Effective Date: September 15, 2016
Last Modified: September 15, 2016
1. PRELIMINARY ISSUES:
This document (the “Agreement”) is a legally-binding contract that will govern the relationship between You and Us as You use Our site and services. Therefore, it is very important that you read and understand this Agreement before using any of Our services, including the website(s) that this Agreement covers: www.advisorRETIRE.com.
1.1. Collaborative Wealth Management, Inc. (“Company”) is the operator of the above-referenced website(s) (collectively “Site” or “Sites”), through which Company provides its Services.
1.2. This Agreement will refer to any and all Users of the Site and Services as “User” or “You” and other second-person pronouns.
1.3. Certain portions of Our Site and Services may allow You to register for an account or otherwise enter areas of the Site and Services that other Users who choose not to register may not access. Should You desire to register for an account, You will become a Member of the Site and Services. All provisions of this Agreement pertaining to You or Users are equally applicable to Members.
Assent and Changes to the Agreement:
1.4. By clicking the “I agree” button [KW2] or by accessing, visiting, browsing, registering, using or attempting to interact with any part of the Site or Services, You agree that You have read, understand and agree to be bound by this Agreement, and You have subsequently entered into a legally-binding contract with Us. If You do not agree to be bound by this Agreement, do not access or use any part of this Site or Services. Even if You do not become a Member of the Site and Services, consideration for Your agreement to the provisions herein is found by Your use or visitation of the Site and Services. You understand and agree that such consideration is adequate and received upon Your use of the Site and Services.
1.5. You represent and agree that You will not use the Site or Services if doing so would violate the laws of Your state, country, or province. You further represent and agree that You will not use the Site or Services for illegal purposes.
1.7. Incorporations by Reference. While this Agreement represents the primary terms regarding Your use of Our Site and Services, additional guidelines and policies are hereby incorporated by reference. The following documents are specifically incorporated by reference, and are therefore part and parcel of this Agreement:
2. ACCESS AND MEMBERSHIP TO THIS SITE
2.1. To access this Site and Services, You may be asked to provide certain registration details or other information (“Registration Data”) in order to become a Member. It is a condition of Your use of this Site and Services that all the information You provide through the Site, including Registration Data, will be correct, current, and complete. If We believe the information You provide is not correct, current, or complete, We have the right to refuse you access to the Site or Services, and to terminate or suspend Your access or membership at any time.
2.2. Given the nature of the Services, some of the Registration Data You provide, as well as other of Your Content, as defined below, may be personal, private, or otherwise sensitive. It is Your responsibility to keep that information up to date and accurate. While we use commercially reasonable efforts to protect all information which You provide to Us, it may be technically impossible to prevent determined third-party hackers, phishers, or scammers from obtaining such information through nefarious means. For that reason, We cannot be responsible for the intentional and criminal acts of those third parties, nor can We be responsible for Your negligence with regard to Your Content, including the Registration Data.
2.3. You are responsible for all activity transpiring under Your account. We disclaim any and all liability arising from fraudulent use of the Site and Services. Given Our commitment to security, We may terminate, suspend, or otherwise cancel any account that appears, in Our sole discretion, to be engaging in fraudulent or suspicious use.
2.4. Since You are responsible for all activity transpiring under Your account, You agree that You will immediately notify Us should You suspect that there has been any unauthorized activity associated with Your account or other use of the Site or Services.
2.5. Termination of Your Access or Membership:
2.5.1. We may suspend or terminate Your access or membership to the Site and Services, without notice, if You, in Our discretion, have breached any provision of this Agreement, or the policies and other documents incorporated by reference.
2.5.2. Additionally, we reserve the right to cease operations of the Site and Services at any time and for any reason, and You agree that such cessation will be without liability or harm to You.
2.5.3. You understand and agree that We shall not be liable to Your for any reason in the event that We suspend, terminate, or otherwise cancel Your membership to the Site and Services.
2.6. Service Interruptions: Due to factors outside of Our control, as well as certain factors within Our control, such as software and hardware upgrades, the Site or Services may be temporarily unavailable. You agree to hold Us harmless for any such interruption, whether or not such interruption was planned and whether or not We notified You of any interruption.
