End User Agreement

Intelligent401k End User License Agreement (EULA)

 

IMPORTANT – READ CAREFULLY:

Be sure to carefully read and understand all of the rights and restrictions described in this End User License Agreement (“License Agreement”). You’ll be asked to review and confirm your acceptance of the terms of the License Agreement.  Accessing and using the Services (as defined below) is a symbol of your confirmation that you accept the terms and conditions of this License Agreement.

This License Agreement is a legal agreement between you (either an individual or a single entity) (“Licensee” or “You”) and Intelligent401k, LLC, an Arizona limited liability company (“Intelligent401k”) for access to and use of Intelligent401k’s portfolio and investment management service for retirement accounts and other related investment services through software-as-a-service offerings, in which Intelligent401k provides remote access to and use of through its hosted cloud services (“Services”), in which these Services are being provided to You directly by Intelligent401k or by an authorized reseller (collectively, “Approved Source”) pursuant to an agreement between Licensee and the Approved Source, and may include associated data, content, media, printed materials and any online or electronic documentation made available by Intelligent401k (“Intelligent401k Materials”) together with the Services. This License Agreement governs any releases, revisions and/or enhancements of the Services and Intelligent401k Materials that may be furnished to You.

The Services and Intelligent401k Materials are the sole and exclusive property of Intelligent401k or its licensors and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  The Services and Intelligent401k Materials are licensed, not sold, to You.

  1. GRANT OF LIMITED LICENSE. Subject to the terms and conditions of this License Agreement, Intelligent401k hereby grants You a limited, revocable, non-transferable, non-sublicensable and non-exclusive right to use the Intelligent401k Products for Your internal business purposes or non-commercial personal purposes only and only up to the number of accounts licensed by You (the “License”). Any activity contemplated by You shall be strictly in accordance with and subject to Intelligent401k’s applicable user documentation and specifications. The Services and Intelligent401k Materials will include updates thereto that the Intelligent401k provides You.
  2. RESTRICTIONS. This is a license, not a transfer of title, to the Services and Intelligent401k Materials, and Intelligent401k retains title and ownership of all Services and Intelligent401k Materials. You acknowledge that the Services and Intelligent401k Materials contain trade secrets of Intelligent401k (and/or its suppliers or licensors), including, but not limited to, the specific internal design and structure of individual programs and associated interface information. You will not, and will not permit any other party to, access or use the Services or Intelligent401k Materials except as explicitly permitted in this License Agreement. Without limiting the generality of the foregoing, You will not (except as expressly permitted in this License Agreement): (i) assign the same user name/password combination to more than one individual; (ii) sell, transfer, rent, lease, lend, copy, print, display, publish, modify, translate, sublicense, distribute, redistribute, syndicate, time-share, assign, electronically transmit or receive, or otherwise allow access to the Services or Intelligent401k Materials, in whole or in part, to any other party; (iii) edit, modify, or create any derivative works, or improvements of all or any part of the Services or Intelligent401k Materials; (iv) provide use of the Services or Intelligent401k Materials on a service bureau, rental, managed services basis, permit other individuals or entities to create Internet “links” to the Services or Intelligent401k Materials or “frame” or “mirror” the Services or Intelligent401k Materials on any other server, wireless, or Internet-based device, or otherwise make available to a third party any token, key, password, user name, access credentials, or other login credentials to the Services or Intelligent401k Materials; (v) decipher, analyze, translate, decompile, disassemble or reverse engineer the Services or Intelligent401k Materials, or otherwise attempt to derive source code, trade secrets, or know-how in or underlying any Services or Intelligent401k Materials (or any portion thereof); (vi) access the Services or Intelligent401k Materials to build a similar or competitive product or service; (vii) bypass or breach any security device or protection used by the Services or Intelligent401k Materials; (viii) input, upload, transmit, or otherwise provide to or through the Services or Intelligent401k Materials any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful or malicious code; (ix) remove, delete, alter, or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, patent, intellectual property rights, or proprietary rights notices from any Services or Intelligent401k Materials, including any copy thereof; (x) access or use the Services or Intelligent401k Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, that violates the privacy rights of any third party, or that violates any applicable law; or (xi) use any Services or Intelligent401k Materials, or allow the transfer, transmission, export, or re-export of any Services or Intelligent401k Materials (or any portion thereof) or any technical data (A) in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency or (B) in any case into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the U.S. has embargoed or restricted the export of goods or services, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
  3. TERMINATION. Without prejudice to any other rights, Intelligent401k may terminate this License Agreement if: (i) You fail to comply with any of the terms and conditions of this License Agreement; (ii) Intelligent401k stops offering the Services or Intelligent401k Materials; or (iii) Intelligent401k provides You with written notice and such termination is for Intelligent401k’s convenience (with or without cause). If this License Agreement terminates, You must cease all use of and destroy all copies of the Services or Intelligent401k Materials and all portions thereof and so certify to Intelligent401k. Any right or obligation of the parties in this License Agreement that, by its nature, should survive termination or expiration of this License Agreement (including, but not limited to, all payment obligations, which arose prior to the effective date of such expiration or termination) will survive any expiration or termination of this License Agreement.
  4. WARRANTIES. You represent and warrant to Intelligent401k that: (a) the execution of this License Agreement shall constitute a binding agreement between You and Intelligent401k, and You have the requisite experience and sophistication to understand, interpret, and agree to the particular language of this License Agreement’s provisions; (b) You will comply with all terms and conditions of this License Agreement; (c) Your access to and/or use of the Services or Intelligent401k Materials does not and will not constitute a breach or violation of any other agreement, contract, terms of use, or similar policy or understanding to which You are or may reasonably be subject; (d) You will not use the Services or Intelligent401k Materials in violation of any applicable law, any agreement with Intelligent401k and/or the Approved Source (if different), or otherwise in a manner that violates the rights of any third party; (e) You have not and will not modify or alter the Services or Intelligent401k Materials in any way, including to add any virus, Trojan horse, worm, or other software designed to permit unauthorized access to, or to erase or otherwise harm, Intelligent401k or the Services or Intelligent401k Materials; (f) any use of the Services will be in strict compliance with the Intelligent401k Materials and specifications provided by or on behalf of Intelligent401k; and (g) You will not access or use the Services or Intelligent401k Materials in order to gain competitive intelligence about Intelligent401k, the Services, or the Intelligent401k Materials, or any product or service offered by Intelligent401k, to develop competitive products or services, or to otherwise compete with Intelligent401k.

