Acceptance. You accept the Terms by either (a) clicking to “agree” or to “accept” the Terms when logging onto your user account to access the Services or by (b) using the Services or receiving Professional Services. You may not use the Services or accept the Terms if (a) you are younger than 18 or you are not of legal age to form a binding contract with ESP or (b) you are a person barred from receiving the Services under applicable laws or regulations. ESP reserves the right to amend these Terms at any time by posting the amended terms to its website or otherwise providing you notice of the amended Terms. Your continued use of the Services constitutes acceptance of such amended terms. If you do not agree with these Terms (as amended from time to time), your sole and exclusive remedy is to discontinue using the Services.
Access and Use. Subject to and conditioned on your compliance with the Terms, including payment of all applicable fees, ESP hereby grants you a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by you in accordance with the terms and conditions herein. Such use is limited to your internal use and is subject to any additional restrictions set forth in the order form.
No Financial Advice. You hereby acknowledge and agree that ESP is not an investment, financial, broker or tax advisor, and that no oral or written information or advice provided by ESP, its officers, directors, employees, or agents, nor any information obtained through the Services, will or shall constitute investment, financial or tax advice. While the Services may provide significant assistance in helping you manage your finances, and regardless of how any information or material is described at the time it is provided to you, such information or material is provided to you solely as a convenience and for informational purposes. You agree to consult with competent and independent professional financial and tax advisors before making any investment decisions or deciding on significant changes to your financial strategy. You are solely and exclusively responsible for all financial decisions made by you or by any other third party on your behalf, whether made as a result of or while using the Services or otherwise. ESP shall not be responsible or held liable for any advice given or recommendations made by you or by any third party for any financial, taxation or other matter, or for the inaccuracy or lack of completeness of the data or information provided to you, regardless of whether you relied or not on such advice.
For the avoidance of doubt, the Social Security benefit estimates produced by the Services are solely estimates. Only the Social Security Administration can tell an individual precisely the benefits to which such individual will be eligible. The estimates provided by the Services may differ from the correct amounts due to mistakes in ESP’s computer code of which ESP is unaware, mistakes in ESP’s computer code of which ESP is aware, but which are in the process of fixing, or because of legislated changes in Social Security provisions of which ESP is unaware of or because of delays in ESP’s updates to the computer code for changes in Social Security provisions.
ESP and any third party providers shall not be considered an “expert” under the Securities Act of 1933.
The foregoing disclaimers shall apply to the fullest extent permitted by law.
Data Security. ESP agrees to take appropriate security measures to protect against unauthorized access to or unauthorized alteration, disclosure or destruction of your data. These measures include internal reviews of ESP’s data collection, storage and processing practices and security measures, including appropriate encryption and physical security measures. Regardless of the precautions taken by ESP, ESP cannot ensure or warrant the security of any information you transmit to us, and you transmit such information at your own risk.
We restrict access to personal information to ESP employees and contractors who need to know that information in order to provide the Services, the Professional Services or any support related thereto.
Intellectual Property Rights. The Services are protected by a combination of copyright, trade secret laws and patent protection. Portions of the Services may contain information and data from third party providers, subject to their own copyright provisions. You acknowledge and agree that ESP and our third party providers retain ownership of all intellectual property rights of any kind related to the Services, including applicable copyright, trademark and other proprietary rights. We are not granting any license to you under any of those intellectual property rights by virtue of your use of the Services, except for the limited right to use the Services in accordance with the Terms.
The Services may include, without limitation, text, software, scripts, graphics, photos, video, sounds, interactive features and the trademarks, service marks and logos contained therein (collectively, the “Content”). The Content included with the Services is owned or licensed by ESP. We reserve all rights not expressly granted in and to the Services.
Use of the Services. You acknowledge that each ESP user account shall only be used by a single named user. You must use your individual email address for authentication and compliance purposes. You are responsible for maintaining the confidentiality of your account login information and are fully responsible for all activities that occur under your user account. ESP cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. If you become aware of any unauthorized use of your password or of your user account, or suspected unauthorized use or any other breach of security you agree to notify ESP immediately at email@example.com.
ESP user accounts may not be shared between multiple individuals, or used by one individual to produce the outputs of the Services en masse for multiple advisors.
ESP household accounts are intended for use by individuals who are not acting in a professional financial planning capacity to produce plans and reports for a single family (either their own or a close relative or friend) made up of single, divorced, widowed, married, or partnered adults and their children.
ESP professional accounts are intended for use by a single planner or administrative or operations assistant managing up to 100 client records per user account. Contact firstname.lastname@example.org for usage above 100 client records, which shall require additional license fees not to exceed the standard license fees for each 100 additional client records.
You agree to provide accurate and correct information about your identity, and, if applicable, your firm, and your status as a registered representative, registered investment advisor, registered insurance agent or administrative / operations assistant of a registered representative, registered investment advisor or registered insurance agent.
