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IMPORTANT NOTICES: These Terms and Conditions (a.k.a “Terms of Use” or “Agreement”) constitute a legal and binding contract between Us and You, including the Parties in Interest, who accesses or establishes a connection to Our Platform, including but not limited via www.easternpointtrust.com and my.easternpointtrust.com, and/or all associated Services performed related to any established applicable Account which includes, but is not limited to, website services and functionality, software, software as a service, trustee services, escrow services, ministerial services, and all other products and services which We now provide, offer or may in the future offer or provide.
IT IS YOUR DUTY TO SEEK THE ADVICE OF INDEPENDENT COUNSEL REGARDING YOUR OBLIGATIONS, RIGHTS, AND RESPONSIBILITIES UNDER THIS AGREEMENT.
The phrases “Terms of Use” and “Terms and Conditions” may be used by external references interchangeably, and all refer, without prejudice or loss of effect, to this Agreement titled “Terms and Conditions” (Terms of Use).
BINDING DISPUTE RESOLUTION NOTICE: THIS AGREEMENT CONTAINS A BINDING DISPUTE RESOLUTION PROVISION AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS THAT GOVERN DISPUTES ARISING FROM THE USE OF THE PLATFORM AND RELATED SERVICES. THESE PROVISIONS AND OTHER PROVISIONS HEREIN AFFECT YOUR LEGAL RIGHTS AS DETAILED THEREIN. PLEASE READ All PROVISIONS CAREFULLY. THESE TERMS OF USE MAY BE PRINTED FOR YOUR RECORDS AND EASE OF REVIEW BY UTILIZING YOUR WEB BROWSER’S STANDARD PRINT FUNCTION.
If You are using the Platform or Services on behalf of a business or Entity, You Agree that (i) You have authority to bind such business or Entity and that such business or Entity accepts these Terms of Use, and (ii) You are also bound by these Terms of Use and Agree to abide by them. You further Agree that all use of the Platform and Services must and will comply with all applicable laws and regulations, including the United States Bank Secrecy Act laws, export and re-export control laws and regulations, all federal and state trade secret, trademark, copyright and intellectual property laws, and any other federal or state regulation, statute, administrative code, or common law.
Please note that You should review all of these Terms of Use carefully, including those provisions that limit Our liability and those regarding a binding individual alternative dispute resolution process for potential legal disputes. The most current version of these Terms of Use is available for review at any time at www.easternpointtrust.com. The Terms of Use in effect at the time of the initial use of the Platform or Services shall apply until they are amended, as provided for herein. Thereafter, the then-current Terms of Use are binding with respect to the use of the Platform and Services.
We reserve the right to amend these Terms of Use at any time, subject to applicable law. As such, We may revise these Terms of Use from time to time, and the revised version will be effective and legally binding 14 (fourteen) days after publication, unless otherwise noted.
It is the sole and exclusive duty of the Parties in Interest to monitor these Terms of Use for any updates. By continuing to use the Platform or Services after any changes to these Terms of Use become effective, the Parties in Interest Agree to abide and be bound by those changes. If the Parties in Interest do not agree with any changes to these Terms of Use, the Parties in Interest must immediately discontinue the use of the Platform and Services and provide Notice to Us so that the Account(s) can be closed. If You do not immediately discontinue use of and access to Platform and Services, said continued use and access shall constitute an acceptance of the updated Terms of Use. During any said 14 day pending update period the preceding Terms and Conditions remain fully in effect.
Further, by using (and continuing to use) the Services, the Parties in Interest Agree that (i) every section of these Terms of Use is necessary, intended, has been fully Noticed, and (ii) is Commercially Reasonable, and (iii) that every section of these Terms of Use is a material part to this Agreement, and (iv) that, in the absence of the Terms of Use, We would not enter into a contractual relation with the Parties in Interest. As such, a breach of any provision herein constitutes a material breach, triggering the First Material Breach Doctrine.
Each element and provision of this Agreement is severable and independent of all other elements and provisions herein and any associated Account Documents and the Agreement, and each of the related elements and provisions thereof will apply even if the warranties in therein the associated Account Documents and the Agreement have failed of their essential purpose. Should any provision herein be found unenforceable for whatever reason, said unenforceability shall not affect any other provision herein, nor shall said unenforceability be considered an entire foreclosure of this Agreement.
Additionally, the Parties in Interest and Us mutually Agree that the provisions within this Agreement, along with any Account Documents, amendments, schedules, riders and exhibits, constitute the entire agreement between the Parties in Interest and Us unless otherwise expressly stated in a written and mutually signed document.
Affirmation or Reaffirmation Riders
From time to time, You may be required to Agree, execute affirmation(s) or reaffirmation riders and forms, including various forms of releases that relate to this Agreement, the Account, specific online actions, transactions, and other Requests. The action of clicking “submit” (or any other similar word or phrase that conveys the message of submission) acknowledges and affirms (or reaffirms, as the case may be) this Agreement. With each transaction or Request, the terms and conditions of each transaction or Request are binding and shall be considered a supplement to these Terms of Use and the associated Account Documents. Review all riders and forms closely. If there is a conflict between the provisions of any rider or form and this Agreement, the provisions of the riders and forms shall control with respect to the specific subject matter or related transaction. The absence of a provision in any rider or form shall not constitute a waiver or release of any provision contained herein; accordingly, the provisions of a rider or form are additive and do not generally intend to replace or reduce the terms herein.
Disclaimer of Warranties
We cannot guarantee, and do not guarantee or imply, that the service or any software provided to You by Us or any third party will be available and operational at all times, or that they will function without error or interruption. There will be times when the service is unavailable or software malfunctions. THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE OR ANY SOFTWARE PROVIDED TO YOU BY US OR ANY ASSOCIATED THIRD PARTY.
Additional Disclosures
The Platform contains additional disclosures related to specific and general webpages. These disclosures are additive and do not replace or reduce the terms herein. Further, certain function may require additional agreements and acknowledgements, these additional agreements and acknowledgements are additive and do not replace or reduce the terms herein.
For purposes of this Agreement, the following capitalized words as a phrase (words or word groups) have the meanings, provisions, and elements enumerated in this Definitions Section. Further, whenever the context requires, the singular shall be substituted for its plural form and vice versa. Additionally, in deference to the Reading Provision herein, whenever the context requires, the use of the word “and” shall be substituted for “or” and vice versa. Additionally, unless the context clearly requires otherwise, when used herein “or” shall not be exclusive (i.e., “or” shall mean “and/or”). Furthermore, “and/or” means one or the other or both, or any one or more or all, of the things or persons or parties in connection with which the conjunction is used.
“Abnormal Interest Environment” means an event when general economic conditions or economic or other policy implemented by a governmental agency create or result in low or negative interest rates.
“Abusive, Frivolous, Malicious, and Extortive Actions” means making, causing to make, engaging in, or causing another Person or Entity to engage in: (i) filing baseless, meritless, or frivolous Claims (Including those that are meant to be abuse the judicial process) against Us, Our Affiliates, the Account(s), the Account Documents, or Our exercise of discretion as contemplated in this Agreement and in the Account Documents; (ii) extortive threats or financial demands, Including demands outside of the Alternative Dispute Resolution Process against Us; (iii) abusive, defamatory, frivolous, harassing or malicious public statements against Us, Our Affiliates, the Account(s), the Account Documents, or Our exercise of discretion as contemplated in this Agreement and in the Account Documents; (iv) repetitive, obnoxious, abusive, harassing or malicious contact or interaction with Us, Our Affiliates, the Account(s), the Account Documents, or Our exercise of discretion as contemplated in this Agreement and in the Account Documents; (v) any other direct or indirect public or private acts of threats, harassment, intimidation, or other such targeted acts against Us, Our Affiliates, the Account(s), the Account Documents, or Our exercise of discretion as contemplated in this Agreement and in the Account Documents; or (vi) any other direct or indirect, public or private, action designed to threaten or harass Us into taking an action contrary to applicable law, the Account(s), or Our established administrative procedures or policies; (vii) a breach of any provision of this Agreement or any provision contained in the associated Account Documents, Including but not limited to the Non-Compete and Non-Disclosure and Public Statements and Non-Disparagement provisions herein; or (viii) any other direct or indirect, public or private, action designed to circumvent the terms, purpose, or intent of this Agreement and the associated Account(s).
“Account” means each account(s) to which (i) We provide ministerial or trustee services; (ii) is linked via the Platform to an Account Block; (iii) to which You or any other User may access; (iv) to which a Party or User may make an associated Request upon; (v) You may have a valid and affirmed beneficial expectation or one where You may assert a valid and affirmed ownership or other right or claim. Under the terms of the associated documents and, when applicable, pursuant the valid direction of Court or governmental authority’s orders or approvals.
No Account herein shall be considered an “authorized account” as defined in the Uniform Commercial Code (or corresponding state statute) or as a “deposit account” with Us. It is expressly agreed that no Account is, nor is any Account or arrangement intended to be nor resemble in form or function (i) an unconditional ordinary checking account; (ii) an unconditional bank account from which money can unconditionally and easily transfer by check or other means; (iii) an unconditional bank account against which the depositor can unconditionally draw checks that are payable on demand; (iv) an unconditional bank deposit; (v) an unconditional bank deposit account; (vi) an unconditional share draft, (vii) an unconditional money market checking; (viii) an unconditional savings account; or (ix) any other type of unconditional demand deposit account which would require Us to hold the Account Holdings as a deposit, and would allow unconditional withdrawals from the associated Accounts by check or Payment Order or the functional equivalent which You, including the Parties in Interest, write and execute.
As it related to 15 U.S.C. § 1693a, the term Account herein does not include any account associated with a trust agreement, including an Escrow, custodial, or statutory trust. Further, the term Account herein is not a “consumer’s account” or and “account” as defined with 15 U.S.C. § 1693a.
“Account Administrator” means a Person or Entity that performs Ministerial Services.
“Account Block” means the server-side function of the Platform as a server-side terminal instance (executed on the servers located in Virginia) displaying Account information, balances, transactions, data, statements, or associated communications, Notices, and Disclosures. A User Account may have more than one linked Account.
“Account Documents” means, without limitation, (i) this Agreement, including all of its sections and incorporated elements or documents, the terms of the underlying trust, Escrow, or other services agreements; (ii) all other agreements, disclosures, documents, riders, supplements, addenda, schedules, exhibits, statements, forms, appendices, and instructions that may now or hereafter govern or relate to the Platform and any Services We provide to a User or Parities in Interest; and (iii) all renewals, supplements, amendments and modifications of any of the preceding. The preceding shall not include any marketing or other descriptive material We may publish or have published from time to time.
“Account Holder” means, if applicable, (i) the natural Person; (ii) corporation; or (iii) partnership, trustee, custodian, or other Entity in whose name the Account is opened. The singular of Account Holder, where appropriate, shall include the plural. For purposes of trusts, the term Account Holder shall not include a trust beneficiary or the Grantor.
“Account Holdings” (a.k.a. “Account Assets”) means all assets, physical, fiat, or financial instruments, or property of any type or description owned at such time, regardless of type, nature, or classification. Account Holdings are segregated assets held by a separate custodian and are not a deposit held with or by Us.
“Account Information” means including without limitation information that, alone or in combination with other information, can provide access to any portion of the Account, be used in conjunction with a Request, or access or utilize this Platform, including (i) the account number, usernames, passwords, financial information, beneficiary names or information, security passcodes, questions, and their respective answers; and (ii) any other similar or related information including the Account balance or value, gross receipts, disbursements, payments or other transactions from the Account, all Account indicative information, Account access information, and (iii) all current and past communications, Requests, and forms related to the Account. To avoid doubt, Account Information will include any preceding information associated with an Account.
“Account Statement” means any periodic statement delivered or made available by Us in the manner agreed upon, including by mail or electronically, that shows Account transactions, activity, and balances. By each Utilization of the Platform, You Agree to permit Us to deliver communications, Account Statements, related Notices, and Disclosures in electronic form instead of providing such items in hardcopy form.
“Acknowledged Instrument” means a written hardcopy instrument of Notice, petition, Request, form, or instruction delivered directly to Us according to the Notice Section herein that, in Our sole authority and absolute discretion, (i) is a distinctly clearly legible and unambiguous statement of information, intent or instruction; (ii) a then-current authorized form issued by Us; and (iii) all Acknowledged Instruments shall be executed by an authorized party. Acknowledged Instruments shall be governed by the date of receipt by Us and not the date of the instrument, date of postmark, transmission, or date of shipping governs Acknowledged Instruments. Further, any Acknowledged Instrument, notice, payment, demand, or communication required or permitted to be delivered or given by the provisions of this Agreement shall be deemed to have been effectively delivered or given and received on the date delivered to Us. Any such Acknowledged Instrument, Notice, payment, demand, or communication required or permitted to be delivered or given by the provisions of this Agreement shall be deemed to have been effectively delivered or given and received by You on the date when deposited with a postage carrier via registered or certified mail, with postage and charges prepaid, and addressed from Us to You at the address set forth in the relevant schedules of the Account Documents or Your Online Portal.
"Additional Use" means (i) Your access or any use of the Platform or Services, webpage, or related URL or sub-URL beyond the date and time of Your first access session to the Platform or Services or (ii) any additional or continued access (or access session) of the Platform, including any other use, linking, reading, downloading, printing, copying, screen capture, or use of other Platform functions or Services, links, or pages beyond the first accessed page within the Platform, or (iii) any other use (or access session) of the Platform or Services, and You Agree that any of the preceding shall constitute Your acceptance of this Agreement and the associated Document Components as applicable, including additional requirements that We may impose, under the related terms, from time to time. For clarity, You may view the Terms of Use and Privacy Policy during Your initial access session without binding effect, but only if You invoke the Free Use Period provision timely and notify Us of Your exercising the Free Look Period provision election in writing, pursuant to the Notice Provision. Notwithstanding the foregoing, You Agree that (i) any subsequent use, access, or access session, or (ii) any login, or (iii) creating a User log-in, User Account, or any Account shall permanently waive the Free Use Period provision. The failure to properly Notice timely under the Free Look Period provision shall result in (i) Your waiver of all rights, defenses, including affirmative defenses, and claims at law, in equity,or by other legal theory, and (ii) the binding effect of this Agreement shall then be effective as of your first access or use.
“Adverse Effect” means one or more unfavorable consequences (financial, operational, or otherwise), regardless of degree resulting in a negative effect(i) on Our business, its general affairs, management, condition, financial condition (including resulting costs and expenses such as additional insurance cots), operations, reputation, marketplace standing, erosion of an prominence or, stockholders’ equity, assets (tangible and intangible) or right (tangible and intangible), future expectancy and opportunity including secondary investment income (tangible and intangible); (ii) on any use of Our Collective Intellectual Property ; (iii) on any and all other financial prospects or conditions which may rise taken as a whole; or (iv) in Us having at least one Claim.
“Affiliates” means, without limitation, officers, directors, employees, licensors, service providers, agents, officers, directors, suppliers, consultants, servants, representatives, subsidiaries, committees, co-trustees, partners, predecessors, and successors in interest, employee leasing companies, services corporations, shareholders, parent companies, heirs and assigns, Affiliate shall also mean any general partnership, limited partnership, limited liability company, joint venture, trust, business trust, custodial or common fund or trust, or similar organization or Entity controlling, controlled by or under common control with a Trustee, any common or novation account or trust utilized by a Trustee or any of its Affiliates, and all other Persons, firms, entities, organizational formations, or corporations with whom any of the former have been, are now, or may hereafter be allied or provide services.
