End User License Agreement
This Licensee Agreement is a contract between ______________________________ ("you", "yours",
"Licensee") and Retiree, Inc. ("Licensor," "us" or "we").
1. GRANT OF SOFTWARE LICENSE
Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a nonexclusive, nontransferable and non-assignable license, for the term of this Agreement, to use the Software only by connection to the Licensor's site, and solely for use by the Licensee in connection with providing financial advisory services to the Licensee's Clients (which term "Clients," as used in this Agreement, shall mean individuals to whom the Licensee provides financial services and advice regarding their own personal financial situation or is offering to provide such advice – prospective Clients). This Agreement does not grant the Licensee any title or right of ownership in the Software. You are granted a single-seat license, meaning that you are the sole user of this license. Any use of the Software licensed to you by any other person will be considered unacceptable use of the Software.
The information provided by Licensor is for general informational purposes only and should not be considered an individualized recommendation or personalized investment advice. The Software is not
intended to provide tax, legal, insurance or investment advice, and nothing in the Software of on the
Licensor’s web site should be construed as an offer to sell, a solicitation of an offer to buy, or a
recommendation for any product or service by Licensor or any associated third party.
The type of savings and investment strategies mentioned may not be suitable for everyone, and you alone are solely responsible for determining whether any investment, strategy or any other product or service is appropriate or suitable for your clients based on their investment objectives and personal and financial situation. The content provided is not intended to represent results you or your clients should expect in the future, and Licensor cannot and does not guarantee the accuracy, completeness or reliability of any information provided on or through the software. You agree that you are solely responsible for any actions taken based on any content found on the software or any software associated with Licensor and hereby release Licensor from any and all liability.
Licensor does not have any control over your use of the Software and related information. Licensor does not warrant the performance or results that may be obtained by its use. Licensor does not represent, warrant, or guarantee the accuracy or timeliness of the data contained in the Software or printed materials and shall not have any liability of any kind whatsoever to you, or to any party, because of any inaccuracies in or lack of timeliness of the data, or for any delay in reporting such data or corrections to such data contained in the Software or printed materials. Various information in the Software may not be current or accurate. The Software should not be used without confirming research from other sources, obtaining up-to-date information, and separate analysis by the Licensee of his or her clients’ particular financial situations. Licensor does not recommend, guarantee, or represent that the Software will predict the future performance of investment or insurance products of any kind. Moreover, this Software does not offer customized tax, legal, investment or risk management advice or strategies.
Assumptions included in the Software are based on a combination of the historical performance of an appropriate broad market index, additional research, and a current assessment of the economy and financial market conditions. These conditions may or may not be duplicated in the future. Licensor offers such assumptions "as is," as a convenience to you. Licensor does not warrant or guarantee any of these assumptions, nor does it recommend, warrant, or guarantee their usefulness. You have the flexibility to input your own assumptions for projected data. Therefore, if you decide to use the projected data included in the Software, you understand and agree that such usage is at your own risk, that you bear all responsibility for the results generated through the use of such data, and that Licensor shall not have any liability of any kind whatsoever to you, or to any party, because of your use of such data.
All client personal information including accounts and assets are entered by advisor, with multiple input capabilities, including manual entry, importing files, or account aggregation with permission granted to advisor to utilize their personal credentials for account aggregation via our third-party vendor, Plaid Inc. See Hardware and Third-Party Software and Services section for review of aggregation service.
Payments are due in advance annually or monthly. Customer must have a credit card on file with Paypal and configured for recurring payments to qualify for monthly payments. Services will not start until the payment is received. Services will be terminated if payments are not received within the terms. For annual licenses, the term of this Licensee Agreement will be 12 months from its click-through or execution date, shall continue in effect for one year, and shall automatically renew for additional one year terms with a charge to the credit card used for the initial term. Notice of cancellation prior to the commencement of an additional term should be sent 30 days prior to renewal to email@example.com. Monthly subscriptions shall continue for a minimum of 3 months, and Licensor agrees to make payments for the services for a minimum of 3 months. For monthly subscriptions, this agreement shall remain in effect until service is deactivated due to non-payment. This agreement will be renewed automatically upon the end of any prior term whether initial or renewal, or monthly or annual. Should this Agreement be terminated for any reason prior to the end of any term, no fees will be refunded to Licensee. Upon termination of this Agreement, the license granted by Licensor to Licensee hereunder shall terminate immediately.
