Keiser Corporation, Institutional and Individual End User License Agreement
New! Keiser has recently revised and amended the End User License Agreement and the Keiser Terms and Conditions of Use. This End User License Agreement and the Terms and Condition of Use apply to your access and use of Keiser Services. The new changes are incorporated in the Terms and Conditions and the End User License Agreement below.
Effective Date: September 23rd, 2020
IMPORTANT: PLEASE READ THIS EULA CAREFULLY.
Keiser is a developer and distributor of exercise and physical testing equipment and educational material with management hardware, software, and mobile applications. Keiser also provides Services to health clubs, professional and amateur sports teams, medical providers, hospital and rehabilitation specialists, and educational institutions, which use its proprietary Program and Equipment. Keiser also provides Services to individuals enrolled through the aforementioned institutions.
This Institutional End User License Agreement ("EULA") is between Keiser and Institutional User ("Institutional User") and the Individual User ("Individual User" or collectively as user "User(s)"). Please read this EULA carefully, as Users accept and agree to be bound by all Terms and Conditions of Keiser Terms and Conditions ("KTC") and this EULA by accessing and/or using the Site, Program and/or Services. If any User does not accept or agree to be bound by the KTC and this EULA, then User should not access or use the Site, Program and/or Services, and User must immediately exit this Site and/or discontinue use of the Program and/or Services. The access and/or use of the Site, Program and/or Services signifies User's acceptance and continued acceptance of KTC (www.keiser.com/terms-and-conditions) and including this EULA, and any revisions thereto.
The Site, Program, and/or Services are intended for use by Users (and/or their Representatives) who are eighteen (18) years of age and who consent to and authorize any and all privacy waivers requested by Keiser. By accessing and/or using the Site, Program and/or Services, the User acknowledges, represents and warrants that User will consent to and authorize any and all privacy waivers requested by Keiser and that User meets all eligibility requirements. See also Terms and Conditions requirements.
In addition to the terms of this EULA, the User shall be bound by (i) the terms and conditions of any other agreement applicable to such User's access and use of the Site, Program and/or Services, including any applicable Terms and Service Agreement and/or any applicable consent authorization, and (ii) the terms and conditions of use for any other Keiser product and/or service. If there is any conflict between the terms of another agreement and this EULA, then this EULA shall govern and control in all respects unless the applicable provision of this EULA explicitly states that the particular term is subject to another agreement.
1. Definitions. All capitalized terms used in this EULA shall have the meanings ascribed below and/or elsewhere in this EULA:
b. Account: A personal portal, accessible by the Site and/or an Application, to which the individual User has secure access, through which the individual User may engage in the uses identified in subparagraph 3.b. below;
c. Application: Any and all hardware, software, and/or mobile applications developed in conjunction with the Program designed to assist Users in obtaining, verifying, storing, providing, managing, updating and/or distributing educational and/or workout records, including but not limited to biometric information;
d. Educational Institution: An entity or person who provides instructional services to other Persons, including public and/or private institutions of learning, such as K through 12 schools, vocational/technical schools, public and/or private universities, and any other post-secondary institutions and/or institutions of learning.
e. Keiser Corporation, a California corporation.
f. Healthcare Provider: An entity or person (including an Educational Institution) who provides medical, rehabilitation and/or other healthcare services to another Person and/or who creates, submits or causes the creation or submission of records and/or information about a Person's medical, biometric and/or healthcare treatment, including, for example, "PHI," "PII," and/or other "Records."
g. Person: Any and all natural person(s), governmental entity(ies) (and agency(ies) or department(s) thereof), quasi-public entity(ies), corporation(s), Educational Institution(s), Healthcare Provider(s), partnership(s), venture(s), trust(s), and all other forms of organization, association or business entity;
h. PHI: "Protected Health Information," including electronic PHI, as that term is defined in 45 C.F.R. § 160.103 and used in the Healthcare Insurance Portability and Accountability Act of 1996 ("HIPAA"), including the rules and regulations promulgated thereunder.
i. PII: "Personally Identifiable Information," including electronic PII, as that term is defined in 34 C.F.R. § 99.3 and used in the Family Educational Rights and Privacy Act ("FERPA"), including the rules and regulations promulgated thereunder.
j. Program: The proprietary platform developed by Keiser and/or its Representatives to facilitate the submission, transfer, uploading, collection, verification, management, maintenance, updating, distribution, and storage of documents and/or information (such as educational, workout, testing and/or medical records), including, but not limited to, any and all aspects of the Program, Application, Services and Site, along with any part or subpart and division or subdivision thereto;
k. Representative(s): Any and all officer(s), director(s), shareholder(s), member(s), manager(s), partner(s), principal(s), proprietor(s), venturer(s), employee(s), independent contractor(s), consultant(s), agent(s), attorney(s), parent(s), grandparent(s), subsidiary(ies), affiliate(s), division(s), predecessor(s)- or successor(s)-in-interest, guarantor(s), permitted assign(s), heir(s) and/or any Person acting for, in concert with and/or on behalf of another Person(s).