“Affirmative Defenses” means any and all affirmative defenses or objections, or the use of collateral attacks pled by You, in equity or theory, based on whether in whole or in part and within any jurisdiction by You, including the Parties in Interest, against Us. You Agree that You are barred from pleading any Affirmative Defense(s).
“Age of Majority” means, when applicable, the age at which a Person shall be considered an adult (i.e., no longer a Minor) stipulated by court order or by applicable state law.
“Age of Trust Distribution” means, related to third-party trusts, the age upon which the Beneficiary shall be eligible, without limitation or restriction, to withdraw the entirety of the then-current Trust Assets.
“Agent” means the Person or Entity which acts, by attestation, appointment, or acting in fact as the authorized or legal representative of one or more Parties in Interest as Agent. The Agent, by attestation, under penalty of perjury, has manifested to Us that they hold the right and power to bind the Parties in Interest in all matters, including Requests and such actions requiring approvals. It is Agreed that We shall, in Good Faith, rely on the attested power and authority of the Agent and render all services pursuant to this Platform and Account Documents under the information and attestations of the Agent or the Agent’s designated representative. When We act in reliance on the Agent's information and attestations, the associated Request(s) is deemed made in Good Faith and thus releases Us from any resulting liability. Any consequential liability is solely that of the Agent and the associated Parties in Interest and not Us. In the case of a Special Needs Trust “Agent” means a fiduciary, guardian, parent, grandparent or other appointed custodian or guardian ad litem who may act on behalf of a minor, incapacitated, incompetent or handicapped Parties in Interest.
“Agree” (a.k.a “Agreed”) means the voluntary, irrevocable, unconditional, complete, and undisputed acknowledgment, understanding, confirmation, affirmation (or reaffirmation, as the case may be), and agreement with the given provision(s).
“Agreement” means this document titled “Terms of Use.” However, for purposes of clarity and avoidance of doubt, from time to time, the phrases “Terms of Use,” “Terms and Conditions,” and “Agreement” are used interchangeably, without prejudice or loss of effect. All refer to this document titled “Terms of Use,” which governs Your use of the Platform and Services. Further, the use of “herein” shall equally mean the entire Agreement.
"Also Known As (a.k.a.)" means the alternative reference to a term or definition that carries the same meaning and definition of the defined term or definition.
“Associated Undertaking(s)” means any undertaking, activity, or entity which from time to time is, or may be, a commercial activity, line of business, method of business, product, service, Affiliate, subsidiary, or a holding company of an Affiliate or subsidiary.
“Assured Cooperation” means that Parties in Interest and all Successor Trustees Agree to fully and promptly cooperate with Trustee to ensure the smooth and successful ongoing establishment, administration, servicing, and operation of this and other resulting trusts, both now and in the future.
“Automated Multi-Factor Authentication (MFA) Login Procedures” means a two-step verification process utilized to verify Your identity during the log-in process to Your Online Portal of the Platform.
“Authorized Person” means, as it relates to the discovery provisions herein, exclusively the Parties in Interest to whom Produced Documents are given, and their related parties that necessarily must see or use said Produced Documents in furtherance of discovery, litigation, or the Alternative Dispute Resolution process, as the case may be.
“Bad Faith” means Our purposeful and intentional mindset to act (or refrain from acting) in a fraudulent, dishonest, or neglectful manner, as clearly demonstrated and proven beyond any reasonable doubt to have been willful and determined with finality by an adjudicatory body of appropriate jurisdiction as provided herein. Bad Faith does not exist when We have a reasonable belief that the action or omission was in the best interest of an Account and fulfilled the terms of the Account Documents. Failure to meet performance standards or objectives, by itself, does not constitute “Bad Faith.”
Moreover, “Bad Faith” shall only apply only with respect to any determination, action or omission, upon We reaching such determination, or engaging in or failing to engage in such act or omission, with Our belief and intent that such determination, action or omission was knowingly and willfully taken in opposition to the interests of the Parties in Interest.
For purpose of clarity any: (i) action taken by Us in “Good Faith” as defined herein, or pursuant to a provision of the Account Documents shall not be determined to a Bad Faith action, and (ii) no “common law” or “equity” duties not enumerated within the Account Documents shall be additionally imposed on Us.
We shall not be deemed to have acted in Bad Faith when with reasonable cause to believe the Our conduct was lawful or consistent with terms of the Accounts Documents and provisions herein or based on the advice or guidance from a professional, if such action was based on any of the following: (i) the records or books of the Account, including financial statements, forms and Account Documents; or (ii) information supplied to the Us by an authorized Party or Agent of the Parties in Interest
The preceding notwithstanding, when establishing Bad Faith as it may relate to You or any other Parties in Interest acts or omissions, any one (1) of the following shall clearly and unambiguously determine Bad Faith if You, or any other Party in Interest:
“Bank Depository Custodian” (a.k.a. “Bank,” “Institutional Custodian,” or “Bank Depository Custodian”) means (one or more) banks, broker-dealers, credit unions, savings banks, or other types of depository financial institutions licensed to hold client funds as deposits. You Agree that We are not a “bank” as defined by the applicable Uniform Commercial Code, as We are prohibited by law from holding Account Holdings (client funds) (i) as a deposit with Us; (ii) on Our balance sheet as Our asset; or (iii) subjecting Account Holdings to the claims of Our creditors. Thus, You expressly Agree, that (i) the associated Accounts and Account Holdings are not checking accounts, bank deposits, bank deposit accounts, share drafts, money market checking, savings accounts, or any other type of demand deposit account which would require Us to hold the Account Holdings as a deposit; (ii) We do not allow, nor do We have the capability to allow withdrawals from the associated Accounts by check, debit card, or a functional equivalent; (iii) No requests constitutes “an order on Us to pay” as We hold no Account Holdings as a deposit; and (iv) We are not a Bank or Bank Depository Custodian.
“Beneficiary” means any Person or Entity who is enumerated as a Beneficiary within the relevant Account. A Beneficiary(ies), if conferred a Vested Right, is/are exclusively eligible to receive benefits under an Account.
“Business Account” means, without limitation, an account associated with a corporation, limited liability company, or any other Entity that is (i) created by the filing of a document with a secretary of State or a similar office under the law of a State, US territory, or Indian Tribe; or (ii) formed under the law of a foreign country and registered to do business in the United States by the filing of a document with a secretary of State or a similar office under the laws of a State, US territory, or Indian Tribe; or (iii) is statutory trust established by the approval of a governmental authority under § 468B-1 et seq.; or (iv) other type of Entity, Entity or arrangement which is (a) not titled in name of a Person, and (b) does not exist and operate under SSN of a Person, and (c) for which a Person is not the titled legal owner of the Account. Examples include corporations, LLCs, trust accounts, escrow accounts, and other similar accounts.
“Business Day” means the weekdays of Monday thru Friday except for days which are any one of the following: U.S. federal holidays, Bank holidays, New York Stock Exchange NYSE holidays, or holidays We declare and that the NYSE and Trustee are capable of processing both trade executions and settlements.
“Business Hours” means a day which (i) Our offices are open and able to conduct business in an ordinary manner (most typically 8:00 A.M. to 4:00 P.M., Monday to Friday); (ii) is a not banking holiday; (iii) is not a U.S. federal holiday; (iv) not a New York Stock Exchange holiday; or (v) is not a declared holiday by Us.
“Cause” means any one or more of the following intentional acts related to an Account:
a. the finding by the Court of Jurisdiction, inclusive of appeals, that the party has knowingly engaged in fraud, embezzlement, or theft of Account Holdings;
b. the finding by the Court of Jurisdiction, inclusive of appeals, that the party has engaged in any action constituting a knowing, willful or intentional serious breach of fiduciary obligations under the terms of the Account Documents;
c. the finding by the Court of Jurisdiction, inclusive of appeals, that the party continually engaged in an overt failure to substantially perform material duties without Good Faith or a cause or reason;
d. the finding by the Court of Jurisdiction, inclusive of appeals, that the party continually refused to execute material duties in a timely fashion without cause or reason;
e. the conviction by the Court of Jurisdiction, inclusive of appeals, of any crime involving theft of funds.
For purposes of this paragraph, any act, or a failure to act, shall not be deemed willful or intentional, as those terms are defined herein, unless it is done, or omitted, in Bad Faith. Failure to meet performance standards or objectives, by itself, does not constitute “Cause.” The foregoing conclusively establishes, and the Parties in Interest Agree, that the exercise of “discretion” by Indemnified Party does not constitute a ground for Cause, even if such exercise of discretion resulted in a loss to the Account or a delay or reduction of benefits to a Beneficiary.
“Claim” means any claim, counterclaim, defense (affirmative or otherwise), objection, actions, causes of action, allegation, complaint, or similar cause of dissatisfaction at law, equity, or theory.
“Code” (a.k.a. “United States Code,” “U.S. Code,” or “U.S.C.”) means the Internal Revenue Code of 1986, as amended. References to Titles, Chapters, Parts, Sections, Paragraphs or Clauses of the Code, including successor provisions thereto, and regulations and other guidance of general applicability issued thereunder.
“Collective Intellectual Property” means, without limitation, all of Our Trade Secrets, all of Our Intellectual Property, including but not limited to all of Our Background and Foreground Intellectual Property, collectively.
“Commercially Reasonable” means reasonable commercial standards of Fair Dealing including any one of the terms, limitations, conditions, practices, methods, acts or inactions which any one of the following apply (i) the conditions, terms or limitations agreed or stipulated to by any agreement, including this Agreement, or (ii) in the exercise of reasonable judgment or Ordinary Care in light of the facts known,; or (iii) any other term, act or inaction, done in Good Faith; or (iv) We acted on the basis of the attestation that all available or related information has been fully provided to Us at the time the instructions, request of petition were fulfilled to accomplish the desired result consistent with reliability, safety, expedition, and regulation; or (v) commonly accepted commercial practices; or (vi) correspondingly similar or near similar practices based or influenced by statute, regulation, common law, other commercial practice, case law, professional advice, or other agreements in ordinarily effect by the Us with other parties.
It is stipulated that the meaning of Commercially Reasonable shall apply in the broadest possible context to establish the presumption of commercial reasonableness and Fair Dealing, including the preceding. The burden of proof is on the party asserting that a provision is not Commercially Reasonable.
“Complaining Party” means the Person or Entity with a grievance, and who files a complaint of said grievance with the Court of Jurisdiction or pursuant to the Alternative Dispute Resolution process herein outlined, as the case may be.
“Complaint Form” means the form required to initiate the Alternative Dispute Resolution process herein outlined. Said Complaint Form is produced by Us, and must be requested by the Complaining Party before a complaint can be initiated.
“Conspicuous” means text so written, displayed, or presented that a reasonable and competent person against which it is to operate ought to have noticed it and is Readable Text. The term Conspicuous includes the following: (i) a heading in capitals equal to or greater in size than the surrounding text or contrasting type, font, font weight, boldness, or color to the surrounding text of the same or lesser size; or (ii) language in the body of a record or display in more significant type than the surrounding text, or in contrasting type, font, font weight, boldness, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
"Conspiracy" means any actual or attempted actions that are generally intended to operate as a plan (whether the plan is concealed, a secret plan, or a pact, or whether said plan of conspiracy is written, oral, or defined by their actions) between two or more Persons to commit (i) an unlawful or harmful act against Us, or (ii) a breach of any term or provision herein.
A Conspiracy is typically defined by elements of attempted deception or hidden motives, with the conspirators working together to achieve a specific goal that would/will violate this Agreement, Account Documents, statutes or common laws, commercial or ethical standards, or social norms. Conspiracies generally involve plots to benefit, at the expense of the breached or targeted party, the conspiring parties’ personal and business financial interests, business interference, power, revenge, control, or manipulation of events in ways that are not immediately apparent to the target party until subsequently discovered.For clarity, it is a Conspiracy when any coordinated effort occurs between two or more parties to violate the terms of a legally binding contract intentionally, or when one or more parties work or coordinate together to undermine Our rights, this Agreement, or the Account Documents provisions, or deliberately prevent their performance. The foregoing shall apply with or without the requirement to establish the malicious intention of parties involved in the conspiracy or causing harm to Us. A party to a conspiracy is equally liable, jointly and severally, for the acts of any and all other parties involved in the conspiracy.
“Contact Record” means any records of a contact’s information, which may include without limitation name, address, phone number, email address, and forwarding address.
“Content Standards” means content that, in Our sole and absolute discretion, may be used for the website. Typically, this may include mixed content for a varied audience of varied ages. We reserve the right to remove any content, for any or no reason at any time without explanation to You.
“Contingent Residual Beneficiary” means the Person, persons, or Entity who shall receive the Trust Assets of the Trust upon the death of a Beneficiary if there is no designated or then-living Residual Beneficiary. Upon the death of a Beneficiary, and Trustee receiving all required documentation, Trustee shall provide written certification to the Contingent Residual Beneficiary(ies) of their Vested Right to the Trust Assets’ benefit and in what proportion. Upon such determination and written certification, the Contingent Residual Beneficiary(ies) shall be considered a vested Contingent Residual Beneficiary(ies). Trustee may, in its sole authority and absolute discretion, defer the vesting and any payment of Trust Assets until all contingent residual rights are conclusively established.
“Control Person” means, consistent with federal law and Our KYC /AML policy requirements, a Person or Entity (regardless of type or nature) that, directly or indirectly, (i) is a senior officer for an Entity; (ii) has authority to appoint or remove certain officers or a majority of directors of the Entity; (iii) is an important decision-maker; (iv) has any other form of substantial control over the Entity; (iv) applies to establish or establishes an Account on behalf of one or more UBOs; (v) acts on behalf of a UBO or a Control Person in the capacity as an Agent or their representative in a financial transaction; or (vi) in the case of a trust any Person or Entity which is a “grantor” or “settlor” as defined by the applicable trust code.
For clarity, a "Control Person" related to FinCEN's KYC/AML reporting requirements is further defined as follows:
A Control Person, in the context of FinCEN’s Know Your Customer (KYC)/Anti-Money Laundering (AML) reporting requirements, refers to any Person with authority or influence over the operations, decisions, or management of an Entity or a Person who has authority to act on behalf of a trust or Account, or a UBO. This Includes, but is not limited to:
a. Senior Officers and Decision-Makers: Individuals with positions within an Entity, such as CEOs, CFOs, COOs, managing members, members, general partners, or similar roles.
b. Significant Ownership or Voting Power: Persons who own or control a substantial portion of the Entity’s equity interests or voting rights, typically defined as 25% or more, though thresholds may vary.
c. Operational Controllers: Individuals responsible for managing the daily operations or implementing policies, such as directors or managers with decision-making authority.
d. Indirect Influencers: Persons who exercise control through indirect means, Including those who:
◦ Influence decision-making through contractual rights or agreements.
◦ Exert control or influence via significant financial relationships or investments.
◦ Serve as financial advisors, financial planners, trustees, or fiduciaries in arrangements tied to the Entity.
e. Legal or Formal Representatives: Any individual acting on behalf of the Entity in a fiduciary or legal capacity with authority over strategic or financial decisions.
f. Persons with "Substantial Control": This Includes any other individuals identified as having the ability to influence or direct the Entity’s significant decisions, policies, or activities, even if their role or influence is informal or not explicitly documented.
g. Applicant: This Includes
i. For a domestic Entity, the individual who directs the creation or directly files the . document that creates the domestic Entity;
ii. For a foreign Entity, the individual who directs the creations or files the document that creates the foreign Entity; and
iii. Whether for a domestic or a foreign Entity, the individual who is primarily responsible for directing or controlling such application for creation if more than one individual is involved in filing the application.
