NOTICE TO USER: PLEASE READ CAREFULLY. THIS END USER LICENSE AGREEMENT (the “Agreement,” or the “End User License Agreement”) IS A BINDING CONTRACT. BY ACCEPTING, ACCESSING, INSTALLING, OR OTHERWISE USING THE LICENSED SOFTWARE REFERRED TO HEREIN, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE LIMITATIONS ON USE, WARRANTY, AND LIABILITY. YOU SPECIFICALLY AGREE AND ACKNOWLEDGE THAT THIS LICENSE AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS, USE, OR INSTALL THE LICENSED SOFTWARE.
TERMS AND CONDITIONS:
Other than the limited license granted above, Advicent (or any Third Party Provider) retains all right, title, and interest in and to the Licensed Software; no other rights or licenses of any kind are granted to you, and the Licensed Software is and remains the sole and exclusive property of Advicent or any Third Party Provider.
Advicent shall use commercially reasonable efforts to retain the Third Party Software existing as of the effective date, but may from time to time, in its sole discretion, substitute existing Third Party Software with substantially similar data, content or software. If substantially similar data, content or software cannot be reasonably procured by Advicent, Advicent may remove such Third Party Software from the Licensed Software.
The Licensed Software shall not be installed or used in any country that would violate the rules and regulations of the U.S. Department of Commerce, Bureau of Export Administration. Any disclaimer language included in the Licensed Software shall not be removed without the consent of Advicent.
If your license entitles you to install a copy of the Licensed Software on your computer, you shall be entitled to make a single copy of the Licensed Software for backup purposes. No other copies of the Licensed Software shall be made. Both copies of the Licensed Software must be kept in your possession.
You may use the Licensed Software for the sole purposes of preparing or viewing financial plans, or providing financial planning services for your existing and prospective customers. This license does not entitle anyone other than you to use the Licensed Software unless: (i) those other persons are also licensed to use the Licensed Software; or (ii) if you have been granted access to the Client Software, in which case you may access the Client Software as permitted herein, subject to payment of applicable fees. In addition, you shall not use the Licensed Software if you are a competitor of Advicent or for the purposes of evaluating the Licensed Software for competitive purposes or for any other purposes whatsoever.
You shall not (and shall not permit anyone to):
modify, adapt, or translate the Licensed Software or documentation, including any disclaimers or notices, or change the Licensed Software’s data structures.
send or store any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law.
copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Licensed Software or data stored through the Licensed Software in order to: (A) ascertain, derive, or appropriate for any purpose whatsoever the source code or source listings or data structures for the Licensed Software; (B) transfer, copy, or convert any such data into other software or for any other purpose other than to prepare financial plans or provide financial planning services for your existing and prospective customers through the use of the Licensed Software as permitted herein; or (C) otherwise attempt to discover the source code or source listings of the Licensed Software or any trade secret information.
rent, lend, lease, donate, sublicense, pledge, sell, assign, transfer, or otherwise convey to a third party the Licensed Software or your rights in the Licensed Software.
permit any third party to use or access the Licensed Software at any time, or, unless specifically authorized by Advicent, use the Licensed Software in a service bureau or any other manner whereby a beneficial use of or access to the Licensed Software is gained by a representative, colleague, agent, or employee of the User who is not similarly licensed to use the Licensed Software and has not paid a license fee to Advicent for the Licensed Software.
ADVICENT ASP SERVICES.
Your use of the ASP Services is subject to Advicent’s Acceptable Use Policy ("AUP"), which may be viewed at /aup and is incorporated by reference herein. Advicent may modify the AUP, at any time as it may deem appropriate in its sole discretion, effective upon posting of the modified AUP.
If, for any reason whatsoever, the arrangement between Advicent and its hosting Third Party Provider is or is about to be terminated and Advicent has been unable to enter into a corresponding arrangement with another hosting provider for provision of the ASP Services that is satisfactory to Advicent in its sole discretion, Advicent shall be entitled to terminate this Agreement on fifteen (15) days’ notice. Neither party shall be deemed to be in breach of this Agreement as a result of termination pursuant to this paragraph.
