Effective June 16, 2015.
These terms and conditions of use ("Terms and Conditions") are a legal agreement between the person or entity who is using the TOLERISK® service ("You", "Your," or "Licensee") and TOLERISK® ("TOLERISK®", "Licensor", or "We"). These Terms and Conditions govern our respective rights and obligations with respect to Your access and use of the TOLERISK® financial planning aid service (the "Service") and the associated electronic documentation (collectively, the "Materials"). By accessing or using the Service through our website (the "Website"), You are agreeing to be bound by all of these Terms and Conditions.
If You do not agree to all of these Terms and Conditions, TOLERISK® is unwilling to grant You access to or use of the Service. In such event, do not access or use the Service.
1. License Grant. Subject to the provisions of these Terms and Conditions and Licensee's payment of the Fees in accordance with Section 3, below, Licensor grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to remotely access and use the Service for business purposes only ("License").
2. Revisions. Licensor may change, revise, modify, delete or discontinue (either permanently or temporarily) the functionality or scope of the Service at any time at its sole discretion (an "Update"). Following such Update, as applicable, (i) Licensee can elect to terminate this License in accordance with the terms herein or continue to access and use the Service in accordance with the provisions of these Terms and Conditions and (ii) the definition of the term "Service" shall be automatically amended without any further action on the part of any of the parties to include such Update.
3. Fees and Payments. Licensor shall (i) charge fees as set forth on the Website for access to portions of the Service or the Service as a whole, and (ii) require You to register and create an account. You shall pay all fees and charges incurred through your account in advance at the rates in effect for the billing period in which such fees and charges are incurred, including but not limited to charges for any products or services offered for sale through the Service ("Prepaid Fee"). All fees and charges shall be billed to You, and You shall be solely responsible for their payment. In no event will you receive any portions of the Service or the Service as a whole unless Licensor receives all fees and charges payable by you, including the Prepaid Fee.
4. Authorized Use – No Investment Recommendation. Information contained in and provided by the Service does not constitute investment advice, solicitation, opinion, or recommendation by Licensor to buy or sell any security, or to provide legal, tax, accounting, or investment advice or services regarding the profitability or suitability of any security or investment. Unless otherwise specified, You and Your clients on whose behalf you are using the Service are solely responsible for determining whether any investment, security or strategy, or any other product or service is appropriate or suitable for them based on their investment objectives and personal and financial situation. While the Service may provide general investment, financial, and risk profile analyses based upon the personalized input of Your clients, such results are for Your information purposes only and should not be construed as investment recommendations or advice. The information contained in and provided by the Service is not intended for use by, or distribution to, any person or entity in any jurisdiction or country where such use or distribution would be contrary to law or regulation.
5. Location of Service and Access. The Service will be hosted on one or more servers either owned or licensed by Licensor and will be accessible by Licensee over the Internet. In order to access the Service, Licensee will be required to register with Licensor (an "Account") and will be provided with a unique user name and password for each such Account ("Account Access Information"). In the event that Licensor determines that any Licensee has more than one employee or personnel of Licensee using the same Account, Licensor reserves the right to charge Licensee accordingly or to terminate the Licensee's Account. Licensor has the right but not the obligation to monitor access to the Service and, without limiting any remedies that it may have hereunder or at law, may deny access to any Licensee who violates these Terms and Conditions.
6. Certain Rights and Restrictions Regarding Use of the Service.
A. Equipment and Service. Licensee shall provide at its expense all hardware, Internet service and other items necessary for the access and use of the Service.
B. Copies. The Service is protected by U.S. and international copyright and trade secret laws and treaties. Licensee may print and make copies of the Materials regarding the Service for its own use. All such copies must include all of Licensor's proprietary notices contained in the originals without alteration of any kind. Except as otherwise provided in this Section, Licensee may not make copies of the Service or accompanying Materials.
C. Reverse Engineer. Licensee may not, nor cause or permit any of its employees or any third party to, modify, adapt, translate, reverse engineer, decompile, disassemble, translate or create derivative works based on the Service without the prior written consent of Licensor, which Licensor may withhold in its sole discretion.
