources operated or provided by third parties. You acknowledge and agree that we are not responsible for the availability of any such third party websites or resources and that we do not endorse and are not responsible or liable for any such third party websites or resources or any information, materials, products, or services contained on any third party websites or resources or accessible through such third party websites or resources. Furthermore, we make no, and expressly disclaim any, warranties, express or implied, with regard to the information, materials, products, or services that are contained on or accessible through any third party websites or resources. Your access to and use of any third party websites or resources, including, without limitation, any information, materials, products, or services on or accessible through any third party websites or resources is solely at your own risk.
6. Third Party Materials.
  1. Our Applications may display, include, or make available data, information, applications, and other products, services, and/or materials provided by third parties, including, without limitation, other users ("Third Party Materials"). Without limiting anything set forth in the Agreements, your rights to access or use any Third Party Materials may be subject to additional licensing terms required by a third party concerning such third party's Third Party Materials.
  2. You acknowledge and agree that we and other third parties are not responsible or liable for, nor do we endorse, any Third Party Materials that appear on or are available through our Applications.
  3. WITHOUT LIMITING ANYTHING SET FORTH IN THE AGREEMENTS, J. J. KELLER IS NOT RESPONSIBLE FOR ANY THIRD PARTY MATERIALS, INCLUDING, WITHOUT LIMITATION, THEIR ACCURACY, COMPLETENESS, TIMELINESS, VALIDITY, NON-INFRINGEMENT, LEGALITY, DECENCY, OR QUALITY. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENTS, J. J. KELLER DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON OR ENTITY ARISING OUT OF ANY THIRD PARTY MATERIALS, INCLUDING, WITHOUT LIMITATION, YOUR USE OF OR RELIANCE ON ANY THIRD PARTY MATERIALS. ANY RELIANCE YOU PLACE ON ANY THIRD PARTY MATERIALS IS STRICTLY AT YOUR SOLE DISCRETION AND RISK.
TERMINATION
1. Right to Terminate. Subject to the terms set forth in the Agreements, in addition to, and not in lieu of, any of our other rights set forth in this EULA, we reserve the right, with or without notice and in our sole discretion, to terminate this EULA, your account(s), and/or your ability to access or use our Applications (in whole or in part) for any reason, including, without limitation: (1) for lack of use; (2) if we believe that you have violated or acted inconsistently with the letter or spirit of the applicable Agreements; or (3) if any of your activities may harm us or other users, including, but not limited to, fraud, abuse of privileges, or misuse of our Applications. You agree that, as between you and J. J. Keller, we will not be liable to you or any third party for any such termination.
2. Client Agreement. Without limiting anything set forth herein, this EULA and your associated account(s) and ability to access or use the applicable Application(s), shall, with respect to the applicable Application(s), immediately terminate upon: (1) the expiration or termination of the applicable Client Agreement; or (2) the applicable Client revokes your authorization to access and use the Application under the applicable Client Agreement.
3. Effects of Termination. Upon the termination of this EULA, including, without limitation, where we exercise any applicable termination rights available to us under the Agreements, your license to access and use the applicable Application(s) shall immediately terminate and you must discontinue all access to and use of the applicable Application(s) and uninstall or otherwise delete the applicable Application(s) from the applicable Equipment.
4. Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive, or illegal activity, we may refer such matter to appropriate law enforcement authorities.
5. Survival. The provisions of this EULA which by their nature are intended to survive the termination or cancellation of this EULA shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of this EULA regarding indemnity and limitations of liability shall survive the termination or cancellation of this EULA.
DISCLAIMERS
1. Disclaimer of all Warranties
  1. OUR APPLICATIONS – INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE OR CODE COMPRISING ANY PORTION OF OUR APPLICATIONS – ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO OUR APPLICATIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE FURTHER EXPRESSLY DISCLAIM THAT OUR APPLICATIONS WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS, OR OTHER HARMFUL SOFTWARE OR HARDWARE.
  2. YOU HEREBY ACKNOWLEDGE THAT OUR APPLICATIONS MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE(SCHEDULED OR UNSCHEDULED), ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF OUR APPLICATIONS AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND, THEREFORE, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY, OR PERFORMANCE OF OUR APPLICATIONS CAUSED BY SUCH FACTORS.
  3. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA, INCLUDING, WITHOUT LIMITATION, YOUR CONTENT OR PRIVATE MESSAGES.