    INTELLIGENT401K AND ITS APPROVED SOURCE (IF DIFFERENT) ARE PROVIDING THE SERVICES AND INTELLIGENT401K MATERIALS TO YOU SOLELY “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS. INTELLIGENT401K DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INTELLIGENT401K SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, ACCURACY, NON-INFRINGEMENT, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND INTELLIGENT401K MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR INTELLIGENT401K MATERIALS (OR ANY RESULTS FROM THE USE THEREOF) WILL MEET YOUR OR ANY OTHER PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY BROWSER, SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM THE SERVICES OR INTELLIGENT401K MATERIALS ARE ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INTELLIGENT401K, ITS REPRESENTATIVES, ITS AGENTS, OR ITS EMPLOYEES WILL CREATE A WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. ANY USE OF THE SERVICES OR INTELLIGENT401K MATERIALS IS AT YOUR OWN RISK

    ANY WARRANTY EXTENDS ONLY FOR THE EARLIER OF EITHER: (I) THIRTY (30) DAYS FROM THE DELIVERY OF THE SERVICES; OR (II) AS PROVIDED BY LAW.

    ALL THIRD PARTY PRODUCTS, SERVICES, AND MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATIONS OR WARRANTIES OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THOSE PRODUCTS, SERVICES, AND MATERIALS.