4. HARDWARE AND THIRD-PARTY SOFTWARE AND SERVICES
Through the use of our Services, you may authorize us to access read-only information for the accounts you have with third party financial institutions, such as your brokerage firm (“Account Information”). You understand and agree that to enable this feature you must enter in our application the User ID, Password and other login information and credentials (“Access Information”) necessary to access your Account Information. By enabling this feature, you grant to us express permission to use the Access Information to access your Account Information in connection with the Services we provide you. You represent and warrant that you are not violating any agreement or terms of services that you are subject to in providing us with your Access Information and Account Information.
5. INTELLECTUAL PROPERTY RIGHTS AND RESTRICTED USE
5.1 Licensor Rights
Licensee acknowledges that Licensor, to the extent applicable, is the sole owner of the Software and, except as expressly permitted herein, have the sole right to grant licenses to the Software. Licensee acknowledges that the Software constitutes valuable confidential information and trade secrets, proprietary to Licensor and its Licensors. Licensee acknowledges that all copies, whether partial or complete, of the Software as well as proprietary rights in and appurtenant to the Software, including without limitation to copyright, patent and trade secret rights, are and shall remain the sole property of Licensor or its Licensors. Licensee shall have only the limited use rights specifically granted by this Agreement and the License granted hereunder. Any rights not expressly granted in this Agreement are expressly reserved.
5.2 No De-compilation or Modification
Licensee shall not modify or otherwise prepare derivative works, reverse engineer, disassemble, de-compile, recreate or generate any of the Software or portion thereof.
Licensee acknowledges that the Software is proprietary to, and a valuable trade secret of, the Licensor and is entrusted to Licensee only for the purpose set forth in this Agreement. Licensee shall treat the Software in the strictest confidence. Licensee agrees that it will not, without the Company's prior written consent, disclose any information about the Software, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Licensor's employees who are performing the testing.
Licensee shall not use, give permission in connection with the use of, copy, disclose or make available, directly or indirectly, all or any portion of the Software or related documentation to any person.
5.4 Export Regulations
Licensee agrees that Licensee will comply at all times with, and will not take any action which will cause Licensor to fail to comply at all times with, all relevant export laws and regulations of the United States and/or any other applicable jurisdiction, to assure that neither the Software, nor any product thereof, is exported or re-exported, directly or indirectly, in violation of United States law or the law of any other applicable jurisdiction.
If Licensee incorporates any calculations generated through the use of the Software and/or the use of Licensor's site in any reports, charts, tables or other documents, Licensee shall accurately identify, subject to Section 6 below, in print on the relevant document, the Software and Licensor as having generated such calculations, and the nature of such Software, the data used by the Software and the nature of the calculations performed by the Software. Further, Licensee agrees that it shall include in any report, chart, table and/or other document(s) provided to a Client, any and all disclaimers and notices which the Software is designed to include in the report, chart, table and/or other document when the document is created using the Software.
Licensee acknowledges that unless specifically stated otherwise, all content (whether contained within the site, emailed or otherwise transmitted to Licensee by Licensor) is the sole property of Licensor and it is protected by international copyright laws and therefore cannot be used without the explicit permission of Licensor.
6. REPRESENTATIONS BY LICENSEE
6.1 Permitted Representations
Licensee will represent only that the Software is a software tool which provides certain information and will accurately represent the data employed by the Software and the nature of the calculations performed by the Software.
6.2 Prohibited Representations
Without limiting the foregoing, Licensee will not make any inaccurate or misleading statements, explicitly or by implication, regarding the Software, Licensor, and the relationship between Licensee and the Software and Licensor, and in particular, Licensee will not state or imply that:
(a) the results of calculations performed by the Software constitute predictions or financial advice;
(b) Licensor is furnishing financial advice or planning services to Licensee's Clients; or
(c) Licensee is approved, licensed, reviewed, endorsed, guaranteed or otherwise connected with Licensor, except as a Licensee of the Software.
6.3 Licensee Has Proper Authority
Licensee represents and warrants that: (1) Licensee has full power and authority to enter into this Agreement; (2) the terms hereof do not violate any obligation by which the Licensee is bound, whether
arising by contract, operation of law, or otherwise; and (3) this Agreement has been duly authorized and will be binding according to its terms.
6.4 Appointment of Custodian
The Licensee's Client has appointed or will appoint a custodian (the "Custodian") separate from us to take possession of the cash, securities, and other assets in the Client's account. We will have no access to the assets in your Clients’ accounts or to the income produced therefrom and will not be responsible for any acts or omissions of the Custodian.
Licensee has paid or shall pay Licensor Licensor's agreed-upon fee(s) for the license, access to Licensor's site and/or the provision of any services provided by Licensor, or such other fees(s) as are mutually agreed upon by the parties for such license, access and/or services. The parties acknowledge and agree that, if the Licensee desires to use the Software as a centralized resource or department providing services to the clients of other employees of the Licensee's employer to whom other employees of the employer have been assigned to provide financial advisory services, the Licensee may be required to pay Licensor a mutually agreed upon additional fee for such use, which agreement relating to the fee and related payment terms shall be set forth in a writing signed by both the Licensee and Licensor.