If you are entering personal information of another party, such as a professional entering client information, you warrant that you have obtained the required consents and approvals, including without limitation all rights to share any applicable intellectual property, prior to uploading the information.
Usage Restrictions. You agree not to (and not to allow any third party to):
- use the Services other than for your own personal use or to provide your services directly to your clients;
- use the Services for any reason or manner, other than as permitted under the Terms;
- lease, license, sublicense, rent, distribute, sell, or resell the right to use or access the Services or any part thereof;
- infringe or misappropriate any intellectual property right, contract or tort right of any person;
- fail to comply with the terms and conditions of ESP’s third party providers;
- use any device, software or routine to interfere with or disrupt the proper functioning of the Services, or take or omit to take any action that imposes an unreasonable or disproportionately large load on the same, as reasonably determined by ESP;
- engage in any unacceptable or unlawful use of the Services including but not limited to (i) attempting to gain unauthorized access to the Services; (ii) disseminating, storing or transmitting unsolicited messages, chain letters or unsolicited commercial email; (iii) disseminating or transmitting material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, grossly offensive, vulgar, threatening, malicious, otherwise objectionable or in any way derogatory about ESP, or any other party; (iv) creating a false identity or otherwise attempting to mislead any person on the identity or origin of any communication; (v) harvesting, collecting, otherwise handling or permitting others to do the same, without obtaining the proper consents in breach of any privacy or any other applicable laws;
- reproducing, duplicating, republishing, copying, reformatting, displaying, reverse engineering, reverse assembling, in any form or by any means any part of the Services, including the layout or look-and-feel of any ESP websites, any materials retrieved therefrom and the underlying HTML code, except where such restriction is expressly prohibited by law;
- modifying, translating, or creating derivative works based on the Services or any part thereof;
- obfuscating, removing or altering any of the proprietary notices or legends or other notices or markings on or in any of the Services;
- storing in any information storage and retrieval system Content from the Services without the prior written permission of ESP;
- uploading, posting, emailing, disseminating, storing, transmitting or otherwise making available to others any content, material, data, graphics, work, designation, trade or service mark, tradename, link, advertising or services that actually or potentially violate any applicable law or regulation, including false advertising or unfair competition under the law of any jurisdiction;
- interfering with or damaging the Services or any ESP websites, including, without limitation, disseminating, storing or transmitting viruses, trojan horses or any other malicious code or program;
- using the Services on a timeshare or service bureau basis, or on a subscription, membership or on-demand basis or otherwise for the benefit of any individual or entity;
- permitting any third party to use or access the Services at any time, or, unless specifically authorized by ESP, using the Services in a service bureau or any other manner whereby a beneficial use of or access to the Services is gained by a representative, colleague, agent, or employee of the User who is not similarly licensed to use the Services and has not paid a license fee to ESP for the Services;
- purchasing, using, or accessing the Services for the purpose of building or providing a competitive product or service or for the purpose of evaluating the Services for competitive purposes; or
- monitoring the performance or functionality of the Services or any part thereof, for benchmarking or competitive purpose.
Audits. ESP (including its accountants and auditors) may, on reasonable request, inspect and audit your use of the Services under the Terms at any time during the Term and for one year following the termination or earlier expiration of this Agreement. If the audit determines that your use of the Services exceeded the usage permitted by the Terms, you shall pay to ESP all amounts due for such excess use of the Services and all reasonable costs incurred by ESP in conducting the audit. Your billing for the Term will also be adjusted to reflect your usage of the Services. You shall make all payments required under this Section 10 within thirty (30) days of the date of written notification of the audit results. ESP reserves the right to monitor your usage of the Services for compliance purposes.
Purchase of the Services. You agree to pay ESP (i) the fees for the Services and/or Professional Services as set forth in the applicable order form for the subscription term (“Term”) set forth therein and billed on a monthly or annual basis, and (ii) any one-time or recurrent fee, if any, for specific features or additional services that you may decide to purchase from time to time as set forth in an order form.
You shall pay all fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by credit or debit card or any other form of payment accepted by ESP at the time of payment.
If you are paying by credit or debit card, by designating a card to be billed, (i) you shall pay all applicable account charges when due with a valid credit card with sufficient funds at the time of billing, (ii) you confirm that you are authorized to make such payment and that you are the holder of such card (i.e. that the card is issued in your name).
You agree that ESP may at any time, in its sole discretion, change the fee for the Services without any reason, obligation, and liability to you. Such changes shall take effect after the expiry of the then current Term.