D. Rent, Lease and Transfer. The Service is licensed only to Licensee. Licensee shall not sublicense, transfer, lease, assign, rent, distribute, sell or otherwise dispose of the Service (including any of the Materials) on a temporary or permanent basis except with the written consent of Licensor, which Licensor may withhold in its sole discretion. Prior to transferring the Service to an authorized transferee, the transferee shall agree in writing to be bound by all of these Terms and Conditions.
E. Access Restrictions. Without Licensor's written consent, Licensee shall not permit or allow other persons or entities to have access to or to use any Account Access Information to access or use the Service or for any other purpose. Licensee shall not permit multiple users to share a single Account. Licensee accessing a particular Account is solely responsible for ensuring that the Account Access Information for accessing and using the Service is utilized only by such person. Licensor shall have no liability for any loss, claim, damages or other liability whatsoever that may arise from the unauthorized use of any Account Access Information. If any of Licensee's Account Access Information is lost or stolen, it is Licensee's responsibility to notify Licensor of such loss or theft so that the account can be deactivated and a new username and password can be provided. Licensor will use commercially reasonable efforts to effect password deactivation requests as soon as practicable after their receipt in writing from Licensee.
F. Security. Licensor shall maintain appropriate safeguards for the protection and security of any Licensee Content (as defined in Section 6(G) below). Licensor shall not (i) modify any Licensee Content, (ii) access Licensee Content except to provide the Service and prevent or address service or technical problems or (iii) disclose Licensee Content, except as compelled by law or in accordance with Sections 6(G) and 9. Although Licensor has taken measures to safeguard the Licensee Content and the Service, Licensor cannot guarantee the security of information transmitted during use of the Service or stored by Licensor and shall not be liable to Licensee or any other person or entity in any way for any compromise of the security of such information. Licensor may, but has no obligation to, remove Licensee Content and Accounts containing Licensee Content that Licensor determines in its sole discretion is/are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property, these Terms and Conditions, or applicable law (in addition to all rights of Licensor). Without limiting the generality of the foregoing, Licensor shall fully cooperate with any law enforcement authorities or court order requesting or directing it to disclose the identity of Licensee or any other information in connection with any Licensee Content used in connection with the Service or posted on or through the Website.
G. Manner of Use. Licensee is solely responsible for all information and data uploaded into the Service ("Licensee Content") and all activity that occurs under Licensee's Accounts. Licensee shall not use the Service for any illegal or unauthorized purpose(s). Licensee may only use the Service in accordance with the instructions provided on the Website and applicable laws and government regulations. Licensee must not, in the use of the Service, violate any applicable laws (including but not limited to applicable copyright and other laws).
7. Ownership of Service and Intellectual Property Rights. Licensor does not sell the Service to Licensee, but only grants Licensee a license to use the Service in accordance with these Terms and Conditions. Licensor and its licensors retain ownership in the Service and all intellectual property rights in the Service, including without limitation any and all patents, copyrights, trade secrets, trademarks and any other proprietary and other rights. Licensee shall not use any intellectual property rights of Licensor without the prior written consent of Licensor. Licensee agrees that Licensor may audit Licensee's use of the Service for compliance with these Terms and Conditions at any time, upon reasonable notice. All rights not specifically granted under these Terms and Conditions are reserved by Licensor and its licensors.
8. Relationship of Parties. In performing any and/or all of our respective obligations under this License, Licensor and Licensee shall each operate as and have the status of being an independent contractor of the other party, and neither party shall act as or be an agent or employee of the other party.
9. Confidentiality. Licensee acknowledges and agrees that these Terms and Conditions and the Service contain proprietary information of Licensor ("Confidential Information"), and Licensee hereby agrees to maintain the confidentiality of the Confidential Information using at least as great of degree of care as it uses to maintain the confidentiality of its own most confidential information. Notwithstanding the foregoing, in the event that Licensee is required by a valid order by a court or other governmental body to disclose Confidential Information, Licensee may disclose such Confidential Information provided that Licensee first gives Licensor prompt notice thereof in order to enable Licensee to have the opportunity to seek protection from such order of disclosure.
