Terms of Service
Last Updated: May 29th, 2013
PLEASE NOTE: The KeepTrees Terms of Service on this web page is effective as of the "Last Updated" date above for any user who is browsing the KeepTrees website, or for any user who creates an KeepTrees account on or after that date.
If you created an KeepTrees account before the "Last Updated" date above, the KeepTrees Terms of Service on this webpage will become effective for your use of the KeepTrees Service 30 days after the "Last Updated" date above. Until then, the previous version of the Terms of Service will govern your use of the KeepTrees Service.
Eligibility and Assent to Terms
Welcome to KeepTrees! The following Terms of Service for the KeepTrees.com website, software applications made available by KeepTrees from the website or via a third party ("Software"), and any application programming interface ("API") or other technology or services made available by KeepTrees via the website or Software (collectively, the "KeepTrees Service") is a legal contract between you, either an individual of at least 18 years of age or a single entity ("You" or, collectively, "Users"), and KeepTrees regarding your use of the KeepTrees Service ("Terms"). The KeepTrees Service is not available to persons under the age of 18 or to any users previously removed from the KeepTrees Service by KeepTrees.
These Terms provide that all disputes between you and KeepTrees will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the "Arbitration Agreement" section below for the details regarding your agreement to arbitrate any disputes with KeepTrees.
YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE KeepTrees SERVICE.
IF YOU ARE USING OR OPENING AN ACCOUNT WITH KeepTrees ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A "SUBSCRIBING ORGANIZATION") THEN YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS AND AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
BY CLICKING THE "I AGREE" BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY PORTION OF THE KeepTrees SERVICE, YOU ASSENT TO AND AGREE TO BE BOUND BY THESE TERMS AND REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY REMOVED FROM THE KeepTrees SERVICE.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. We may notify you of changes to these Terms by a notice posted on www.KeepTrees.com, by e-mail, upon login to your account on the Service, or by other reasonable means. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the change in order to continue to use the Service. Material changes are effective upon your acceptance of the modified Terms. Immaterial changes are effective upon publication on www.KeepTrees.com. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose.
2. Additional Terms
Your use of the KeepTrees Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the KeepTrees Service or certain features of the KeepTrees Service that we may post on or link to on the KeepTrees Service (the "Additional Terms"), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the KeepTrees Service, subject to Section 1. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
3. Fees and Payment
- Paid Services. Some portions of the KeepTrees Service may have fees associated with them (each, a "Paid Service"). You will have the opportunity to review and accept the fees that you will be charged before using a Paid Service. We may change fees for any portion of the KeepTrees Service at any time. Unless otherwise stated, all fees are quoted in U.S. Dollars.
- You are solely responsible for paying all fees and applicable taxes associated with your KeepTrees Service account in a timely manner with a valid payment method. By electing to purchase or otherwise use a Paid Service, you authorize KeepTrees or its third party payment processors to charge the credit card or other payment method identified by you ("Payment Method"), which you represent and warrant that you are authorized to use, all applicable fees for that Paid Service, including all applicable taxes. For purchases of one-time Paid Services (i.e., not subscriptions), your Payment Method will be billed for that Paid Service on the date that you make the purchase.
4. User Accounts
You may browse the KeepTrees.com website without creating an account, subject to these Terms. In order to use the full features of the KeepTrees Service, you must register for an account or log into the KeepTrees Service using your Facebook login or login to another third party social media platform that we support ("Integrated Service"). Your use of any account with an Integrated Service is subject to any terms, conditions, and policies, including privacy policies, of that Integrated Service. When you use the KeepTrees Service to upload, download, or purchase content or any products, services, or information from KeepTrees, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to KeepTrees on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you must immediately notify KeepTrees. You are solely liable for the losses incurred by KeepTrees or others due to any unauthorized use of your KeepTrees Service account.
5. Permission to Use KeepTrees Service
- As used in these Terms: (i) "Published Content" means digital assets uploaded and published on the KeepTrees Service; (ii) "Pre-Publication Assets" means raw editorial content (e.g., text, images, layout information) uploaded to the KeepTrees Service; and (iii) "User Submissions" means Published Content and Pre-Publication Assets, collectively.
