NestUp Terms and Conditions

Effective April 16, 2012

  1. Your Right to Use the Offerings. You acknowledge and agree that the Offerings contain proprietary and Confidential Information that is Our property and/or property of Our licensors and is protected by laws. Subject to the provisions set forth in this Agreement, We grant to You a non-exclusive, non-transferable, and terminable license to use the Platform and Modules and any other Module that You license from Us. You understand and agree that rights granted to You are provided on the condition that You do not (and do not allow any thirty party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, publicly display, publicly sell, lease, or transfer any of the Offerings, or any part thereof, or to attempt to discover the source code, modify any of the Offerings in any manner or form, or use any modified version of any of the Offerings not authorized by Us, including, without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to any of the Offerings. You agree not to access the Platform or Modules by any means other than the interfaces that We provide to You. Furthermore, You agree:
    1. Your Authorized Users will accept each individual Platform and Module's "Terms of Use" and "Privacy Policy" (as applicable) prior to accessing that specific Platform or Module; and
    2. You are responsible for all acts or omissions of Your Authorized Users.
  2. Data and Obligations.
    1. Data.
      1. Your Data. You understand and agree that all information and materials that You allow, submit, post, obtain, email, or transmit (or the like) to the Platform or Modules (collectively, "Your Data") are Your responsibility and not Our responsibility. You understand that You and Your Authorized Users may be exposed to material that You or they may find offensive or objectionable. We do not control Your Data, nor do We have any obligation to review, refuse, or remove any of Your Data available via the Platform or Modules; however, We reserve the right to remove any of Your Data available via the Platform or Modules at any time. Where and when practicable, We will provide reasonable advance written notice to You before removing Your Data. Circumstances under which We may remove Your Data include, but are not limited to, violation of the terms of the Agreement, abuse of the Platform or Modules, notification of possible infringement of another's rights, privacy concerns, compliance with laws, and in the assistance of law enforcement. Additionally, We do not guarantee the accuracy, integrity, or the usefulness of Your Data.
      2. Our Data. Any data that We create or otherwise obtain ("Our Data") and may offer to You in the future will be subject to this Agreement.
    2. Suspension of Service. Notwithstanding Our rights to updated the Platform and/or Modules under Section B of the NestUp Master Agreement Terms, You understand and agree that We reserve the right to modify, suspend, or discontinue any part or all of the Offerings at any time and that We will not be liable to You or to any third party for doing so. Circumstances under which we may modify, suspend, or discontinue any part or all of the Offerings include, but are not limited to, violation of the terms of the Agreement, abuse or any one of the Offerings, notification of possible infringement of another's rights, privacy concerns, compliance with laws, and in the assistance of law enforcement. Additionally, You understand and agree that We may, without notice to You, access, preserve, and disclose Your Data :
      1. if required to do so by law;
      2. to comply with Your request for assistance with an Offering; or
      3. to comply with legal process.
      You further agree that upon ten (10) days written notice We may access, preserve, and disclose Your Data to address claims from third parties that Your Data violates their intellectual property rights.
  3. Confidential Information.
    1. Generally. You understand and agree that You will provide to Us, and We will provide to You, certain information, some of which may be considered to be "Confidential Information."
    2. Use. The Receiving Party will only use the Disclosing Party's Confidential Information for purposes of performing its duties and obligations hereunder and exercising its rights hereunder.
    3. Duty. At all times after the Effective Date the Receiving Party will:
      1. Maintain the Disclosing Party's Confidential Information in strict secrecy by utilizing the same degree of care as the Receiving Party utilizes for maintaining the confidentiality of its own Confidential Information (which in no event will be less than commercially reasonable care); and
      2. Not publish or disclose the Disclosing Party's Confidential Information in any way, in whole or in part, to any party, except as expressly provided in Section 3(d) below.
      Notwithstanding the foregoing, each party's nondisclosure and use obligations with respect to the other party's Confidential Information that constitutes trade secrets pursuant to Applicable Law will continue for so long as any such Confidential Information continues to constitute a trade secret under Applicable Law.
    4. Authorized Disclosure. Your Confidential Information will only be disclosed by Us to Our officers, directors, managers, members, employees, agents, Affiliates, and advisors:
      1. Who have a need to know such Confidential Information, and then only to the extent necessary for the purpose of enabling them to perform their tasks assigned by Us with regard to Our performance under this Agreement;
      2. Who have obligated themselves to Us to hold such Confidential Information in strict confidence; and
      3. Who We may work with at present or in the future to evaluate the suitability of and/or to offer enhanced or new offerings to You. While it is not Our intention to limit the scope of new or enhanced offerings that We or Our Affiliates might offer in the future, they are expected to include or be related to defined contribution retirement plans, plan participant one-on-one education, worksite personal financial advice to plan participants, employee benefits consulting, benefits enrollment technology for employees, web-delivered educational videos pertaining to health and/or financial planning, and retirement planning design and consulting work.