The definition of a Control Person is intentionally broad to encompass various forms of influence, ensuring comprehensive identification and mitigation of risks associated with illicit activities, including money laundering, fraud, conspiracy, and tax evasion.
“Court of Jurisdiction” means, unless expressly otherwise provided for, the Circuit Court of Fauquier County, Virginia. The Court of Jurisdiction shall retain the sole jurisdiction concerning the interpretation, implementation, and enforcement of the terms of this Agreement. All parties and legal counsel hereto submit to the Court of Jurisdiction for all purposes embodied in this Agreement, including all claims, objections, defenses, litigation, pleadings, motions, orders, or judgments.
“Creditor Claims” means, Account Assets are not subject to the claims of Indemnified Party’s creditors. Pursuant to laws of the Principal Place of Administration, Account Assets are held separate and apart from Indemnified Party and are not subject to obligations or creditors of Indemnified Party, even if Indemnified Party becomes insolvent or bankrupt.
“Decant” (a.k.a. Decanting) means the distribution of part or all of the assets of a trust (the “first trust”) into a recipient trust (the “second trust”) pursuant to the terms of this Agreement and the applicable Account Documents as an exercise of Trustee’s sole authority and absolute discretion. Specifically, Trustee may invade the principal of the Trust to create another Trust for the Beneficiary’s best interests, welfare, comfort or happiness which for the purpose of the first trust constitutes an “absolute power” under the laws of the Principal Place of Administration. Trustee shall not reduce any Vested Right, fixed income, annuity, or unitrust interest in the Trust by Decanting from the Trust into any other trust. The recipient trust may be created under the laws of any jurisdiction.
“Decanting Distribution” means the distribution of part or all of the principal or income of this or a subsequent Trust into the recipient trust pursuant to the terms of this Agreement as an exercise of Trustee’s sole authority and absolute discretion. Trustee has no requirement or obligation to seek any consent of the court to Decant. Trustee shall ensure the process of Decanting conforms to the applicable laws of the Principal Place of Administration.
“Defamation Instance” means each instance or event where You publish or communicate (in any manner) to a third party a false or materially false statement about Us which subsequently causes Us harm.
“Derivative Work Product” means any (i) derivative technologies, reverse-engineered elements, business processes, systems, websites, technology, products, or services, Including direct, indirect, derivative, or consequential work products, Including but not limited to systems, source code, websites, processes, materials, procedures, marketing materials, resulting directly or indirectly from the use, or access to, receipt of, or possession of the Misappropriated Property by you or as part of a Conspiracy, or (ii) any work product like elements that are directly or indirectly derived from Our Collective Intellectual Property, Trade Secrets, or Industrial Property Including any other Misappropriated Property. The foregoing includes any modifications, adaptations, reverse engineering, or developments based on such Collective Intellectual Property, Trade Secrets, or Industrial Property, Including any other work product arising from or as part of a Conspiracy. This term is intended to be interpreted and applied in the broadest possible context to ensure the rightful protection of intellectual property and other proprietary rights and deter misappropriation.
“Descendants” means all of that Person’s lineal descendants of all generations. The relationship between parent and child at each generation shall be determined by the definition of parent and child contained under the law of the state of the Beneficiary’s residency on the date of Beneficiary’s death, provided that:
a. A descendant in gestation who is later born alive shall be considered a descendant in being throughout the period of gestation.
b. An adopted Person, and all persons who are the descendants by blood or by legal adoption shall be considered descendants of the adopting parents as well as descendants of the adopting parent’s ancestors.
c. A stepchild shall be considered a descendant of the stepparent.
d. A child born out of wedlock shall be considered a descendant.
“Digital Assets” means sent and received emails, email accounts, digital music, digital photographs, digital videos, gaming accounts, software licenses, social-network accounts, file-sharing accounts, financial accounts, domain registrations, Domain Name System (DNS) service accounts, blogs, listservs, web-hosting accounts, tax-preparation service accounts, online stores and auction sites, online accounts, and any similar digital asset that currently exists or may be developed as technology advances.
a. Digital assets may be stored in the cloud or in physical or digital devices. Trustee may access, use and control all digital devices a Grantor may assign to the Trust in order to access, hold, modify, control, archive, transfer and delete the digital assets. This power is essential for access to such digital assets that are only accessible through digital devices and interfaces. Digital devices include desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar hardware that currently exists or may be developed as technology advances. Digital interfaces include websites, installed computer programs, and any similar software interfaces that currently exist or may be developed as technology advances.
b. In the event that an account is considered a Trust, Trustee has the authority to access, hold, modify, control, archive, transfer, and delete digital assets as the property of the Trust. “Directed Trustee” means when directed by the Supervising Third Party to make a distribution to, or on behalf of the Beneficiary, Trustee shall act as a Directed Trustee and Trustee must follow the directions of the Supervising Third Party and may be not held liable for such act. Trustee is not acting in either a Fiduciary or discretionary capacity for the purposes of this Agreement when Trustee acts in accordance with such received directions. Trustee shall not be liable for any actual or opportunity loss resulting directly or indirectly from acting in such a directed ministerial capacity
"Direct and Indirect Misgotten Revenue" means all resulting revenue or income (received, deferred, payable under any contract or agreement or otherwise pending in the future), without offset or allowance of any expense, overhead, taxes or other cost (regardless of nature or type of said cost), produced or resulting, whether directly or indirectly, from the breach received by the breaching Parties in Interest and their co-conspirators and includes but is not limited to any and all income, revenues, commissions, assets, payments, concessions, overrides, contracts, business deals, secondary investment income, sales, customer lists, accounts receivable, any other income (whether actual or constructive), or any other compensation or consideration gained or facilitated directly or indirectly via the violation by the Parties in Interest or their co-conspirators. The foregoing shall be construed in the broadest possible context and include any Direct and Indirect Misgotten Revenue received or under the control of themselves, alter egos and entities or persons under their control.
“Disability” means a Beneficiary under this Trust is disabled or under a disability when he or she is under the Age of Majority and not emancipated; or, if determined to be disabled by the Social Security Administration or a court of competent jurisdiction.
“Disclosure” means (whether received or read by a User or You, including Parties in Interest or not) including (i) the displaying the Noticed And Disclosed information, limitation, terms, conditions or elements of this Agreement or other Account Document or communication within the Platform, Account Block, Account Statements, Account Documents, including this or other noticed or disclosed information or communications to You, a User or any other Parties in Interest as Readable Text, a PDF of Readable text, or an image of Readable Text; or (ii) emailing, displaying or providing access to the subject information as Readable Text, a PDF of Readable text, or images of Readable Text, or otherwise providing access to the Account Block, Account Statements, Account Documents, including this Agreement, or the noticed or disclosed information to the email address provided by the User, or addressed party, as Readable Text, a PDF of Readable Text, or images of Readable Text; (iii) posting the noticed or disclosed information, Account Documents behind the login on the Platform in the associated Account Block as Readable Text, PDFs of Readable Text, or images of Readable Text; or (iv) by providing access including to the Account Block, or an electronic or physical copy of the Account Documents, notice, disclosure, or communications upon login or request as Readable Text, PDFs of Readable Text, or images of Readable Text.; or (v) make known, a revelation or the providing of information as Readable Text or data download.
“Distributee” means a Beneficiary who currently holds a vested entitlement to receive a distribution.
“Distribution by Representation” means unless otherwise specifically provided, all distributions are to be made to a Person’s descendants by representation. The property is divided into as many equal shares as there are: (i) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants; and (ii) deceased descendants in the same generation who left surviving descendants if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share, and their surviving descendants had predeceased the designated ancestor.
“Due Date” means the date listed on Your Account Statement when payment is due to Us for Services provided to You.
“Education” means:
a. College. Any course of study or instruction at an accredited college or university granting undergraduate or graduate degrees.
b. Vocational. Any course of study or instruction at any institution for specialized, vocational, or professional training.
c. General. Any curriculum offered by any institution that is recognized for purposes of receiving financial assistance from any state or federal agency or program.
d. Course of Study. Any course of study or instruction which may be useful in preparing a Beneficiary for any vocation consistent with such Beneficiary’s abilities and interests.
Distributions for education may include tuition fees, books, supplies, living expenses, travel and spending money to the extent such education expenses are reasonable.
“Eligibility Requirements” means a Person of legal age and of requisite mental capacity to form a binding contract with Us and that is otherwise legally able to enter into and execute a binding contract, including but without limiting this Agreement.
“Entity” (a.k.a. "Entities") means any legally recognized organization or business structure that is created, organized, and governed under applicable laws, whether national, regional, or international, regardless of type. This includes but is not limited to corporations, limited liability companies (LLCs), limited partnerships (LPs), business trusts, professional limited liability companies (PLLCs), registered limited partnerships (RLPs), general partnerships, joint ventures, associations, cooperatives, anonymous societies, and any other such legal structure created to engage in commercial, financial, or other legal activities and operating independently of its owners, members, or shareholders. For clarity and avoidance of doubt, the term “Entity” encompasses non-profit, for-profit, and non-governmental organizations, irrespective of their purpose, mission, or vision. Finally, any arrangement in which a Person is not operating in their individual, personal capacity or under a fictitious name or DBA (doing-business-as), shall be considered an “Entity.”
“Escheatment” means that, if provided for by the laws of the Principal Place of Administration, Trustee, after having used reasonable and prudent means, is unable to locate or receive a response from the Beneficiary, the Beneficiary’s descendants, or the estate of the Beneficiary, the balance in the Trust may become unclaimed funds escheatable to the state of such Beneficiary’s last known address, as shown in the records of Trustee. Said Escheatment shall only occur if within the statutory period, there was no caused activity, received additions, request for distributions, indication of shown interest in the Trust (including but not limited to accessing online Trust information), or correspondence concerning the Trust or responses for requests for information or action.
“Escrow” (a.k.a. “Escrow Account”) means a legal arrangement between two parties whereby We, as a third-party Escrow Agent, conditionally oversee assets (funds) held separate from the Escrow Agent by a Bank Depository Custodian (as a deposit of the said Bank and not Us) pending a contingency or the fulfillment of a condition or conditions in a contract, settlement, or judgment in which an Escrow Agent ministerially administers the disbursement of the Escrow assets from the Bank Depository Custodian as the neutral third party (funds). An Escrow Account is not a checking account, bank deposit account, share draft, money market checking, savings account, or any other type of demand deposit account We hold as a deposit.
“Escrow Agent” means a neutral third party who, for the purposes of this Agreement, is not a “Bank”, and disburses the assets from an Escrow Account held separately by a Bank Depository Custodian as a deposit (and not the escrow agent). An Escrow Agent only operates in a ministerial capacity and does not exercise fiduciary powers or act as a trustee; no duties or obligations other than those explicitly set forth herein or stipulated by statute shall accrue to the Escrow Agent. The Parties in Interest Agree to Indemnify the Escrow Agent and its Affiliates and Third Parties for any Claim.
“Establishing Documents” means the documents that create and form the basis of an Account.
“Event of Default or Breach” means the occurrence of any of the following events shall constitute an "Event of Default or Breach" under this Agreement (i) Any representation, statement, data, information, report, or certificate given to Us or any of its officers, employees or agents, now or in the future, is untrue or misleading in a material respect; or (ii) failure to pay invoice fees or any other monetary obligation; or (iii) violation of any provision of this Agreement or the associated Account Documents; or (iv) You, including the Parties in Interest fails to perform any other non-monetary duty or obligation; or (v) failure to secure physical files, computers, electronic devices, data files, network, and email systems from a breach, compromise, man-in-the-middle transmission intercept, virus, malware, or any other security lapse or compromise.
“Event of Duress” means to the extent allowable by law (i) circumstances whereby the failure to delay distributions may reduce the net expected financial benefits of the Trust to the beneficiary; or (ii) receipt or attempted service of any communication by a United States court, administrative body, tribunal, or similar governmental or quasi-governmental agency in any jurisdiction under which any Person or Entity seeks relief or remedy for himself, herself, itself, or any other Person by:
a. asserting a Claim adverse to the Trust or Trustee over any Trust property;
b. requesting an order or instruction to Trustee in contravention of this Agreement, including, without limitation, provisions granting discretion to Trustee or restricting Trustee’s exercise of discretion;
c. requesting information concerning the origin, receipt, management, administration, asset holdings, distribution, or encumbrance of Trust property with a view toward asserting a Claim against or establishing a receivership or other like arrangement over Trust property that is in any way materially adverse to exercising powers of management, administration, operation, acquisition or divestiture of the Trust’s assets, and distribution powers granted to the Fiduciaries under this Agreement;
d. seeking or requiring the replacement of any Trustee or placing limitations on Trustee’s powers other than in accordance with this Trust;
e. threatening or actually suspending or abrogating this instrument in whole or in part;
f. threatening or actually compelling Trustee to sell, transfer, or otherwise dispose of Trust property in a manner inconsistent with this Agreement; or
g. exercising or not exercising a right, power, or discretion vested in or reserved under this Agreement:
i. to any Person who is under duress or influenced by an outside force;
ii. by compulsion;
iii. that is not voluntary in nature; or
iv. by any legal or similar process such as an order or other direction, ruling, or like decree of any United States court, tribunal, or administrative body, or by a trustee in bankruptcy, official assignee, or any other similar appointee or Person, having jurisdiction over the Grantor, Trust, Trustee, the Beneficiaries, the Beneficiaries of a Sub-Trust, this Trust, or any Trust property.
“Fair Dealing” means the fairness of conduct of Us rather than the care with which an act is performed. Disclosure of this Agreement, including the associated Account Documents, and all of the foregoing’s provisions expressly establishes disclosure and honesty in fact, which, for the purposes of this Agreement, establishes Fair Dealing.
“Fiduciary” means the Person(s), or Entity(ies), who safeguard property and who are allowed to act in a discretionary manner with respect to said property. Ministerial Services are not Fiduciary acts or brokerage executions and do not convey the status of Fiduciary on their providers.
Specifically, the Fiduciary has the following powers:
“First Material Breach Doctrine” means the general rule in contract law stipulating that when a party to a contract commits a breach first, the nonbreaching party is excused from any further performance required under the contract.
“Foreground and Background Intellectual Property (IP)” means all Intellectual Property (IP) worldwide, including patents, unpatented inventions, innovations, web delivery systems, copyrights, document design, trademarks, templates, mask works, online functionality, Trade Secrets, standard operating procedures (SOPs), business processes and methods, know-how, Account Documents, Platform and Services, and all other forms of Intellectual Property conceived or first reduced to practice, or to a tangible medium of expression, or conceived or made or utilized during the Our performance under this Agreement and all Intellectual Property embodied under the Agreement.
For the purpose herein the foregoing includes all elements of the following:
“Formal Trust Accounting” means, except to the extent required by law, if an Account is a trust, Trustee is not required to file formal accountings in any jurisdiction. After the death of the Beneficiary, Trustee must provide an annual accounting to the executor of the Beneficiary’s estate unless waived.
The annual accounting must include the receipts, expenditures, and distributions and the assets on hand for the accounting period.
In the absence of fraud or obvious error, assent by the Beneficiary to Trustee’s accounting will make the matters disclosed in the accounting binding and conclusive upon all persons, including those living on this date and those born in the future who have or will have a vested or contingent interest in the Trust or its assets. In the case of a Beneficiary who is a minor or incapacitated, the Beneficiary’s natural guardian or Legal Guardian may give the assent required under this Section.