You shall be required to use a unique alphanumeric user name and password in order for you to access and use the Licensed Software (the “User ID”). It is a condition of this End User License Agreement that you keep the User ID confidential, do not share the User ID with anyone else, and do not permit anyone other than yourself to have access to the Licensed Software by using the User ID. You hereby release Advicent from any liability that may arise from disclosure of the User ID. In addition, you are solely responsible for the integrity and security of your Internet connection, as well as the integrity and security of your computer hardware, and you hereby release Advicent from any liability that may arise from vulnerability of such connections or hardware, or breach of security.
You have the sole responsibility for (i) obtaining, installing, and maintaining all network servers and other equipment, together with all required software or related components which are necessary for interconnection to our network facilities, or otherwise required for use in connection with the ASP Services (the “User Provided Equipment”); and (ii) ensuring that such User Provided Equipment and related services are compatible with our requirements (including any modifications of the ASP Services made by us from time to time).
You acknowledge that delivery of the ASP Services is dependent on the continuous availability and proper functioning of the User Provided Equipment and that Advicent has no liability for failure to deliver the ASP Services arising from your failure to comply with paragraph (e) above.
You acknowledge that delivery of the ASP Services is dependent on the Internet and that the quality or availability of the ASP Services may from time to time be adversely affected due to delays, limitations, or other problems inherent in the use of the Internet. Advicent has no liability for delays or failure to deliver the ASP Services arising from delays, limitations, or problems inherent in the use of the Internet.
You acknowledge that all IP addresses and/or network connections assigned by Advicent or its hosting service providers to you in connection with the ASP Services remain the property of Advicent or its hosting service provider and all use thereof shall be surrendered by the User on termination of this Agreement.
You acknowledge that routine maintenance and periodic system repairs, upgrades, and reconfigurations may result in temporary impairment or interruption in the ASP Services. As a result, we reserve the right, from time to time, to temporarily reduce or suspend the ASP Services.
During the term of this Agreement, it is your sole responsibility to retain archived copies of data or reports created by the Licensed Software.
The Client Software may only be accessed using a URL designated by Advicent.
AUDIT RIGHTS. Advicent shall have the right to review and audit your records upon request and reasonable notice to ensure your compliance with this Agreement.
TERMINATION. Upon termination of this End User License Agreement as a result of breach of any of its terms and conditions by you, you shall make no further use of the Licensed Software, shall purge same from any computer into which it has been installed, and shall destroy any copies thereof in your possession. In that event, Advicent shall be entitled, but not obliged, to delete all information related to you that has been provided to it, including data and financial plans pertaining to your customers, to bar you from having access to the Web site and to any Licensed Software in the control of Advicent.
YOU ACKNOWLEDGE THAT ADVICENT, ANY LICENSOR OTHER THAN ADVICENT, AND THE THIRD PARTY PROVIDERS ARE NOT IN THE BUSINESS OF PROVIDING ADVICE WITH RESPECT TO THE PREPARATION OF FINANCIAL PLANS AND THAT THE LICENSED SOFTWARE IS NOT ERROR FREE. THE LICENSED SOFTWARE IS PROVIDED “AS IS,” AND YOU ARE USING THE LICENSED SOFTWARE AND THE ASP SERVICES ENTIRELY AT YOUR OWN RISK. NEITHER ADVICENT, NOR ANY LICENSOR OTHER THAN ADVICENT NOR ANY THIRD PARTY PROVIDER (WHICH INCLUDES SUCH PARTY AND ITS STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) MAKE ANY REPRESENTATION OR WARRANTY: (A) THAT THE OPERATION OF THE LICENSED SOFTWARE SHALL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS IN THE LICENSED SOFTWARE WILL BE CORRECTED; (B) THAT FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE THAT MAY BE SELECTED FOR USE BY YOU SHALL MEET YOUR REQUIREMENTS; (C) AS TO THE OPERATION, CAPACITY, SPEED, FUNCTIONALITY, QUALIFICATIONS, CAPABILITIES, ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF THE LICENSED SOFTWARE OR ANY INFORMATION TO WHICH YOU HAVE ACCESS THROUGH THE LICENSED SOFTWARE OR ANY SERVICES, GOODS, PERSONNEL, OR RESOURCES PROVIDED; (D) AS TO THE MATERIALS, WORKMANSHIP, OR PERFORMANCE OF THE LICENSED SOFTWARE OR ASP SERVICES.