2.7. Third Party Links: The Site and Services may be hyperlinked to other sites which are not maintained by, or related to Our Site. Links to such sites are provided as a service to Our Users and are not sponsored by or affiliated with this Site or Us. We likely have not reviewed any or all of such sites and We are not responsible for the content of those sites. You access such third-party sites at Your own risk, and We make no representations or warranties about the content, completeness or accuracy of these links or the sites linked to this Site and Services. We provide links as a convenience, and the inclusion of any link to a third-party site does not necessarily imply Our endorsement of such site. Third party sites are subject to their own terms and privacy policies.
3. GENERAL RESTRICTIONS AND OTHER INFORMATION ON USE
3.1. You may only use the Site and Services for purposes expressly permitted by this Site. As a condition of Your use of the Site and Services, You warrant to Us that You will not use the Site or Services for any purpose that is unlawful or prohibited by this Agreement or by law.
3.2. No Investment or Tax Advice. The contents of the Site and Services (“Site Materials”) are for informational, personal, and noncommercial use only. You should not use the Site or Services alone as the basis for any investment decisions. Investment decisions should be made with direct advice from a properly-credentialed investment advisor. Further, any advice provided by the Site or Services does not include formal tax or legal advice. You should consult a tax advisor and/or attorney for such advice.
3.3. Forward Looking Information and Statements. Some portions of the Site or Services may contain “forward-looking” statements, which may include words such as “believe,” “anticipate,” “expect,” and “will.” Company is under no obligation to revise any such forward looking statement, therefore You should not rely on the accuracy of such statements without Your own additional research and without the assistance of a credentialed investment advisor.
3.4. By accepting this Agreement and using the Site or Services, and provided that You do not make any copies of the Site or Services as restricted below, We grant You a single limited, revocable, nonexclusive and nontransferable license to access and use the Site Materials. The Site, Services, and Site Materials are for Your personal use only. Should We terminate Your account or access to the Site or Services, the license granted in this paragraph shall immediately terminate and any continued access or use of the Site, Service, or Site Materials shall be unauthorized. The Site Material and certain other content accessible from the Site and Services is the proprietary information of Company or the party that provided or licensed the content to Company, whereby such providing party retains all right, title, and interest in such content. Accordingly, it is a condition of Your use of the Site that the Site Materials may not be copied, distributed, republished, uploaded, posted, or transmitted in any way without Our prior written consent, except that You may print out a copy of the Site Materials solely for your personal use. In doing so, You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark (including but not limited to advisorRETIRE™), or any other proprietary notice or legend appearing on any of the Site Materials. Modification or use of the Site Materials except as expressly provided in this Agreement violates Our intellectual property rights. Neither title nor intellectual property rights are transferred to You by using the Site or Services.
3.5. We respect the intellectual property rights of others, and We have developed and adopted a policy to terminate the accounts of repeat copyright infringers pursuant to the Digital Millennium Copyright Act. Copies of our Repeat Infringer Policy are available upon request to Our Users.
3.6. By using the Site and Services, You will have created a commercial relationship with Us for purposes of CAN-SPAM. In having done so, You agree and consent to Us sending You messages, which may include product announcements and other marketing messages[KW6] .
4. SPECIFIC RESTRICTIONS ON YOUR CONTENT AND YOUR USE OF THE SERVICES
In addition to other restrictions found in this Agreement, You agree that Your use of the Site and Services will not include conduct which:
4.1. harvests or otherwise collects information about others, including e-mail addresses, without their owners’ consent;
4.2. duplicates or makes any part of the Site or Services available to others without Our authorization, including derivative works;
4.3. circumvents any encryption or other security mechanisms used anywhere on the Site or Services;
4.4. violates any law or may be considered to violate any law;
4.5. impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
4.6. falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is permissibly uploaded;
4.7. advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as may be specifically authorized on this Site;
4.8. solicits funds, advertisers or sponsors;
4.9. includes programs that contain viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications, including those of the Site or Services;
4.10. attempts to obtain any materials, content, or information through any means not intentionally made available or provided for through the Site or Services. For example, You may not use a screen-scraper or other automated means to access information from the Site or Services.
4.11. You agree to cooperate with Us to cease any unauthorized use or conduct.
We reserve the right to monitor use of this Site and Services to determine compliance with this Agreement. We also reserve the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Our sole discretion.