- Subject to your compliance with the terms and conditions set out in these Terms, KeepTrees hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to: (i) use the KeepTrees Service to view, use and access User Submissions and other content made available via the KeepTrees Service; (ii) participate in any other programs, services, or features of the KeepTrees Service now or hereafter made available by KeepTrees, including uploading of your User Submissions; (iii) download and install Software on the hardware for which the Software was created to exercise the rights granted in Sections 6(i) and 6(ii); and (iv) implement any API made available by KeepTrees solely in accordance with that API’s documentation. Your use of the KeepTrees Service must be for personal, non-commercial use only, except that Users who are commercial entities, government entities, or non-profit entities may use the KeepTrees Service to make their Published Content available on the KeepTrees Service, use the Service to collaborate on Pre-Publication Assets, or to integrate the KeepTrees Service with the User’s website. For the avoidance of doubt, you are not entitled to any compensation from KeepTrees for any User Submissions for any reason unless otherwise specifically agreed in writing by KeepTrees.
- You agree not to use or launch any automated system, including without limitation "robots," "spiders," and "offline readers," that accesses the KeepTrees Service in a manner that sends more request messages to the KeepTrees Service in a given period of time than a human can reasonably produce in the same period by using a conventional web browser or otherwise use the KeepTrees Service to collect or harvest any personally identifiable information or any data regarding activities on or usage of the KeepTrees Site.
- You also agree that for any API made available by KeepTrees: (i) KeepTrees makes no representations or warranties whatsoever regarding any API or any quality of service available via any API; (ii) KeepTrees may restrict usage limits; (iii) you will not modify any content accessed via that API; (iv) KeepTrees may terminate or deprecate any service or functionality available via an API at any time without notice or liability; and (v) use of some APIs may require obtaining an API key from KeepTrees, and KeepTrees may disable any key at any time without notice or liability.
- KeepTrees reserves all rights not expressly granted in these Terms. You acknowledge that KeepTrees may automatically issue upgraded versions of the software and systems comprising the KeepTrees Service and, accordingly, may upgrade the version of the KeepTrees Service that you are using. KeepTrees reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the KeepTrees Service, including technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
6. User Submissions
- Pre-Publication Assets. By uploading Pre-Publication Assets to the KeepTrees Service, you hereby grant to KeepTrees a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, store, transfer, display, perform, reproduce, and distribute your Pre-Publication Assets on the KeepTrees Service solely in order to enable you, and other Users specified by you, to work with those Pre-Publication Assets in the manner selected by you. You may invite non-Users to collaborate on Pre-Publication Assets, but in order to access the Pre-Publication Assets on the Service, each individual will be required to accept these Terms.
- Published Content. By uploading Published Content to the KeepTrees Service, you hereby grant to KeepTrees a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, and otherwise use your Published Content, in any media forms or formats, and through any media channels, now known or hereafter devised, including without limitation, RSS feeds, embeddable functionality, and syndication arrangements in order to distribute, promote or advertise your Published Content through the KeepTrees Service. This license includes the right for KeepTrees to convert your Published Content to KeepTrees’s proprietary format, or such other file formats as may be used by KeepTrees, and to display and make your Published Content available, in whole or in part (including excerpts), on the KeepTrees Service in association with other Published Content, content or advertising. Subject to the license grant to other Users below, the license granted by you to KeepTrees in this paragraph terminates as to a specific Published Content once you remove or delete such Published Content from the KeepTrees Service.
- You are solely responsible for all of your User Submissions and you hereby recognize and affirm that the KeepTrees Service is merely providing you the means to collaborate on and make available your User Submissions. Accordingly, you shall be solely responsible for each of your User Submissions and the consequences of uploading them. By uploading your User Submissions, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize KeepTrees and KeepTrees's Users to use and distribute your User Submissions as necessary to exercise the licenses granted by you in this section and in the manner contemplated by KeepTrees and these Terms; (2) your User Submissions do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (ii) your User Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the KeepTrees Service. Violators of these third-party rights may be subject to criminal and civil liability. KeepTrees reserves all rights and remedies against any Users who violate these Terms.
