Terms of Service
Last Updated: April 20, 2021
Welcome to Incentive, by eMoney Advisor, LLC (“eMoney,” “Company,” “we,” or “us”). This page explains the terms by which you may use our mobile services and software provided on or in connection with the mobile services (collectively, the “Service” or “Services”). By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Service (this “Agreement”), whether or not you are a registered user of our Service. Company reserves the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service, whether through an eMoney’s commercial customer such as licensed financial advisors, financial institutions, broker-dealers, home offices, registered investment advisors, third party administrators, trust companies, and family office clients (“Financial Professional”), an employer or directly through the Apple App Store or the Google Play Store (“Users”).
THIS AGREEMENT CONTAINS PROVISIONS THAT REQUIRE ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN USER AND eMoney, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE REVIEW THE <<ARBITRATION, CLASS WAIVER, JURY TRIAL WAIVER, GOVERNING LAW>> SECTION FOR FURTHER INFORMATION ABOUT THIS REQUIREMENT AND USER’S ABILITY TO OPT OUT. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT USER UNDERSTAND EACH PROVISION.
1. Our Service
Incentive is a financial wellness app designed to elicit small behavioral changes that, cumulatively, may assist you in pursuing long-term financial health. By engaging Users' competitive spirit with easy to execute financial challenges, Incentive aims to forge smart financial habits in a simple, fun, and sustainable manner.
This is a contract between you and Company. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Company, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service or other services offered by Company.
1.2 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Company reserves all rights not expressly granted herein in the Service and the Company Content (as defined below). Company may terminate this license at any time for any reason or no reason.
1.3 User Accounts
In order to allow you to use the Services, you will need to sign up for an account with Company (your “User Account”). You authorize us to make any inquiries we consider necessary to validate your identity. These inquiries may include asking you for further information, requiring you to provide additional information to us, including, but not limited to, your full address, your date of birth, and/or requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying information you provide against third party databases or through other sources. If you do not provide this information or Company cannot verify your identity, we can refuse to allow you to use the Services.
Your User Account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion.
By setting up a User Account, by connecting to the Service through a third-party (by whom you are employed, from whom you receive 401(k) benefits, or with whom you have customer relationships, maintain accounts or engage in financial transactions), or by providing us with your user credentials for your online accounts (e.g., bank, credit card issuer, insurance carrier, etc.), you authorize us to obtain, directly or indirectly, through our third-party service providers, including employers or Financial Professionals through whom you may have received an access code to use the Services and/or those third parties described above, without any time limit or the requirement to pay any fees, information about you and such of your accounts from the company engaged in the business of dealing with financial and monetary transactions such as deposits, loans, investments, and currency exchange (“Financial Institution”) holding such of your accounts and other third-party websites and databases (your “Account Information”) as necessary to provide the Service to you. Company works with one or more online service providers to access this Account Information. For example, you may choose to sync the Services with Account Information from your financial accounts. To do this, we must access your online account with your Financial Institution and will request the following credentials to enable access: user name, password, and any other login bank data that you have set up with your Financial Institution to enable access. We use your Account Information to perform various services on your behalf. For example, we will sort financial transactions into categories that help you track your spending. Company does not hold your accounts or have the capability to modify, amend or manipulate the Account Information accessed through the Services, nor implement any transactions or strategies concerning your finances. Any questions, disputes, or requests concerning your Account Information should be directed to the applicable third-party service provider with whom such Account Information is stored, including, without limitation, any requests to receive such data in a portable format. Company does not review any of the Account Information for, timeliness, accuracy, legality or non-infringement. Company is not responsible for the Account Information or products and services offered by or on third-party sites. Company cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. Company cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings.