l. Service(s): Any and all services provided by Keiser Corporation and/or its proprietary Program, including, but not limited to, the services concerning, relating to or involving workouts, rehabilitation, educational and/or medical records;
m. Site: Keiser's website (www.keiser.com), Keiser Developer Zone website (dev.keiser.com), Keiser Power Ed website (education.keiser.com), Keiser Institute on Aging website (kioa.keiser.com), Keiser Metrics website (metrics.keiser.com) including, but not limited to, any pages or sub-pages and sections or subsections thereof, and any links to the Program accessible through the Site;
n. Individual User: Any individual enrolled at, working with, a client of, or patient of any, but not limited to, health club, medical office, rehabilitation clinic, hospital, health clinic or educational institution who submits personal information, biometric information or educational and/or medical records through the Program;
o. Term(s): Any and all terms and conditions set forth in (i) this EULA; (ii) any other document expressly incorporated by reference in this EULA; (iii) any document expressly incorporating this EULA; and (iv) any other written and executed agreement between Keiser and a User governing Keiser's provision of and/or User's access to the Site, Program, and/or Services;
p. Terms and Conditions of Use: The contract entered into between Keiser and any individual or entity, or institution, which may set forth specific details or custom specifications of the Program as it is to be implemented at the health club, sports team, medical clinic, rehabilitation office, medical office, hospital or educational institution, and used by its clients, members, patients or students. The contract entered into herein is with both the individual and the institution;
q. Individual User: Any, but not limited to, member, patient, client or student of any health club, sports team, medical clinic, rehabilitation office, medical office, hospital or educational institution and/or his or her representatives visiting, accessing, using, and/or relying on the Site, Program and/or Services;
r. Institutional User: Any, but not limited to, health club, sports team, medical clinic, rehabilitation office, medical office, hospital or educational institution, and/or its representative(s) visiting, accessing, using, and/or relying on the Site, Program and/or Services
2. Modification of the EULA. Keiser hereby reserves the right to add, amend, modify and/or remove Terms at any time, in its sole discretion, without prior notice to the User (except to the extent that Keiser has explicitly agreed, in an executed writing, to give a particular User prior notice of such amendment or modification); provided, however, that no Keiser Representative may or is authorized to make any oral modification, extension or addition to this EULA. Any addition, amendment, modification and/or revision of Terms by Keiser shall be effective immediately, upon being posted to the Site, and shall apply to all access and use of the Site, Program and/or Services thereafter. User's use and/or continued use of the Site, Program and/or Services after the posting of a revised EULA shall be deemed User's acceptance of, assent to and intent to be bound by the revised EULA. User hereby acknowledges, agrees and represents that User shall read this EULA each time User accesses this Site so that User is aware of the Terms associated with access and use of the Site, Program and/or Services.
3. License to the User. The Program is licensed, not sold, to User. Subject to the Terms and User's strict compliance with such Terms, Keiser grants the following User-specific license:
a. License to Institutional User. Keiser grants an Institutional User a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Program solely:
i. to distribute to Individual Users information about the Program that enables clients, members, patients or students to establish an Account and make permissible use of the Program, as set forth in this EULA;
ii. to post and/or update the workout records, biometric and/or other medical records requirements, if displayed through the Program;
iii. to review compliance by Individual User with Institutional User's workout, biometric or medical requirements, and any other education records;
iv. to notify, or cause to be notified, from Individual User's accounts about the Institution's workout, testing, and biometric requirements and any other education records and/or medical records requirements, including an Individual User's compliance or non-compliance with such requirements;
v. to receive notifications regarding the Program and/or any aspect thereof;
vi. to seek and/or receive technical support and other Services from Keiser; and
vii. to use the Program in any other manner expressly agreed, in writing, by the Institutional User and Keiser.
b. License to the Individual User. Keiser grants an Individual User a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Program solely:
i. to register an Account;
ii. to post and/or update the workout records, biometric and/or other medical records requirements, if displayed through the Program;
iii. to submit, or cause to be submitted, the work out records, biometric and/or other medical records requirements, if displayed through the Program;
iv. to review personal compliance with the Institutional User to post and/or update the workout records, biometric and/or other medical records requirements, if displayed through the Program;
v. to receive notifications regarding any workout records, biometric and/or other medical records requirements, if displayed through the Program, including the Individual User's compliance or non-compliance with such requirements;
vi. to receive notifications regarding the Program and/or any aspect thereof;
vii. to seek and/or receive technical support and other Services from Keiser; and
viii. to use the Program in any other manner expressly agreed, in writing, by the Individual User and Keiser.
c. License to the Healthcare Provider. Keiser grants a Healthcare Provider a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Program solely:
i. to review workout records, biometric and testing data and/or other medical records requirements, if displayed through the Program;
ii. to submit, or cause to be submitted, workout records, biometric and testing data and/or other medical records requirements, if displayed through the Program;
iii. to receive notifications regarding workout records, biometric and testing data and/or other medical records requirements, if displayed through the Program, including an Individual User's compliance or non-compliance with such requirements;
iv. to receive notifications regarding the Program and/or any aspect thereof;
v. to seek and/or receive technical support and other Services from Keiser; and
vi. to use the Program in any other manner expressly agreed, in writing, by the Healthcare Provider and Keiser.
d. Limited Grant and No Implied Licenses. Except for the rights expressly granted in subparagraphs 3.a. through c. above, this EULA does not grant User or any other Person (including User's Representatives) any right, title, or interest by implication, estoppel, or otherwise, and all rights not expressly granted by Keiser in this EULA are retained by Keiser.
e. Devise Control and No Distribution. Notwithstanding the grant of a User-specific license in subparagraphs 3.a. through c. above, that User-specific license does not allow User to use the Program on any device that User does not own or control, and User may not distribute or make the Program available over a network where it could be used by multiple devices at the same time. User may not rent, lease, loan, sell, redistribute, transfer, sublicense or otherwise make available the Program in any manner not specifically authorized in this EULA and/or in an applicable TSA, and User acknowledges that any such rent, lease, loan, sale, redistribution, transfer or sublicense of the Software is void. User may not adapt, copy, decompile, decrypt, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Program or any part thereof such as pictures, music, barcodes, video, data, hyperlinks, displays and other content associated with the Program (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Program). User may not combine the Program and/or Services with any other software or services not provided by or specified for use with or approved by Keiser. Any attempt to take actions described in this subparagraph 3.e. shall be a violation of Keiser's rights. User acknowledges that the Program contains trade secrets of Keiser or its suppliers, vendors, affiliates and/or licensors, including, but not limited to, the internal design and structure of the Program and associated interface information; and, therefore, User may not disclose, provide or otherwise make available trade secrets concerning, relating to or contained within the Program to any Person without the prior written consent of Keiser. If the above restrictions are breached by User, then User may be subject to prosecution and damages. The Terms of this EULA will govern any updates or upgrades of the Program, unless such updates or upgrades are accompanied by a separate license, in which case the terms of that license will govern.