The charges for the license(s) granted, access to Licensor's site, and/or services provided by Licensor are exclusive of any and all taxes, levies, duties, import and export charges, or any other form of taxation properly chargeable with respect to this Agreement, the Software, the services provided and payments made under this agreement, imposed from time to time by any taxing authority, which taxes, levies, duties, import and export charges, and fees due pursuant to other forms of taxation (other than taxes based on Licensor's net income) will be the responsibility of Licensee.
This Agreement may be terminated by either party at any time upon written notice. Such termination shall not, however, affect liabilities or obligations incurred or arising under this agreement prior to such termination, including the provisions regarding arbitration, which shall survive any expiration or termination of this Agreement. If termination occurs prior to the end of the initial term, or prior to the end of any subsequent renewal term, no fees will be refunded to Licensee. Retiree Inc., in its sole and absolute discretion, may end this Agreement and your license to use the Software at any time, without prior notice, if you fail to comply with any of your obligations under this Agreement or if you make any representation to us that is inaccurate, or make unacceptable use of the Software.
If any fee to be paid by Licensee for the rights and license granted herein is past due, Licensor may terminate this Agreement and the license granted hereunder without prior notice. Licensor in its sole and absolute discretion, without prior notice, may terminate this Agreement and the license granted hereunder if Licensee shall fail to comply with any obligation to Licensor under this Agreement or any other agreement between Licensee and Licensor, including without limitation, a breach of any restrictions on the use of the Software or any other intellectual property licensed to Licensee, any other infringement of the intellectual property rights of Licensor or its Licensor, or if any representation of Licensee shall be inaccurate, or if any warranty of Licensee shall be breached. If Licensee in any way infringes the intellectual property rights of Licensor or its Licensor(s), Licensor may also, in its sole and absolute discretion, without prior notice, terminate any other agreement between Licensee and Licensor. All obligations relating to non-use and non-disclosure and arbitration, and any other provisions that by their nature should survive termination of this Agreement, shall survive the termination of this Agreement.
9. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
LICENSEE EXPRESSLY AGREES THAT THE USE OF THE SOFTWARE AND LICENSOR'S SITE IS AT LICENSEE'S SOLE RISK. THE SITE AND THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, OTHER THAN THE WARRANTY WHICH IS EXPRESSLY SET FORTH IN SECTION 11 OF THIS AGREEMENT BELOW, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF OPERABILITY, OF CONFORMANCE TO PUBLISHED SPECIFICATIONS, NON-INFRINGEMENT, TITLE OR OF MERCHANTABILITY. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE BEING PROVIDED MAY BE MODIFIED OR MADE UNAVAILABLE AT LICENSOR'S DISCRETION, AND THAT IN THE CASE OF A MODIFICATION OF THE SOFTWARE, SUCH MODIFIED SOFTWARE MAY NOT BE COMPATIBLE WITH DATA, REPORTS OR OTHER INFORMATION CREATED USING A PRIOR VERSION OF THE SOFTWARE, AND THEREFORE MAY NOT BE ACCESSIBLE VIA USE OF THE MODIFIED VERSION. LICENSOR DOES NOT GUARANTEE THAT THE SITE OR THE SOFTWARE WILL BE AVAILABLE FOR USE AT THE TIMES OR LOCATIONS OF LICENSEE'S CHOOSING. THE ENTIRE LIABILITY OF LICENSOR AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF LICENSOR'S SITE AND THE SOFTWARE SHALL BE THE RECOVERY OF DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF ANY FEE PAID FOR THE MATERIAL OR SERVICE CAUSING SUCH DAMAGE. IN NO CASE SHALL LICENSOR BE LIABLE FOR LOST OR CORRUPTED DATA, LOST PROFITS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION ARISING FROM THE USE BY LICENSEE OF LICENSOR'S SITE OR THE SOFTWARE, FOR ANY OTHER CLAIM RELATED IN ANY WAY TO LICENSEE'S USE OF LICENSOR'S SITE OR THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE WARRANTIES SHALL BE EXCLUDED AND THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
10. USE AND LIMITATIONS OF RESULTS
LICENSOR IS NOT ENGAGED IN RENDERING INVESTMENT OR FINANCIAL ADVICE TO YOUR CLIENT, AND THE RESULTS OF USE OF THE SOFTWARE AND LICENSOR'S SITE MUST NOT BE REGARDED OR REPRESENTED AS CONSTITUTING PARTICULARIZED INVESTMENT OR FINANCIAL ADVICE BY US TO YOUR CLIENTS. AS A PROFESSIONAL FINANCIAL ADVISOR OR PLANNER, REGISTERED REPRESENTATIVE, INSURANCE AGENT AND/OR REPRESENTATIVE, OR IN ANY OTHER STATUS WHEREBY YOU MAKE A LIVING BY PROVIDING FINANCIAL, INVESTMENT AND/OR INSURANCE ADVICE TO OTHERS, YOU BEAR RESPONSIBILITY FOR ADVICE AND SERVICES FURNISHED TO YOUR CLIENTS, REGARDLESS OF WHETHER YOU EMPLOYED THE SOFTWARE OR LICENSOR'S SITE IN CONNECTION WITH THE DEVELOPMENT OF SUCH ADVICE. POSSIBLE FUTURE RESULTS OF INVESTMENT OR OTHER FINANCIAL RELATED DECISIONS ARE PROVIDED MERELY FOR INFORMATION PURPOSES AND SHOULD NOT BE REGARDED AS A PREDICTION OR GUARANTEE OF ANY FUTURE RESULTS. NOTHING CONTAINED IN THE SOFTWARE OR ON LICENSOR'S SITE SHALL BE CONSTRUED AS (1) A RECOMMENDATION TO BUY OR SELL ANY SECURITY OR INVESTMENT PRODUCT OR (2) AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OR INVESTMENT PRODUCT.