For purposes of the authorization to obtain Account Information described above, you hereby grant Company and our third-party service providers a limited power of attorney, and you hereby appoint Company and our third-party service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place, and stead, in any and all capacities, to access third-party websites, servers, and documents; retrieve information; and use your Account Information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN COMPANY OR OUR THIRD-PARTY SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM SUCH THIRD-PARTY WEBSITES, COMPANY AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY. You agree that other third parties shall be entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. You understand and agree that the Service is not endorsed or sponsored by any third-party account providers accessible through the Service. We make no effort to review information obtained from the Financial Institution holding such of your accounts and other third-party websites and databases for any purpose, including, but not limited to, accuracy, legality, or non-infringement. As between Company and our third-party service providers, Company owns your confidential Account Information.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your User Account. You must notify Company immediately of any breach of security or unauthorized use of your User Account. Company will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing Company your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your [settings page]. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.4 User Account Access and Mobility
To the extent you receive our Service through a financial professional advising your employer-sponsored 401(k) plan, upon termination of your employment or you no longer participating in your 401(k) plan, you may be eligible to continue to access your User Account by:
1.5 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.6 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Company shall have no liability for your interactions with other Users, or for any User’s action or inaction.
1.7 Service Location
The Service is controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, the Service is intended to be used solely by, and all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. User Content
Some areas of the Service may allow Users to submit, post, display, provide, or otherwise make available content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours. However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use. You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties. Your User Content and Company’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. Company may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Company takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
The Service contains data, information, and other content not owned by you, such as reputational or status indicators (“Company Property”). You understand and agree that regardless of terminology used, Company Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at Company’s sole discretion. Company Property is not redeemable for any sum of money or monetary value from Company at any time. You acknowledge that you do not own the User Account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Company on Company servers, including without limitation any data representing or embodying any or all of your Company Property. You agree that Company has the absolute right to manage, regulate, control, modify and/or eliminate Company Property as it sees fit in its sole discretion, in any general or specific case, and that Company will have no liability to you based on its exercise of such right. All data on Company’s servers are subject to deletion, alteration or transfer. Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, User Account history and User Account content residing on Company’s servers, may be deleted, altered, moved or transferred at any time for any reason in Company’s sole discretion, with or without notice and with no liability of any kind. Company does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on Company’s servers.
4. No Professional or Investment Advice
NEITHER COMPANY NOR THE SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE NOR DOES COMPANY GIVE ADVICE OR OFFER ANY OPINION WITH RESPECT TO THE NATURE, POTENTIAL VALUE OR SUITABILITY OF ANY PARTICULAR INVESTMENT STRATEGY OR SECURITY. ANY SUCH INFORMATION PROVIDED THROUGH THE SERVICE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS PROFESSIONAL OR INVESTMENT ADVICE. COMPANY IS NOT A FINANCIAL PLANNER, INVESTMENT ADVISOR, BROKER OR TAX ADVISOR, NOR DOES IT RECOMMEND OR ENDORSE A PARTICULAR FINANCIAL PLANNER, INVESTMENT ADVISOR, BROKER OR TAX ADVISOR OR A PARTICULAR INVESTMENT STRATEGY OR SECURITY. You acknowledge and agree that the Services are intended only for educational purposes, that you are responsible for your own investment research and investment decisions, that the Services are only one of many tools you may use as part of a comprehensive investment education process, that you will not rely on the Services as the basis of your financial decisions, and that Company will not be liable for decisions or actions you take or authorize third parties to take on your behalf based on information you obtain from your access and use of the Services. Company does not determine if the tools or resources made available in connection with its Services are suitable for your financial or investment objectives. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
COMPANY SHALL NOT BE RESPONSIBLE FOR YOUR INVESTMENTS OR OTHER FINANCIAL DECISIONS, OR FOR ANY DAMAGES OR OTHER LOSSES RESULTING FROM THE RELIANCE OR USE OF INFORMATION PROVIDED BY COMPANY. COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICES COMPLY WITH THE REQUIREMENTS OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY, THE U.S. SECURITIES AND EXCHANGE COMMISSION OR ANY SIMILAR ORGANIZATION OR REGULATOR OR WITH SECURITIES LAWS OF ANY JURISDICTION.