4. Termination of License. The license granted to the Institutional User by this EULA is effective until the date when the applicable TSA expires and/or is otherwise terminated by Keiser or the Institutional User, in accordance with the Terms of this EULA and/or the TSA. A license granted to Individual Users and/or Healthcare Providers is derivative of the license granted to the Institutional User with which the Individual User is affiliated, and therefore, the Individual User's and/or Healthcare Provider's license terminates at the same time as the termination of the Institutional User's license, or at such time when the Individual User is no longer a member, client, patient or enrollee at the Institutional User, whichever first occurs. User hereby acknowledges and agrees that User's rights and license granted under this EULA terminate automatically if User fails to comply with any of the Terms. Upon termination of the license, User hereby acknowledges and agrees that User shall immediately cease any and all use of the Program, including any derivative applications or propriety knowledge related thereto, and destroy all copies thereof, full or partial, and shall cease access to the Site and/or use of any Account. USER HEREBY ACKNOWLEDGES, AGREES AND REPRESENTS THAT ANY CONSENT GIVEN BY USER DURING THE TERM OF A VALID LICENSE SHALL SURVIVE TERMINATION OF ANY LICENSE, THE EULA, AND/OR THE TSA.
5. Consent and/or Authorization by Individual User. Unless otherwise agreed in writing by Keiser and the Individual User, by accessing and using the Site, Program and/or Services, Individual User or his/her duly authorized Representative hereby consents to and authorizes Keiser and its Representatives to use, disclose and release protected health information and protected information for use with the Program and/or Services, for informational purposes, for reporting purposes (including reporting compliance or non-compliance with the Institutional User's requirements) and any other purposes authorized by Individual User. This consent and authorization is effective for and during all past, present and future periods and shall remain in full force and effect until the termination of this EULA. The Individual User and/or his/her duly authorized Representative acknowledges that he/she has the right to revoke this authorization, in writing or by deleting their account, at any time, but that a revocation is not effective to the extent that any Person has already acted in reliance on a prior authorization. The Individual User and/or his/her duly authorized Representative hereby acknowledges that he/she understands that information used, disclosed and/or released pursuant to this authorization may be disclosed by the recipient and may no longer be protected by applicable law. The Individual User and/or his/her duly authorized Representative's completion of the name portion of the Account set-up and/or registration constitutes an electronic signature for Individual User's consent and authorization under this paragraph 5 of the EULA. To the extent agreed in writing by an Individual User and Keiser, the terms of this paragraph 5 shall not apply and the nature and extent of the Individual User shall be governed by such other agreement.
6. Modification of the Program. Keiser hereby reserves the right to permanently and/or temporarily change, disable, discontinue, modify and/or suspend the Program and/or Services, including, but not limited to, the accessibility, appearance, features, functions and use of the Program, at any time, without prior notice to User. Keiser hereby further reserves the right to update, upgrade and/or to release subsequent versions of the Program, without prior notice to the User, and to require the User to update or upgrade its version of the Program and/or use the most recent version of the Program, in order to obtain access and use of the Program. Keiser may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
a. Notice to Educational Institution of Material Alterations. If a modification of the Program materially impairs Keiser's ability to perform under a TSA, Keiser will provide notice to the Institutional User prior to implementing such modification.
b. Not Liable for Modifications. In no event shall Keiser be liable for any permanent and/or temporary change, disablement, discontinuance, modification, suspension, update and/or upgrade of the Program and/or Services.
c. User Responsible for Obtaining Updated Version. Notice of the availability of a modified, updated and/or upgraded version of the Program serves as notice to all Users that use of the updated version of the Program is necessary to obtain full functionality. All changes are effective immediately, upon being posted or implemented by Keiser, and apply to all access and use of the Program thereafter.
d. License Exchange. Any modification, update and/or upgrade from an earlier version of the Program is provided on a license-exchange basis, whereby User agrees by downloading, installing, accessing and/or using the modified, updated and/or upgraded version of the Program to voluntarily terminate any earlier license and discontinue use of the earlier version of the Program.
7. Account Access and Security. User hereby acknowledges, agrees and represents that User shall be responsible for taking all actions and/or making all arrangements necessary to have access to the Program. Additionally, to obtain Account access and for security purposes, User hereby acknowledges and agrees to the following:
b. Confidentiality of Account Information. If the User chooses, or is provided with, a username, password or any other piece of information as part of Keiser's security procedures, the User must treat such information as confidential, and must not disclose it to any other Person. User also hereby acknowledges and agrees that User's Account is personal to such User and that User shall not provide any other Person with access to the Program or portions of it using User's username, password or other security information. User hereby agrees to notify Keiser immediately of any unauthorized access to or use of User's username, password and other security information or any other breach of security. User hereby agrees to ensure that User exits from the Account at the end of each session. User should take particular caution when accessing the Account from a public or shared computer so that another Person is unable to view or record User's password and/or personal, private information.
c. Authority to Deactivate Account. Keiser hereby retains the right to disable any User Account (including any user name, password or other identifier), whether chosen by User or provided by Keiser, at any time in Keiser's sole and exclusive discretion for any or no reason, including if, in Keiser's opinion, User has violated any Term or this EULA.
d. Institutional User's Responsibilities. Notwithstanding anything in this EULA, the Institutional User is and shall be responsible for: (i) facilitating member, client or patient access to the Program; (ii) ensuring that all Persons who use the Program (including Individual Users and Healthcare Providers) are aware of the Terms; and (iii) obtaining any and all consent or authorization necessary from Users (including Individual Users and Healthcare Providers) for their access and use of the Program and for Keiser to accomplish the purposes of the TSA and/or this EULA.