10. Representations. Licensee hereto represents and warrants to Licensor that: (i) it has the power and authority to enter into these Terms and Conditions. Further, Licensee agrees that it will not export or re-export the Service or accompanying Materials (or any copies) in violation of any applicable export control laws or regulations of the United States, and that Licensee possess the necessary skills and qualifications to competently use the Service in accordance with these Terms and Conditions.
11. Indemnification.
A. Indemnification of Licensor. Licensee will defend, indemnify and hold harmless Licensor and its subsidiaries, licensors and affiliates (and their respective officers, directors, employees and agents) against any and all claims, losses, damages, liabilities, deficiencies, judgments, assessments, fines, costs and other expenses (including reasonable attorneys' fees and costs) arising from or relating to (i) accessing the Service, (ii) use or misuse of the Service (including any data or information input into the Service or file or database created thereby), and/or any hardware (if applicable) furnished by Licensor in connection therewith, including without limitation any violations under the Gramm-Leach-Bliley Act or any other applicable governmental or self-regulatory privacy law, rule or regulation ("Privacy Laws"), (iii) breach of any of the provisions of these Terms and Conditions, and (iv) any action taken by Licensor during, as a result of or as a consequence to any investigations by Licensor or law enforcement.
B. Indemnification of Licensee. Licensor will defend, indemnify and hold harmless Licensee against any claims, losses, damages, liabilities, deficiencies, judgments, assessments, fines, costs and other expenses (including reasonable attorneys' fees and costs) arising from or relating to any claim by a third party that the use of the Service as permitted hereunder infringes or misappropriates the U.S. intellectual property rights of a third party ("Third Party Claim") provided that You (i) promptly provide written notice of the Third Party Claim; (ii) give Licensor the sole control of the defense and settlement of the Third Party Claim (provided that we may not settle any Third Party Claim unless the settlement unconditionally releases You of all liability) and (iii) provide to Licensor all reasonable assistance, at Licensor's expense. In the event that a Third Party Claim or if we believe that the Service may infringe or misappropriate any U.S. intellectual property right, we may, in our sole discretion and at no cost to You, (a) modify the Service so that it no longer infringes or misappropriates, (b) obtain a license for You to continue to use the Service, or (c) terminate Your License upon thirty (30) days prior written notice and refund to You any prepaid Fees covering the remainder of the term of such Service after the effective date of termination. The foregoing states Licensor's sole liability to and Licensee's sole remedy for the claims described therein.
12. Disclosure of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, THE WEBSITE, THE SERVICE (INCLUDING ANY WRITTEN MATERIALS), AND ANY SUPPORT ARE ALL PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND ANY WARRANTY OF ERROR FREE APPLICATION OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT THE USE, RESULTS OR PERFORMANCE OF THE SERVICE, THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT THE SERVER(S) THAT MAKE(S) THE SERVICE AVAILABLE, IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
13. Limitation of Liability. NEITHER LICENSOR NOR ANY PERSON OR ENTITY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OPERATION OR SUPPORT OF THE SERVICE SHALL BE LIABLE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, PRODUCT LIABILITY OR OTHER CAUSE OF ACTION) TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS REVENUE OR PROFITS, BUSINESS INTERRUPTION FOR ANY REASON, LOSS OF BUSINESS INFORMATION OR DATA, INJURY TO REPUTATION, PERSONAL INJURY (WHETHER PHYSICAL OR MENTAL OR BOTH), GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR VIOLATION OF ANY APPLICABLE PRIVACY LAWS ARISING OUT OF (I) THE USE, MISUSE, OR INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE'S TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) TERMINATION OF ANY OF LICENSEE'S ACCOUNTS; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE OR USE THEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S ENTIRE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR UNDER THESE TERMS AND CONDITIONS.
14. Limitation on Time to File Claim. Any cause of action or claim Licensee may have arising out of or relating to these Terms and Conditions or the Website or the Service must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim shall be permanently barred.
15. U.S. Government Restricted Rights. The Service is "Commercial Items," 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 ("Restricted Rights Provisions"). Consistent with the Restricted Rights Provisions, 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 these Terms and Conditions. The Manufacturer of the Service is TOLERISK.
