Client Agreement
1. Services.
1.1. Grant. Subject to the terms of this Agreement, The E-Valuator hereby grants you a limited, revocable, non-exclusive, non-sublicensable, and non-transferrable license to: (a) have access to and use the Services solely in accordance with this Agreement; and (b) use the user guides for the Services provided by us and located at http://e-valuator.com/member-levels solely for your use of the Services.
1.2. Restrictions.
(a) You may not, and may not permit any third party to, use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. You may not, or may not attempt to, and may not permit any third party to: (i) modify, alter, tamper with, copy, translate, or otherwise create derivative works of the Services or any part thereof or otherwise attempt to discover any source code or modify the Services in any manner or form; (ii) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services; (iii) resell or sublicense the Services; (iv) use the Services to develop any software or other technology having the same primary function as the Services; (v) use the Services in a manner that interferes with other users' use of the Services; or (vi) use the Services in any manner that violates our Policies.
(b) Certain information contained in the Services: (i) is proprietary to Morningstar Inc. and/or its content providers; (ii) may not be copied or distributed by you, whether directly or indirectly; and (iii) is not warranted to be accurate, complete, or timely. Neither Morningstar Inc. nor its content providers are responsible for any damages or losses arising from any use of the Services or this information.
(c) As used in this Section 1.2(c), “Product” means the data elements/sets that are made available by Morningstar Inc. and/or its content providers to us for certain investment vehicles; and “Output” means materials, containing any portion of the Product, which is generated by or through the Services, and shall include, but is not limited to the following: internet web page reports, pdf reports, spreadsheets, graphs, charts, documents, and any other reports or materials.
You: (i) and any employee or agent of you (if you are an entity) permitted to access or otherwise use the Services on your behalf may utilize the Product within the Services only to view, screen, and conduct analysis; (ii) may create Output that provides further investment, portfolio, and comparison detail; (iii) shall not export the Product separate from what may be provided in any Output; and (iv) may distribute to your individual investor clients, if any, any Output created by you only if: (1) Output may not be distributed as a stand-alone product, and may only be incorporated in value-add reports or presentations, either of which are part of the functionality available in the Services offered by us; (2) Output may be provided to no more than twenty-five (25) individual investor clients of yours; (3) Output may not be used as part of a general mailing or included in external websites or other mass communication vehicles or formats, including, but not limited to, advertisements; and (4) in no event may Output be resold by you.
(d) All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the term of this Agreement, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, content providers or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.
1.3. Reserved Rights. As between you and us, we or our content providers, affiliates or licensors own and reserve all right, title, and interest in and to the Services. This Agreement does not grant you any rights in or to the Services or any of its components except for the limited rights to use the Services expressly granted by this Agreement.
1.4. Changes to the Services; Support. We may change or remove features or functionality of the Services at any time (including the Services as a whole). We will provide support for the Services that we generally provide to other users of the Services without charge.
2. Your Account.
2.1. Registration. To access the Services, you must register and create an account with us through The E-Valuator website. The account must be associated with a valid e‑mail address. You may only create one account per email address. By registering for a subscription, you represent and warrant that all registration information that you provide is true, complete, and accurate, and you agree to keep your registration information current. You may terminate your account and this Agreement at any time in accordance with Section 4.
2.2. Trial Subscription. If offered a free trial subscription to the Services, if you don't terminate during this trial period, the initial term of your paid Services subscription will start immediately after the free trial period ends, and will continue for the length of time that you selected when you registered. If you have subscribed to the Services in the past twenty-four (24) months, you will not receive a free trial and your credit card will be charged immediately for the subscription fee associated with the term you select.
2.3. You are Responsible for Your Account; No Account Sharing. YOU ARE RESPONSIBLE FOR ALL USE, ACTIVITIES, AND CHARGES ASSOCIATED WITH OR ARISING FROM ANY USE OF YOUR ACCOUNT, REGARDLESS OF WHETHER YOU AUTHORIZED SUCH USE, ACTIVITIES, OR CHARGES. WE AND OUR AFFILIATES ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR ACCOUNT. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You will be deemed to have taken any action that occurs under your account. You agree to keep your password secret and not to share it with anyone except as expressly allowed under this Agreement. YOUR SUBSCRIPTION IS FOR YOUR USE ONLY. YOU SHALL NOT SHARE YOUR SUBSCRIPTION WITH ANY OTHER INDIVIDUAL OR ENTITY OR SELL, TRANSFER OR SUBLICENSE YOUR SUBSCRIPTION.