8. Lawful Use. User acknowledges, agrees and represents that User shall not use or otherwise export or re-export the Program, or any information collected and/or made accessible through the Program, except as authorized by United States law and the laws of the jurisdiction in which the Program was obtained and/or used. In particular, but without limitation, the Program, including any information collected and/or made accessible through the Program, may not be exported or re-exported (a) into any U.S. embargoed countries or a foreign national of such countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Program, User represents and warrants that User is not located in any such country, a foreign national of any such country (unless the User is legally present in the United States and is a member, client or patient of a Healthcare Provider, as defined above), or on any such list. User also hereby acknowledges and agrees that User will not use the Program for any purposes prohibited by United States law.
9. Prohibited Uses. In addition to any and all other limitations, prohibitions and/or restrictions in the Terms of this Agreement, User hereby acknowledges, agrees and represents that:
a. User shall not use the Program in a manner that offers or promotes services that may be damaging to, disparaging of or otherwise detrimental to Keiser or its licensors, licensees, affiliates and/or partners;
b. User shall not transfer, display or otherwise provide content or functionality from Keiser to anyone who is not an Individual User or Institutional User, or Healthcare Provider, without the express written consent of Keiser;
c. User shall not modify or customize any aspect of the Program, without the express written consent of Keiser;
d. User shall not use the Program in a manner that interferes with, disrupts, damages and/or accesses in an unauthorized manner the servers, networks and/or other properties and services of any third party;
e. User shall keep any and all information uploaded and/or submitted, reviewed, verified or otherwise accessed through the Program strictly confidential, and shall not disseminate any such information in any unauthorized manner, through any unauthorized channels, and/or in any way that does not comport with applicable law;
f. User shall be solely responsible for transmission of any data, content, and/or resources User improperly creates, transmits and/or displays through the Program, and for the consequences of User's actions by doing so;
g. User shall protect the privacy and other legal rights of any other User and/or Person, including, but not limited to, names, user names, passwords, log-in information, personal information, education or medical records and/or other confidential, proprietary or otherwise sensitive information about Persons;
h. User shall not remove, obscure and/or alter any proprietary rights notices (including patent, copyright and trademark notices) that may be affixed to and/or contained with or within the Program;
i. User shall not, and shall not permit any Person, directly or indirectly, to take any actions that may cause or result in the fragmentation of the Program and/or Keiser's products and services or otherwise negatively affect Keiser, including, but not limited to, distributing, participating in the creation of and/or promotion in any way of a computer program, software and/or software development kit derived in any way from the Program;
j. User shall not use the Program for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, by impermissibly asking for personally identifiable information, or otherwise;
k. User shall not use the Program to impersonate or attempt to impersonate Keiser, a Keiser Representative, another User or any other Person;
l. User shall not use the Program in any manner that could disable, overburden, damage, or impair the Site or interfere with any other User's use of the Site;
m. User shall not use any robot, spider or other automatic or manual device, process or means to access the Program for any purpose, including monitoring or copying any of the material on the Site;
n. User shall not introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
o. User shall not attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Program, the server on which the Program is stored, or any server, computer or database connected to the Program; and
p. User shall not attempt to interfere with the proper working of the Program.
10. Proprietary Rights. Keiser shall own and retain all right, title and interest, including, but not limited to, all intellectual property rights, in and to (i) the Program and any and all elements, parts, portions and components thereof, including content, technology, software code (source and object code), APIs, user interfaces and any derivative works and/or compilations thereof; (ii) Keiser's copyrights, patents, trademarks, trade secrets and/or other proprietary documents and information; and (iii) any suggestions or feedback provided by User (including suggestions, comments, improvements, ideas, etc.) concerning or relating to Keiser, the Site, Program and/or Services, any customized aspects of the Program that Keiser may have developed or be developing, any plug-ins, any applications that Keiser may have developed or be developing and/or any proprietary knowledge related thereto whether acquired through use of the Program or otherwise.
11. Keiser Program Development. If a User requests customization of the Program and/or development-related Services, and Keiser agrees to provide a customized Program and/or development-related Services, User hereby acknowledges, agrees and represents that Keiser shall own and retain all right, title and interest in and to the customized Program (including its features, applications and content) and/or Services. User hereby acknowledges, agrees and represents that Keiser may market such customized Program (including its features, applications and content) and/or Services as part of Keiser's standard Program and Services, and/or may incorporate such customized Program (including its features, applications and content) and/or Services into Keiser's standard Program and Services. Nothing in this EULA may be construed as restricting and/or preventing Keiser from creating and fully exploiting such customized Program (including its features, applications and content) and/or Services, without any obligation to User. If User elects to obtain a customized Program, development-related Services and/or provide Keiser with any suggestions or feedback concerning the Program and/or Services, User hereby assigns (and acknowledges, agrees and represents that User's Representatives shall assign) all right, title and interest in and to such customized Program, development-related Services, suggestions and/or feedback to Keiser, and User hereby acknowledges and agrees that Keiser shall be entitled to use, implement, protect and/or exploit any such customized Program, development-related Services, suggestions and/or feedback in any manner without restriction, to the full extent permitted by applicable law, and without any obligation of attribution, accounting and/or compensation to User (or User's Representatives).