16. DMCA Notice. Licensor's Website through which Licensee will access and use the Service complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. § 512, as amended). If Licensee has any complaints or objections to material posted on the Website, or if Licensee believes that material posted on the Website infringes a copyright that Licensee holds, Licensee should notify us at copyright@tolerisk.com.
17. Term and Termination.
A. Term. These Terms and Conditions shall become effective upon Your agreement to the provisions hereof by clicking a box indicating Your acceptance or by executing an order form that references these Terms and Conditions and shall remain effective for a for the term of your Service license period, unless and until terminated hereunder (the "Initial Term").
B. Termination. Licensor may immediately terminate this License without notice if You fail to comply with any provision of these Terms and Conditions. Licensor has the right to immediately terminate this License without notice if it becomes aware that Licensee unlawfully transmits through the Website copyrighted material without a license, valid defense or fair use privilege to do so or if Licensee causes or permits violation of Sections 6, 9 or 10 of these Terms and Conditions. Additionally, either party may terminate this License at any time for any reason however, Licensor shall not refund any Fees or portion of any Fees to Licensee.
C. Effect of Termination. Upon termination, (i) Licensee shall, as soon as is commercially practical, cease from using and return all Confidential Information to Licensor; and (ii) except as otherwise specifically provided in these Terms and Conditions, all rights and licenses granted to each party by the other party hereunder shall automatically cease and revert back to the granting party without any further action.
D. Survival Upon Termination. Sections 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 16 and all other provisions of these Terms and Conditions intended to survive termination or expiration of this License will survive the termination or expiration of this License without limitation.
18. Notices. All notices required by these Terms and Conditions or given in connection with this License shall be deemed given as of the day they are emailed to You or posted on the Website. The email address of record for notices and requests in connection with this License shall be deemed to be the email address provided by the Licensee at the time of Account creation. Licensor is not responsible for the deliverability or changes to the email address. Notification of any change to the Licensee's email address is the sole responsibility of the Licensee.
19. Injunctive Relief. Licensee acknowledges that breach of Sections 6, 7 and/or 9 of these Terms and Conditions will give rise to irreparable injury to Licensor, and leave Licensor inadequately compensated in damages. Accordingly, Licensor may seek and obtain injunctive relief against Licensee's breach or threatened breach, in addition to any other legal remedies, such as (but not limited to) suit for copyright infringement. Licensee further acknowledges and agrees that this provision is necessary for the protection of Licensor's legitimate business interests and is reasonable in scope and nature.
20. Miscellaneous.
A. Governing Law. These Terms and Conditions shall be governed and construed in accordance with the laws of the State of New Jersey exclusive of its conflicts of laws principles.
B. Jurisdiction. Licensee hereby consents to the exclusive jurisdiction and venue of the courts of the State of New Jersey, Camden vicinage, and the United States District Court for the District of New Jersey in connection with all disputes arising out of or relating to these Terms and Conditions.
C. Severability. In the event that any provision of these Terms and Conditions is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefor.
D. Entire Agreement. These Terms and Conditions are the complete agreement between the parties relating to Licensee's license of the Service, and these Terms and Conditions may not be modified, amended, or in any way altered except in writing signed by both parties.
E. Interpretation. The provisions of these Terms and Conditions shall be interpreted and construed in accordance with their fair meanings, and not strictly for or against any party, regardless of which party may have drafted these Terms and Conditions or any specific provision of these Terms and Conditions.
F. Waiver. The waiver of any provision of these Terms and Conditions shall not be effective unless in writing and signed by the party against which it is sought to be enforced. The failure of any party to insist, in any one or more instances, upon performance of any of these Terms or Conditions shall not be construed as a waiver of future performance of any terms, covenants or conditions of this License, and the obligations of each party with respect thereto shall continue in full force and effect.
G. Assignment; Binding Nature. These Terms and Conditions shall be binding upon the parties and their successors and permitted assigns. Licensee may not assign this License, or any portion thereof, to any third party without Licensor's express prior written consent. Licensor may assign this License and all of its rights and obligations hereunder to any affiliate or to any successor to Licensor's business.
H. Export Compliance. The Service and any other technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Licensee shall not permit use of the Service in a U.S. embargoed country or in violation of any U.S. export law or regulation.