You understand that We cannot, and do not, guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties, including files from the Site or Services. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for accuracy of data input and output, and for maintaining a means external to this Site and Services for any reconstruction of any lost data.
YOUR USE OF THIS SITE AND SERVICES IS AT YOUR OWN RISK. THE CONTENT IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE CONTENT AVAILABLE VIA THE SITE OR SERVICES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND WE MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT US, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE OR SERVICES. COMPANY MAKES NO WARRANTIES THAT YOUR USE OF THE SITE OR SERVICES WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
All of the information on the Site and Services, whether historical in nature or forward-looking, speaks only as of the date the information is posted on this site, and We do not undertake any obligation to update such information after it is posted or to remove such information from the Site or Services if it is not, or is no longer accurate or complete.
None of the warranties and representations herein apply or extend to any third person.
6. LIMITATION ON LIABILITY
COMPANY, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, BUSINESS INTERRUPTION, LOSS OF GOODWILL, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF COMPANY AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID TO COMPANY FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE.
California Residents: You specifically waive the provisions of Section 1542 of the California Civil Code and any similar law of any other state, territory or jurisdiction. Section 1542 provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You agree that You will indemnify and hold Company, its subsidiaries, affiliates, licensors, third-party content providers, service providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) harmless from any breach of this Agreement by You and for any of Your conduct via the Site and Services should We be obligated to defend any claims arising from such conduct. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and You agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of Your use of the information accessed from the Site or Services. As explained above, any conduct occurring under Your account will be considered Your conduct.
We will notify You by electronic mail of any such claim or suit requiring Your indemnification, and We will cooperate fully (at Your expense) in the defense of such claim or suit. We also reserve the right to participate in the defense of such claim or defense at Our own expense, and choose Our own legal counsel, but We are not obligated to do so.
7. OUR TRADEMARKS AND COPYRIGHTS
Trademarks, service marks (including but not limited to advisorRETIRE™, logos, and copyrighted works appearing on the Site and Services are the Company’s property or the property of the party that provided the trademarks, services marks, logos, and copyrighted works to Company. We, and any party that provided trademarks, service marks, logos, and copyrighted works to Us, retain all rights with respect to any of their respective trademarks, service marks, logos, and copyrighted works appearing on this Site and Services.
8. COPYRIGHT INFRINGEMENT AND DMCA POLICY
In providing the Site and Services, We are a “service provider” as defined by the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(k)(1). Therefore, We are eligible for certain “safe harbors” under the DMCA. We respect the intellectual property of our Users and of others, and We have developed the following DMCA Policy to handle claims of copyright infringement.
8.1. How to Notify Us of Alleged Infringement: If You, or any other third party visitors to the Site, believe that your work has been infringed by virtue of appearing on the Site or Services, please send the following information to Our Designated Copyright Agent:
8.1.1. The identification and description of the copyrighted work that you believe has been infringed;
8.1.2. The identification and description of the material that you believe is infringing your copyrighted work, along with information sufficient to allow Us to locate the material. (For example, provide the URL and/or file name.);
8.1.3. Your contact information, including your address, telephone number, and a-meil address;
8.1.4. A statement that you have a good faith belief that the use of the allegedly infringing material is being used in a way that is not authorized by the copyright owner, its agent, or the law. (Note that the law allows for fair use of copyrighted works, so you should evaluate the use for fair use prior to requesting that the material be removed.);
8.1.5. A statement, made under penalty of perjury, that the information you provided is accurate and that you are authorized to act on behalf of the copyright owner regarding the alleged infringement.
8.1.6. Your physical or electronic signature.
8.2. Presuming all information is provided and is accurate, the information in 8.1.1-8.1.5 shall be considered a “DMCA Notice” under 17 U.S.C. § 512(c)(3).
8.3. Please send your DMCA Notice to:
8.4. Upon receiving a valid, compliant DMCA Notice, We will expeditiously remove the allegedly infringing material and provide Our User with information concerning the DMCA Notice and Our Counter-Notification procedure. When appropriate, We will terminate the account of repeat infringers, per Our Repeat Infringer Policy.