12. Intellectual Property Rights. The entire Program (including all features, applications, content, interfaces and functionality) is, and User hereby acknowledges, agrees and represents that the entire Program is, owned by Keiser, and is protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. This EULA simply permits Students to access and use the Program for personal, non-commercial use and permits an Educational Institution and Healthcare Provider to access and use the Program for limited commercial purposes as stated above and/or in the TSA. User hereby acknowledges, agrees and represents that User shall not misuse or misappropriate Keiser's intellectual property (including its copyrights, trademarks, patents, trade secrets, and other intellectual property or proprietary rights).
14. Reliance on Information. The information contained or presented on the Site and/or through the Program is made available solely for general information purposes and/or provided by Persons such as Institutions, Users, or Healthcare Providers. Keiser does not warrant the accuracy, completeness or usefulness of such information. Any reliance by User on such information is strictly at User's own risk. Keiser disclaims any liability or responsibility for, and User hereby acknowledges, agrees and represents that Keiser and its Representatives shall not be liable or responsible for, any information provided, transmitted, communicated, received and/or relied upon by User from Keiser or its Representatives.
15 .Geographic Restrictions. The owner of the Keiser Services is based in the State of California in the United States. Keiser makes no claims that Keiser Services or any content is accessible or appropriate outside of the United States. Access to and use of Keiser Services may not be legal by certain Persons or in certain countries. If User accesses or uses the Keiser Services from outside the United States, User does so on User's own initiative and shall be responsible for compliance with applicable local law.
16. Disclaimer of Warranties. USER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SITE, PROGRAM AND/OR SERVICES IS AT USER'S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, PROGRAM AND/OR ANY SERVICES PERFORMED OR PROVIDED BY KEISER'S SITE AND/OR PROGRAM ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KEISER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE, PROGRAM AND/OR ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRACTICE. KEISER DOES NOT WARRANT AGAINST INTERFERENCE WITH USER'S ENJOYMENT OF THE SITE, PROGRAM AND/OR SERVICES; THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SITE AND/OR PROGRAM WILL MEET USER'S REQUIREMENTS; THAT THE OPERATION OF THE SITE AND/OR PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT DEFECTS IN THE SITE, PROGRAM AND/OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KEISER OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE SITE, PROGRAM AND/OR SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
NEITHER KEISER NOR ITS REPRESENTATIVES SHALL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT USER'S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO USER'S USE OF THE SITE, PROGRAM AND/OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE, PROGRAM AND/OR DUE TO USER'S DOWNLOADING OF ANY MATERIAL POSTED ON THE SITE AND/OR PROGRAM.
ACCESS AND USE OF THE SITE, PROGRAM AND/OR SERVICES MAY OCCUR ACROSS THE NETWORKS OF A NUMBER OF INTERNET SERVICE PROVIDERS AND/OR WIRELESS SERVICE PROVIDERS. NEITHER KEISER NOR ITS REPRESENTATIVES OPERATE THESE NETWORKS AND HAVE NO CONTROL OVER THE OPERATIONS OF THE INTERNET SERVICE PROVIDERS AND/OR WIRELESS SERVICE PROVIDERS. NEITHER KEISER NOR ITS REPRESENTATIVES WILL BE LIABLE TO USER IF CIRCUMSTANCES BEYOND KEISER'S CONTROL INTERRUPT, PREVENT, OR OTHERWISE AFFECT THE TRANSMISSION, COMMUNICATION, POST, TRANSACTION OR OTHERWISE INTERFERE WITH THE INTEGRITY THEREOF, INCLUDING, BUT NOT LIMITED TO, UNAVAILABILITY OF INTERNET OR WIRELESS SERVICE, COMMUNICATIONS, NETWORK DELAYS, LIMITATIONS ON WIRELESS COVERAGE, SYSTEM OUTAGES, OR INTERRUPTION OF AN INTERNET OR WIRELESS CONNECTION. KEISER DISCLAIMS ANY RESPONSIBILITY FOR ANY INTERNET OR WIRELESS SERVICE USED TO ACCESS THE SITE, PROGRAM AND/OR SERVICES.
USE OF THE SITE, PROGRAM AND/OR SERVICES MAY INVOLVE THE ELECTRONIC TRANSMISSION OF PERSONAL AND/OR FINANCIAL INFORMATION ACROSS THE NETWORKS OF INTERNET SERVICE PROVIDERS AND/OR WIRELESS SERVICE PROVIDERS. BECAUSE KEISER DOES NOT OPERATE OR CONTROL THE NETWORKS USED TO ACCESS THE SITE, PROGRAM AND/OR SERVICES, KEISER CANNOT GUARANTEE THE PRIVACY OR SECURITY OF INTERNET OR WIRELESS DATA TRANSMISSIONS. ADDITIONALLY, THE WIRELESS DEVICE BROWSER IS GENERALLY PRE-CONFIGURED BY USER'S WIRELESS INTERNET SERVICE PROVIDER. CHECK WITH USER'S SERVICE PROVIDER FOR INFORMATION ABOUT THEIR PRIVACY AND SECURITY PRACTICES. FOR PERSONAL OR CONFIDENTIAL INFORMATION SENT TO OR FROM KEISER OVER THE INTERNET FROM A MOBILE DEVICE, KEISER REQUIRES THAT A "SECURE SESSION" BE ESTABLISHED USING TRANSPORTATION LAYER SECURITY ("TLS"). USER'S INTERNET SERVICE PROVIDER AND/OR WIRELESS SERVICE PROVIDER MAY LEVY FEES OR CHARGES FOR TRANSMISSION OR RECEIPT OF MESSAGES AND OTHER COMMUNICATIONS PERFORMED USING USER'S DEVICE OR OTHER EQUIPMENT ON THEIR NETWORK, AND USER IS SOLELY RESPONSIBLE FOR SUCH CHARGES.