2.4. Policies. Your use of the Services is subject to the website Terms of Use currently referenced at http://e-valuator.com/terms-of-use and the Privacy Policy currently referenced at http://e-valuator.com/privacy-policy, as each may be updated from time to time, and any other policy or terms for access to and use of the Services, as updated from time to time and as posted on our web site (collectively, the “Policies”). You will comply with all applicable laws and regulations in connection with your use of the Services.
3. Fees and Payment.
3.1. Service Fees. We calculate and bill fees for the Services monthly or annually, depending upon your subscription type. You will pay us the applicable fees and charges for use of the Services as described on The E-Valuator website using one of the payment methods we support. If offered a free trial period, you will not be charged a subscription fee during that free trial period. However, if you do not cancel your subscription before the free trial period ends, you will be charged for the initial term of your subscription and then, at the beginning of each renewal term, if any, for the subscription fee for that renewal term. Fees for the Services shall be paid in advance on a monthly or annual basis depending upon your subscription type. Services fees are based on services purchased and not actual usage, payment obligations are noncancelable, and fees paid are non-refundable. Fees for any new Services or new feature of the Services will be effective when we post updated fees on our website. We may increase fees for any existing Services at your next renewal term for the Services, which depend upon your subscription type. (For example, if you have a monthly subscription, we may increase fees at your next monthly subscription term. If you have an annual subscription, we may increase fees at your next annual subscription term.)
3.2. Overdue Charges. If any Services fees are not received by us by the due date or if any payments you have made to us are reversed or charged back based on your credit/debit card transaction, we may suspend all Services until you have made alternative payment arrangements satisfactory to us. Any reversed or charged back payments, until paid in full, shall bear interest at a rate of 1.5% per month (or the highest rate permitted by law, if less) from the reversal/chargeback date until paid. You must promptly notify us (as set forth below) if any information related to your credit card changes or is no longer valid or of any other change to the information you provided to us regarding your credit card. Absent such notification, we will assume that all of the information related to your credit card remains valid and will submit to the card processor all information that it requires for approval, both when you initially subscribe and, if applicable, upon the commencement of any renewal of that subscription. You agree to pay all costs (including attorneys' fees) incurred by us in collecting any unpaid subscription fees or other charges from you.
3.3 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax.
4. Term; Termination; Suspension
4.1. Term. This Agreement shall commence on the Effective Date and will continue thereafter until terminated as set forth in this Agreement. If offered a free trial subscription to the Services, if you don't terminate during this trial period, the term of your paid Services subscription will start immediately after the free trial period ends, and will continue on a month-to-month basis thereafter for monthly subscriptions and a year-to-year basis thereafter for annual subscriptions, until terminated by either party in accordance with this Section. If not offered a free trial subscription to the Services, the term of your paid Services subscription will start immediately on the Effective Date, and will continue on a month-to-month basis thereafter for monthly subscriptions and a year-to-year basis thereafter for annual subscriptions, until terminated by either party in accordance with this Section. Unless you terminate your subscription before the end of your then-current subscription term, your subscription will continue to automatically renew for successive terms of the same duration (i.e. monthly or annually) and your credit card will be charged for each such renewal at the subscription fee in effect at the time of that renewal.
4.2. Suspension. We may suspend your right to access or use any portion or all of the Services immediately upon notice to you if we determine: (a) your use of or registration for the Services may subject us, our affiliates, or any third party to liability or may adversely impact the Services or the systems or content of any other The E-Valuator customer; (b) you are in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If we suspend your right to access or use any portion or all of the Services you remain responsible for all fees you have incurred through the date of suspension and for any applicable fees for any Services to which you continue to have access. Our right to suspend your right to access or use the Services is in addition to our right to terminate this Agreement pursuant to Section 4.3.
4.3. Termination. You may terminate this Agreement at any time and for any reason by using your Personal Settings page or its equivalent. We may terminate this Agreement at any time and for any reason by providing you 15 days advance notice. We may also terminate this Agreement immediately, without notice or liability, if we determine in our sole discretion that: (i) you have breached any portion of this Agreement; (ii) your use of or access to the Services violates any applicable law or regulation or otherwise inhibits any other user from using or accessing the Service; (iii) the reasons for suspension in Section 4.2 will not be cured; (iv) our relationship with a third party partner who provides software, content, data, or other technology we use to provide the Services expires, terminates or requires us to change the way we provide part of the Services; (v) providing the Services could create a substantial economic or technical burden or material security risk for us; or (vi) our provision of any of the Services to you has become impractical or unfeasible for any legal or regulatory reason.
4.4. Effect of Termination. Upon termination of this Agreement, your rights to use the Services terminate and you remain responsible for all fees you have incurred through the date of termination. We have no obligation to refund to you any prepaid fees.