- Although KeepTrees has no obligation to screen, edit, or monitor any Published Content, KeepTrees reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Submission at any time and for any reason without notice. In addition, although KeepTrees has no obligation to screen, edit, or monitor any Pre-Publication Assets, KeepTrees reserves the right, and has absolute discretion, to remove, screen, edit, or disable any Pre-Publication Asset at any time and for any reason, but if KeepTrees elects to exercise its rights with respect to a Pre-Publication Asset as set forth in this sentence for a reason other than suspected violation of criminal law, KeepTrees will provide email notice to you and provide you acess to a digital copy of that Pre-Publication Asset for two weeks from the date of notice.
- Further, you understand that when using the KeepTrees Service you will be exposed to Published Content from a variety of sources, and that KeepTrees is not responsible for the accuracy, content, usefulness, or intellectual property rights of or relating to such Published Content. You further understand and acknowledge that you may be exposed to Published Content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against KeepTrees with respect thereto. KeepTrees does not endorse any User Submissions or any opinion, recommendation or advice expressed in any User Submission, and KeepTrees expressly disclaims any and all liability in connection with User Submissions. If notified by a User or a content owner of an User Submission that allegedly does not conform to these Terms, KeepTrees may investigate the allegation and determine in its sole discretion whether to remove the User Submission, which it reserves the right to in accordance with these Terrms. For clarity, KeepTrees does not permit copyright infringing activities on the KeepTrees Service.
7. Prohibited Conduct
YOU AGREE NOT TO COMMIT ANY ACT OF THE FOLLOWING PROHIBITED CONDUCT:
- use the KeepTrees Service for any purpose other than to disseminate or receive original or appropriately licensed content and to access the KeepTrees Service as such services are offered by KeepTrees;
- delete the copyright or other proprietary rights markings on the KeepTrees Service or other Users’ User Submissions;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the KeepTrees Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- use the KeepTrees Service in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy or post, upload, or distribute any defamatory, libelous, or inaccurate User Submissions or other content;
- defame, harass, abuse, threaten or defraud Users of the KeepTrees Service, or post, upload, or distribute any content that is unlawful or otherwise inappropriate, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on the KeepTrees Service for any commercial use, it being understood that the content available on the KeepTrees Service is for personal, non-commercial use only;
- rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted in these Terms or any Materials (as defined below);
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the KeepTrees Service accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the KeepTrees Service, or perform any other similar fraudulent activity;
- hack, remove, circumvent, disable, damage or otherwise interfere with security-related features of the KeepTrees Service or User Submissions, features that prevent or restrict use or copying of any content accessible through the KeepTrees Service, or features that enforce limitations on the use of the KeepTrees Service or User Submissions, or intentionally interfere with or damage operation of the KeepTrees Service or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the KeepTrees Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the KeepTrees Service or any part thereof, except and only to the extent that such activity is expressly permitted by these Terms or applicable law notwithstanding this limitation; or
- remove, obscure, block, hide or otherwise alter the display of any advertising (or any parts or aspects thereof), KeepTrees brand elements, including logos, trademarks, service marks or other Materials displayed by KeepTrees in connection with the KeepTrees Service in any manner whatsoever, regardless of your use of the embedding functionality of the KeepTrees Service to display authorized content on your or other third party sites.
8. Digital Millennium Copyright Act
It is KeepTrees's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to KeepTrees's DMCA Guidelines. KeepTrees will promptly terminate without notice any User's access to the KeepTrees Service if that User is determined by KeepTrees to be a "repeat infringer." A repeat infringer is a User who has been notified by KeepTrees of infringing activity violations more than twice or who has had a User Submission or any other user-submitted content removed from the KeepTrees Service more than twice.
9. Document Promotion
- KeepTrees may provide you the opportunity to promote your Published Content ("Promoted Documents"). A "Promotion" is Published Content consisting of information about a Promoted Document created in part by you and in part by automated means. Each Promotion consists of a title, body text, and a thumbnail. The thumbnail is automatically created from the Promoted Document. The title and body text is entered by you. KeepTrees reserves the right to change how Promotions are created without notice.
- Your Promotion will automatically be placed based upon the targeting parameters and maximum auction bid price specified by you, but KeepTrees does not make any representation, warranty, or other commitment of any kind regarding Promotions, including placement or bid price. If you wish to promote a Published Content with an adult theme, you must use the targeting options to limit the availability of that Promotion to persons who are at least 18 years of age.