To the extent otherwise agreed by an Institutional User and Keiser in an applicable TSA, any provisions set forth in this section that conflict with the Disclaimer of Warranty provisions set forth in that TSA shall not apply to that Educational Institution, and the conflicting provisions set forth in the TSA shall control with regard to the Educational Institution (but not as to any Students or Healthcare Providers having a relationship with such Educational Institution).
17. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE AGREED IN A TSA, USER HEREBY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL KEISER OR ITS REPRESENTATIVES BE LIABLE FOR DEATH, PERSONAL INJURY, PROPERTY DAMAGE, OR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF ACTUAL OR ANTICIPATED REVENUE OR PROFIT, LOSS OF CAPITAL, LOSS OF USE, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR OTHER LOSSES OF ANY KIND, ARISING OUT OF OR RELATING TO THE LICENSE OF THE PROGRAM, THIS EULA, THE TSA, IN ANY WAY RELATED TO USER'S USE OR INABILITY TO USE THE SITE, PROGRAM AND/OR SERVICES, HOWEVER CAUSED, OR OTHERWISE, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STATUTORY OR OTHERWISE) AND EVEN IF KEISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Keiser's total liability to User for all damages (other than as may be required by applicable law in cases involving personal injury) exceed FIFTY DOLLARS ($50.00). THE LIMITATION OF LIABILITY IN THIS PARAGRAPH 17 IS CUMULATIVE AND NOT PER INCIDENT, OCCURRENCE, DAMAGE OR INJURY (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). The LIMITATION OF LIABILITY IN THIS PARAGRAPH 17 and the disclaimer in PARAGRAPH 16 above will apply even if the above-stated remedy fails of its essential purpose.
To the extent otherwise agreed by an Institutional User and Keiser in an applicable TSA, any provisions set forth in this paragraph that conflict with the limitation of liability provisions set forth in that TSA shall not apply to that Institutional User, and the conflicting provisions set forth in the TSA shall control with regard to the Institutional User (but not as to any Individual Users or Healthcare Providers having a relationship with such Institutional User).
18. Indemnification. To the full extent permitted by applicable federal and state law, User shall indemnify, defend and hold Keiser and its Representatives harmless from any action, proceeding, claim, cause of action, demand, complaint, grievance, injury, damage, relief or liability (individually and collectively, "Claim"), including reasonable attorneys' fees, made by any Person due to, concerning, relating to or arising out of User's access or use of the Program and/or Services, User's negligent, wanton and/or intentional acts or omissions, User's infringement of a third-party's intellectual property, and User's breach of the Terms. User shall use best efforts to cooperate with Keiser in the defense of any such Claim. Keiser reserves the right, at Keiser's expense, to employ separate counsel and assume the exclusive defense and control of any such Claim subject to indemnification by User.
To the extent otherwise agreed by an Institutional User and Keiser in an applicable TSA, any provisions set forth in this paragraph that conflict with the indemnification provisions set forth in that TSA shall not apply to that Institutional User, and the conflicting provisions set forth in the TSA shall control with regard to the Institutional User (but not as to any Individual User or Healthcare Providers having a relationship with such Institutional User).
19. Commercial Status. The Program is a "Commercial Item," as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the Terms of this EULA. Unpublished rights are reserved under the copyright laws of the United States.
20. Governing Law, Jurisdiction. Unless otherwise agreed in a TSA, User's access and use of the Site, Program and/or Services is governed by, construed and enforced in accordance with the laws of the State of California, USA and applicable federal law without regard to conflicts of laws principles. Any Claim concerning, relating to or arising out of this EULA, the Terms, access or use of the Site, Program, Services and/or the relationship between Keiser and User shall be brought solely and exclusive in the applicable state or federal courts located in Fresno, California, USA, and the User acknowledges that no other court(s) will have jurisdiction or venue over any such claim. User expressly consents to the personal jurisdiction and venue of the applicable state and federal courts located in California. User's use of the Program may also be subject to other local, state, national or international laws. To the extent otherwise agreed by an Institutional User and Keiser in an applicable TSA, any provisions set forth in this paragraph that conflict with the governing law provisions set forth in that TSA shall not apply to that Institutional User, and the conflicting provision set forth in the TSA shall control with regard to the Institutional User (but not as to any Individual User or Healthcare Providers having a relationship with such Institutional User).
21. Limitation on Time to File Claims. ANY CLAIM USER MAY HAVE CONCERNING, RELATING TO OR ARISING OUT OF THIS EULA, THE TERMS, ACCESS OR USE OF THE SITE, PROGRAM AND/OR SERVICES AND/OR THE RELATIONSHIP BETWEEN KEISER AND USER SHALL BE INITIATED OR COMMENCED WITHIN AND NO LATER THAN ONE (1) YEAR AFTER THE CLAIM ACCRUES, OTHERWISE, SUCH CLAIM IS PERMANENTLY BARRED.
22. Third Party Beneficiaries. This EULA is for the sole benefit of Keiser, User and their successors, and nothing in this EULA, express or implied, shall give or be construed to give any Person other than Keiser and User any legal or equitable rights whatsoever.