      We will require each such individual to maintain the secrecy of Your Confidential Information.
    5. Ownership. All Confidential Information and all copies thereof (including, without limitation, all materials containing any Confidential Information) are and shall remain the sole and exclusive proper of the Disclosing Party. The disclosure of Confidential Information will not be construed as granting to the Receiving Party, expressly or by implication, any right, title, or interest of any kind in any intellectual property right in any Confidential Information of the Disclosing Party.
    6. Legal Order. If the Disclosing Party's Confidential Information is required to be disclosed by the Receiving Party by process of law or pursuant to a law, rule, regulation, statute, order, or ordinance of any Governmental Authority having jurisdiction thereof ("Legal Order"), then, prior to making any such disclosure, the Receiving Party, unless precluded by Applicable Law from doing so, will provide the Disclosing Party with immediate written notice of same, and the Receiving Party will not disclose any part of such Confidential Information pending conclusion of any legal proceeding regarding such disclosure. If such protective order or other appropriate equitable remedy cannot be obtained, the Receiving Party will disclose only such part of the Confidential Information as is specifically required by the terms of such Legal Order, and the Receiving Party will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Disclosing Party's Confidential Information.
  4. Equitable Relief. Unless otherwise specified in the Agreement, all rights, remedies, and powers of a party are irrevocable and cumulative, and not alternative or exclusive, and will be in addition to all rights, remedies, and powers given hereby and any laws now existing or hereafter enacted. Each party acknowledges and agrees that if it breached any obligation hereunder, the other party may suffer immediate and irreparable harm for which monetary damages alone may not be a sufficient remedy, and that in addition to all remedies that the non-breaching party may have, the non-breaching party will be entitled to seek injunctive relief, specific performance, or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy a breach or threatened breach hereof by the breaching party and to enforce the Agreement, and the breaching party hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives any requirements for the securing or posting of any bond in connection with such remedy.
  5. Maintenance. We may, in Our reasonable discretion, temporarily suspend the Platform or any or all of the Modules for the purpose of repair, maintenance, or improvement. However, We will provide You with as much advance notice as is reasonably practicable under the circumstances. We will restore the Offerings as soon as reasonably practicable. You will not be entitled to any set off, discount, refund, or other credit.
  6. Access and Security.
    1. Transmission of Data. You understand that the technical processing and transmission of Your electronic communications is fundamentally necessary to Your use of the Offerings. You expressly consent to Our interception and storage of electronic communications and/or Your Data, and You acknowledge and understand that Your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Us. You further acknowledge and understand that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that We are not responsible for any electronic communications and/or Your Data which are lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Us.
    2. Your access to hosted Offerings. You are responsible for obtaining and maintaining all hardware, software, telecommunications equipment, and services necessary to access and use the Platform and/or Modules (collectively, "Your Technology"). We are not responsible for the performance, accuracy, compatibility, or adequacy of Your Technology.
  7. Links and Dealings with Outside Parties.
    1. Your Links. We have no control over links or other resources made available to You or Your users related to Your Data. Your interactions with Your users and third parties via any of the Offerings are solely between You, Your users, and such parties. We are not responsible for the availability of external sites or resources, and do not endorse any of Your Data, advertising, products, or other materials on or available from such sites or resources. You agree that We will not be liable, directly or indirectly, for any loss or damage of any kind or nature arising out of or related to, or incurred in reliance upon, any such interactions, links, resources, or Your Data.
    2. Third Party Providers. Certain third party providers, some of which may be listed on the pages within the Offerings, offer products and services related to the Offerings. We do not warrant any such third party providers or any of their products or services. Any exchange of data or other interactions between You and a third party provider, and any purchase by You of any product or service offered by such third party provider is solely between You and such third party provider.
  8. Your Representations and Warranties. You represent and warrant that:
    1. You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You under this Agreement;
    2. You own or otherwise have the right to use and/or post Your Data on any of the Offerings and that the use of Your Data will not infringe or violate any of the rights of any third party pursuant to Applicable Laws (and You hereby grant Us the right to use, reproduce, display, perform, adapt, modify, create derivative works, distribute, and have Your Data distributed to Your users);
    3. You will not harass or cause distress or inconvenience to any person via the transmission of obscene or offensive data;
    4. You will not disrupt the normal flow or any access to, or use of, any of the Offerings;
    5. You agree to comply with all rules regarding online conduct and acceptable data, content, or materials including, but not limited to, federal and state laws, rules, regulations, and statutes; and
    6. You will comply with all Applicable Laws regarding the transmission and technical data export from the United States or the country in which You reside.
