Effective March 17, 2014
By signing up for the Continuing Ed Tracker LIVE ("Service") or any of the services KRC Software, LLC ("Service Provider") you are agreeing, on your own behalf as an individual, and on behalf of your employer or another entity which has not yet done so (collectively "You" or "Your"), to be bound by the following terms and conditions ("Agreement") including those that are incorporated herein by reference through links to the website located at https://www.cetrackerlive.com ("Continuing Ed Tracker LIVE Site"). Continuing Ed Tracker LIVE includes services (continuing education tracker application, technical support and other) and software programs ("Software") that enable customers and users to track continuing education credits, course attendance, contnuing education requirements and license renewals of their employees or customers ("Customers"). Any new features and services added to Continuing Ed Tracker LIVE shall be also subject to the Agreement. Service Provider may also provide extra services (data import, custom development, and other) not covered by this Agreement. Service Provider reserves the right to update and change this Agreement by posting updates and changes to the Continuing Ed Tracker LIVE Site. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Notwithstanding anything contained in the foregoing, this Agreement will not bind Service Provider unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
The Service is available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Service is not available to persons under the age of 18. If You are registering as a business entity, You represent that You have the authority to bind the entity to this Agreement. Service Provider does reserve the right to refuse service to any user, and to change eligibility requirements at any time, in its sole discretion.
2.1 Software ownership. Except for the limited access right granted to You in this Agreement, all right, title and interest in and to the Software (including any and all modifications as a result of any implementation services rendered) are and shall remain the exclusive property of Service Provider and its licensors.
2.2 Software license. Subject to the terms and conditions of this Agreement, Service Provider grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Service Provider ("Continuing Ed Tracker LIVE Servers") solely for the purpose of building and maintaining a database on which You maintain continuing education records for your employees or customers. ("Your Database").
2.3 Software license restrictions. Pursuant to this Agreement, you may: a) use the Software for purposes of maintaining continuing education records. b) export data and/or merge it into another program. Except as expressly set forth in this Agreement, you have no right to use, make, sublicense, modify, transfer or copy either the original or any copies of the Software or to permit anyone else to do so. You may not allow any third party to have access to the source code of the Software. It is illegal to copy the Software and install that single program for simultaneous use on multiple machines.
2.4 Software Proprietary Notices & Confidentiality. You may not remove, disable, modify, or tamper with any copyright, trademark or other proprietary notices and legends contained within the code of the Software. The Software contain valuable trade secrets and proprietary information belonging to Service Provider and it's licensors. You must keep confidential and protect from unauthorized disclosure all such program code and all information that Service Provider expressly designates as confidential or that you reasonably should understand to be confidential or proprietary.
3.1 Service and Use. Upon activation of Your account and subject to the payment of applicable fees, Service Provider will provide certain hosting, support and other miscellaneous services for the Software licensed by You under this Agreement and Your Database during the term of this Agreement as published on the Continuing Ed Tracker LIVE Site. Your Database shall be hosted on a Continuing Ed Tracker LIVE Server on which several merchants may share the resources and network capacity of that Continuing Ed Tracker LIVE Server.
3.2 Continuing Ed Tracker LIVE Site. You acknowledge and agree to use the Service solely for the purpose of maintaining continuing education records for your employees or customers, and not to use the Service as an online storage space or inconsistent with Your data plan.
3.3 Acceptable use policy. You acknowledge that You are familiar, and will at all times comply and cause users to comply, with Acceptable Use Policy set forth in Exhibit A and any terms and conditions of Third-Party Vendors as may be applicable to the Site, which Service Provider will make available to You upon request.
3.4 Support. Technical support is only provided to paying account holders and is only available via email.
3.5 No cardholder data collecting or storage. You agree not to use Your Database and Service Provider Servers to store, process or transmit sensitive cardholder data as defined in PCI-DSS standard; an appropriate third-party payment processing services should be used instead.
3.6 Account information. You are solely responsible for maintaining the confidentiality of Your password and account information and ensuring the security, confidentiality and integrity of Content that is transmitted through or stored on Continuing Ed Tracker LIVE Servers. Service Provider shall not be liable for any loss or damage from your failure to maintain the security of your account and password.
3.7 Breach. Your failure to comply with the terms set forth in Sections 3 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 11 of this Agreement.