11. REPRESENTATIONS AND WARRANTIES OF LICENSOR
Licensor represents and warrants that it has the right to grant the licenses herein granted to Licensee, and that, to its knowledge, the Software and the exercise by Licensee of the rights herein granted shall not infringe any copyright, patent or trade secret of any third party.
You shall indemnify and hold harmless us and our affiliates and respective directors, managers, officers, agents and employees, from and against any and all losses, claims, demands, actions, or liability of any nature, including but not limited to attorneys' fees, expenses and court costs, arising out of or in connection with this Agreement, except to the extent based upon, arising out of or in connection with grossly negligent,
reckless, willfully improper or illegal conduct in the performance or failure to perform under this Agreement, actions outside the scope of our authority or other material breach under this agreement, by us, our directors, managers, officers, employees and agents.
Non-Waiver of Rights: Notwithstanding the foregoing, nothing contained in this paragraph or elsewhere in this Agreement shall constitute a waiver by you of any of your legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived.
13. NO ASSIGNMENT
No rights, duties or obligations under this Agreement may be assigned or otherwise transferred without the prior written consent of the Licensor.
Arbitration is final and binding on all parties.
· The parties are waiving their right to seek remedies in court; including the right to jury trial, except to the extent such a waiver would violate applicable law.
· Pre-arbitration discovery is generally more limited than and different from court proceedings.
· The arbitrators' award is not required to include factual findings or legal reasoning and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
· The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
Any controversy or dispute, which may arise between you and us concerning any transaction or the construction, performance or breach of this Agreement, shall be settled by arbitration. Any arbitration shall be pursuant to the rules, then applying, of the American Arbitration Association, except to the extent set forth herein. The arbitration panel shall consist of at least three individuals, with at least one panelist having knowledge of investment advisory activities. The parties agree that any arbitration proceeding pursuant to this provision shall be held in the state of Kansas.
The award of the arbitrators shall be final and binding on the parties, and judgment upon the award rendered may be entered into in any court, state or federal, having jurisdiction.
The Agreement to arbitrate does not entitle you to obtain arbitration of claims that would be barred by the relevant statute of limitations if such claims were brought in a court of competent jurisdiction. If at the time a demand for arbitration is made or an election or notice of intention to arbitrate is served, the claims sought to be arbitrated would have been barred by the relevant statute of limitations or other time bar, any party to this Agreement may assert the limitations as a bar to the arbitration by applying to any court of competent jurisdiction, and you expressly agree that any issues relating to the application of a statute of limitations or other time bar, are referable to such a court. The failure to assert such bar by application to a court, however, shall not preclude its assertion before the arbitrators.
This Agreement represents the entire agreement between Licensee and Licensor concerning the subject matter hereof and supersedes all prior oral and written agreements, discussions and other communications, and understandings between the parties with respect to the subject matter hereof, and neither of the parties shall be bound by any conditions, inducements or representations, including without limitation any statement in any advertising or promotional materials by or on behalf of Licensor. Licensee agrees that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of either party to insist upon any of its rights under this Agreement upon one or more occasions shall not be deemed a waiver of such rights on any subsequent occasions. The laws of the State of Kansas, excluding its conflicts-of-law rules, govern the construction and interpretation of this Agreement.