23. Severability. If any Term shall be deemed invalid, void or for any reason unenforceable, that Term or those Terms shall be deemed severable and shall not affect the validity and enforceability of any remaining Terms. Failure of Keiser to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision in that or any other instance.
24. Injunctive Relief. User hereby acknowledges, agrees and represents that Keiser shall have the right to obtain an injunction against any unauthorized use of the Site, Program and/or Services by User secured by a nominal bond of no more than One Hundred Dollars ($100.00), in addition to any other rights and remedies to which Keiser may be entitled. To the extent otherwise agreed by an Institutional User and Keiser in an applicable TSA, any provisions set forth in this paragraph that conflict with the injunctive relief provisions set forth in that TSA shall not apply to that Institutional User, and the conflicting provision set forth in the TSA shall control with regard to the Institutional User (but not as to any Individual User or Healthcare Providers having a relationship with such Institutional User).
25. Headings. The headings in this EULA are for convenience only and shall not affect the construction or interpretation of any Term of this EULA.
26. Construction. This EULA shall be construed without regard to any presumption or other rule requiring construction against any party drafting or causing this EULA to be drafted. Whenever the context of this EULA directs, the plural shall be read as the singular and the singular as the plural.
27. Duty to Cooperate. The parties acknowledge that the parties' mutual cooperation is critical to the ability of Keiser to successfully and efficiently perform its duties under this EULA. Accordingly, each party agrees to cooperate with the other fully in formulating and implementing the goals and objectives of this EULA.
28. Entire Agreement. This EULA, along with any additional understandings or agreements expressly incorporated in and/or made subject to this EULA (including, but not limited to, the TSA), constitutes the entire understanding and agreement between Keiser and User with respect to the subject matter of this EULA and supersedes all prior or contemporaneous oral or written communications with respect thereto.
29. Authority. User acknowledges and represents that he/she, individually or on behalf of an employer, the Institutional User or other Person, has full legal authority to bind himself/herself and/or his/her employer or other principal to this EULA. If User does not have the requisite authority or capacity, he/she may not accept this EULA or access or use the Site, Program and/or Services.
30. Additional Provisions Applicable to Institutional User. To the extent that an Institutional User has entered into a TSA or other such Agreement with Keiser that contains the provisions described in this paragraph, the conflicting or corresponding terms and conditions of that TSA shall control with respect to that Institutional User. In the event that an Institutional User becomes a User without executing a TSA, or by entering into a TSA or other such agreement with Keiser that is silent on the below-listed topics, the provisions set forth in this paragraph shall be applicable to that Institutional User:
a. Messaging and Individual User and/or Former Individual User Outreach. In conjunction with the Services, Keiser may contact Individual Users on the Institutional User's behalf, through interactive voice response ("IVR"), physical mail, text, e-mail or similar communication methods for any purpose for which the Institutional User may be permitted to contact their Individual Users, including, but not limited to, workout, healthcare operations, treatment and medical adherence and care coordination programs. Any such contact on the Institutional User's behalf will be in strict compliance with all applicable laws and regulations. In the event that the Institutional User becomes aware of any such contact that contains inaccurate information, false or misleading claims, or any content that results or may result in a material detriment to the Individual User's and/or the Institutional User's interests, the Institutional User shall promptly provide notice of such to Keiser, and Keiser and the Institutional User shall discuss and mutually agree upon modifications to Keiser's activities as necessary to address such matters.
For Institutional Users, including healthcare providers or healthcare entities that purchase and participate in Keiser Metrics through the Program, Keiser specifically disclaims and does not and will not collect HIPAA private personal information unless the Institutional User, including healthcare provider or healthcare entity, has received prior written consent from Keiser in the form of a Business Associate Agreement (BAA). Please contact Keiser at (email@example.com) to be considered for HIPAA BAA. The following is a link to the Keiser Business Associate Agreement Policy (www.keiser.com/baa).
c. Data Use. Keiser, its employees, agents, or representatives will not at any time (i) use any personally identifiable patient information ("PII"), including any such PII that constitutes "protected health information" ("PHI") for purposes of the Health Insurance Portability and Accountability Act of 1996 and rules and regulations promulgated thereunder and as amended (collectively, "HIPAA"), directly or indirectly, for the personal benefit of Keiser; (ii) use, divulge, disclose or communicate PII or PHI other than as a business associate of the Institutional User; or (iii) divulge, disclose, or communicate any PII or PHI to a third party, unless Keiser has first obtained an Individual User's written authorization to do so in accordance with applicable laws and regulations. If Keiser, its employees, agents or representatives access and/or utilize such PII and/or PHI, Keiser will do so in conformance with the Business Associate Agreement ("BAA"), if any, and any applicable laws and regulations. Keiser does not and will not sell Individual User's information to Third Parties. The Institutional User hereby acknowledges and agrees that the rights conferred by this paragraph are a principal consideration for the provision of the Services under this EULA and without which Keiser would not have entered into this EULA.
i. "Confidential Information" means any data or information disclosed by Keiser to the Institutional User or by the Institutional User to Keiser in connection with this EULA or the parties' business relationship that is confidential, proprietary, or competitively sensitive, that is not generally known to the public, and that is clearly identified as confidential or, by its nature, should be reasonably considered confidential, including, but not limited to: (i) the terms and conditions of Institutional User's agreement with Keiser (if any) (excluding this EULA); (ii) information about new goods or services, product plans, product development costs, marketing strategies and costs, finance, operations, customer relationships, customer profiles, business affairs, sales estimates or financial performance of either party; (iii) any computer software (in source code or object code form) or computer database; (iv) trade secrets, as defined by applicable law; and (v) any specifications, business methods, data, reports, formulas, data models, data formats, file or record layouts, or improvements related thereto. "Confidential Information" does not include information (i) in the public domain at the time of disclosure or which enters the public domain after such disclosure through no fault of either party; (ii) generally disclosed to a person or entity not a party to this EULA without restriction, (iii) communicated to a party by a person or entity not a party to this EULA with the unrestricted right to do so; (iv) approved for release by the other party in writing; or (v) PII and/or PHI.