  9. Force Majeure. Performance by any party of any obligation hereunder is excused if and for so long as such breach or failure to perform is caused by a Force Majeure, and prompt notice thereof has been given to the other party. If any party fails to perform any duty or obligation hereunder as a result of a Force Majeure, said party is required to fulfill its obligations hereunder within a reasonable time after the Force Majeure ceases to exist.
  10. Relationship of the Parties.
    1. You understand and agree We are not being engaged to perform or assume and fiduciary functions, including, but not limited to, those of any plan administrator, with respect to You or any employee benefit plan which You sponsor or administer. If this regard, You acknowledge that Our Offerings (individually and in combination) are ministerial in nature, and that the Fees hereunder are set at levels intended that You retain full responsibility for all claims and other discretionary plan decisions. If We are deemed to be a fiduciary with respect to any Offering (individually or in combination), Our responsibility as a fiduciary will extend only to those activities deemed to be fiduciary activities under Applicable Law and will in no event extend to any acts or omissions of any other Person. You understand and agree We are not a law firm and are not being engaged to provide legal advice. In addition, You understand and agree that the Agreement does not create any partnership, agency, joint venture, or any other such relationship between the parties. No party is granted any express or implied right or authority to assume or to create any obligations on behalf of or in the name of another party or to bind another party in any manner whatsoever.
    2. You acknowledge on behalf of Yourself and Your Authorized Users that the information, data, analyses, and opinions contained in any Offering report or output, whether in text, graphic, numeric, or other form (with the exception of any Offering report or output generated by either Exeter or Manning & Napier Advisors, LLC, both a registered investment advisor under the 1940 Investment Advisors Act), does not constitute and will not be construed as investment or other advice offered by Us. Reports and output are provided for educational and information purposes only. We have no responsibility for the investment of funds contained in any Person's retirement account nor for the suitability or results of any such investment. We will not be considered an "expert" under the Securities Act of 1933, and neither You nor any Person will name Us as an expert under any condition without Our express prior written consent. Furthermore, You acknowledge and agree on behalf of Yourself and Your Authorized Users that We are not investment advisors under the 1940 Investment Advisors Act and that reports or outputs are not designed or intended to satisfy any laws or regulatory requirements governing investment advisors. We do not warrant that the Offerings provided pursuant to the Agreement or that the reports or outputs comply with the securities laws or regulations of any jurisdiction or regulatory body. We have no liability for any Offerings, including the provision of investment advice, provided by You. We will in no event be liable any Authorized User, subscriber, End User, or Person for any damages whatsoever.
  11. Law. The Agreement is governed by and construed in accordance with the laws of the State of New York, without reference to principles of conflict of laws.
  12. Notices. All notices hereunder will be in writing and will be:
    1. Sent by facsimile transmission (deemed effective when receipt is acknowledged unless sent on a non-business day or after 5:00pm EST on any business day, in which event notice will be deemed received on the next business day); or
    2. Personally delivered (deemed effective upon personal delivery); or
    3. Sent by a nationally recognized, commercial overnight delivery service with provisions for a receipt, postage or delivery charges prepaid (deemed effective upon receipt).
    All notices will be addressed to the parties at the addresses listed on the NestUp Order Form. Notice of change of address will be given in accordance with the terms of this Section 12 and will only be effective upon receipt.
  13. Protection of Proprietary Rights. You will not remove any proprietary, copyright, patent, trademark, design right, trade secret, service mark, or any other proprietary rights legend from any of Our materials.
  14. Third Parties. Nothing in the Agreement either expressed or implied is intended or will be construed to confer upon or give any Person (other than the parties and their respective successors and permitted assigns), any right or remedy under or by reason of this Agreement.
  15. Waiver. Failure by one party to insist upon strict performance of any provision of the Agreement by another party is not deemed a waiver by such party of its rights or remedies or a waiver by it of any subsequent default by such other party, and no waiver is effective unless it is in writing and duly executed by the party entitled to enforce the provision being waived.
  16. Amendment. The Agreement may not be amended except by a writing executed by all parties.
  17. Severability. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be automatically reformed and construed as to be valid, legal, operative, and enforceable to the maximum extent permitted by Applicable Law, while preserving its original intent. The invalidity of any part of the Agreement will not render invalid the remainder of the Agreement.
