These Terms of Service (“Agreement”) describes the terms and conditions on which Jester Financial Technologies, Inc. (“Jester”, “we” or “us”) provides its financial calculation service available on or through the Jester website and/or mobile applications (collectively, the “Service”) to you, the users of the Service (“you” or “User”). The Service allows Users, who may be individuals using the Service on their own behalf (“End Users”) or financial advisors (“Advisors”) using the Service on behalf of their clients, to conduct calculations for financial and retirement planning. Whether you are an End User or Advisor (or an employee or agent of any of them) using the Service, you are a “User” and governed by this Agreement. You should read this Agreement carefully, because by indicating acceptance of this Agreement or by otherwise using the Service (whether by browsing or registering as a user), you are entering into a legally binding agreement with Jester. If you do not agree to these terms and conditions, you must not use the Service.
1. Registration.
In order to use certain features of the Service, Users must create an account and register with us. If you register as a User or otherwise use the Service, you represent and warrant to Jester that: (i) you are of legal age to form a binding contract; (ii) you will provide Jester with accurate, current and complete registration information; (iii) if you are registering on behalf of an Advisor or another organization, you have all right and authority to bind the Advisor or other organization to this Agreement; and (iv) your registration and your use of the Service is not prohibited by law. You are responsible for your registration and all use of the Service under it. If you choose to share an account with a family member, the registered User will be responsible for all use of that account and password. You must keep your username and password confidential. Sharing passwords with any unauthorized person is not permitted.
2. Fees and Payment.
Certain features of the Service are available for free while others require payment of subscription fees (“Fees”). The Fees are described further in the Jester subscription plans published on the Jester website and apps (the “Plans”). If you are entering a paper version of this Agreement with Jester, your Plan will be attached to the copy of the Agreement you sign. You will pay Jester all applicable Fees in accordance with the Plans. Unless Jester has agreed in writing that you may pay by invoice, you must provide Jester with your credit card details and Jester will debit your card for your Plan Fees at the beginning of the applicable service period. If for any reason your card payment is refused or any chargeback is made, you remain liable to pay the Fees to Jester. If you are paying by invoice, all amounts are due within 30 days from date of invoice. Any overdue payments shall bear interest at the rate of 1% per month, or the maximum amount permitted by law, if lower. You shall also pay Jester all of its costs of collecting any unpaid amounts from you, including attorneys’ and collection agents’ fees.
3. License to Use the Service.
If you are an End User, Jester grants you the non-exclusive, non-transferable right to access, view and use the Service for your personal, non-commercial purposes, subject to the payment of any applicable Fees. If you are an Advisor, Jester grants you the non-exclusive, non-transferable right to access and use the Service for the benefit of your own clients, subject to payment of any applicable Fees. Additional restrictions on the use of the Service may also be described in the Plans; these restrictions also apply. You warrant and agree that your use of the Service will be consistent with this Agreement and will not infringe or violate the rights of any other party or breach any contract or legal duty. You will comply with all applicable laws, regulations and ordinances relating to the Service, the Jester Property or your use of them.
You are responsible for obtaining and maintaining the computer and other equipment you use to access the Service, and for paying for such equipment and any telecommunications charges. We are not liable for any loss or damage you suffer arising from damage to equipment used in connection with use of the Service. Users with accounts may input and store certain data with the Service so that it is available for future use. While Jester will make reasonable efforts to make such data available to you, you should maintain your own back up copies of all data. Jester will not be responsible if data backups fail and it is unable to restore data stored by Users.
4. Proprietary Materials and Ownership.
The Service is the property of Jester. Without limitation of the foregoing, all the text, images, “look and feel”, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on the Jester website and apps, other than User Data as defined below (collectively, the “Site Content”), all software embodied in the Jester website or apps or otherwise used by Jester to deliver the Service (“Software”), and all data generated through use of the Service (“Service Data”), is proprietary to us or to our third party licensors and are protected by copyright and other intellectual property laws. Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of the Software, Site Content or Service Data (collectively, the “Jester Property”) is prohibited. You may not remove any copyright, trademark or other proprietary notices that have been placed on the Jester Property. You may be subject to criminal or civil penalties for violation of this paragraph.