5. Warranty Disclaimers.
THE SERVICES ARE PROVIDED “AS IS.” WE AND OUR CONTENT PROVIDERS, AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, INCLUDING ANY WARRANTY THAT THE SERVICES OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT OR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR CONTENT PROVIDERS, AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY OF INFORMATIONAL CONTENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
NEITHER THE E-VALUATOR NOR ITS CONTENT PROVIDERS, AFFILIATES OR LICENSORS WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICES. NEITHER THE E-VALUATOR NOR ITS CONTENT PROVIDERS, AFFILIATES AND LICENSORS SHALL BE RESPONSIBLE FOR INVESTMENT DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE SERVICES.
PAST PERFORMANCE OF A MUTUAL FUND, STOCK, OR OTHER INVESTMENT VEHICLE DOES NOT GUARANTEE FUTURE RESULTS OR PERFORMANCE. NEITHER THE E-VALUATOR NOR ITS CONTENT PROVIDERS, AFFILIATES OR LICENSORS SHALL BE CONSIDERED AN "EXPERT" UNDER THE SECURITIES ACT OF 1933. NEITHER THE E-VALUATOR NOR ITS CONTENT PROVIDERS, AFFILIATES OR LICENSORS WARRANT THAT THE SERVICES COMPLY WITH THE REQUIREMENTS OF THE NASD OR ANY SIMILAR ORGANIZATION OR WITH THE SECURITIES LAWS OF ANY JURISDICTION.
Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusions or limitations may not apply in all cases.
6. Limitations of Liability.
NEITHER THE E-VALUATOR NOR ITS CONTENT PROVIDERS, AFFILIATES OR LICENSORS SHALL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, OR RELIANCE ON THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY FROM A WILLFUL BREACH BY THE E-VALUATOR OF ANY OF ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT.
THE AGGREGATE LIABILITY OF THE E-VALUATOR, ITS CONTENT PROVIDERS, AFFILIATES AND LICENSORS ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, AND THE RELIANCE ON THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES THAT CAN BE FINALLY PROVED IN A COURT OF COMPETENT JURISDICTION IN AN AMOUNT NOT TO EXCEED THE AGGREGATE SERVICE FEES ACTUALLY RECEIVED BY THE E-VALUATOR FROM YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES OCCURRED.
NEITHER THE E-VALUATOR NOR ITS CONTENT PROVIDERS, AFFILIATES OR LICENSORS SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THE FOREGOING, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF THE E-VALUATOR OR ITS CONTENT PROVIDERS, AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply in all cases.
7. Indemnification. You will defend, indemnify, and hold harmless us, our content providers, affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, demands, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your use of the Services (including any activities under your account); or (b) your breach of this Agreement or violation of applicable law. We will promptly notify you of any claim subject to this Section 7, but our failure to promptly notify you will only affect your obligations under this Section 7 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
8. Modifications to the Agreement. We may modify this Agreement (including any Policies) at any time by posting a revised version on The E-Valuator website or by providing notice to you as set forth in this Agreement. The modified terms will become effective upon posting. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check The E-Valuator website regularly for modifications to this Agreement.
9. Confidentiality. You may use The E-Valuator Confidential information only in connection with your use of the Services as permitted under this Agreement. You will not disclose The E-Valuator Confidential Information during the term of this Agreement or at any time during the 5 year period following the end of such term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of The E-Valuator Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. “The E-Valuator Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. The E-Valuator Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. The E-Valuator Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to The E-Valuator Confidential Information.
10. Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
11. Independent Contractors. Nothing contained in this Agreement should be deemed to constitute either party being an agent, representative, partner, joint venture or employee of the other party for any purpose. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other, incur any liability on behalf of the other, nor to direct the employees of the other. As independent contractors, each shall be separately responsible for the payment of their income or other taxes. In addition, each party shall be separately responsible for carrying workers’ compensation insurance on themselves and their employees and agents.
12. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13. Notices. All communications and notices to be made or given pursuant to this Agreement must be in the English language. We may provide any notice to you under this Agreement by means of posting a general notice on our website or by sending a message to the email address then-associated with your account. Notices we provide by posting on our website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then-associated with your account when we send the email, whether or not you actually receive the email. You may give notice to us at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the following address: The E-Valuator, LLC, 7760 France Ave S #925, Bloomington, MN 55435. Notice to us shall be deemed given when received by us.
14. Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
15. No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
16. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
17. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Minnesota, without giving effect to its conflicts of law principles. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree and consent to the exclusive jurisdiction of, and venue in, the federal and state courts in Hennepin County, Minnesota.
18. Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control. This Agreement has been prepared in English, and English is the controlling language with respect to all matters concerning this Agreement.
Last updated January 6, 2015
4811-8078-5687, v. 5