  4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
2. Use of Our Applications at Your Sole Risk. YOUR ACCESS TO OUR APPLICATIONS, DOWNLOAD AND/OR INSTALLATION OF ANY SOFTWARE COMPRISING OR RELATING TO THE APPLICATIONS, AND USE OF OUR APPLICATIONS AND ANY INFORMATION WE PROVIDE IN CONNECTION WITH YOUR USE OF OUR APPLICATIONS ARE AT YOUR SOLE OPTION, DISCRETION, AND RISK. WE SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF OUR APPLICATIONS, INCLUDING WITHOUT LIMITATION, THE SOFTWARE COMPRISING OUR APPLICATIONS, BUGS OR VIRUSES RESULTING IN LOST DATA, OR ANY OTHER DAMAGE TO YOUR EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY MOBILE PHONE OR MOBILE DEVICE YOU USE TO ACCESS OR USE OUR APPLICATIONS. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO DOWNLOAD, INSTALL, ACCESS, OR USE OUR APPLICATIONS BY METHODS, MEANS, OR WAYS NOT INTENDED BY US. AS BETWEEN YOU AND J. J. KELLER, WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS OR SYSTEMS.
3. No Creation of Warranty. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR IN CONNECTION WITH YOUR DOWNLOAD, INSTALLATION, ACCESS TO, OR USE OF OUR APPLICATIONS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA.
4. Third Party Statements. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR STATEMENTS, ADVICE, OR OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED J. J. KELLER SPOKESPERSONS. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE, OR OPINIONS PROVIDED OR STATED BY ANY THIRD PARTIES, AND ANY SUCH STATEMENTS, ADVICE, OR OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE, OR OPINIONS OF J. J. KELLER.
YOUR LIABILITY
1. Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY DOWNLOAD, INSTALL, ACCESS, AND USE OUR APPLICATIONS IN ACCORDANCE WITH THE AGREEMENTS. YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEY'S FEES) WHICH WE (OR ANY OF OUR SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF YOUR OBLIGATIONS UNDER THE AGREEMENTS. FOR CLARITY, THE FOREGOING SHALL NOT LIMIT, MODIFY, OR OTHERWISE AFFECT A CLIENT'S LIABILITIES OR OBLIGATIONS UNDER A CLIENT AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US, OUR SUBSIDIARIES, AND AFFILIATES, AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES (COLLECTIVELY, THE "RELEASED PARTIES") HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY'S FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR DOWNLOAD OR INSTALLATION OF OUR APPLICATIONS, YOUR USE OF OUR APPLICATIONS, YOUR CONNECTION TO OUR APPLICATIONS, YOUR VIOLATION OF THE AGREEMENTS, OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
2. Additional Remedies. THE RELEASED PARTIES RESERVE THE RIGHT TO SEEK ALL REMEDIES AVAILABLE AT LAW AND IN EQUITY FOR YOUR VIOLATION OF THE AGREEMENTS, INCLUDING THE RIGHT TO BLOCK ACCESS TO OUR APPLICATIONS FROM A PARTICULAR INTERNET ADDRESS AND REPORT MISUSES TO LAW ENFORCEMENT.
LIMITATION OF LIABILITY
1. Maximum Liability. WITHOUT LIMITING ANYTHING SET FORTH IN THESE EULA, TO THE FULLEST EXTENT PERMITTED BY LAW, AS BETWEEN YOU AND J. J. KELLER, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO THE AGREEMENTS, YOUR DOWNLOAD, INSTALLATION, ACCESS TO, OR USE OF OUR APPLICATIONS, OR YOUR DEALINGS WITH THE RELEASED PARTIES IN CONNECTION THEREWITH SHALL BE $100.
2. No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH YOUR DOWNLOAD, INSTALLATION, ACCESS TO, OR USE OF OUR APPLICATIONS, FOR ANY OTHER CLAIMS RELATED IN ANY WAY TO YOUR DOWNLOAD, INSTALLATION, ACCESS TO, OR USE OF OUR APPLICATIONS, OR YOUR DEALINGS WITH THE RELEASED PARTIES IN CONNECTION THEREWITH.
3. Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY WILL ALSO APPLY REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Exceptions.SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, THE RELEASED PARTIES' LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHT.
1. Waiver of Rights. YOU AGREE THAT BY AGREEING TO THIS EULA OR DOWNLOADING, INSTALLING, ACCESSING, OR USING OUR APPLICATIONS, YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY LITIGATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ACTIONS ARE NOT PERMITTED. IF THE FOREGOING CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, YOU AND J. J. KELLER EACH AGREE NOT TO SEEK, AND WAIVE ANY RIGHT, TO LITIGATE OR OTHERWISE RESOLVE ANY DISPUTE THROUGH CLASS OR COLLECTIVE CLAIMS.