ii. In performing their obligations under this EULA, Keiser and the Institutional User will have access to or be exposed to, directly and indirectly, Confidential Information of the other party. The Educational Institution acknowledges and agrees that all Program, Services, Keiser intellectual property, and Keiser's oral and visual presentations describing the Program and/or Services, business and product plans, financial information, information about personnel, and information about the Program and/or Services shall be deemed the Confidential Information of Keiser.
iii. The Institutional User agrees to and shall hold all Confidential Information of Keiser in strict confidence. The Institutional User shall not, without the express written permission of Keiser, (i) disclose any Confidential Information to another person or entity, or (ii) use Confidential Information for any purposes whatsoever, other than the performance of its duties and obligations or the exercise of its rights pursuant to this EULA. Educational Institution is permitted to disclose Keiser's Confidential Information only to those of its officers, directors, employees, consultants, and agents who have a need to know such Confidential Information in furtherance of the purposes of this EULA and then only so long as such person or entity has agreed in writing to hold the same in confidence on terms not less restrictive than those required by this EULA. Institutional Users shall use reasonable efforts to assist Keiser in identifying and preventing any unauthorized use, disclosure, or misappropriation of any Confidential Information. Without limiting the foregoing, Institutional User shall immediately advise Keiser in the event the Institutional User learns or has reason to believe that any person or entity who has had access to Keiser's Confidential Information has violated or intends to violate the terms of this EULA or that person's and/or entity's confidentiality agreement, and shall cooperate in seeking legal, equitable, and statutory relief (including an injunction) against any such person or entity.
iv. The Institutional User shall use the same degree of care to safeguard and keep confidential all Confidential Information disclosed to it by Keiser as the Institutional User uses to protect its own Confidential Information, but in any event shall use no less than a reasonable degree of care to protect Keiser's Confidential Information. The Educational Institution shall not publish, disclose, or use Confidential Information of Keiser at any time during the term of this EULA or after its termination, except as expressly permitted by the terms of this EULA.
v. Institutional User acknowledges and represents that the threatened or actual unauthorized use, disclosure, or misappropriation of Confidential Information by the Institutional User or any other person or entity will cause Keiser imminent and irreparable harm for which there is no adequate remedy at law and, accordingly, Keiser shall be entitled to seek temporary (without notice to the Institutional User or any other person or entity), preliminary, and permanent injunctive relief or such other equitable relief as a court of competent jurisdiction may impose in order to prevent or cure such unauthorized use, disclosure, or misappropriation of Confidential Information, together with all court costs, legal fees, and expenses, including attorney's fees, bond or surety fees and costs, and all other costs or expenses associated with or relating to the application for, and enforcement of, such equitable relief.
vi. After termination of this EULA for any reason, the Institutional User shall immediately cease to use Keiser's Confidential Information and shall return all copies of documents or things containing Confidential Information in Institutional User's possession, custody, and control or, alternatively, the Institutional User shall verifiably destroy all such copies and, in either case, shall provide to Keiser a certificate, signed by an authorized officer of the Institutional User, confirming that the Institutional User has satisfied its obligations to destroy or return all such Confidential Information.
e. Waivers. Any term or condition of this EULA may be waived at any time by the party which is entitled to the benefit thereof, but only if such waiver is evidenced in writing signed by EULA to any other Person without the prior written consent of Keiser. Any assignment or delegation in violation of this provision shall be null and void and voidable.
f. Successors and Assigns. To the extent that any rights or obligations hereunder may be assigned in compliance with Paragraph 30(f), this EULA shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
31. User Comments and Concerns. This Site is operated by Keiser Corporation, 2470 S. Cherry Avenue, Fresno, CA, USA 93706. All feedback, comments, requests for technical support and other communications relating to the Site and/or Program should be directed to: firstname.lastname@example.org. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy created under this EULA shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by any party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver by any party of any breach of or default in any term or condition of this EULA shall constitute a waiver of or assent to any succeeding breach of or default in the same or any other term or condition hereof.
32. Force Majeure. Neither party shall be liable for any failure to meet its obligations under this EULA if the failure is due to acts of God; fire or explosion (except to the extent caused by the negligence or willful misconduct of the affected party); unusually severe weather; war, invasion, riot, or other civil unrest; governmental laws, orders, restrictions, actions, embargoes, or blockages; national or regional emergency; and injunctions, strikes, lockouts, labor trouble, or other industrial disturbances. The party claiming excusable delay shall give notice to the other party, in writing, as soon as possible after the occurrence of the cause relied upon as well as after termination of the condition and no payments shall be owed during any such excusable delay.
33. No Assignment. User shall not assign or delegate any of its rights or obligations under this
34. Additional terms may apply.
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
35. How to serve a subpoena or other legal process.
Keiser accepts service of subpoenas or other legal process at the following address:
2470 S. Cherry Avenue
Fresno, CA 93706
Attn: Legal Department – Legal Process
If you live in the European Economic Area, the United Kingdom or Switzerland:
Keiser UK ltd
Unit 3, Hampton Street
Tetbury Gloucester GL8 8LD
Last updated: September 23rd, 2020