Where you access our Service through your employer or Financial Professional, we charge fees to the employer and/or Financial Professional for use of our Services. These fees constitute general license fees for use of our technology Services; these fees are not intended to be, nor should they be construed as, fees charged for the purpose of providing investment advice.
We do not charge fees to Users based, directly or indirectly, on the size, value, or occurrence of any securities transactions that may take place on or in connection with our Service, or based on the amount of money deposited or maintained in a financial account.
6. No Official Keeper of Records
Incentive is not designed to comply with, or act as a substitute for, any books and records requirements imposed by any U.S. federal and state governments and agencies thereof and any court or regulatory, self-regulatory, administrative, judicial, executive, legislative or governmental entity in the United States of America (“Governmental Authority”), including without limitation, 17 C.F.R. 275.204-2, 17 C.F.R. 240.17A-3 and 240.17A-4. Company hereby disclaims any such compliance and User is advised to verify that it has proper document retention and storage policies designed to comply with applicable laws.
7. Online and Mobile Alerts
Company may from time to time provide automatic alerts and voluntary account-related alerts. Automatic alerts may be sent to you following certain changes to your account or information, such as a change in your registration information.
Voluntary account alerts may be turned on by default as part of the Services. They may then be customized, deactivated or reactivated by you. You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. Company may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. Company will not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
You may sign up to receive certain Company alerts via email, push notifications or text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. If your email address or your mobile number changes, you are responsible for informing us of that change. Alerts may also be sent to a mobile device that accepts text messages.
Because alerts are not encrypted, we will never include your passcode. However, alerts may include your user ID and some information about your accounts. Depending upon which alerts you select, information such as an account balance, account summary reports, or the due date for your credit card payment may be included. Anyone with access to your email will be able to view the content of these alerts. At any time you may disable future alerts.
Company uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
10. Third-Party Links and Information
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
12. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Company or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Company, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of “BACK DOOR,” “TIME BOMB,” “TROJAN HORSE,” “WORM,” “DROP DEAD DEVICE,” “VIRUS,” “PREVENTATIVE ROUTINES,” “DISABLING CODE,” “COOKIE”, MALWARE OR OTHER COMPUTER SOFTWARE ROUTINES OR PROGRAMMING DEVICES DESIGNED TO (I) PERMIT UNAUTHORIZED PERSONS TO ACCESS THE DATA; (II) DISRUPT OR DISCONTINUE THE USE OF DATA; OR (III) DISABLE, MODIFY, DESTROY OR DAMAGE DATA OR MAKE DATA INACCESSIBLE OR DELAYED (“VIRUSES”) or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service. Company makes no guarantee about the results that may be obtained from your use of the Services, including without limitation, any guarantee about the amount of money you will save, and, except as set forth herein, makes no warranty about the services.
Further, Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Company will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
13. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Company, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will Company be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, Company assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) interruption or cessation of transmission to or from the Service; (v) bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Company, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Company hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Company has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
14. Arbitration, Class Waiver, Jury Trial Waiver, Governing Law
Arbitration: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES USER AND eMONEY TO ARBITRATE THEIR DISPUTES. Both eMoney and User agree to resolve by binding arbitration any claim, dispute, or controversy (whether based in contract, tort, statute, or any other legal theory) arising out of or in connection with or relating to (1) the products or services made available by eMoney, including Financial Professional, User’s use of these products and services, and the information that User provides eMoney in connection with User’s use of these products and services, or (2) this Agreement, including without limitation, the validity, interpretation, enforcement, or application of this Agreement and/or this Section (collectively, “Claims”). Both User and eMoney further agree that the arbitrator shall also have the exclusive authority to determine all additional threshold arbitrability issues, including without limitation issues relating to whether the Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. A party who intends to seek arbitration must first send a written notice of the Claim to the other party by certified mail or Federal Express, or in the event that we do not have a physical address on file for User, by electronic mail (“Notice“). Our address for notice is eMoney Advisor, LLC, 4 Radnor Corporate Center, 100 Matsonford Road, Ste. 300, Radnor, PA 19087 Attn: General Counsel. eMoney and User agree to use good faith efforts to resolve the Claim, but if the parties do not resolve the Claim within 30 days of the Notice, then either party may commence arbitration.