- In addition to the representations and warranties you make above with respect to your Promoted Documents as User Submissions, you also represent and warrant with respect to each of your Promotions that:
- your Promotions adhere to community standards of decency and good taste, and comply with the United States Federal Trade Commission’s "Guidelines Concerning the Use of Endorsements and Testimonials in Advertising," 16 CFR Part 255;
- all statements contained in your Promotions are true, accurate and non-misleading;
- you will disclose clearly and conspicuously that you have been paid or provided benefits with your Promotions and Promoted Documents if that is the case;
- your Promotions and Promoted Documents do not include any personally identifiable information of third parties without such party’s permission;
- neither the title nor body text in any Promotion contain a URL;
- the title and body text in your Promotions accurately describe or indicate the content in the Promoted Document;
- your Promotions do not contain content that infringes upon the rights of any third party, including its copyrights, trademarks, privacy, or publicity rights;
- the title and body text in your Promotions do not reference KeepTrees and do not utilize any logos or trademarks of KeepTrees;
- the title and body text in your Promotions do not contain false, misleading, fraudulent, deceptive, inaccurate or unsubstantiated claims;
- your Promotions comply with any and all codes, laws, and regulations regarding advertising or promotion in your locality;
- your Promotions do not insult, threaten or harass any person; and
- your Promotions do not contain: (A) offensive, profane, obscene, vulgar or inappropriate language, including language describing in a negative way or attacking persons (either as a group or individually) on the basis of their race, nationality, religion, gender, or sexual orientation or any other hate speech or terroristic speech; (B) obscene, defamatory or libelous content; (C) unlawful content, including content that encourages unlawful activity; (D) sexually explicit or sexually suggestive content, including pornographic material, "adult friend finders" or dating sites with a sexual emphasis, "adult" toys or sexually explicit videos; or (E) advertisements for any of the following: alcoholic beverages, contests, raffles, or sweepstakes (please obtain written permission from KeepTrees before promoting contents, raffles, or sweepstakes on KeepTrees), firearms (including "bb" guns and paintball guns) or related products, including ammunition for such firearms, gambling websites, including online casinos and sports "books", surveillance equipment, including "spy" cameras and "bugging" devices, tobacco products, or weapons of any kind.
- KeepTrees may reject, refuse to publish, or remove from the KeepTrees Service any Promotion or Promoted Document at any time for any reason, including failure to comply with these Terms or if, in KeepTrees’s sole discretion, KeepTrees determines that the business model, business practice, or service promoted by the Promotion or the Promoted Document is inappropriate or contrary to the letter or spirit of these Terms. Such prohibited business practices include chain letters, fraudulent or bad-faith "get-rich-quick" or "work from home" schemes, fraudulent or bad-faith web-based colleges or universities, fraudulent or misleading subscription services, pharmaceutical products, pyramid schemes, and sites that install malware, spyware or other software on users’ computers without their permission.
10. Third Party Software; Integrated Services and Linked Sites
- Third party software may be required to use some portions of the Service (e.g., Adobe Acrobat, Adobe InDesign). You are solely responsible for obtaining licenses to any third party software that may be required to use the Service, and your installation and use of any third party software is solely at your own risk. In additon, you are solely responsible for all fees charged by any third party in connection with your use of the Service (e.g., charges by mobile carriers).
- KeepTrees may provide tools through the KeepTrees Service that enable you to export information to Integrated Services, including through features that allow you to link your KeepTrees account with an account on the Integrated Service, such as Facebook or Twitter, or through implementation of third party buttons (such as "like" or "share" buttons). By using these tools, you agree that we may transfer that information to the applicable Integrated Service. In addition, the KeepTrees Service may include links or references to other web sites or services solely as a convenience to Users ("Linked Sites"). KeepTrees does not endorse any such Integrated Services or Linked Sites or the information, materials, products, or services contained on or accessible through any of them. Such third party sites and services are not under KeepTrees’s control, and KeepTrees is not responsible for their use of exported information. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the KeepTrees Service are also solely between you and such advertiser. Access and use of Integrated Services and Linked Sites, including the information, materials, products, and services on or available through them, is solely at your own risk.