The Beneficiary may object to an accounting provided by Trustee only by giving written notice to Trustee within 180 days after Trustee provides the accounting. In the event the Beneficiary fails to submit a timely written objection, the absence of objection constitutes assent to the accounting.
Trustee must make the trust’s financial records and documents available to the Beneficiary at reasonable times and upon reasonable notice for inspection. Trustee is not required to furnish any information regarding this Trust to anyone other than a Beneficiary. Trustee may exclude any information Trustee determines is not directly applicable to the Beneficiary receiving the information.
In all events, a Beneficiary’s Legal Representative may receive any notices and take any action on behalf of the Beneficiary as to an accounting.
“Good Faith” means Fair Dealing and the observance of reasonable commercial standards of Fair Dealing related to an action, inaction, or decision (or lack thereof). For the purposes of these Terms of Use any one (1) or more of the following criteria conclusively establishes Good Faith:
In addition to the preceding, the Parties in Interest affirm (or reaffirm as the case may be) by this Agreement that (i) any action or inaction We take as defined herein; or (ii) in reliance on information, consent, or attestations received from a Beneficiary or an Agent, including a law firm representing any Parties in Interest is made in Good Faith which is not subject to future contest unless there is evidence of intentional misconduct with malice or deliberate fraud with malice by Us. Accordingly, the Parties in Interest waive all Claims against Us.
We may require a non-judicial settlement agreement, which may take the form of a distribution petition, other form, document, or rider, on any matter. Such non-judicial settlement agreement shall expressly and conclusively establish Good Faith, which is not subject to future contest.
Notwithstanding the preceding, any allegation of fraud, Bad Faith, breach of duty, or breach of contract made against Us must be supported by clear, objective, unassailable, demonstrable, and measurable facts and evidence proving the allegations beyond a reasonable doubt.
Any claim arising from an action or inaction taken by an Indemnified Party shall not be attributed to any other Indemnified Party than the specific Indemnified Party directly executing the action or causing the inaction.
“Good Faith Reliance” means that We may rely on statements, documentation, forms, and other such information as presented by Parties in Interest. Additionally, We may rely on the advice of counsel or other experts and shall be under no liability for any act or omission in accordance with such advice nor for failing to follow such advice. As such, We shall not be liable for errors of judgment or mistakes of fact or law for acting (or failing to act) in accordance with information presented by the Parties in Interest, or for acting (or failing to act) in accordance with advice received by counsel or other experts.
“Grantor” (a.k.a. “Settlor” or “Giftor”) means the Person or Entity (including a testator) who settles or funds a trust account. Also, from time to time known as Settlor or Giftor, as applicable within a particular trust document.
“Including” means “including but not limited to” and shall be construed in the widest possible context, and shall not be construed in any manner that could restrict or reduce the interpretation.
“Indemnify” You, including the Parties in Interest, jointly and severally, irrevocably, unconditionally, completely and forever waive, release, defend, hold harmless, indemnify and discharge Us from any and all from all past, present, or future claims, demands, obligations, actions, causes of action, rights, loss of funds, losses of service, opportunity profits, expenses (including attorneys’ costs), tax consequences, and compensation of any nature whatsoever, at law, equity, or theory, which the Parties in Interest now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of an act or inaction based on the reliance of information, instruction(s), representation(s), and warrants which may be a forgery, fraudulent, untrue, inaccurate, coerced, inconsistent with tax laws and doctrine, or incomplete information which Parties in Interest now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of use of the Platform or receipt of Services from Us. Accordingly, the preceding provisions bar the Parties in Interest from any resulting claim, counterclaim, defense, or objections at law, equity, or theory in any jurisdiction.
“Indemnified Parties” means Us, all trustees and any other trustees or co-trustees, including but limited to trust committee members, exercising fiduciary powers or trust Administrators or service providers acting in a non-fiduciary ministerial capacity, including, their respective officers, directors, stockholders, members, attorneys, Agents, Third Parties, servants, representatives, employees, subsidiaries, Affiliates, partners, predecessors, and successors in interest, heirs and assigns, and all other Persons, Entity, firm or corporation with whom any of the former have been, are now, or may hereafter be affiliated. In the event that an Account is a Qualified Settlement Fund, then the relevant governmental authority (as contemplated in 26 U.S.C. § 468B, et seq. and its related regulations found in 26 C.F.R. § 1.468B-1, et seq.) shall also be included in the definition of “Indemnified Parties.”
“Industrial Property” means, in the broadest possible context, Our Trade Secrets and Our Collective Intellectual Property, along with any related or derivative rights or other proprietary information, material, designs, web functions, processes, products, intellectual property, or proprietary or confidential information of Affiliates, Indemnified Parties, and Our Third Parties, including suppliers, customers, and business partners.
“Infringing Party” means one or more Persons, Entities, or other Parties, Including Parties in Interest that directly or indirectly engage in activities that (i) breach any terms or conditions of this Agreement or the associated Account Documents or (ii) engage in a Conspiracy to do such. Such activities include, but are not limited to:
Misappropriation of Industrial Property: The unauthorized use, disclosure, or exploitation of the Industrial Property protected under this Agreement or by a similar action.
Misappropriation of Trade Secrets: The wrongful acquisition, use, or disclosure of confidential business information, technical processes, or strategic data that constitutes trade secrets or by a similar action.
Industrial Property Infringement: Any unauthorized use, reproduction, or distribution of Industrial Property, Including protected technologies, systems, or methodologies, or by a similar action.
Breach of Non-Compete Obligations: Engagement in competing business activities in violation of the Non-Compete provisions of this Agreement, either personally or through an affiliate or in concert with another party via a Conspiracy or by a similar action.
Violation of Non-Disclosure Obligations:The unauthorized disclosure or dissemination of Confidential Information or Trade Secrets, regardless of medium or intent or by a similar action.
Derivative Work Product Creation: The direct or indirect creation of Derivative Work Product in violation of the provisions of this Agreement.
Each Infringing Party shall be, jointly and severally, liable for all damages, losses, and remedies specified in this Agreement and any legal or equitable relief sought as a result of their actions.
“Intellectual Property” means, including (collectively and separately): (a) Trademarks; (b) user interfaces functions and design; (c) process design; (d) lists; (e) pricing information; (f) business strategy; (g) financial information; (h) marketing and advertising strategies; (i) sales techniques; (j) methods of conducting business; (k) technology platforms; (l) software; (m) web sites, publications, databases, and other content; (n) business processes material to the operation of the business; (o) symbols; (p) artwork; (q) copyrights; (r) franchise systems; (s) object code; (t) trading platforms; (u) document design and component elements; (v) patents and patent applications (including any abandoned applications); (w) pending trademark and service mark applications; (x) domain names and domain name registrations; (y) all products and services currently produced, marketed, licensed, sold or distributed by Us; (z) all products and services currently under development that We intend to make commercially available within 24 months from Your last use the Platform; (aa) inventions, whether or not patentable, whether or not reduced to practice, or whether or not yet made the subject of a pending patent application or applications; (bb) ideas and conceptions of potentially patentable subject matter, including, without limitation, any patent disclosures, whether or not reduced to practice and whether or not yet made the subject of a pending Patent application or applications; (cc) Trade Secrets and confidential, technical, or business information (including ideas, formulas, compositions, designs, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not reduced to practice); and (dd) technology (including know-how), manufacturing and production processes and techniques, methodologies, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and information. “Intellectual Property” further includes as intellectual property owned, commissioned, developed, or created by Us. Certain Intellectual Property may exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process and operation of which, in a unique combination, affords a competitive advantage and is a protectable secret.
“Intended and Necessary” means the provisions and elements of each Section are intended necessary included provisions and foundational components of this Agreement. Absent these provisions, We would not enter into this Agreement with You.
“Investment Advisor” means any Person or group that sells an investment product, makes investment recommendations or provides investment management in return for a fee, commission or a combination thereof. For the purposes of this Trust, Investment Advisors shall include, but are not limited to, any financial professional or agent selling any investment product, vehicle, contract, or policy regardless of its specific nature, registration, or type. Additionally, the Investment Advisors Act of 1940, and its successors, may or may not apply, without prejudice, to the definition of Investment Advisor herein. The Investment Advisor’s fees may be paid from the principal or income of the Trust.
“Investment Policy and Suitability Statement” means the Investment Policy and Suitability Statement and the related provisions as established from time to time by the Investment Advisor for an Account.
“Law” means any federal, national, international, supranational, state, provincial, municipal, local, or similar statute, law, ordinance, regulation, rule, revenue procedure, ruling, code, order, or rule of law (including common law) and any judicial or administrative interpretation or doctrine thereof, including any judicial or administrative order, consent decree, approval or judgment. Nothing herein is intended to exclude, waive, release, discharge, or limit rights or duties that expressly cannot be excluded, waived, or limited under the applicable law. However, all provisions herein that exclude, waive, indemnify, release, discharge or limit rights or duties shall be applied to the fullest extent permitted by applicable law. Accordingly, while nothing in this Agreement shall affect any non-waivable statutory rights that may apply; in such event, the associated provision shall be modified only to the limited extent necessary to fulfill the applicable statutory rights and all other elements of said provision, paragraph or sentence shall survive and no other non- offending provision shall be modified.
"Limited Use License" means a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license granted by Us to the Parties in Interest in order to access and use the Platform and Services solely for the purpose(s) outlined in the applicable Account Documents and these Terms of Use. The Parties in Interest may not copy, reproduce, modify, adapt, create derivative works, or otherwise alter any materials accessed and used in accordance with the Limited Use License. The Limited Use License does not grant the Parties in Interest any rights to sublicense, distribute, market, or otherwise use Our Collective Intellectual Property and Trade Secrets outside of the scope expressly outlined in the applicable Account Documents and herein. All other rights are reserved expressly reserved by and to Us.
“Login Credentials” means the combination of Your unique and secret username and password used to access Your Online Portal via the Platform.
“Ministerial Service” (a.k.a. Administrative Service or Ministerial Duty) means acts done under the direction of a Fiduciary or Trustee or Account Holder; not involving discretion, fiduciary authority or policymaking. As further clarity, Ministerial Service describes a duty, act or a function that conforms to an instruction or a prescribed procedure. A ministerial act or duty is a function performed without the use of fiduciary authority or judgment by the Person performing the act or duty. Ministerial powers and duties do not convey or establish any fiduciary duty on the Person or Entity serving in a ministerial capacity.
“Minor” means any Person belonging to the age group that has not obtained the Age of Majority as determined by applicable state law or relevant court order.
“Misappropriated Property” means (i) property defined within the scope of the Misappropriation of Our Collective Intellectual Property and Trade Secrets provision, or (ii) property related to any act of improper access, use, receipt, or reliance, regardless of the degree, fashion, or method, in the furtherance of a violation of any term herein and involves any of Our Intellectual Property, Including, but not limited to Our Trade Secrets, Industrial Property, or Collective Intellectual Property, or (iii) the underlying Intellectual Property, Including Our Trade Secrets, Industrial Property, or Collective Intellectual Property upon which any Derivative Work Product is based in whole or in part. This clause is intended to be interpreted and applied in the broadest possible context to ensure the rightful protection of our intellectual property rights, trade secrets, and other proprietary rights and to deter misappropriation.
"Misappropriation of Our Collective Intellectual Property and Trade Secrets" means (i) the acquisition of Our Collective Intellectual Property or Trade Secrets by improper means; or (ii) the disclosure or use of Our Trade Secrets without Our express, written consent. For purposes of this definition, “improper means” shall be defined as the theft, fraud, bribery, industrial espionage, breaching of a contractual duty to keep something confidential, or inducing others to breach that duty. For purposes of clarity and avoidance of doubt, actual knowledge shall have no bearing on the Misappropriation of Our Collective Intellectual Property and Trade Secrets; the Parties in Interest Agree that they have a duty to ensure that they prevent the improper acquisition or unauthorized disclosure of Our Collective Intellectual Property or Trade Secrets.
“Negative Marketplace Effect” means any detrimental effect on Our marketplace standing, revenues, net income, expenses, client relationships, business opportunities, reputation, share, effectiveness, or opportunities or relationships, including with third party financial providers such as insurance companies and agents, banks, brokers or other financial providers that results, directly or indirectly, from the Parties in Interest’s breach of these Terms of Use or the applicable Account Documents. For the sake of clarity, this term shall also include any loss of: (i) revenues or profits (whether current, expected or fully measurable), (ii) third party business and financial relationships (whether current or expected), and (iii) market share, market effectiveness or commercial and other business opportunities or relationships (whether current or expected).
For purposes of clarity and avoidance of doubt, this list shall not be exhaustive, and any omitted terms shall not be construed as purposefully omitted; rather, any omissions are for expediency. The term Negative Marketplace Effect shall be interpreted in the most liberal of terms and encompasses any and all direct and indirect negative, deleterious, injurious, harmful, or otherwise pernicious effects against Us financially, operationally or in in the marketplace. Negative Marketplace Effect shall apply without exception to any breach of our Collective Intellectual Property, Nondisclosure, Non-Compete and Quiet Enjoyment provisions.
Finally for the sake of clarity, in good faith and fairness the Negative Marketplace Effect is not intended apply to a single minor unintentional breach for which there is no Adverse Effect against Us.
“Non-Personal Account” means Accounts that (i) are not titled in a Person’s name and do not operate under the titled owner's Taxpayer Identification Number SSN or TIN; or (ii) for which a Person is not the titled owner of the Account. Examples include trust accounts, escrow accounts, corporate custodial, and other similar accounts.
“Notice” means a written notification given to Us by You pursuant to the Notice Provisions Section herein.
“Noticed and Disclosed” means that any given provisions, terms, section, or verbiage is clear, conspicuous, and unambiguous and that You have reviewed, understood, and consented to said terms freely and voluntarily as they were open, subject to review and mutual negotiation, and unambiguous to You.
“ODFI Banks” means the Originating Depository Financial Institution from which ACH funds are sent or disbursed.
“Online Portal” means Your online account that is accessible via the Platform by inputting Your Login Credentials. The Online Portal houses all of Your Accounts, Account Documents, Account Statements, Account balances, and more. THE ONLINE PORTAL IS PROVIDED AS-IS, AND ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED. Some features may not be available, and We reserve the right to cancel or suspend Your Online Portal at any time and for any or no reason without explanation or notice to You. The information disclosed via the online portal is notational only and are thus subject to correction or limitations, including the limitation of unvested potential rights and the claims of adverse parties. Funds shown do not necessarily indicate a vested right in said funds, and said funds may not be available. Further these funds may also be subject to adverse claims and liens.
“Online Transactions” means any Requests or other similar interactions that You perform via the Online Portal, Including Distribution Petitions and others.
“Ordinary Care” means observance of Good Faith or Reasonable Commercially Reasonable standards as defined herein. Commercially Reasonable do not require the Us to examine, examine, investigate or detect fraud of any instrument, request, transaction, petition of instruction if (i) the failure to examine does not violate Our then current procedures; or (ii) the Security Procedure defined herein as applied.
“Other Definitions” means if the Account is a trust, except as otherwise provided in this Agreement; terms shall be as defined in the code of the Principal Place of Administration as amended after the date of this Trust.
“Other Providers” means professional service providers, as individuals or entities, who preform services on behalf of the Trust. The term Other Providers shall include, but is not limited to, Investment Advisors, Distribution Advisors, Trust Advisors and attorneys.