  5. INDEMNIFICATION. To the extent permitted by applicable law, You will defend, indemnify and hold harmless Intelligent401k, its affiliates, parents, subsidiaries, and each of their respective officers, directors, employees, agents, distributors, customers, successors, and assigns (each, a “Intelligent401k Indemnitee”) from and against any liability, claim, demand, suit, or cause of action, regardless of whether meritorious, settlement, payment, loss, disbursement, cost and expense, interest, award, judgment, damages (including punitive damages), lien, fine, fee, penalty, and any related litigation expense (including, but not limited to, reasonable attorneys’ fees) (“Loss”)  incurred by any Intelligent401k Indemnitee in connection with any claim, suit, action, or proceeding (“Action”) arising from, in connection with, or resulting from: (i) Your licensing of, access to, and use of the Services or Intelligent401k Materials; (ii) Your obligations to any third party provider of any materials, products, services, or systems not provided by Intelligent401k; (iii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Licensee, including Intelligent401k’s compliance with any specifications or directions provided by or on behalf of Licensee; (iv) Your breach of any of its representations, warranties, covenants, or obligations under this Agreement; (v) any labor or employment matters related, directly or indirectly, Your employees and representatives (if any); and/or (vi) any acts or omissions by Licensee or any third party acting on Your behalf with respect to this Agreement. Your duty to defend, indemnify, and hold harmless against such Loss extends to any Loss that may be caused or alleged to be caused in part by the negligence of Intelligent401k and other persons indemnified under this Agreement, to the fullest extent permitted by applicable law.
  6. LIMITATION OF LIABILITY.NOTWITHSTANDING ANYTHING ELSE IN THIS LICENSE AGREEMENT TO THE CONTRARY, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL INTELLIGENT401K, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) LOSS OF PRODUCTION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF SAVINGS, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, LOSS OF GOODWILL, LOSS OF RIGHTS, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (IV) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    NOTWITHSTANDING ANYTHING ELSE IN THIS LICENSE AGREEMENT TO THE CONTRARY, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL INTELLIGENT401K, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE FEES PAID BY YOU TO INTELLIGENT401K AND/OR THE APPROVED SOURCE (IF DIFFERENT) FOR USE OF THE SERVICES. THE FOREGOING LIMITATION APPLIES REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    You acknowledge and agrees that Intelligent401k has set its prices and entered into this License Agreement in reliance upon the disclaimer of warranties in Section 4, Your indemnification obligations in Section 5, and the limitations of liability in this Section 6; that all of the foregoing reflect the allocation of risks between the parties; and that all of the foregoing form an essential basis of the bargain between parties.

  1. MISCELLANEOUS.

    Government Users. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Services or Intelligent401k Materials provided by Intelligent401k are  “commercial items,” “commercial computer software” and/or “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this License Agreement and shall be prohibited except to the extent expressly permitted by the terms of this License Agreement.

    Independent Contractor. The relationship between You and Intelligent401k is that of an independent contractor. Nothing contained in this License Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever. You will not issue or release any announcement, statement, press release or other publicity or marketing materials relating to this License Agreement or otherwise use Intelligent401k’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship.

    Right to Preliminary and Injunctive Relief; Remedies. You acknowledge and agrees that a breach or threatened breach by it of any of its obligations hereunder involving the intellectual property rights or confidential information of Intelligent401k, Your compliance with applicable laws, or by exceeding the scope of the License would cause Intelligent401k irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Intelligent401k will be entitled to seek equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The rights and remedies of the parties set forth in this License Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity, by statute or otherwise, except in those cases where this License Agreement specifies that a particular remedy is sole or exclusive.

    Governing Law; Venue; Attorney’s Fees. This License Agreement and the transactions it contemplates shall be governed, interpreted, construed, enforced, and performed in accordance with the laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this License Agreement. Any legal suit, action or proceeding arising out of or relating to this License Agreement shall be instituted in state court located in the State of Arizona in the County of Maricopa or the United States District Courts for the State of Arizona, and each party irrevocably submits to the exclusive jurisdiction of such courts and unconditionally waive any objection to the laying of venue in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this License Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and related litigation expenses from the non-prevailing party.

    WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OF WORK OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

    Interpretation. Headings contained in this License Agreement are for reference purposes only and are not to affect the meaning or interpretation of this License Agreement. As used herein, (i) the words “include” and any other forms of “include” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this License Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (v) a derivative of a defined term shall have the meaning appropriate to the context of its use; and (vi) unless the context otherwise requires, references to an agreement, instrument or other document or applicable law means such as amended, supplemented and modified from time-to-time. No amendment to or modification of this License Agreement is effective unless it is in writing, identified as an amendment, and signed by an authorized representative of each party. No waiver or consent by any party hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving or consenting. Except as otherwise set forth in this License Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this License Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of this License Agreement is held invalid or unenforceable in any jurisdiction, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and such invalidity or unenforceability will not affect any other term or provision hereof.

    Entire Agreement. This License Agreement, including all documents incorporated by reference, sets forth the entire, final, complete, and exclusive expression of the parties’ agreement on the matters contained in this License Agreement. All prior written and oral negotiations and agreements, and all contemporaneous oral negotiations and agreements, between the parties on the matters contained herein are expressly merged into and superseded by this License Agreement.

    Assignment. You will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this License Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, including in connection with any merger, consolidation or reorganization involving Licensee (regardless of whether You are a surviving or disappearing entity), without Intelligent401k’s prior written consent. Any purported assignment, delegation or transfer in violation of this paragraph is void. Intelligent401k shall be entitled to freely assign this License Agreement. This License Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this License Agreement.

    The above terms and conditions to Intelligent401k Services are acknowledged and accepted by You.