11. Special Terms Regarding Apple
If you download Software from Apple, Inc.’s App Store, your use of the Software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. You acknowledge that these Terms are entered into solely between you and KeepTrees. These Terms are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the App Store Terms of Service as of the date that you accept the App Store Terms of Service (which you acknowledge you have had the opportunity to review). You also acknowledge and agree that: (a) if any third party claims that your possession or use of the Software infringes a third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; (b) Apple has no responsibility for addressing any claims relating to the Software, including: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iv) any claim arising under consumer protection or similar legislation; and (c) Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you.
12. Termination; Violations.
- Subject to KeepTrees’s obligations under the last sentence of Section 6(d), you agree that KeepTrees, in its sole discretion, and without penalty, may terminate or suspend any account hosted by, or your use of, the KeepTrees Service and remove and discard all or any part of your account, User profile, and any User Submission, for any reason at any time. KeepTrees may also in its sole discretion and at any time discontinue providing access to the KeepTrees Service, or any part thereof, with or without notice. You agree that any termination of your access to the KeepTrees Service or any account you may have or portion thereof may be effected without prior notice except as set forth in the last sentence of Section 6(d), and you agree that KeepTrees will not be liable to you or any third party for any such termination, including any loss of your User Submissions. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies KeepTrees may have at law or in equity. Upon termination for any reason, you agree to immediately stop using the KeepTrees Service, any accompanying documentation, and all other associated materials. Your only remedy with respect to any dissatisfaction with: (i) the KeepTrees Service; (ii) any term of these Terms; (iii) any policy or practice of KeepTrees in operating the KeepTrees Service; or (iv) any content or information transmitted through the KeepTrees Service, is to terminate these Terms and your account.
- You may cancel a Paid Service at any time by navigating to your account settings within the KeepTrees Service and selecting the option to cancel that Paid Service. Unused fees are non-refundable and KeepTrees reserves the right to charge you subscription fees through the end of the subscription term that you elected. If KeepTrees charges you fees for the full subscription term, you will continue to have access to the cancelled Paid Service through the end of your subscription term, and these Terms will continue to apply to your use of that Paid Service.
- You may terminate your KeepTrees Service account and these Terms at any time by navigating to your account settings within the KeepTrees Service and selection the option to terminate your account. If KeepTrees terminates your account for your breach of these Terms, KeepTrees reserves the right to charge you fees through the end of your subscription term for any Paid Service you purchased prior to termination. If KeepTrees terminates your use of any part or all of the KeepTrees Service prior to the completion of your subscription period (except if such termination is a result of your breach of these Terms, in which case KeepTrees may terminate without liability as described in the paragraph above), your sole remedy is a pro-rata refund of the purchase price paid for any terminated Paid Service.
13. Privacy; Consent to Electronic Communications
14. Ownership; Proprietary Rights.
The KeepTrees Service is owned and operated by KeepTrees. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the KeepTrees Service provided by KeepTrees (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Submissions that are provided and owned by Users, all Materials contained on the KeepTrees Service are the property of KeepTrees or its subsidiaries or affiliated companies or third-party licensors. All trademarks, service marks, and trade names are proprietary to KeepTrees or its affiliates or third-party licensors. Except as expressly authorized by KeepTrees, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. KeepTrees reserves all rights not expressly granted in these Terms.
You agree to indemnify KeepTrees, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the KeepTrees Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you in these Terms. KeepTrees reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify KeepTrees, and you agree to cooperate with KeepTrees's defense of these claims. Upon notice of any impending claim, action or proceeding, KeepTrees will use reasonable efforts to notify of any indemnification obligation.