“Parties in Interest” means any Person or Entity that may (i) have a right or ownership; (ii) assert a beneficial or ownership right; or (iii) assert a Claim or other right, privilege or beneficial or ownership interest against any Account (including a trust or escrow, the Account Holdings of any Account). The interpretation of the term Parties in Interest shall be in the broadest possible context to include User, User’s Agent or attorney(ies), User’s employer, Entity, or the law firm for which User acts or represent, Claimant(s), Beneficiary(ies), Grantor(s), Transferor(s), Agent(s), attorney(s), Protectors, Supervising Third Party(ies) or any other party making a Claim or attribution to benefits and interests arising from any associated Account, or other Account, or the Account Holdings thereof. In addition to the preceding, Parties in Interest shall specifically include, but not be limited to: (i) any Person(s) who is a parent, relative, family member, current spouse, life partner, guardian, or attorney-in-fact, or shareholder or member of any other Parties in Interest; (ii) lineal descendants of any other Parties in Interest whether by blood, adoption, or marriage; (iii) ex-spouses, ex-life partners, parents, and step-parents of any other Parties in Interest; (iv) the creditors of any Parties in Interest assert a Claim or lien; (v) any Agent, Authorized Officer, Authorized Entity, Distribution Administrator or the natural or legal guardians of any Parties in Interest; (vi) Users, by their access of the Platform, or by creating a User Account, or by login to the Platform, or receipt of service; and (vii) any Person or Entity asserting a claim or demand via Freedom of Information Act ("FOIA") Request or an equivalent state statute, rule, or doctrine providing for the public inspection or production of governmental records and Documents for access to Documents, Our Trade Secrets and Collective Intellectual Property, Account data or information; and (viii) all of the preceding’s heirs, assigns, and successors; and to any applicable insurance carrier with a direct, assigned or subordinated interest; and (ix) any Agent, attorney in representation of another Parties in Interest or a Person making a Claim, planner, broker or tax or investment advisors another Parties in Interest, and/or (x) the Grantor, the current Spouse(s) of the Grantor, the Ex-Spouse(s) of the Grantor; and / or (xi) Beneficiary, Residual Beneficiaries, Contingent Residual Beneficiaries, and / or (xii) the incumbent and all previous Family members(s); and / or (xiii) creditors of a Beneficiary or Grantor; and / or (xiv) an Agent or the natural or legal guardians of each Beneficiary, and / or (xv) all Interested Person(s); and / or (xvi) any Person or Entity that is (a) a conspirator or co-conspirator, or (b) part of any Conspiracy or other effort, plan, or arrangement to breach any element of this Agreement or any Account Documents regardless of degrees of participation or knowledge by the respective conspiring parties. The term "Parties in Interest" shall be applied, without limitation, and jointly and severally to the parties of any incorporated or corresponding agreement. The term “Parties in Interest" shall apply in the broadest possible context.
“Parties’ Privileged Documents” means each Party’s private and proprietary documents that must be kept privileged and confidential. These documents are not for publication, use outside of their intended scope, use for business purposes, or for any other use or dissemination without the written consent of the owner of said documents and the written consent of all Parties in Interest.
“Payment Order” means an instruction of a “sender” to a “receiving bank”, transmitted orally, electronically, or in writing, to pay, or to cause another bank to pay, a fixed or determinable amount of money to a beneficiary if: (i) the instruction does not state a condition to payment to the beneficiary other than time of payment, (ii) the receiving bank is to be reimbursed by debiting an account of, or otherwise receiving payment from, the sender, and (iii) the instruction is transmitted by the sender directly to the receiving bank or to an agent, funds-transfer system, or communication system for transmittal to the receiving bank. For the purposes of this Agreement, Account Documents, and this Platform, all Requests are conditional requests requiring the vesting of an associated right, satisfaction of a qualifying condition, or approval by a Supervising Third Party. Accordingly, all Requests are conditioned and conditional; therefore, no Request as defined herein is a Payment Order.
“Permitted Asset” (a.k.a. “Permitted Assets”) means an annuity, cash, money market, or another asset, as permitted by Trustee or Account Administrator, or Institutional Custodian. Permitted Assets may also include, but are not limited to, mutual funds, ETFs, stocks, bonds, life insurance, certificates of deposit, brokerage accounts, hedge funds and managed accounts, similar instruments, and/or the holding of securities and non-securities assets by the custodian including, but not limited to, all allowable Account defined by the applicable laws of Principal Place of Administration and permitted by the then-current procedures and policies of Trustee or Account Administrator, or Institutional Custodian. Additionally, the certificates of private stock or partnership interest or Business Trust units may be Permitted Assets.
“Person” means an individual human being (a natural person). For purposes of clarity and avoidance of doubt, a corporation, partnership, association, limited liability company, trust, or any other juridical person or organization types are an “Entity” and are not a Person.
“Personal Account” means accounts which (i) is titled solely in a Person’s name and under the titled owners Taxpayer Identification Number; and (ii) for which the Person is the sole titled owner.
For clarity, the definition of “Personal Account” does not include “For the Benefit of”, “FBO”, “For the Further Credit to”, notational sub-accounts of a Non-Personal Account, or any other beneficial expectancy allocation or notational recordkeeping entry within the operations of a Non-Personal Account.
“Personal Identifiable information” (a.k.a. “PII”) means information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means. Further, PII is defined as information: (i) that directly identifies an individual (e.g., name, address, social security number or other identifying number or code, telephone number, email address, etc.) or (ii) by which an agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification. (These data elements may include a combination of gender, race, birth date, geographic indicator, and other descriptors). Additionally, information permitting the physical or online contacting of a specific individual is the same as personally identifiable information. This information can be maintained in either paper, electronic or other media.
“Platform and Services” means (i) the website (www.easternpointtrust.com); and (ii) any other sub domains, linked or affiliated websites, including any content, functionality, and services delivered, directly or indirectly, by Us, whether web-based, online, or otherwise; and (iii) all related services, including, fiduciary services, ministerial, technology, administration, escrow, or other such types of and related services provided by Us (the preceding collectively the “Platform;” and (iv) all documentation received from Us, whether via the Platform, mail, email, scan, fax, or any other transmission method. For purposes of clarity and avoidance of doubt, the word “documentation” as used in this definition shall include Account Documents.
“Principal and Income” means the determination as to what shall constitute principal of the Trust, gross income therefrom and distributable net income under the terms of this Agreement and the applicable Principal and Income Act applied by Trustee, in its sole authority and absolute discretion. For purposes of this Trust, any net total capital gains and losses on the sale of Trust Assets shall be allocated to income in the year of sale.
“Principal Place of Administration” means within Trustee’s sole authority and absolute discretion, Trustee may designate the Principal Place of Administration based on one or more of the following: (i) the state jurisdiction where Trustee’s principal place of business is located; or (ii) the state jurisdiction designated by Trustee where all, or any part, of the administration occurs; or (iii) the state jurisdiction designated by Trustee where a co-trustee or special trustee is a resident or holds a license to operate in that jurisdiction; or (iv) a state jurisdiction where a non for profit has a contingent or residual economic interest in the trust or the assets of the trust; or (v) a state jurisdiction where all or any part of the assets of the Trust are held by a broker-dealer or bank holding a license to operate in that jurisdiction; or (vi) a state jurisdiction where a governmental authority of has a supervision or jurisdiction over the operation or qualification of the trust. Trustee, without restriction and in its sole authority and absolute discretion, may designate the Principal Place of Administration, and may also alter the Principal Place of Administration at any time. The laws of the designated Principal Place of Administration shall apply to the Trust as the governing law and controlling jurisdiction. However, notwithstanding the foregoing and without exception, unless otherwise stipulated in the Account Documents the courts of the United States shall have exclusive jurisdiction over the Trust to render orders or judgments resolving issues concerning the administration of the Trust and exercise primary supervision over the Trust. The effective date of a change to the Principal Place of Administration may be retroactive to a date before Trustee exercised the power.
“Privacy Policy” means the Privacy Policy found at https://www.easternpointtrust.com/docs/privacy-policy, and any redirected, subdomain, or subpage.
“Produced Documents” means documents exchanged in the course of discovery as outlined in the Discovery provisions herein.
“Prohibited Business” means the following categories of businesses, business practices, and sale items which are barred. The specific types of use listed below are representative, but not exhaustive. If You are uncertain as to whether or not the use of the Platform or the associated Services involves a Prohibited Business, or have questions about how these requirements may apply, please contact Us pursuant to the Notice Provisions herein outlined.
User Agrees that the Platform shall not be used in connection with any of following businesses, activities, practices, or items, including but not limited to:
Investment, Credit and Tax Services: Mortgage consulting or debt reduction services; credit counseling or repair; or tax collection reduction, prohibited tax schemes and other tax avoidance schemes.
Intellectual Property or Proprietary Rights Infringement: Sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder.
Counterfeit or Unauthorized Goods: Unauthorized sale or resale of brand name or designer products or services; sale of goods or services that are illegally imported or exported or which are stolen.
Regulated Products and Services: Online prescription or pharmaceutical services; age restricted goods or services; military weapons and munitions; gunpowder and other explosives; toxic, flammable, and radioactive materials; products and services with varying legal status on a state-by-state basis.
Drugs and Drug Paraphernalia: Sale of narcotics, controlled substances, and any equipment designed for making or using drugs, such as bongs, vaporizers, and hookahs.
Pseudo-Pharmaceuticals: Pharmaceuticals and other products that make health claims that have not been approved or verified by the applicable local and/or national regulatory body.
Substances Designed to Mimic Illegal Drugs: Sale of a legal substance that provides the same effect as an illegal drug (e.g., salvia, kratom).
Adult Content and Services: Pornography and other obscene materials (including literature, imagery and other media); sites offering any sexually-related services such as prostitution, escorts, pay-per view, adult live chat features.
Multi-level Marketing: Pyramid schemes, Ponzi type network marketing, and referral marketing programs.
Games of Skill: Games which are not defined as gambling under this Agreement or by law, but which require an entry fee and award a prize.
Unfair, Predatory or Deceptive Practices: Fraudulent investment opportunities or other services that promise high rewards; Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that We determine in Our sole discretion to be unfair, deceptive, or predatory towards consumers.
High Risk Businesses: Any businesses, or Entity type, that We believe possess elevated financial risk, refuses to provide information, provides false, partial or misleading information legal liability, or violates Our KYC/AML policy, other business or risk policy, or a card network or banking network policies.
High Risk Country or Region: Any country or region that We believe possess elevated financial risk for money laundering, corruption, tax evasion, including transfer payments, shell companies, or other legal liability.
“Prohibited Use” means the following categories of uses which are barred. The specific types of use listed below are representative, but not exhaustive. If You are uncertain as to whether or not the use of the Platform or the associated Services involves a Prohibited Use, or have questions about how these requirements may apply, please contact Us pursuant to the Notice Provisions herein outlined.
User Agrees that the Platform shall not be used in connection with any of following uses, including but not limited to:
Unlawful Activity: Activity which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions programs administered in the countries where conducts business, including the U.S. Department of Treasury’s Office of Foreign Assets Control ("OFAC"), or which would involve proceeds of any unlawful activity; publish, distribute or disseminate any unlawful material or information.
Abusive Activity: Include (i) actions which impose an unreasonable or disproportionately large load on Our infrastructure; or (ii) detrimentally interfere with, intercept, or expropriate any system, data, or information; or (iii) transmit or upload any material to the Platform that contains viruses, trojan horses, worms, or any other harmful or deleterious programs; or (iv) attempt to gain unauthorized access to the Platform, Accounts, computer systems or networks connected to the Platform, through password mining, computer virus, key stroke logging or any other means; or (v) use, or allowing the use, or failing to prevent the access of Account information by another party to access or use the Platform; or (vi) transfer of User Credentials, Account Block access or Account rights to an Account to a third party, unless by operation of law or with the express permission of Us.
Abuse Other Users: Interfere with another individual’s or Entity's access to or use of the Platform and associated services; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (including, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information from the Platform about others, including without limitation email addresses, without proper consent.
Fraud: Activity which operates to defraud Us, Accounts, Users, or any other Person; provide any false, inaccurate, or misleading information to Us.
Unlawful Gambling: Lotteries; bidding fee auctions; sports forecasting or odds making; fantasy sports leagues with cash prizes; internet gaming; contests; sweepstakes; or games of chance that are not sanctioned by a governmental body or regulatory authority.
Collective Intellectual Property Infringement: Engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of Our Collective Intellectual Property, name, or logo, including use of Our trade or service marks, without expressed written consent from Us or in a manner that otherwise harms Us or Our brand; any action that implies an untrue fact or endorsement by or affiliation with Us.
“Protection Against Perpetuities” means, in the event that an account is considered a trust, The Trust shall terminate, and all distributions required by this Agreement shall be accomplished no later than twenty-one (21) years after the death of the Beneficiary. Notwithstanding any contrary provision in this instrument, if any trust under this instrument shall violate any applicable rule against perpetuities, accumulations, or any similar rule or law, the terms of such trust shall be re construed by Trustee to require such interest to vest within the time period specified for a valid interest under such provision. In the event that Trustee cannot reasonably re-construe the terms of such trust in conformity with the requirements that such interest vest within the time period specified for a valid interest under such provision, then Trustee is directed to terminate such trust on the date limited by such rule or law, and the property held in such trust shall be distributed to the income Beneficiary or beneficiaries of such trust in the proportions in which they are then entitled to share such income.
“Reasonably Commensurate” means that a given provision, policy, procedure, element, or term is suitable and Commercially Reasonable given that(i) in whole or in part, it is established by use of a similar or near provision, policy, procedure, element or term in like or unlike circumstances; (ii) it corresponds by content, function, intent, or design to commonly accepted commercial practices; or (iii) it is based or influenced by statute, regulation, instances of common law, or other commercial practice known or identifiable in the public domain, or case law.
However, in the case of a provision, condition, limitation, policy, procedure, element, or term that is in limited or infrequently commercial use and therefore may be unique, singular, or not common; then the general use or acceptance by third parties, or unobjected use, acceptance by other parties, or application to other parties, of the same or similar provision, policy, procedure, element or term shall establish that the provision, condition, limitation, limitation, policy, procedure, component or terms establishes the Commercially Reasonable and Reasonably Commensurate nature of the preceding.
It is stipulated that the meaning of Reasonably Commensurate shall apply in the broadest possible context to establish the presumption of reasonableness, including the preceding.
“Readable Text” means United States vernacular English language text formatted to display by the server at least a ten (10) point font or greater in a serif or sans serif typeface. The level of a display screen’s zoom or physical screen size or device formatting shall not be constructed against the determination of font size.
“Receiving Bank” means a bank or other depository financial institution receiving funds or assets. In no case shall We be deemed a Receiving Bank.
“Relevant Business(es)” means the business or businesses (including but not limited to any form of commercial activity) from time to time carried on by Us, or any other Associated Undertaking, in respect of which Parties in Interest became aware of Confidential Information and Collective Intellectual Property arising from their use of the Platform and Services.
“Request” means any request made to Us for a transaction, instruction, funding, addition, petition, submission, disbursement, or other prayer for execution, action, or inaction. Unless the Account is specifically identified in the Account Documents as a directed account, or a specific power of discretion has been assigned in writing to another party, all Requests are conditioned petitions for a provisional execution, denial, approval or payment to a receiving party, subject to the satisfaction of one or more conditional elements other than the time of payment. Requests are subject to the terms of the associated Request and attestations of the Requestor.
“Requestor” means the one or more parties who, or that which, makes a Request and attests that they are authorized to legally bind the Parties in Interest to the terms of this Agreement and Agrees to all the provisions herein and that of the Request.