The marks JESTER and the JESTER logo are registered or unregistered trademarks of Jester, and they may not be used in connection with any service or products other than those provided by Jester, in any manner that is likely to cause confusion among Users, or in any manner that disparages or discredits Jester. The Service may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks will inure solely to the benefit of their respective owners.
5. User Data
When you use the Service, you may submit data to Jester’s calculators, including data about your or the End User’s assets, investments or income (collectively, “User Data”). The User Data remains your property, and Jester does not claim any ownership of the copyright or other proprietary rights in such User Data. You grant Jester the right to store and use your User Data in order to deliver the Service to you. You represent and warrant that you have the full authority and right to provide the User Data to the Service, and that Jester’s use of the User Data to deliver the Service to you shall not violate or infringe any law or any right of any third party. Some User Data may constitute “Personal Information”, as that term is defined in our Privacy Policy; Jester’s use of such User Data is described in the Privacy Policy [include hyperlink].
6. Service Restrictions.
6.1 You shall comply with all rules and policies applicable to the use of the Service, including those published on the Service from time to time. Without limitation, you shall not:
(a) Use, upload, post, distribute or transmit, any User Data in violation of, or in connection with any violation of, any local, state, national or international laws;
(b) Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Data;
© Access any User Data other than your own User Data (if you are an End User) or the User Data of your own clients (if you are an Advisor);
(d) Except as otherwise permitted by this Agreement, harvest or otherwise collect information about others, including email addresses, without their consent;
(d) Collect, retrieve, copy or harvest any data published on the Service, including by use of robots, spiders, web scraping devices, or other programs, algorithms or automated means;
(e) Engage in any other conduct that interferes with the Service or that restricts or inhibits any other person from using or enjoying the Service, or which, in Jester’s sole judgment, exposes Jester or any of its officers, directors, employees or agents to any liability or unreasonable detriment of any type; or
(f) Distribute or spread by means of the Service any software viruses or any other code, file or program that is designed to interrupt, destroy, harm or limit the functionality of any computer software, hardware or telecommunications equipment.
6.3 Jester reserves the right (but is not obligated) to do any or all of the following:
(a) record User Data;
(b) Investigate any allegation that User Data or registration information does not conform to the terms and conditions of this Agreement;
© remove User Data that is abusive, illegal or disruptive, or that otherwise fails to conform to the terms and conditions of this Agreement;
(d) monitor, delete, reformat, or disclose any User Data, subject always to the Jester Privacy Policy, regardless of whether such content violates any terms and conditions of this Agreement.
Jester has no liability or responsibility to users of the Service or any other person or entity for performance or nonperformance of the aforementioned activities.
7. Minors.
Use of the Service is not directed to users under the age of 13. If you are under the age of 13, you are not permitted to register as a User or to send personal information to Jester.
8. Third Party Websites and Sponsored Links.
The Service may display links to third-party websites and services. Some links are sponsored links, and Jester may receive a commission from a third party if you purchase goods or services from links or advertisements published on the Service. Whether or not the links or advertisements are sponsored or Jester receives compensation, the linked services and sites are not under our control. Jester is not responsible for the contents of any linked site or for the products or services available there. Jester’s publication of a link or advertisement does not imply endorsement of, sponsorship of, or affiliation with the linked site or service by Jester. You purchase goods or services from linked sites or services at your own risk, and you should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
9. Ideas Submitted to Jester.
Jester is pleased to hear from you and welcomes your comments about the Service. In the event that you submit ideas or suggestions about the Service (“Service Comments”), the Service Comments will be deemed, and will remain, the sole property of Jester. None of the Service Comments will be subject to any obligation of confidence on the part of Jester, and Jester will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Jester will be entitled to unrestricted use of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.
10. The Service Does Not Constitute Financial, Tax or Legal Advice
The Service provides a source of information to Users. The Service does not constitute legal, tax, accounting, or retirement planning advice. Users rely on the calculations, results, guidelines or recommendations provided by the Service at their own risk, and all data and calculations are current only at the time actually performed. Jester assumes no responsibility for modifying or updating any results for events occurring after you perform the original calculation. Each User’s financial circumstances will differ, and you should always seek the advice of an appropriately qualified accountant or advisor before making any decisions or investments after using the Service. Jester assumes no responsibility for any consequence relating directly or indirectly to any action or inaction you take based on the Service or any information provided to you by the Service.