4.1 Control of Your Database. You will be solely responsible for the development, operation and maintenance of Your Database, including the operation of Your Database, entering data, handling inquiries, complaints, or disputes arising from data entry through Your database. You agree that Service Provider has no obligation to back-up any data related to Your Database's operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
4.2 Control of Your Database's content. You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Database including all content You offer to your employees or customers of Your Database and user-generated content on and related to Your Database. As a conduit, Service Provider will give You complete discretion over Your content provided it is compatible and interoperable with the Software and Services provided by Service Provider under this Agreement. You retain all rights, title and interest in and to Your content, including all intellectual property rights embodied in Your content, exclusive of any content provided by Service Provider. Notwithstanding anything contained in the foregoing, if You breach any of the covenants in Section 5.1 of this Agreement, Service Provider is entitled to suspend or terminate Your Database and/or any access to information or data related to Your account and the Software in accordance with Section 11 of this Agreement.
4.3 Passive conduit. You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, Service Provider and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on Your Database. Service Provider has no obligation to You or any third party, and undertakes no responsibility, to review Your Database, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Database to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Service Provider believes in its sole discretion (as applicable) that Your Database or any products, services, content or other materials in Your Database or on Service Provider Servers may create liability for Service Provider, You agree that Service Provider may take any actions with respect to the content or materials or Your Database that Service Provider believes are prudent or necessary to minimize or eliminate Service Provider's potential liability. Service Provider shall, as applicable, be the sole judge of what content or materials may create liability for Service Provider.
4.4 Content license. During the period that Service Provider provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to Service Provider and its subcontractors a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your content solely for the purposes provided in this Agreement.
5.1 Fees. You shall pay the fees set forth for the Software license and Services purchased by You in accordance with Service Provider's Pricing that is incorporated into this Agreement by reference. Service Provider may change its Pricing and the fees for its Services from time to time. Service Provider's changes to the policy are effective after Service Provider provides You with at least fourteen (14) days' notice of the changes by posting the changes on the Continuing Ed Tracker LIVE Site.
5.2 Payment terms. Service Provider will send a renewal reminder to You according to the payment schedule you select, and all payments are due by the subscription expiration date shown on the home screen of your account. If You fail to pay in full by the seven (7) day after the expiration date, Your account may be suspended or terminated under Section 11.2 of this Agreement, but any suspension does not relieve You from the obligation to pay all fees due to Service Provider, including the charges set forth in your payment schedule.
5.3 Taxes. All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Service Provider's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.
5.4 Cancellations and Refunds. You may cancel your subscription at any time. In the event you cancel your subscription within thirty (30) days since the first subscription payment you shall be eligible to receive a refund of such payment. Subsequent subscription payments and other fees shall be non-refundable. There are no refunds for partial use of a subscription period or for downgrading Your subscription plan.5.5 Free Trial Period. Service Provider currently offers a free, no-obligations fifteen (15) day trial period of the Service ("Trial Period"). You acknowledge that the Trial Period will commence the moment you complete the registration process and will conclude fifteen (15) days later, or sooner if (a) You upgrade Your account by beginning to pay the applicable subscription fees, or (b) Your use of the Service is discontinued or terminated in accordance with Section 11.2. You acknowledge and agree that during the Trial Period, Service Provider (i) does not make any commitments in connection with the Service or offer support services; and (ii) may send You, subject to Your opting out, communications and other notices about the Service to Your email address. Service Provider reserves the right to modify, cancel and/or limit this Trial Period offer at any time.
SERVICE PROVIDER, ITS SUPPLIERS AND CONTRACTORS, PROVIDE THE SOFTWARE, ADDITIONAL SOFTWARE, AND SERVICES, ON AN "AS IS" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. SERVICE PROVIDER, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, ADDITIONAL SOFTWARE, OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 6 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
IN NO EVENT SHALL SERVICE PROVIDER, ITS SUPPLIERS, OR CONTRACTORS, OR THEIR MANAGERS, MEMBERS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE ADDITIONAL SOFTWARE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). SERVICE PROVIDER'S, ITS SUPPLIERS', AND SERVICE PROVIDERS', CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO [THE GREATER OF (A)] THE AMOUNT OF FEES YOU PAY TO SERVICE PROVIDER FOR (I) THE SOFTWARE LICENSE AND (II) THE SERVICES IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE, AND (B) ONE HUNDRED U.S. DOLLARS (U.S. $100).