“Residual Beneficiary” means the Person(s) or Entity who shall receive the proportional interest of the Trust Assets upon the death of a Beneficiary. Upon the death of a Beneficiary, and Trustee receiving all required documentation, Trustee shall provide written certification to the Residual Beneficiary(s) of their Vested Right to the Trust Assets benefit and in what proportion. Upon such determination and written certification, the Residual Beneficiary(s) shall be considered a vested Residual Beneficiary(s). In the event a deceased Beneficiary is named as a Residual Beneficiary at the time of such Beneficiary’s death, the designation shall be ignored for purposes of allocation amongst the other designated Residual Beneficiary(ies). If no other Residual Beneficiary(ies) are designated, or then living at the time of such Beneficiary’s Death, the Trust Assets proceeds will be allocated amongst the designated Contingent Residual Beneficiary(ies) per the designated allocation herein, and if no current Contingent Residual Beneficiary(ies) are designated or living, then to the heirs at law of such Beneficiary per stirpes, and if there are no then living heirs at law finally to the estate of such Beneficiary.
“Resolution Agent” means the reviewer of the Complaint Form. Said Resolution Agent shall make findings of fact and ultimately make a determination as to the resolution of the claims made in the Complaint Form.
"Reverse Engineer" (a.k.a. "Reverse Engineering") means any process or activity, whether conducted directly or indirectly, that involves the examination, analysis, decompilation, disassembly, reassembly, modification, or extraction of any software, product, system, or other proprietary material or information, process, protocol, information, or otherwise with the intent or effect of discovering, deriving, or reproducing the underlying source code,design, architecture, structure, processes, algorithms, functionality, or other proprietary information contained therein. This includes, without limitation: decompiling, disassembling, deconstructing, re-engineering, snooping or monitoring, discovery of source code or design, use of tools or techniques, or otherwise. This term shall also include any attempt to circumvent or bypass technological protection mechanisms (such as encryption or digital rights management systems) that are used to protect or restrict access to proprietary information or Trade Secrets. This definition is intended to cover all methods of accessing and deriving proprietary information, whether known or unknown, that could lead to the misappropriation or unauthorized use of Trade Secrets.
For the sake of clarity and not by exclusion, the Parties in Interest Agree that the term “Reverse Engineer” or “Reverse Engineering” shall be applied in its broadest possible context and, in addition to the preceding includes, any act or conspiracy whether direct, indirect, by agency or conspiracy to: (i) modify, transfer, re-engineer, decompile, create derivative works, adapt, port, translate, or create any other software, functions, apps, platforms or works for sale or use in commerce, (ii) disassemble or make a functional derivative of the Platform, or its components, or it Services; or (iii) copy, modify, adapt, translate,transfer, or create derivative or other works based upon use or documentation or take any other action inconsistent with Our ownership rights or interests.
“Scrivener’s Error” means an error due to a minor mistake or inadvertence and not one that occurs from: (i) judicial reasoning or determination, or (ii) the intention of the Grantor or drafter of the Trust.
In the event that an account is considered to be a Trust, the following provisions apply. The Trustee, acting sua sponte in its sole authority and absolute discretion, is granted the power to make amendments to correct Scrivener’s Errors, or to amend this Agreement in any manner required for the sole purpose of ensuring that the powers, authorities, and discretions of the Trustee remain legally binding and valid under common law, state law, and federal law. Scrivener’s Error shall be deemed as an error due to a minor mistake or inadvertence and not one that occurs from: (i) judicial reasoning or determination, or (ii) the intention of the Grantor or drafter of the Trust.
“Security Procedure” means the security procedure mutually established in the Account Documents. Should there be no such security procedure in the Account Documents, the Parties Agree that the following shall be the mutually agreed upon security procedure:
Prior to authorizing a distribution of funds, the Trustee or Trust Administrator shall employ at least one (1) of the following Security Procedure methods, listed in no particular order and having equal value and weight without preference: (i) call back verification initiated by Us or Our Affiliates, or (ii) validation by unique algorithms or another type of code or password or security cipher (alpha, numeric, or alphanumeric), (iii) validation by identifying words or numbers (single or combinations), (iv) validation by indicative Account or PII information, validation by numbers (single or combinations), validation by known email addresses, email MX records, internet protocol addresses, login IDs records, digital fingerprints, signature digital IDs (such as an Adobe signature ID or DocuSign signature ID), DocuSign Identify, Digital Certificates, receiving bank account numbers, W-9s, dates of birth (in whole or in part), social security numbers (in whole or in part), or Employer Identification Numbers (in whole or in part), (v) any electronic two-factor validation method.
“Sender” means the Person giving a Payment Order to a Receiving Bank. For the purposes of this Agreement, the Account Documents, and the Platform, it is expressly agreed that no Account is, nor intended to be or resemble in form or function (i) an unconditional ordinary checking account; (ii) an unconditional bank account from which money can unconditionally and easily transfer by check or other means; (iii) an unconditional bank account against which the depositor can unconditionally draw checks that are payable on demand; (iv) an unconditional bank deposit; (v) an unconditional bank deposit account; (vi) an unconditional share draft, (vii) an unconditional money market checking; (viii) an unconditional savings account; or (ix) any other type of unconditional demand deposit account which would require Us to hold the Account Holdings as a deposit, and would allow unconditional withdrawals from the associated Accounts by check or the functional equivalent which You, including the Parties in Interest, write.
“Services” mean all services We provide, including the ability to view and request or perform Requests in Accounts via the Platform and all other services addressed in this Agreement, the associated Account Documents, or any additional related services agreement.
“Spouse” means a partner in a marriage, civil union, domestic partnership or common-law marriage (collectively “Marital Union”), until such time as the arrangement is dissolved by Divorce (or the legal dissolution of marriage) as the final termination of a Marital Union as recognized under the laws of the state (or country) of the original Marital Union. The term Spouse is gender-neutral.
“Ex-Spouse” means a former Spouse from a terminated or former Marital Union who is no longer a Spouse. Additionally, for the purposes of this Trust it is conclusively established that a Spouse shall be considered an Ex-Spouse, and thus an excluded Person barred from receiving any primary or residual benefits, as of the first date of: (i) the filing of any petition to terminate the Marital Union, or (ii) the filing to legally separate, or (iii) the dissolution or abandonment of the marital household.
“State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the United States Virgin Islands, and any other commonwealth, territory, or possession of the United States. For clarity, the preceding definition of State does not apply to IRC § 7701 et seq when said statute is applicable, in such cases the definition of “state” of IRC § 7701 then shall apply.
“Substantially Gainfully Employed” means when the Beneficiary can provide for their own food, clothing, shelter, and medical needs through employment that produces sufficient net income to enable the Beneficiary to contribute not less than 100 percent of the funds (exclusive of other revenue sources) that are necessary to provide for the Beneficiary’s independent care, support, and maintenance.
The Indemnified Party will have no liability, provided that the determination of substantial gainful employment was made in good faith.
“Supervising Third Party” means the designated Supervising Third Party as stipulated in any Account Document.
"Surveillance" (a.k.a. "Surveil") means accessing, viewing, observing, investigating or copying the Platform or Our Industrial Property, including jointly and severally Our Trade Secrets and Collective Intellectual Property, regardless of the number of occurrences, duration, methods or means, (i) with the intent of misuse or misappropriation (in any manner) or (ii) as an act of espionage to collect information regarding the Platform or Our Services, including related content, code, services, pricing, business processes, operations, policies, marketing, functionality, forms, design (including webdesigns), and methods. For clarity and avoidance of doubt, “intent” shall be demonstrated by the actual act of misuse or misappropriation (in any manner), or any form of conspiracy of two or more persons to Surveil, misuse, or misappropriate and need not be demonstrated or proven by a state of mind at the time of the Surveillance, misuse or misappropriation.
“Systems” means any information technology infrastructure, including the computers, software, databases, hardware (physical or virtual), servers, hardware systems, circuits, networks, computer and telecommunications assets and equipment, software, operating systems, applications, email communication systems, all associated data, and any other electronic, computer-based devices, interactions, exchanges, APIs, or executable commands, programs, or scripts regardless of nature, type, or executable language. The interpretation of the term System shall be in the broadest possible context.
“Third Parties” means any Entity, organization, or Person who is not an Affiliate but provides services, materials, or products in support of the delivery of services or products by Us. The preceding includes attorneys, auditors, Ministerial Service providers, depositaries, proxies, agents, registered representatives, custodians, broker-dealers, annuity providers, banks, insurance companies, co-Trustees, Special Trustees, Investment Advisors, sales persons, marketing networks, financial advisors, settlement consultants, etc. The interpretation of the term Third Parties shall be in the broadest possible context.
“Title” means that, in the event an Account is considered a trust, the Trustee has legal title and control to the assets of the Trust.
“Trade Secrets” means all information, materials, and data, whether in oral, written, electronic, or other forms, that are not generally known to the public and that derive independent economic value, actual or potential, from not being generally known to, or readily ascertainable by proper means by, others who can obtain economic value from its disclosure or use. Trade Secrets include, but are not limited to: technical information, business information, customer and client information, research and development, confidential business communications, compilation(s) of information (meaning the combination or aggregation of information that, in its entirety, is more valuable or significant than any individual component when made public, including business intelligence, strategic insights, and internal reports, that are kept confidential), or otherwise. This definition of Trade Secrets is intended to cover all forms of confidential and proprietary information,whether or not it is in tangible or intangible form, and includes all information, techniques, methods, or processes that are protected by trade secret laws and are used by Us for the purpose of gaining a competitive or economic advantage in the marketplace. For purposes of clarity and the avoidance of doubt, Trade Secrets shall include any and all information that is subject to confidentiality protections under applicable law, such as the Uniform Trade Secrets Act (UTSA), or its applicable sate variant or any similar trade secrets or misappropriation statute(s).
“Trust Assets” means all real or personal assets transferred into an Account which is a trust under this Agreement as the body of the Trust. Also, commercially called trust holdings, trust assets, trust corpus, trust res, trust estate, trust fund, trust principal, trust subject matter, or trust property.
“Trust Accounting” means, when an Account is a trust account, an accounting that discloses the transactions, Account Holdings, and balance of a Trust.
“Trust Committee” (and any similarly functional related reference, including but not limited to (i) Committee of Trustees, or (ii) Committee of Co-trustees) means, when applicable, a committee of two or more members shall serve as the Trustee for the Trust. The Trust Committee shall operate by the terms and conditions of the associated Trust, except that the Trust Committee may adopt such additional rules necessary to conduct themselves as a committee. In the case of a United States domestic trust, the Trust Committee’s operation and rules must comply with the operation of a “domestic trust” pursuant to 26 U.S.C. § 7701 and all substantive decisions are made solely by US persons.
“Trust Disclosure Document” means a Trust Accounting or any other written or electronic report, notice, or communication, written, digital, or electronic notification of the Trustee. A Trust Disclosure Document, delivered by hard copy or electrically (including electronic access via the Platform) adequately discloses a matter, whether opened, received, or read, if the document provides sufficient information so that a Parties in Interest knows of a third-party claim or reasonably should have inquired into the existence of a third-party claim concerning that matter.
“Trustee” (a.k.a. “Trust Committee”) means the Persons or Entity(ies) who are a fiduciary or administrator providing ministerial services serving hereunder.
Initially, a standing Trust Committee shall be organized to coincide with the establishment of a Trust to serve as the “Trust Committee.” However, Trustee may also be comprised of a single Person or Entity who is a “United States Person” pursuant to IRC § 7701, or a committee of co-trustees. If operating as a trust committee of two or more members, the Trust Committee shall have at least one (1) member, who is a “United States Person” pursuant to IRC § 7701. Such United States Person may exercise without limit and without any foreign (non-United States Persons) trustee(s) holding any power to veto, hinder or block the actions of the United States Persons “substantial decisions.”
For the purpose of the foregoing, pursuant to IRC § 7701, “substantial decisions” means: (i) whether and when to make distributions to the Beneficiary; (ii) determine the amount of allowable distributions; (iii) make a selection of a Beneficiary to benefit; (iv) whether a receipt is allocable to income or principal; (v) whether to terminate the Trust; (vi) whether to compromise, arbitrate or abandon claims of the Trust; (vii) whether to sue on behalf of the Trust or defend suits; (viii) whether to remove, add or replace a Trustee; (ix) whether to appoint a successor co-Trustee to replace a co-Trustee who has died, resigned or otherwise ceased to act as a Trustee even if not accompanied by a removal power unless the power to make such a decision is limited such that it cannot be exercised in a manner that would change the Trust's residency from foreign to domestic or vice versa; and (x) discretionary decisions, except that if a foreign Investment Advisor is appointed, the United States Person Trustee retains the power to terminate the Investment Advisor's power to make investment decisions at will, and the appointment of a foreign Investment Advisor will not cause the Trust to be classified as a foreign trust.
The definition of Trustee shall also include any Trust Committee members and successor Trust Committee members, and whenever the context requires, the singular shall be substituted for the plural form of Trustee and vice versa.
If, at any time, there are more than one (1) United States Person members serving on the Trust Committee, the United States Person must unanimously consent to all actions.
All protections and rights conferred by this Agreement to include but not be limited to, agreements to hold harmless, indemnifications, releases, waivers, etc., shall apply to all respective members of the Trust Committee jointly and severally; and shall also apply jointly and severally to the past, present and future Trustees , including but not limited to each Trustee’s officers, directors, stockholders, attorneys, Agents, servants, associates, representatives, employees, subsidiaries, affiliates, partners, predecessors, and successors in interest, heirs and assigns, and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated.
No party shall serve as Trustee without the pending Trustee first issuing a Notice and Resolution of Trustee's Receipt and Acceptance or similar instrument. No other party, regardless of the exercise of limited fiduciary duties, shall be considered “Trustee” unless specially appointed by an Acknowledged Instrument as a co-trustee or Special Trustee, and then only to the limits specially designated therein. Additionally, Trustee shall refer to, and encompass, all prior parties who may have served as a Trustee of this Trust. The qualifying term “pending Trustee” shall mean an Entity that was requested to serve as Trustee. However, the Entity has not, as of that date, accepted the duties, role or the appointment as Trustee. Trustee shall be appointed in compliance with the laws of the Principal Place of Administration or its successor. If a Trustee should, before or after qualification: (i) change its name; (ii) be reorganized, merged, or consolidated with, or acquired by any other corporation; or (iii) be converted into or assign its trust functions to a different type of Entity, the resulting Entity shall be deemed a continuation of the former one and shall continue to act as Trustee or continue to be eligible to become a Trustee, as the case may be.
“Trust Holdings” means any assets and property of the Trust, including all lawful Trust Holdings as defined by the laws of situs and permitted by the then-current procedures and policies of the Trustee and Trust Administrator, which may be further limited to being a Permitted Asset.
The Account may acquire and hold bank deposits, mutual funds or ETFs, including, but not limited to, money market mutual funds to which Trustee or any of its affiliates, wherever located, may provide management, custodial or other services for compensation, and without reducing fees or commissions payable under this Agreement to such Trustee. The Grantor, Beneficiary, and the Parties in Interest waive additional notification beyond this provision.
“Trust Holdings Direction” All Parties in Interest hereby Agree that the value of Trust Holdings may fluctuate over time and that risks are associated therewith. All Parties in Interest acknowledge and affirm that any Trust Holdings request(s) shall be delivered to Trustee in such form or format as Trustee reasonably requires, and Trustee shall communicate said request(s) to the custodian(s) as administratively feasible. Grantor acknowledges that such request(s) may be delayed subject to collected funds. All Parties in Interest hereby waive all rights and claims to any returns except those achieved by funds when deployed. The Trust Assets belong to the Trust.