Arbitration Procedure: Any arbitration between User and eMoney will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting eMoney. Unless User and eMoney otherwise agree, the arbitration will be conducted in the county where User resides. If User is using the Service for commercial purposes, payment of all arbitration fees will be determined in accordance with the AAA Rules. If User is using the Service for non-commercial purposes and User’s claim is for less than $10,000, eMoney will reimburse User’s filing fee, unless the arbitrator finds that either the substance of User’s claim or the relief sought is frivolous or brought for an improper purpose, in which case the payment of all fees will be determined in accordance with the AAA Rules . If User is using the Service for non-commercial purposes and User’s claim is for greater than $10,000, the payment of all fees will be determined in accordance with the AAA Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Exceptions: Notwithstanding anything else in this Agreement to the contrary, eMoney and User both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, provided that is the sole form of relief sought, or (iv) to file suit in a court of law to address intellectual property infringement claims. User and eMoney agree that the state courts with jurisdiction over Montgomery County, Pennsylvania shall have exclusive jurisdiction over any claim, dispute or controversy brought pursuant to this section, and both parties irrevocably consent to the jurisdiction of this court.
No Class Actions: USER AND eMONEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT IN ANY REPRESENTATIVE CAPACITY, INCLUDING A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR ANY OTHER REPRESENTATIVE PROCEEDING WHATSOEVER. Further, unless both User and eMoney agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. Any determination about the validity, interpretation, enforcement, and/or application of this No Class Action section is delegated to the arbitrator.
Jury Trial Waiver: USER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, USER AND eMONEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY Claims TO THE FULLEST EXTENT PERMITTED BY LAW.
Governing Law: Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. If the FAA and AAA Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the Commonwealth of Pennsylvania, without respect to its conflict of laws principles, the parties acknowledge that this Agreement evidences a transaction involving interstate commerce.
Changes and Opt-out: User may opt out of the applicability of this section by providing eMoney a written opt-out notice within 30 days of the date of the “Effective Date” above. This written notice must be provided by mail to Attn: Privacy Officer, eMoney Advisor, LLC, Four Radnor Corporate Center, Suite 300, 100 Matsonford Road, Radnor, PA 19087. In order to be effective, the notice must include User’s full name and clearly indicate User’s intent to reject changes to this Agreement.
Severability: If any clause or provision set forth in this Arbitration, Class Waiver, Jury Trial Waiver, Governing Law section is determined to be illegal, invalid or unenforceable under present or future law, then the clause or provision so determined to be illegal, invalid or unenforceable shall be severable without affecting the enforceability of all remaining clauses or provisions.
15. Additional Terms for Mobile Applications
14.1 Mobile Applications. We make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. Company does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Company User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Company may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Company or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Applications originates in the United States and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
14.2 Mobile Applications from Apple App Store. The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Company, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
Mobile Applications from Google Play Store. The
following applies to any Mobile Applications you acquire from the Google
Play Store (“Google-Sourced Software”): (i) you
acknowledge that the Agreement is between you and Company only, and not
with Google, Inc. (“
15.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
15.2 Notification Procedures and Changes to the Agreement. Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘Last Updated’ date at the top of this page and notify you that material changes have been made to the Agreement by email to your registered email address, by prominent posting on the Services (such as by placing a conspicuous announcement of such changes on the Services or by presenting you with a web page containing an electronic copy of the modified Agreement), or through other appropriate communication channels. All changes shall be effective from the date of publication unless otherwise provided in the notification, and your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
15.3 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Company in connection with the Service, shall constitute the entire agreement between you and Company concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
15.4 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
15.5 Contact. Please contact us at Legal@emoneyadvisor.com with any questions regarding this Agreement.