16. Disclaimer of Warranties
KeepTrees, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KeepTrees OR THROUGH THE KeepTrees SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. YOU EXPRESSLY ACKNOWLEGE THAT THIS DISCLAIMER INCLUDES KeepTrees'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS. YOU EXPRESSLY AGREE THAT THE USE OF THE KeepTrees SERVICE IS AT YOUR SOLE RISK. THE KeepTrees SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER SUBMISSIONS, LINKED SITES, PRODUCTS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE KeepTrees SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. KeepTrees, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, USER SUBMISSIONS, OR ANY OTHER PRODUCTS, SERVICES OR APPLICATIONS OFFERED ON OR THROUGH THE KeepTrees SERVICE OR ANY LINKED SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. KeepTrees, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE KeepTrees SERVICE OR ANY LINKED SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE KeepTrees SERVICE OR ANY LINKED SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
17. Limitation of Liability and Damages
- UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL KeepTrees OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE THE KeepTrees SERVICE OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH KeepTrees OR OTHER KeepTrees SERVICE USERS, EVEN IF KeepTrees OR AN KeepTrees AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, KeepTrees'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL KeepTrees OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE KeepTrees SERVICE OR YOUR INTERACTIONS WITH KeepTrees OR OTHER KeepTrees SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE KeepTrees SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN KeepTrees AND RECEIVED THROUGH OR ADVERTISED ON THE KeepTrees SERVICE OR RECEIVED THROUGH ANY LINKED SITES.
- YOU ACKNOWLEDGE AND AGREE THAT KeepTrees HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KeepTrees, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KeepTrees. KeepTrees WOULD NOT BE ABLE TO PROVIDE THE KeepTrees SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
- CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
18. United States Export Controls
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
19. Arbitration Agreement; Governing Law
- Generally. In the interest of resolving disputes between you and KeepTrees in the most expedient and cost effective manner, you and KeepTrees agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and KeepTrees are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. You and KeepTrees agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our rights to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitration. Any arbitration between you and KeepTrees will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting KeepTrees.
- Arbitration Notice; Process. If you elect to seek arbitration, you must first send to KeepTrees, by certified mail or FedEx (signature required), a written notice of your claim addressed to: Legal Dept., KeepTrees, 261 Hamilton Ave, 2nd Floor, Palo Alto, CA 94301, USA. If KeepTrees elects to seek arbitration, it will send a written notice to the email address you provided to KeepTrees for your account. An arbitration notice, whether sent by you or by KeepTrees, must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. You and KeepTrees each agree to use good faith efforts to directly resolve any claim, but if we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or KeepTrees may commence an arbitration proceeding or file a claim in small claims court. During any arbitration, the amount of any settlement offer made by KeepTrees or you must not be disclosed to the arbitrator. You may download or copy a form notice and a form to initiate arbitration at www.adr.org. If our dispute is finally resolved through arbitration in your favor, KeepTrees will pay you: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by KeepTrees in settlement of the dispute prior to the arbitrator’s award; or (C) $1,000, whichever is highest.
- Fees. If you commence arbitration in accordance with these Terms, KeepTrees will reimburse you for your payment of the filing fee unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in the city of your billing address provided to KeepTrees as part of your account registration, or, if no city was provided, in the in AAA office nearest to you, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse KeepTrees for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND KeepTrees AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and KeepTrees agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If KeepTrees makes any future change to this arbitration provision (other than a change to the KeepTrees's address for notice), you may reject the change by sending us written notice within 30 days of KeepTrees’s notice to you of the change, in which case your account with KeepTrees will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability. If only Subsection (f) of this arbitration agreement provision, or the entirety of this arbitration agreement provision, is found to be unenforceable, then the entirety of this arbitration agreement provision will be void and, in that case, you and KeepTrees both agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to these Terms.
- Governing Law; Venue. These Terms and any action arising out of these Terms or your use of the Service, whether interpreted in a court of law or in arbitration, will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and KeepTrees agree to the personal and exclusive jurisdiction in the state and federal courts in San Francisco, California.
20. Government Terms
If you use the KeepTrees Service in an official capacity for a federal, state or local government or government agency in the United States, the following modifications of these Terms apply solely to that official use:
- Indemnification. The terms of Section 15 will apply to you only to the extent expressly permitted by your jurisdiction’s laws.
- Arbitration. The terms of Section 19(a) – (h) do not apply to your official use of the Service.
- Governing Law. The terms of Section 19(i) will apply only to the extent expressly permitted by your jurisdiction’s laws.
- YOU AND KeepTrees AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE KeepTrees SERVICE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The services are offered by KeepTrees, Inc., located at:
9955 Black Mountain Rd.