Further, Grantor hereby directs that mutual fund dividends shall be reinvested automatically. Grantor also directs that ETF dividends shall be held in cash subject to future instruction, and Grantor acknowledges and affirms that ETFs are only available in whole shares, and that no partial shares are supported.
All Parties in Interest, and their respective heirs, successors, assigns, and personal representatives, hereby release and forever discharge, indemnify, and hold harmless Indemnified Party, its affiliates, and their employees, agents, officers, and representatives (in their official and individual capacities) from any and all liability whatsoever for any and all damages or losses sustained, including but not limited to any claims, demands, actions, causes of action, judgments, damages, expenses, and costs, including attorneys’ fees, which arise out of, result from, occur during, or are connected in any manner with any Trust Holdings request(s), with the exception of claims arising out of gross negligence or willful misconduct based on the then-available knowledge of the Trustee.
“Trust Services Only” In the event an account is considered a trust, the services to be provided by Trustee are intended to be trust services, Ministerial Services are Fiduciary services only and not investment, brokerage, or advisory services as defined under the Investment Advisors Act of 1940.
“Underlying Beneficial Owner” (a.k.a “UBO”) means a Person or Entity (regardless of type, nature, or segmentation) which holds, directly or indirectly, twenty-five percent (25%) or more of capital, voting rights, beneficial rights, shares, membership interest, economic interest or other such rights in the underlying Entity. Additionally, a UBO is any Person, Entity, arrangement, or structure that (i) ultimately owns, controls, or influences an account held under Our administration or supervision and the Persons or Entities on whose behalf a transaction is being conducted; or (ii) includes a Person or Entity who exercises effective control over said Entity or an Entity's transactions, coordination, arrangement or structure; or (iii) a Person or Entity which derives the benefits associated with ownership or control of said arrangement or structure; or (iv) a Person or Entity which derives direct or indirect benefits from contrived transfer payments or loans. Finally, a UBO shall also include Persons or Entities (i) possessing a power of attorney relative to any of the preceding, (ii) Persons or Entities possessing sole veto authority, (iii) straw-man corporate directors or nominee directors that are appointed to conceal the actual owners or Controlling Persons of a given firm, and (iv) shell companies, shell trusts, or other multi-layer structures or interconnected arrangements. The UBO of an affiliate is that Person or Entity proceeding up, down, or laterally in a chain of ownership beginning with and including the parent and all related, associated, or affiliated entities, subsidiaries, trust(s), Persons, Entities or any other legal or synthetic business structure type.
“United States” means the United States of America (a.k.a “U.S.”) pursuant to the then-applicable section(s) and associated regulation(s) of the United States Code that apply to the matter.
“United States Court” means the appropriate court of subject matter jurisdiction.
“United States Person” means an Entity or Person as defined pursuant to IRC § 7701.
"Unjust Enrichment" means (i) any breach of this Agreement; (ii) a tort or violation of the law; or (iii) direct or indirect restriction or interference with Our business relationships, ability to conduct business, engage in ongoing commerce, operate, or engage in customary activities and the Quiet Enjoyment and Operation thereof caused, directly or indirectly, by the Infringing Party(ies), their co-conspirators, employees, or Agent(s) and which results, directly or indirectly, in the enrichment of the Infringing Party(ies), their co-conspirators, employees, or Agent(s) at Our expense and detriment.
“Unpaid Invoices” means any invoice that is unpaid for 30 (thirty) calendar days or more.
“User” means a Person or Entity (via an Entity representative or Agent) who accesses the Platform and Services, creates a User Account, or otherwise interacts with, derives any benefit from, or obtains Account Documents from the Platform and Services.
“User Account” means the login authorization created by the User in combination with the User’s email and password required when logging into the Platform to access data, communicate requests, petition actions, or utilize other features of the Platform.
“User Credentials” means a User’s non-expiring username (email address) and password combination, which are unique and remain unique. The User’s username and password combination utilized to access the Platform shall not be a duplicate, clone or near duplicate of any other, past, current, or future online or computer, device, electronic access system, application, interface, or website, including emails. Moreover, if a User resets a password, the resulting username (email address) and password combination must be unique. You are solely responsible for maintaining User Credentials security and confidentiality. We will not be liable for any security breach, losses, damages, or claims caused by a failure to maintain User Credentials security or confidentiality. User and the Parties in Interest are solely liable and responsible for all transactions and activities resulting from the User’s disclosure of the User Credentials, whether You, including the Parties in Interest or the User authorized such transactions or activities. User agrees to secure and not provide Account information to third parties and shall always be solely responsible and liable for any associated transactions or activities on Account. User shall immediately notify Us in the event of any unauthorized use of Account or if User becomes aware of any other breach of security. See “Notices and Contact Information” section for details.
“Utilization of Platform” means, (i) accessing the Platform and agreeing to this Agreement via a “browse wrap agreement”; or (iii) creating a User Account and agreeing to this Agreement via “click wrap agreement”; or (iii) logging and agreeing to this Agreement in via a “clickwrap wrap agreement”; or (iv) submissions or Request submission and agreeing to this Agreement in via a “click wrap agreement”; or iv) Wet or digital execution of forms or Requests which stipulate or incorporate the terms of this Agreement; (v) any other utilization, Request, receipt of service or benefit provided or received under an Account Document.
Each instance of Utilization of the Platform constitutes a separate instance of concurrence, affirmation, reaffirmation, or acceptance of this Agreement, Affirmation or Reaffirmation Rider, as the case maybe.
“Validated Instructions” means a requested or petitioned transaction which is verified by any one of the following (i) the security procedure outlined herein; or (ii) an alternative security verification procedure outlined in the relevant Account Documents. Validated Instructions are deemed executed in Good Faith and these terms Commercially Reasonable.
“Vested Right” means that Trustee may, in its sole authority and absolute discretion, elect to vest a right to a portion of the trust Assets for a Distribution to a Beneficiary. Prior to Trustee vesting a right to any portion of the trust assets, no Beneficiary has a Vested Right to any Trust Assets. All Trust assets are Unvested Rights and only constitute a mere future expectancy until Trustee, in its sole authority and absolute discretion, grants the benefit as a Vested Right. Upon a Beneficiary obtaining a Vested Right, they become a Distributee, as defined herein, only to the extent of that specific Vested Right and Distribution, and such Beneficiary shall remain an unqualified Beneficiary relative to any other potential future benefit expectancy. Only Trustee may confer a Vested Right, and no provision of this Agreement shall confer any absolute Vested Right.
“Virginia” means the Commonwealth of Virginia in the United States of America.
“We” (a.k.a “Us” and “Our(s)”) means Eastern Point Trust Company and its Affiliates and Third Parties. This definition expressly includes the Indemnified Parties.
“Written Brief” means a double spaced and 14-point font document not to exceed twenty-five (25) 8 x 11-inch pages plus exhibits of all related facts, contributory elements, arguments, exhibits, supporting citations, and analysis of all related provisions of this Agreement, the associated Account Documents, and other incorporated provisions.
“You” (a.k.a “Your” or “Yours”) means, in the plural or singular, (i) the Person or Entity which is a User, whether acting on their own behalf or acting on behalf of others as an Agent, broker, or planner or other representative, and the User’s employer, Entity, or a law firm for which the User acts or represents, and (ii) all Parties in Interest jointly and severally. To avoid doubt, the use of “You” is intended to incorporate and bind each and every Party in Interest, jointly and severally, including the User which is also a Party in Interest, whether a Person or Entity. For additional clarity of intent and function, the Term “You” and “Parties in Interest” whenever used refer to the User and the Parties in Interest jointly and severally regardless of the term’s use or singularity or plurality.
The Platform and Services are offered and available to Users who are 18 years of age or older. By using the Platform or Services, the User represents and warrants that User meets all Eligibility Requirements. If User does not meet Eligibility Requirements, User must not access or use the Platform or Services.
With each use or access of the Platform and Services, User agrees that the Agreement shall contractually apply and bind, without limitation and jointly and severally the Parties in Interest and the Parties in Interest for which User acts or represents directly or indirectly by appointment of an authorized party.
You Agree that Your use of the Platform is only as a server-side terminal instance via a browser and the associated code is executed on the hosting server. Additionally, You Agree to the following:
Pursuant to the preceding, You Agree that, by accessing and using servers and computer networks located in Virginia, You have purposefully availed Yourself of Virginia law and jurisdiction; You further Agree that Your access and use of servers and computer networks to access the Platform occurred solely in Virginia and not in the jurisdiction in which You or Your browser were operating at the time of Your access to or use of the Platform.
To ensure the security of the Account and Platform, when a User creates an Online Portal, the associated User Credentials (username and/or password) must be unique and remain unique. The use or reuse of the same User Credentials is a breach of this Agreement. It is the duty of the User to ensure that User’s User Credentials are secured so as to prevent the unauthorized access to or use of User Credentials by unauthorized persons. Should an unauthorized party gain access to or make use of User’s Credentials solely based on User’s failure to keep User’s User Credentials safe from unauthorized access and/or use, any resulting loss, damages, or claims are the sole liability of the User and the Parties in Interest.
Pursuant to the foregoing paragraph, the Parties in Interest are barred from any resulting claim, counterclaim, defense, or objections at law, in equity, or theory in any jurisdiction. Additionally, the Parties in Interest Agree to indemnify Us and hold Us harmless pursuant to Section ABC of these Terms of Use.
We offer a variety of fiduciary services, administration services, self-help support software, attorney support software, and document management systems, all of which provide self-service automated software solutions. Fees charged are solely for fiduciary, ministerial services, or licensing fees to access the self-help system; fees are not a drafting or document preparation fee. The content herein is provided as, and limited to, information and descriptions of the features and benefits of Our services, products, and the requirements as applicable.
The Platform is for educational and informational purposes only and is not an offer to sell or an offer to buy any security, legal services, accounting services, fiduciary services, or trust services. The information herein is not intended to be legal or investment advice and should not be constructed as legal or investment advice. We are not a law firm, a lawyer referral service, or act as Your attorney or investment advisor. We are not a substitute for the advice of an attorney or an investment advisor; as such, We do not provide any advice, explanation, opinion, or recommendation about possible legal rights, express any legal guidance on the matters contained herein, nor do We provide investment advice. As appropriate, seek the advice of an attorney if You have questions concerning legal questions, remedies, defenses, options; or seek the advice of a licensed investment advisor related to investments.
The Platform is intended to be a self-service platform. Therefore, We are not Your investment advisor or broker, nor do We provide investment advising or brokerage services. Thus, the use of the Platform does not constitute any investment advisor or a brokerage account relationship. As such, We provide no advice or recommendations related to Your investment choices, the suitability of any investment, or the prudence of Your risk tolerance. The content presented herein is not:
We do not, and will not, make any representations about the suitability of an Account Holding, and We are not, and We will not be, directly or indirectly responsible for the suitability of self-directed choices and directions.
The Person or Entity providing the investment directions, under the powers granted to such Person or Entity in the Account, are responsible, directly and indirectly, for making any Account Holdings decisions. We cannot and do not manage the Account Holdings nor guarantee profits of any kind, nor can We protect the Account from losses. The Parties in Interest assume the entire cost and risk of any Account Holdings decision chosen to related to the Account Holdings. Investing involves risk, so always use best judgment when investing or seek advice from a licensed investment advisor. We are not an investment advisory firm, and the use of the Platform in no way constitutes a client/investment advisor or brokerage account relationship. All information We communicate either through the Platform, other affiliated platforms, or other forms of communications is for informational or general educational purposes only.
WE RECOMMEND SEEKING A LICENSED INDIVIDUAL INVESTMENT ADVISOR BEFORE MAKING ANY INVESTMENT, AS THE SOLE LIABILITY FOR INVESTMENT DECISIONS IS THAT OF THE PARTIES IN INTEREST. WE ACT SOLELY IN A DIRECTED CAPACITY TO COMMUNICATE SELF DIRECTED INSTRUCTIONS.
The inclusion of a supported Account Holdings option on the Platform is not a recommendation or investment advice, nor is it a solicitation to buy or sell any security.
Unless otherwise specifically and unambiguously provided for in writing, We may act solely in a non-fiduciary directed capacity related to communicating received instructions regarding Account Holdings directions to the executing broker dealer or custodian. As such, We rely exclusively on instructions of the applicable designated Person or Entity as to what Account Holdings shall be acquired, liquidated, and/or held.
The net performance of the Account may be reduced by the Trustee or Account Administrator (as applicable), and all other applicable fees and expenses that Your Account shall incur and which are disclosed within Your Account Documents. There is no guarantee that any particular Account Holdings allocation will meet the Account’s objectives or provide a given level of income.
We provide fiduciary services as a non-depository trust company only in the jurisdictions in which We are licensed. YOU AGREE THAT WE ARE NOT A BANK, BROKER DEALER, INVESTMENT ADVISOR, INVESTMENT MANAGER OR LAW FIRM. We also provide non-fiduciary services and provide technology-enabled ministerial solutions within other jurisdictions.
NO TRUSTS OFFERED BY US ARE A SECURITY, FUTURE, OPTION, CRYPTO CURRENCY, OTHER FINANCIAL INSTRUMENT, OR AN OFFER TO PROVIDE ANY INVESTMENT ADVICE OR SERVICE(S). NOTHING HEREIN SHALL BE CONSIDERED A SOLICITATION OR OFFER TO BUY OR SELL ANY SECURITY, FUTURE, OPTION, CRYPTO CURRENCY, OR OTHER FINANCIAL INSTRUMENT OR AN OFFER TO PROVIDE ANY INVESTMENT ADVICE OR SERVICE(S) TO ANY PERSON OR ENTITY IN ANY JURISDICTION. NO RESULTING ACCOUNT IS FORMED OR OPERATED BY US TO ACQUIRE A SPECIFIC SECURITY OR CRYPTO CURRENCY, CREATE A SECURITY OR CRYPTO CURRENCY, OR TO BE OFFERED AS A SECURITY OR CRYPTO CURRENCY. SECURITIES AND INSURANCE PRODUCTS THAT ARE HELD IN AN ACCOUNT ARE NOT INSURED BY THE FDIC, NOR BY ANY OTHER FEDERAL OR STATE GOVERNMENT AGENCY, ARE NOT A DEPOSIT OF AND ARE NOT GUARANTEED BY A BANK OR ANY BANK AFFILIATE, AND MAY LOSE VALUE.
Our services are offered only in jurisdictions where they may be lawfully offered and are also subject to the terms of the specific applicable written agreement. NOT ALL PRODUCTS OR SERVICES ARE AVAILABLE IN ALL JURISDICTIONS. Certain fiduciary and non-fiduciary ministerial services may be provided through Affiliates or Third Parties in their respective jurisdictions.
All offers (whether by mail, by phone, through employees, agents, the internet, or otherwise) are limited and are solely made from, and within, the jurisdictions in which We are licensed to operate and offer fiduciary services. All orders for fiduciary services require written acceptance of appointment from the fiduciary operating within the offering jurisdiction before they become contracts. The use of the Platform does not constitute an offer to provide fiduciary services beyond the borders of licensed jurisdictions identified herein.
In certain given circumstances, We operate solely as an Escrow Agent; accordingly, in those circumstances, when We act only in a non-fiduciary ministerial capacity, We do not hold or exercise discretionary trust or fiduciary powers. In other circumstances, We operate solely providing Ministerial Service; accordingly, in those circumstances when We act only in a non-fiduciary ministerial capacity, We do not hold or exercise discretionary trust or fiduciary powers.