You agree to indemnify and hold Service Provider, its suppliers, and contractors, and their managers, members, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any breach of the covenants in Section 5.1 of this Agreement, (b) any content provided by You or generated by users of Your Database, (c) any claims arising from the sale or license of goods or services in Your Database, or (d) any breach of this Agreement or the documents it incorporates by reference.
9.2 Service Provider shall collect, store and process Customer Data and Your Data on computers located in the United States that are protected by physical as well as technological security devices. If You object to Customer Data or Your Data being collected, stored or processed in this way, please do not use the Software or Services. You understand that Your Data (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
9.3 For its own operational efficiencies and purposes, Service Provider from time to time backs up data on its servers, but is under no obligation or duty to Customer to do so under these Terms. IT IS SOLELY YOUR DUTY AND RESPONSIBILITY TO BACKUP YOUR FILES AND DATA, AND UNDER NO CIRCUMSTANCES WILL SERVICE PROVIDER BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF YOUR FILES AND/OR DATA ON ANY CONTINUING ED TRACKER LIVE SERVER.
Without limiting other remedies, Service Provider may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Database, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement and the Price Policy; (b) You breach the covenants in Section 5.1 of this Agreement; (c) You breach this Agreement or the documents it incorporates by reference in any other manner; (d) Service Provider is unable to verify or authenticate any information You provide to Service Provider; or (e) Service Provider believes that Your actions may cause financial loss or legal liability for You, Your Database customers, or Service Provider.
11.1 Suspension. At the discretion of Service Provider and for any reason set forth in Section 11 of this Agreement, Service Provider may suspend Your account by deactivating any access by You or by Your customers to any information contained on the Continuing Ed Tracker LIVE servers related to Your account while maintaining the information and data related to Your account upon the Continuing Ed Tracker LIVE servers. Suspension shall specifically include the disabling of Your Database and/or any access to information or data related to Your account. In the event of any such suspension You will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) days of the receipt of such notice the account may be terminated under Section 11.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.
11.2 Termination. This Agreement and all of its terms shall remain in full force and effect until it is terminated. Customer may terminate this Agreement at any time by sending an email message to email@example.com. Service Provider may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Service Provider shall have no liability to Customer or any third party because of such termination.
11.3 Rights upon termination. In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You, and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of Service Provider to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses' cost or other costs of any kind under this Agreement.
11.4 Customer data. Upon termination for any reason, Service Provider may delete any Customer data within 7 days after the date of termination.
11.5 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers and limitations of liability.
12.1 Governing law. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement. This Agreement is governed by the internal laws of the State of Wisconsin.
12.2 Force majeure. Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
12.3 Notices. Except as explicitly stated otherwise, any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall be deemed to be delivered via email (firstname.lastname@example.org).
12.4 Assignment. You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by Service Provider, in Service Provider's sole discretion.
12.5 No third-party beneficiary. You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
12.6 Severability; waiver. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Service Provider's failure to act with respect to a breach by You or others does not waive Service Provider's right to act with respect to subsequent or similar breaches.
12.7 Additional terms. The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by Service Provider:
a) Service Provider's Pricing - https://www.cetrackerlive.com/store/products.php?cat=7
12.8 Entire agreement. This Agreement along with Exhibit A sets forth the entire understanding and agreement between You and Service Provider with respect to the subject matter hereof.
This Acceptable Use Policy ("Policy") describes the proper and prohibited use of Services.
Each user of the Service must, and shall cause its customers, employees, agents, or members to, comply with this Policy, and shall remain liable for any breach or violation of this Policy attributable to it or such third parties. USE OF THE SERVICE CONSTITUTES ACCEPTANCE OF THIS Policy.
1. Abuse. The Service may be used only for lawful purposes and pursuant to this Policy. The Service may not be used to engage in or promote illegal, abusive, or irresponsible behavior, including:
(a) unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
(b) monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
(c) interference with service to any user of the Service or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
(d) use of an Internet account or computer without the owner's authorization;
(e) collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
(f) collecting or using information without the consent of the owner of the information;
(g) use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
(h) use of the Service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
(i) use of the Service for distribution of advertisement delivery software unless the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft's "ad/remove" tool); or
(j) any conduct that is likely to result in retaliation against Service Provider, or Service Provider's employees, officers, agents, other Service users, or third party vendors, including engaging in behavior that results in any server being the target of a denial of service attack.