ADVICENT, ANY LICENSOR OTHER THAN ADVICENT, AND THE THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE AND THE ASP SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING OUT OF STATUTE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED SOFTWARE IS EXPRESSLY ASSUMED BY YOU AND YOU ACCEPT FULL RESPONSIBILITY FOR ANY INVESTMENT DECISIONS OR STOCK TRANSACTIONS MADE BY YOU OR YOUR CUSTOMERS USING THE LICENSED SOFTWARE OR ASP SERVICES OR ANY INFORMATION AVAILABLE THROUGH THE LICENSED SOFTWARE.
In addition, neither Advicent nor any Third Party Providers shall be liable, either in contract, tort, warranty, strict liability, negligence or under any statute, regulation, or any other theory for any losses or damages resulting from (i) unauthorized access, alteration, theft, corruption, or destruction of or to the User’s Confidential Information or the User’s or its customer’s computer files, databases, network, transmission facilities, or equipment; or (ii) the content, accuracy, or quality of the data transmitted using the ASP Services.
Some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. If such disclaimer of implied warranties is not permitted by law, the duration of any such implied warranties is limited to ninety (90) days from the date of your initial access to the licensed software. If an error in the Licensed Software is reported by you and is a result of a breach of the foregoing limited warranty, Advicent’s sole and exclusive obligation under this paragraph, at Advicent’s option, shall be to (a) use commercially reasonable efforts to supply a workaround for the error, or (b) use commercially reasonable efforts to correct the error.
LIMITATION OF LIABILITY.
YOU EXPRESSLY AGREE THAT NEITHER ADVICENT, ANY LICENSOR OTHER THAN ADVICENT, NOR ANY THIRD PARTY PROVIDER, SHALL BE LIABLE FOR YOUR USE OF THE LICENSED SOFTWARE. THE LIABILITY OF ADVICENT, ANY LICENSOR OTHER THAN ADVICENT, OR ANY THIRD PARTY PROVIDER UNDER THIS END USER LICENSE AGREEMENT IS LIMITED TO THE CORRECTION OF ANY ERROR OR MALFUNCTION IN THE LICENSED SOFTWARE AND SHALL NOT INCLUDE LIABILITY FOR LOSS OF DATA, LOSS OF COMPUTER TIME, ANY DIRECT OR INDIRECT DAMAGES, OR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE SUSTAINED BY THE USER OF THE LICENSED SOFTWARE, OR BY ANY THIRD PARTY WHO ADVANCES A CLAIM AGAINST EITHER ADVICENT OR THE USER, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS LICENSE OR THE USE OF THE LICENSED SOFTWARE, AND REGARDLESS OF WHETHER ADVICENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES PRIOR TO OR AFTER THIS LICENSE CAME INTO EFFECT. IN NO EVENT SHALL ADVICENT’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THIS END USER LICENSE AGREEMENT EXCEED THE TOTAL FEES PAID TO ADVICENT BY YOU FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE IMPOSITION OF SUCH LIABILITY.
THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN ADVICENT AND YOU. IF YOU DO NOT WANT TO ACCEPT THESE RISKS, DO NOT ACCESS, USE, OR INSTALL THE LICENSED SOFTWARE.
SEVERABILITY. The invalidity or unenforceability of any provision in this Agreement will not affect the validity or enforceability of any other provision. However, it is intended that any invalid or unenforceable provision of this Agreement be construed by a court of competent jurisdiction by limiting or reducing it so as to be valid or enforceable to the extent compatible with applicable law.
INDEMNITY. The User will indemnify and save each of Advicent, any Licensor other than Advicent and any Third Party Provider, and its and their affiliates, officers and directors, harmless from and against all loss, liability, damage and expense, including reasonable legal fees, caused by the User or the User’s officers, employees, agents, vendors, or contractors and arising from claims or demands: (a) for damages to property or for injury or death to persons, including without limitation any disability, death or Worker’s Compensation benefits; (b) from data transmitted, received, or stored using the ASP Services by or through the User in violation of any of the provisions of this Agreement or any applicable law; (c) of infringement of a third party’s proprietary rights based upon any information, materials, or access to same provided by the User; or (d) out of or relating to the conduct of the User’s business, including without limitation, claims by any customer or end user of the User's products or services, and claims relating to the use by the User of the Licensed Software, ASP Services, or any work product therefrom.