2. Venue for Litigation. AS BETWEEN YOU AND J. J. KELLER, UNLESS PROHIBITED BY APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM UNDER THIS EULA MUST BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN OR THE COURTS OF THE STATE OF WISCONSIN LOCATED IN MILWAUKEE, WISCONSIN, AS APPROPRIATE. YOU ALSO THEREFORE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CAUSES OF ACTIONS OR CLAIMS, AND YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION, AND AGREE TO REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY INCLUDED IN THIS EULA.
3. Prevailing Party. IN ANY LITIGATION BETWEEN YOU AND THE RELEASED PARTIES IN CONNECTION WITH THE AGREEMENTS, YOUR DOWNLOAD, INSTALLATION, ACCESS TO, OR USE OF OUR APPLICATIONS, OR YOUR DEALINGS WITH THE RELEASED PARTIES IN CONNECTION THEREWITH, THE PREVAILING PARTY SHALL WILL BE ENTITLED TO RECEIVE FROM THE OTHER PARTY, IN ADDITION TO ALL OTHER DAMAGES TO WHICH IT MAY BE ENTITLED, THE COSTS INCURRED BY THE PREVAILING PARTY IN CONDUCTING SUCH LITIGATION, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES, EXPENSES, AND COURT COSTS.
SPECIAL TERMS FOR APPLICATIONS DISTRIBUTED THROUGH THE APPLE APP STORE
1. Acknowledgement. Our Applications are available through the Apple App Store (collectively, the "Apple Version Applications"). You and J. J. Keller each acknowledge that this EULA and any other terms and conditions imposed by J. J. Keller with respect to the Apple Version Applications and any other agreements entered into between you and J. J. Keller in connection with the Apple Version Applications (collectively, the "Apple Version Applications Agreements") are between you and J. J. Keller only, and not with Apple, and that J. J. Keller, not Apple, is solely responsible for the Apple Version Applications and the content thereof. In the event the Apple Version Applications Agreements provide usage rules for the Apple Version Applications that are in conflict with the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions shall control with respect to the Apple Version Applications.
2. Scope of License. In addition to the other terms set forth in the Apple Version Applications Agreements, the license granted to You for the Apple Version Applications is solely for use by you on any Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
3. Maintenance and Support.J. J. Keller is solely responsible for providing any maintenance and support services with respect to the Apple Version Applications, as specified in the Apple Version Applications Agreements or as required under applicable law. You and J. J. Keller acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Version Applications.
4. Warranty.J. J. Keller is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the Apple Version Applications Agreements. In the event of any failure of an Apple Version Application to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the applicable Apple Version Application (if any) to you. Further, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Version Applications, and, subject to the limitations of liability set forth in the Apple Version Applications Agreements, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform with any warranty will be J. J. Keller's sole responsibility.
5. Product Claims. You and J. J. Keller acknowledge that J. J. Keller, not Apple, is responsible for addressing any claims that you or any third party have relating to the Apple Version Applications or your possession and/or use of the Apple Version Applications, including, but not limited to: (1) product liability claims; (2) any claim that an Apple Version Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
6. Intellectual Property Rights. You and J. J. Keller acknowledge that, in the event of any third party claim that an Apple Version Applications or your possession and use of an Apple Version Application infringes that third party's intellectual property rights, subject to the limitations of liability and indemnification obligations set forth in the Apple Version Applications Agreements, J. J. Keller, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Third Party Terms. You must comply with applicable third party terms when using the Apple Version Applications.
8. Third Party Beneficiary. You and J. J. Keller acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries to this EULA as applicable to the Apple Version Applications, and that, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA (as applicable) against you as a third party beneficiary thereof.
ADDITIONAL TERMS
1. Governing Law. This EULA will be governed by the laws of the State of Wisconsin, without giving effect to any principles of conflicts of laws.
2. Electronic Communications. The communications between you and J. J. Keller use electronic means. For contractual purposes, you: (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically, including, but not limited to, the Agreements, satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
3. Severability. If any part of this EULA is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, any warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable terms of this EULA shall continue in effect.
4. Waivers. Our failure to enforce any provision of this EULA shall not be deemed a waiver of such provision nor of the right to enforce such provision.
5. Admissibility of Terms. A printed version of this EULA and of any notice given in electronic form shall be admissible in arbitration, judicial, or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
6. Assignment. Subject to the terms of the Agreements, we reserve the right to transfer, assign, sublicense, or pledge this EULA, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense, or otherwise transfer in any manner whatsoever any of your rights or obligations under this EULA.
7. Headings. The section headings and sub-headings contained in this EULA are for convenience only and have no legal or contractual effect.
8. Contact Us. If you have any questions or concerns about our Applications or this EULA, please email us at support@jjkeller.com.