  18. Gender. All pronouns and any variation thereof are deemed to refer to the masculine, feminine, neuter, singular, and/or plural as the Person's identify or the context may require.
  19. Partied Bound. The Agreement is binding upon and inures to the benefit of each party and its respective successors and permitted assigns, subject to the restrictions against assignment provided in Section 20 below.
  20. Assignment. You do not have the right, directly or indirectly, to assign, sublicense, transfer, or pledge any of Your rights, duties, or obligations hereunder to any Person, whether by agreement, operation of law or merger, or in connection with any sale of assets of any transaction resulting, directly or indirectly, in a change of Control of You, or otherwise, without Our prior written consent, which consent may be withheld by Us, in Our sole discretion. Any assignment in violation of this Section 20 is null and void.
  21. Survivability. Notwithstanding anything contained in the Agreement to the contrary, all representations, warranties, and agreements will survive and continue to bind the parties after the execution and delivery of the Agreement and the expiration or earlier termination of the Agreement, to the extent and for so long as may be necessary to give effect to the rights, duties, and obligations of the parties pursuant to the Agreement, subject to any applicable statutes of limitation.
  22. Headings. The headings used in the Agreement are inserted for convenience only and do not describe, interpret, define, or limit the scope, extent, or intent of the Agreement.
  23. Cooperation. All parties agree to take such steps, execute, and deliver such further documents and perform such acts as may be reasonably requested by any other party in order to effectuate the purpose of the Agreement.
  24. Definitions. For purposes of the Agreement, the following capitalized terms will have the following meanings:
    1. "Affiliate" of a party means any Person that Controls, is Controlled by, or is under common Control with such party.
    2. "Applicable Law" means any and all applicable: (1) laws, rules, regulations, statutes, orders, and ordinances of any Government Authority; and (2) common law.
    3. "Authorized Users" means: (1) You; and (2) Your employees.
    4. "Confidential Information" means all information, in whatever form, that is disclosed by one party (the "Disclosing Party") to another party (the "Receiving Party") or is otherwise learned, observed, or perceived by the Receiving Party, at any time before, on, or after the Effective Date in connection with the Agreement. Confidential Information includes, without limitation business and financial plans and records, names, contact information, requirements of customers and suppliers, customer leads, formulas, formulations, prototypes, products, product designs, compositions, research and development, processes, drawings, equipment, blueprints, specifications, inventions, market information, services, partnerships, computer hardware, software, systems and programs, source codes, object codes, patent applications, technology, licenses, trade secrets, know-how, techniques, and any other information of a similar nature, whether or not patentable or copyrightable. Confidential Information does not include information which is: (i) generally known to the public prior to the disclosure or after disclosure becomes generally known to the public through no act or failure to act on the part of the Receiving Party; provided, however, to the extent that Confidential Information consists of a combination of elements individually generally known to the public, this exclusion will not apply if such elements are not generally known to the public in said combination; or (ii) rightfully furnished to the Receiving Party by a Person without breaching any agreement, understanding, or confidential relationship between such Person and the Disclosing Party. The burden of proof of the application of either of the foregoing exceptions shall be on the Receiving Party.
    5. "Control," "Controls," and "Controlled by" each means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
    6. "Fees" means any fees, compensation, or other consideration of any kind due and payable by You to Us hereunder.
    7. "Force Majeure" means any event or circumstance beyond the reasonable control of the party affected which prevents or delays the performance of such party's obligations hereunder, including, without limitation, power failure, computer malfunction, natural disasters, wars, riots, government action, strikes, labor disputes, acts of God, or fire.
    8. "Government Authority" means any foreign, federal, state, local, or other government, government agency, authority, or quasi-governmental body, including, without limitation, any government regulatory authority, department, board, commission, court, or tribunal.
    9. "Marks" means any and all of Our trade names and trade or service marks, whether or not registered with the Patent and Trademark Office, including, but not limited to, NestUp, StreetWise Health, HR Gateway, Benefficiency, TANDM™, TANDM-Connect™, and TANDM-401(k)™.
    10. "Person" means any individual, corporation, Government Authority, limited liability company, partnership, trust, or any other entity of any kind.
    11. "Regulation S-P" means 17 CFR Part 248 (Privacy of Consumer Financial Information), as amended.
    12. "Taxes" means all taxes, charges, or other assessments of any kind of any Government Authority (including, without limitation, withholding taxes, personal property taxes, sales taxes, use taxes, and any interest, fines, or penalties thereon) levied or based on, directly or indirectly, any Fee, whether levied against Us, You, any User, Authorized User, or any other Person. Taxes do not include any income, franchise, or any other similar taxes of any Government Authority payable by Us as to Our receipt of any Fee.