2. Bulk Email. The Service may not be used to send bulk mail, subject to the restrictions in this Policy.
3. Mail Requirements.
3.1 Use of the Service must comply with any law, regulation, ordinance, court order or other legal process governing bulk or commercial email. At a minimum, use of the Service must comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) and/or EU Directive 2002/58/EC, as applicable.
3.3 This Policy applies to messages sent using the Service and to messages sent that directly or indirectly refer the recipient to a site or email address that is hosted via the Service. A third-party email service that does not practice similar procedures for all of its customers may not be employed. These requirements apply to distribution lists without regard to whether prepared by third parties.
3.4 Service Provider may test and otherwise monitor compliance with this Policy and may block the transmission of any email that violates the terms set forth herein. Service Provider may, at its discretion, require users of the Service to seek advance approval for bulk and commercial email, which approval will not be granted unless said user can demonstrate that all of the requirements stated herein will be met. All references in this Section 3.4 to Service Provider shall also include a Service Provider vendor.
4. Vulnerability Testing. The Service may not be used to probe, scan, penetrate or test the vulnerability of the Service, or any component thereof, or to breach Service Provider's security or authentication measures, whether by passive or intrusive techniques, without Service Provider's express written consent. All references in this Section 4 to Service Provider shall also include a Service Provider vendor.
5. Newsgroup, Chat Forums, Other Networks. To the extent that the Service is used to make postings to any bulletin board, chat group or other forum, , such posting must comply with any applicable rules and conventions including, for example, the posting of off-topic commercial messages, or mass postings to multiple forums.
6. Prohibited Content. The Service may not be used to post, publish, transmit, distribute, or store (temporarily or permanently) any content (including but not limited to written media, audio works, video, Web content, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the Internet) that: (a) constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts; (b) is excessively violent, incites violence, threatens violence, or contains harassing content or discriminatory or hate speech; (c) is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes; (d) is defamatory or violates a person's privacy; (e) creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement; (f) improperly exposes trade secrets or other confidential or proprietary information of another person or organization; (g) is intended to assist others in defeating technical copyright protections; (h) infringes on or breaches the copyright, trade or service mark, patent, or other property right of any other person or organization; (i) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (j) is otherwise illegal or solicits conduct that is illegal under any law, regulation, ordinance, court order or other legal process that is applicable to user or Service Provider; or (k) is otherwise malicious, fraudulent, or may result in retaliation against Service Provider by offended viewers or recipients, or is intended to harass or threaten.
7. Live Events. The Service may not be used to stream live sex acts of any kind, even if the content would otherwise comply with this Policy. Service Provider may prohibit the streaming of other live events where it believes that the event may violate the provisions of Section 6 above.
8. Copyrighted Material. The Service may not be used to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law, unless expressly authorized by the copyright owner or as otherwise permitted by established copyright law.
9. Shared Systems. The Service may not be used in a way that unnecessarily interferes with the normal operation of the Service or that consumes a disproportionate share of the resources of the Service, or any component thereof.
10.1 This Policy does not obligate Service Provider to monitor or review, and Service Provider hereby expressly disclaims any liability for, data or content of any type that may be transmitted through or stored on, temporarily or permanently, the Service.
10.2 Service Provider (or its vendors) may quarantine or delete any data stored on the Service that (i) breaches the provisions of this Policy; (ii) is infected with a virus; or (iii) is otherwise corrupted, and has the potential to infect or corrupt the system or other data that is stored on the same system.
10.3 Service Provider vendors and their affiliates are third party beneficiaries of the terms of this Policy and such entities will have (and be deemed to have accepted) the right to enforce them against users in breach;
11. Restricted Parties. The Service may not be used by any person or entity that is (i) listed on any U.S. Government list of prohibited or restricted parties; or (ii) is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country.
12. Reporting of Violations. Users of the Service must promptly notify Service Provider upon becoming aware of any violation (whether by it or any third party) of this Policy.
13. Changes to this Policy. Service Provider reserves the right to amend or modify this Policy from time to time, and use of the Service after changes to the Policy are posted on the Continuing Ed Tracker LIVE website https://www.cetrackerlive.com will constitute acceptance of any such amendments or modifications.
If Service Provider determines that you have violated the terms of this Acceptable Use Policy, that determination, made at Service Provider's sole discretion, is grounds for immediate termination of your account without notice or penalty to Service Provider.