8.5. DMCA Counter-Notification Procedure: We also provide a Counter-Notification procedure for our Users to use when they believe that a DMCA Notice was issued in error and which resulted in the User’s User Content being removed. To submit a Counter-Notification, You must submit the following information, which We will then forward to the original complaining party who sent a DMCA Notice to Our Designated Agent:
8.5.1. Identification of the material that was removed or disabled, and the location of such material prior to its removal;
8.5.2. A statement made under penalty of perjury that the counter-notifying party believes, in good faith, that the material was removed or disabled as a result of mistake or misidentification;
8.5.3. The name, address, telephone number of the counter-notifying party;
8.5.4. A statement that the counter-notifying party consents to the jurisdiction of the Federal District Court for the judicial district in which the address in 8.5.3, above, sites, or, if the counter-notifying party’s address is outside the United States, for any judicial district in which We may be found, and, that the counter-notifying-party will accept service of process from the person who initially provided the DMCA Notice to Us, or that person’s agent.
8.5.5. The physical or electronic signature of the counter-notifying party.
8.6. Please send the counter-notification to the DMCA Agent address listed above.
8.7. Upon receipt of a valid counter-notification by one of Our Users, We will provide the counter-notification to the person who initially provided the DMCA Notice. Thereafter, within ten to fourteen (10-14) days of Our receipt of the counter-notification, We will replace the removed material, so long as We, or Our Designated Agent, have not received notice that the original claimant (who submitted the DMCA Notice) has filed an action seeking a court order to restrain Our User from engaging in the allegedly infringing activity.
8.8. We may modify this DMCA policy as required by Our own operating policies and changes in the relevant law.
Given the importance of security, You agree that We will be entitled to monitor Your password and account activity and, at Our discretion, require You to change Your password if We believe it will improve security.
The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If You, or Your account, become involved in any violation of system security We reserve the right to release Your details to law enforcement. We reserve the right to fully cooperate with any law enforcement authorities or court order requesting or direction Us to disclose the identity of anyone violating this Agreement. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD THE COMPANY HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
10. MISCELLANEOUS PROVISIONS
10.1. No joint venture, partnership, employment, or agency relationship is created between Us based on Your use of the Site or Services.
10.2. Notice: Any notice required under this Agreement may be provided to Us via e-mail to the following address: ClientService@CollaborativeWealth.com. You agree that any notice We must provide to You under this Agreement may be sent to the then-current e-mail address provided in Your account profile.
10.3. Force Majeure: You understand and agree that We shall not be responsible for any failure to provide the Site or Services based on unforeseen circumstance which are out of Our control, including but not limited to: acts of God, such as flood, fire, earthquakes, hurricanes, storms or other natural disasters; changes in the law; hacking; failure of Our upstream providers or Your own communication providers; or the failure of hardware or software.
10.4. Dispute Resolution: This Agreement, and all matters arising out of it, will be governed and interpreted pursuant to the laws of Florida, notwithstanding any principles of conflicts of law. If any dispute between Us may be brought in court, You specifically consent to exclusive personal jurisdiction and venue in Orange County, Florida’s state and federal courts in connection with any dispute between Us arising out of this Agreement. You agree that this choice of venue and forum is mandatory and not permissive, and that the only location for any litigation permitted under this Agreement will be Orange County, Florida, and all parties hereto waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to jurisdiction or venue in Orange County, Florida.
10.4.1. Arbitration: Notwithstanding the foregoing, if a dispute between Us arises out of or is otherwise related to the terms of this Agreement, the parties shall first meet and negotiate in a good faith attempt to resolve the dispute. If the parties are unable to resolve the dispute via this informal meeting, then the parties shall then submit the issue to binding arbitration. The arbitration shall be conducted in Orange County, Florida.
10.4.2. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; or vary or ignore the provisions of this Agreement. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
10.4.3. You understand that You are hereby waiving and giving up Your right to a trial by jury and any right You may have to participate as a representative or member of a class of claimants in any lawsuit involving Us or Your use of the Site or Services.
10.4.4. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at http://www.dca.ca.gov/about_dca/contactus.shtml.
10.5. If any part of this agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. All covenants, representations, warranties, and agreements make by You shall survive the termination of this Agreement.
10.6. The failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
10.7. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. However, neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You, and any such attempt shall be void.
10.8. This Agreement constitutes the entire agreement among the parties relating to this subject matter and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written between Us with respect to the Site and Services and Your use thereof.