11. Warranty Exclusions and Limitations of Liability.
Jester may pause or interrupt the Service at any time for periodic or emergency maintenance, and Users should expect periodic downtime for updates to the Service. THE SERVICE IS PROVIDED ‘AS IS’. JESTER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICE AND JESTER PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE OR THE JESTER PROPERTY. No advice or information, whether oral or written, obtained by you from Jester or through the Service will create any warranty not expressly stated herein.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM JESTER ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, INVESTMENT LOSSES, FAILURE TO REALIZE GAINS, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICE OR THE JESTER PROPERTY, EVEN IF JESTER HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. JESTER’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU TO JESTER IN THE 12 MONTHS BEFORE THE LIABILITY AROSE, OR IF NO FEES WERE PAID, THE SUM OF $10.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
12. Indemnity
You shall defend, indemnify and hold harmless Jester against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with your use of the Service or breach of any provision of this Agreement. If you are an Advisor, this indemnity covers, without limitation, any claims by any User or other party to whom you provided financial advice. Jester reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You will cooperate with Jester with respect to such defense and settlement.
13. Privacy Policy.
Jester operates the Service under the PRIVACY POLICY published at http://www.Jester.com/privacy, which forms part of and is hereby incorporated into this Agreement. The Privacy Policy describes how Jester collects, uses and discloses personal information in connection with the Service.
14. Applicable Law, Compliance.
The Service is operated by Jester from the United States, and Jester does not represent or warrant that use of the Service is lawful in other jurisdictions. All matters arising from or relating to the use and operation of the Service shall be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles. The Uniform Computer Information Transactions Act shall not apply to this Agreement. If you gain access to the Service from locations outside the United States, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Service in violation of U.S. export laws or regulations.
15. Arbitration and Dispute Resolution.
All disputes arising out of or relating to this Agreement or the Service between or among Jester, and any User or Users shall be resolved exclusively by binding arbitration conducted in Wilmington, Delaware before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. In the event that the American Arbitration Association is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the State of Delaware without reference to principles of conflicts of laws. Notwithstanding any rules of the American Arbitration Association to the contrary, any claims shall be adjudicated on an individual basis, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Jester does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement or the Service shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Wilmington, Delaware, except that, following confirmation of an arbitration award in a state or federal court in Wilmington, Delaware, a judgment arising therefrom may be executed in any court of competent jurisdiction.
16. Suspension; Modifications and Termination
Jester reserves the right to suspend your password and/or access to the Service at any time if it believes you are in breach of this Agreement. Jester reserves the right to terminate or modify this Agreement, terminate the Service or modify any features or aspects of the Service, or modify its policies at any time, with or without notice to you. If you use the Service for free, you shall be bound by the version of the Agreement in effect at the time of your use. If you are subject to payment of Fees, any changes to this Agreement will not take effect until the beginning of your next subscription period. If you renew your Plan by making payment, you will be deemed to have accepted the Agreement as published at the time of renewal. You are under an obligation to review the current version of this Agreement and other published Jester policies before using the Service or renewing any Plan.
If you wish to terminate this Agreement and your relationship with Jester, you must delete our account and cease use of the Service, following the instructions available through the Jester website.
Sections 2, 3, 5, 6, and 9 through 19, any accrued rights and remedies, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
17. Force Majeure
In no event shall Jester be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Jester’s reasonable control.
18. Notices
You agree that Jester may provide notices about the Service and formal notices under this Agreement to you by sending email to the email address associated with your account. You consent to such electronic notices. You acknowledge that you must update your email address if it changes, so that Jester has your current email address.
19. Miscellaneous Provisions.
No delay or omission by Jester in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Jester of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, “including” means “including but not limited to”. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Jester regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable or transferable by you to any third party without the prior written consent of Jester. We may assign this Agreement to any purchaser of the Jester business. This Agreement may be executed electronically, and your electronic assent or use of the Service shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.
• Effective Date of Agreement: August 1, 2013.