“User’s Confidential Information” means non-public personal, confidential, private, or secret information of the User and the User’s customers or clients in all material forms that is transmitted to or from Advicent (or to or from a Third Party Provider) for processing or otherwise pursuant to this Agreement. The confidentiality of any communication or material transmitted by way of a Web site or e-mail cannot be guaranteed. Use of the Internet when disclosing User’s Confidential Information carries the inherent risk of it becoming accessible to the public, and consequently, collected and used by others without the consent of the User. Neither Advicent nor its Third Party Providers have any responsibility or liability for the security of User’s Confidential Information during transmission by way of the Internet.
The parties to this Agreement shall comply with their respective obligations pursuant to the Gramm-Leach-Bliley Act (United States of America) and the Personal Information Protection and Electronic Documents Act (Canada) (the “Privacy Laws”), as applicable. The policies and practices of Advicent with respect to the privacy of User’s Confidential Information are that no use thereof or disclosure to non-affiliated third parties will be made except:
to assist in the use of the Licensed Software by the User;
to test and upgrade the Licensed Software incidental to the normal assistance to be provided to the User by Advicent;
to create statistical analyses for use by the User, Advicent, and by others to whom the User has authorized Advicent to provide such analyses.
Subject as hereinafter provided, the only non-affiliated third parties to whom the User’s Confidential Information may be provided by Advicent are Third Party Providers who are engaged to process the User’s Confidential Information, and who will be contractually bound to keep same confidential and to make no other use thereof. Each of the User and Advicent agrees to comply with the Privacy Laws applicable to its business, and represents to the other that it has implemented and will maintain commercially reasonable policies, practices, and security measures as may be required pursuant to such Privacy Laws.
If the User is an employee, agent, or independent contractor associated with an employer, principal, or other organization that has an agreement with Advicent under which Advicent is to provide either statistical or other reports respecting the User’s use of the Licensed Software or copies of plans prepared using the Licensed Software, the User consents to the provision thereof by Advicent to such employer, principal or organization.
Neither this End User License Agreement nor any rights granted herein may be assigned by you.
You are responsible for paying all federal, state, provincial, and local taxes that may be payable on account of the Licensed Software and for any service or product provided under this Agreement and all of them shall be paid when due.
You agree that you will comply with all applicable export laws with respect to the use of the Licensed Software.
If you have been licensed to use the Licensed Software by a Licensor other than Advicent, then in consideration of Advicent’s having consented to your being licensed as such, Advicent shall be entitled to enforce this End User License Agreement as if it had directly licensed the Licensed Software to you on the terms and conditions of this End User License Agreement.
If any one or more of the provisions of this End User License Agreement shall for any reason be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this End User License Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal, or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the intent of the parties underlying the invalid, illegal, or unenforceable provision.
Any waiver by Advicent of your breach of any provision of this End User License Agreement shall be made in writing, and shall not operate or be interpreted as a waiver of any other or subsequent breach by you.
This End User License Agreement, and any and all claims that may arise in connection with the Licensed Software, shall be governed by the substantive laws of the State of Delaware without giving effect to its conflict of law principles. The state and federal courts for Milwaukee, Wisconsin, shall have exclusive jurisdiction of disputes arising under this Agreement.
You hereby consent to and waive any objection to jurisdiction of and venue in such courts. If any action is commenced to enforce the terms or provisions of this End User License Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs incurred thereby. To the fullest extent permitted by law, each party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such party) any right to a trial by jury in any action, suit, proceeding, or counterclaim of any kind arising out of or in any manner connected with this Agreement or the subject matter hereof.
This End User License Agreement and the Master Subscription Agreement or Integration Agreement (if any) between you and Advicent (the “MSA”) constitutes the entire agreement and understanding of the parties with respect to its subject matter, and they supersede all prior or contemporaneous oral or written agreements or understandings concerning the Licensed Software. In the event of any conflict between this End User License Agreement and the MSA or Integration Agreement (if any), the MSA or Integration Agreement shall control.
You acknowledge that the Third Party Providers are third party beneficiaries of, and are relying upon, the provisions in this End User License Agreement.