Suspension or Termination of Service. ESP may, at any time, suspend or terminate your account and refuse your access to the Services if (a) you have breached any provision of the Terms (or have acted in manner which shows that you do not intend to, or are unable to comply with the provisions of the Terms); (b) ESP is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful; (c) ESP is transitioning to or no longer providing the Services to users in the jurisdiction in which you are a resident or from which you use the Services; (d) the provision of the Services to you by ESP is, in ESP’s sole discretion, no longer commercially viable; (e) your communication with ESP employees is abusive or threatening, in ESP’s sole discretion; or (f) you do not pay the amounts due for the Services according to the Terms. Termination or suspension for reasons (a), (c), (e) or (f) shall not relieve you of the obligation to pay for the Services for the remainder of your contract.
The provisions set forth in the following sections, and any other right or obligation of the parties in the Terms that, by its nature, should survive termination or expiration of the Terms, will survive any expiration or termination of the Terms: Sections 9, 10, 11, 12, 14, 15 and 17.
WARRANTIES. Each party represents and warrants to the other party that: (a) if such party is an entity, it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization and the execution of the Terms by its representative has been duly authorized by all necessary corporate or organizational action of such party; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Terms; and (c) the Terms will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
DISCLAIMER OF WARRANTIES. SUBJECT TO APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS".
IN PARTICULAR, ESP, ITS OFFICERS AND DIRECTORS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (a) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (b) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS FREE OR FREE FROM ERROR, (c) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (d) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ESP OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
ESP FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ESP, ITS OFFICERS AND DIRECTORS, ITS SUBSIDIARIES AND AFFILIATES, ITS LICENSORS, PARTNERS, AND THIRD PARTY PROVIDERS WILL NOT BE LIABLE TO YOU FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE. THIS WILL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF THE ACTIONS OF YOU, ESP, OR ANY OF ESP’S SUPPLIERS OR VENDORS;
- ANY CHANGES WHICH ESP MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
- ANY UNAUTHORIZED CHANGES TO OR MISUSE OF THE SERVICES;
- ANY USE OF THE SERVICES IN A MANNER NOT INTENDED UNDER THIS AGREEMENT;
- THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
- ANY FORCE MAJEURE EVENT;
- YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
- YOUR FAILURE TO PROVIDE ESP WITH ACCURATE ACCOUNT INFORMATION;
- ALL OF THE LIMITATIONS ON ESP’S LIABILITY TO YOU WILL APPLY WHETHER OR NOT ESP HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT WILL THE TOTAL LIABILITY OF ESP, ITS OFFICERS OR DIRECTORS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED FIFTY UNITED STATES DOLLARS ($50.00).
Indemnification. You agree to defend, indemnify and hold harmless ESP, its officers and directors, its affiliates or subsidiaries, their sponsors, contractors, advertisers, vendors or their partners, and any of their successors or assigns, and any of their respective officers, directors, agents or employees (the “Released Parties”) from any loss, damages, liabilities, costs, expenses, including reasonable attorney fees, claims and proceedings arising out of or relating to: (a) your use of the Services; and (b) any alleged breach of the Terms by you.
Force Majeure. None of the parties shall be held responsible for any delay or failure to perform any part of this agreement to the extent that such delay or failure results from any cause beyond its control and without the fault or negligence of the party claiming excusable delay, such as acts of God, acts of war or terrorism, extraordinary acts of the United States of America or any state, territory or political subdivision thereof, fires, storms, floods, epidemics, riots, work stoppages, strikes (work stoppages and/or strikes of any of the parties to this agreement are specifically excluded from the language of this section), embargoes, computer viruses, unauthorized access, systems failure, failure or technical difficulties with software, hardware or other equipment, downtime for hardware and software maintenance, failure of communication lines, telephone or other interconnect problems, unusual volumes of traffic, theft, government restrictions, exchange or market rulings, failure of utility services, adverse weather or events of nature.
General Legal Terms. The Terms, combined with your order form, constitute the whole legal agreement between you and ESP and govern your use of the Services, and completely replace any prior agreements between you and ESP in relation to the Services. If you have entered into an Enterprise Client Agreement or a Master Services Agreement with ESP, it is agreed that those terms may supersede these Terms of Service if they clearly state so.
You agree that if ESP does not exercise or enforce any legal right or remedy which is contained in the Terms (or which ESP has the benefit of under any applicable law), this will not be taken to be a formal waiver of ESP’s rights and that those rights or remedies will still be available to ESP. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
The Terms, and your relationship with ESP under the Terms, will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You agree that any dispute regarding the interpretation or enforcement of the terms will be decided by confidential, final and binding arbitration conducted by a mutually agreed to arbitrator located within Suffolk County, Commonwealth of Massachusetts, United States of America. The filing fees and arbitrator's fees and costs in such arbitration will be borne by the non-prevailing party. The parties will be entitled to reasonable discovery of essential matters as determined by the arbitrator. In the arbitration, the parties will be entitled to all remedies that would have been available if the matter were litigated in a court of law. Notwithstanding this, you agree that ESP will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
ESP may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of ESP, and any such attempted assignment will be void and unenforceable.
Last Modified January 19, 2020 (version lic_all_202002)
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