Statutory Escrow accounts, such as 26 C.F.R. § 1.468B-1 Qualified Settlement Funds (“QSF”), are commonly utilized to distribute money after a cash settlement/judgment in a class action, mass tort, other litigation, or legal or settlement action. In such circumstances, We act as the Escrow Agent and/or as the QSF administrator.
In the event Your Account is a Trust within the purview of 26 U.S.C. § 7701, know that 26 U.S.C. § 7701 limits certain fiduciary and other actions and the exercise of power to a "United States Person" as defined by 26 U.S.C. § 7701. Accordingly, related to "domestic trusts", as defined by 26 U.S.C. § 7701, any exercise of fiduciary powers which are "substantial decisions", as defined by 26 U.S.C. § 7701, shall be independently performed by one or more co-trustees or affiliated or non-affiliated parties who are “United States Persons.”
Unless otherwise expressly provided for in writing, any revenue sharing amounts received from Third Parties or retained by Us shall be in addition to the fees due to Us and shall not offset any other fees due to Us. The Parties in Interest Agree to the preceding and waive any and all claims, demands, conflicts of interest, or rights to such compensation or additional income that may have resulted from the operation of such arrangements.
Unless otherwise agreed upon in writing, all fees associated with the formation, operation, administration, and termination of Your Account shall be paid out of the Account’s Assets and billed at Our then-published rate for services. Any change in Our schedule of fees shall be deemed a reasonably commensurate fee for so long as such fee is considered as “reasonable” under the laws of the Principal Place of Administration. In the event extraordinary services are rendered, the Party providing the services is entitled to additional compensation. Fees and expenses may be deducted from liquidated Trust Assets at any time in the sole authority and at the absolute discretion of the Indemnified Party. Fees and expenses may be offset from earnings, provided interest is being earned, or deducted from liquidated Trust Assets at any time in the sole authority and at the absolute discretion of the Indemnified Party. We shall post net allocated accrued earnings (less applicable fees) to the Online Portal at least annually. However, We may, in Our sole authority and absolute discretion, post net allocated earnings more frequently.
By establishing an Account, it is the Grantor’s express intent to create and establish a priority residual, future, and contingent interest in the Account for the benefit of the Indemnified Party for such reasonable compensation, fees, and expenses associated with the formation, operation, administration, and termination of the relevant trust(s) for such period as the Account is in operation. The Indemnified Party holds such priority interest in residual, future, and contingent fees payable to the Indemnified Party in accordance with the terms of this Agreement. It is conclusively established that the preceding establishes a priority residual, future, and contingent interest in the Account for the Indemnified Party in regard to their fees, service credits, expenses, and reimbursements. The Parties in Interest release and waive any and all conflicts that may arise from such arrangements and fees and shall indemnify and hold the Indemnified Party and their Third Parties harmless from any and all related issues.
Any and all fees may be paid from liquidated Account Assets regardless of the tax or other consequence(s) to the Account. We may deduct from the Account Assets any and all amounts necessary to compensate Us. Certain fees paid to Us and Our Third Parties are Ministerial Service fees for administering the Trust and do not constitute a fee for Fiduciary services, trustee services, legal services, or tax advice. We, in Our sole authority and absolute discretion, may withhold all or some services should any unpaid fees remain outstanding more than thirty (30) calendar days after the Due Date.
We and Our Third Parties shall also receive compensation from asset providers, including, but not limited to, interest rate concessions, revenue sharing, wrap fees, fund fees, servicing credits, 12B-1 fees or other related compensation in connection with the Account Assets; these amounts shall not offset the fees due to Us.
Any time that an Account has, in the sole authority and absolute discretion of the Trustee or Account Administrator (as the case may be), a value so low that the expenses of maintaining the Account cannot be reasonably justified, the Trustee or Account Administrator (as the case may be) may, in their discretion, terminate the Account. In case of such termination, the Trustee or Account Administrator (as the case may be) shall, if administratively feasible, distribute the assets of the Account.
If there are Account Holdings (whether USD or a non-currency asset) in the Account, and We are unable to contact and have no record of a valid address of Beneficiary due to lack of use of the Platform for several years, applicable law may require Us to report these funds as unclaimed property to the applicable jurisdiction. If this occurs, We will attempt to make contact at the address shown in Our records; if We are unable to make contact, We may be required to deliver any such assets to the applicable state or jurisdiction as unclaimed property.
We are an independent contractor for all purposes. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, the Parties in Interest and Us to be treated as partners, joint ventures, or otherwise as joint associates for profit, or be treated as the Agent of any Parties in Interest.
Any Entity shall at the time of any representation, request, petition, transaction, agreement, account, financial dealings or other engagement or interaction (regardless of nature) be duly organized and registered within the state of the Entity’s organization and validly exist as an Entity and in good standing under the laws of the jurisdiction of its organization and domestication. Said Entity (and the person acting on its behalf) represents, under penalty of perjury, that (i) the Entity is duly registered and qualified to do all lawful business or that business as contemplated in the Entity’s founding or governing documents, and (ii) the Entity is currently in good standing under the laws of the jurisdiction of its organization and domestication as a domestic Entity of that jurisdiction, and (ii) has not been dissolved, terminated or administratively suspended or terminated in any manner, and (iii) when applicable, the Entity is currently in good standing as a foreign Entity in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification.
Said Entity (and the person acting on its behalf) Agrees and accepts the duty to maintain the Entity’s “good standing” or qualifications to conduct all lawful business or that business as contemplated in the Entity’s founding or governing documents throughout the term of representation, request, petition, transaction, agreement, account, financial dealings, or other engagement or interaction (regardless of nature) with Us. The failure to maintain “good standing” or qualifications to conduct all lawful business or that business as outlined in the Entity’s founding or governing documents at any time, and irrespective of the duration of the failure, shall be a material breach and default, and the person or persons misrepresenting the good standing shall be personally liable for all associated losses or consequences, including tax consequences.
The misrepresentation or failure of any of the foregoing is a material breach and effect. It thus has a material and adverse impact on Us, the associated Accounts, and agreements’ conditions (financial or otherwise), earnings, assets, prospects, business, operations, or properties. Accordingly, We may, in Our sole discretion, terminate any related agreement, relationship, or associated Account. Further, We may seek all related damages enumerated herein, at law, in equity, and by all other legal theories. In such event, said Entity (and the person acting on its behalf) and all associated Parties in Interest waive all Claims against Us and are barred from bringing forth any Claims associated with the Account, relationship, or Agreement.
For security reasons, if We receive legal documentation confirming the death of the last Beneficiary or Account Holder death or other information leading Us to believe they have died, We will freeze the Account and during this time, no transactions may be completed until We have received proof in a form satisfactory to Us that the beneficiary or Account Holder have not died. If We have reason to believe the last beneficiary or Account Holder may have died but We do not have proof of the death in a form satisfactory to Us, We are authorized to make inquiries, whether directly or through third parties, that We consider necessary to ascertain whether the beneficiary or Account Holder have died. Upon receipt by Us of proof satisfactory to Us that the last beneficiary or Account Holder have died the funds will be disbursed pursuant to the terms of the Account Documents. In the event the Account Documents are silent as to disposition of the residual funds, the residual funds shall be held as part of the estate of the deceased until the estate is probated.
In the event We determine, in Our sole and absolute discretion, that there is uncertainty regarding the final disposition of the Account We reserve the right to require an order resolving such issue from the Court of Jurisdiction before taking any action relating the Account.
Unless otherwise expressly provided for in the Account Documents to the contrary, We shall allocate all receipts and expenditures received or incurred by Us in administering the Account to the income and principal of the Account, in accordance with the provisions of the laws of the situs, as amended from time to time. All undistributed income of the Account shall be added to the principal of the Account.
Principle and Income means the determination as to what shall constitute the principal of the Trust, gross income therefrom and distributable net income under the terms of the Agreement as governed by the terms of the Account Documents. Generally, any net total capital gains and losses on the sale of Trust Assets shall be allocated to income in the year of sale.
We may assign or transfer Our rights and duties under these Terms of Use to any party at any time without the need for Your approval, nor must We notify You of said assignment. However, You may not assign or transfer Your rights and duties under these Terms of Use without Our prior written approval.
No failure or omission by Us to carry out Our obligations or observe any of the stipulations or conditions of this Agreement shall give rise to any claims against Us or be deemed a breach of this Agreement if such failure or omission arises from any of the following (hereinafter referred to as “Force Majeure Event”): War; War-like hostilities; Civil commotion or unrest; Riots; Strikes; Insurrections; Blockades; Pandemic, epidemic, or quarantine; government interventions; government shut-downs; any change in laws, orders, rules, regulations, ordinances or other governmental or judicial acts impairing performance; Failure of the Banking System or other financial networks; Cyber breach; Software or hardware failure; Loss of electrical power; Communication failures (including, but not limited to the internet and phone lines); Sabotage; Terrorism; Embargoes; Shortage or delay of materials or labor; Act of God; Natural or Man-Made Disasters, or any other similar event beyond Our direct control.
If any such Force Majeure Event occurs, We shall, in writing (which may be by posting a notice on Our website), notify You within two (2) business days of discovering the Force Majeure Event. Such notice shall stipulate the nature of the Force Majeure Event and any necessary and relevant details. If possible, We will include in the notice a good-faith estimate of the resumption of activities and duties under this Agreement.
The activities and duties under this Agreement shall resume as soon as practicably possible and administratively feasible. However, if the occurrence of a Force Majeure Event, or more than thirty (30) days renders performance of the obligation commercially impractical, impossible, or such Force Majeure Event frustrates the purpose of this Agreement, You and Us shall negotiate in good faith an equitable adjustment of the terms and conditions of this Agreement affected by such event, or where necessary, termination of the Agreement.
For the avoidance of doubt, a Force Majeure Event shall not include (i) the financial distress of a Party; (ii) the inability of a Party to make a profit or avoid a financial loss; (iii) changes in the market prices or conditions; or (iv) a Party’s financial inability to perform its obligations hereunder.
The provisions of this section shall be interpreted in the broadest possible terms. For clarity and avoidance of doubt, the omission of a term or phrase shall not be construed as a limiting factor, but rather for efficiency and commercial expediency.
By entering into this Agreement, the Parties in Interest hereby waive all Claims against Us. Further, the Parties in Interest Agree to Indemnify Us. As such, the Parties in Interest Agree to a complete and total bar to any Claim against Us arising out of or in connection to this Agreement or the related Account(s) or Account Documents provided We act in Good Faith. By entering into this Agreement, the Parties in Interest Agree that We perform their duties in Good Faith when they act under the provisions herein and as such, said performance of their duties is deemed a complete fulfillment of said duty and which is not subject to future contest or reinterpretation. Accordingly, the Parties in Interest Agree that their sole and exclusive remedy for any grievance arising out of or in connection to this Agreement shall be under the Alternative Dispute Resolution provisions herein outlined.
The preceding notwithstanding, We shall retain liability for acts or omissions committed in Bad Faith and proven beyond any reasonable doubt.
In the event the assets of any associated Account are insufficient to provide complete indemnification of Us, then You, including all other the Parties in Interest, without limitation and jointly and severally, shall Indemnify Us accordingly.
The provisions of this section shall apply to associated rights and claims under the Account and this Agreement by the Parties in Interest against Us. This provision shall apply in addition to, and not to the exclusion of, any other provisions herein outlined; however, it shall have supremacy and prevail even when in conflict with other provisions herein.
We reserve the right to assume the exclusive defense and control (at Your expense) of any matter that is subject to indemnification under this Agreement. In such case, the Parties in Interest Agree to fully cooperate with any reasonable requests assisting Our defense of such matter.
The Parties in Interest Agree to: (i) fully indemnify and hold the Us harmless; (ii) allow for the Us to be fully indemnified and held harmless by the Account, to the full extent of its assets with respect to any liability (including costs and expenses) incurred by the Us; and (iii) entitled to reimbursement with respect to any expense, including legal fees, court costs, and other related expenses including defense costs, or costs associated with any government inquiry or investigation incurred in connection with the administration or defense of an Account or this Agreement.
Reimbursement under this provision shall expressly include, but is not limited to, any Commercially Reasonable action or Good Faith mistake or decrease in value or loss of Account Holdings, provided such liability or expense is not attributable to intentional misconduct with malice or intentional fraud by Us.
If the Parties in Interest fail to fulfill any obligation or duty under this Agreement or the Account Documents, then the Parties in Interest and the Account shall reimburse Us for all internal and external costs and expenses (including legal fees and costs) incurred to enforce or defend Our rights, including all applicable protections, limitations, and indemnifications contemplated under this Agreement or any associated Account Document.
The Parties in Interest Agree that indemnities, waivers, discharges, and releases, hold harmless, and liability limitations under this Agreement apply to all claims asserted against Us.
The Parties in Interest Agree that, when carrying out Our duties and responsibilities hereunder, it shall be presumed that We perform said duties and responsibilities in Good Faith. As such, any carrying out of Our duties and responsibilities hereunder is deemed a complete fulfillment of said duties and responsibilities, thus not subject to future contest or reinterpretation.
We, in Our sole authority and absolute discretion, may at any time enter into a nonjudicial settlement agreement for any reason We, in Our sole authority and absolute discretion, deem prudent and appropriate related to any Account or question concerning the administration of the Account or related to the subject of this Agreement with such parties, their Agents, guardians, or their then-legally competent living descendants. Any such settlement shall bind all Persons or Entities who are, have been, or may ever be Parties in Interest and shall effectively release and discharge Us from any and all related obligations or claims.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR DAMAGES OF ANY KIND AT LAW, EQUITY, OR OTHER LEGAL THEORY ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OPERATION, OR INABILITY TO USE THE PLATFORM, ASSOCIATED SERVICES, ANY WEBSITES LINKED TO THE PLATFORM, OR ANY CONTENT ON THE PLATFORM. This limitation shall include a complete bar to all damages including any direct, indirect, special, cover, incidental, consequential, exemplary, aggravated, or punitive damages or loses, including personal injury, pain and suffering, emotional distress, loss of revenue, loss of funds, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, or otherwise, even if foreseeable.
Furthermore, and notwithstanding the preceding, OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT OR TO YOUR USE OF THE PLATFORM AND RELATED SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO US FOR THE SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. The existence of more than one claim or count shall not enlarge or multiply this limit.
Further, We shall have no obligation or liability (whether in contract, warranty, tort (including negligence) or otherwise, and notwithstanding any fault, negligence (whether active, passive or imputed), representation, strict liability or product liability) at law, equity, or theory for any direct, indirect, special, cover, incidental, consequential, exemplary, aggravated, or punitive damages or loses , including (i) loss of revenue, (ii) loss of profit, (iii) loss of savings (iv) loss of business, (v) personal injury, (vii) pain and suffering, (viii) emotional distress, (ix) anticipated savings or profit, (x) loss of use, (xi) loss of good will, or (xii) loss of data arising from or otherwise related to (a) Your access to use of this Platform; or (b) other services provided by Us even if such a party or its employees have been advised of the possibility of such damages alleged in such Claims. Furthermore, this limitation of liability, in its entirety, shall also apply to damages arising out of any transactions contemplated under the Account or this Agreement, even if apprised of the likelihood of such damages or losses and whether such Claims which You or Parties in Interest now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of any related matter. Accordingly, the preceding provisions bar the Parties in Interest from any resulting Claim against Us.
Further, You Agree that in any dispute resolution process, procedure, proceeding, or any claim or controversy between or among You and Us that may arise out of or be in any way connected with Your access to, and use of, this Platform or services provided by Us, You shall not have a remedy of, and We shall not be liable for incidental, special, indirect, cover, punitive, exemplary, or consequential damages or loss of revenue, profit, savings, or business, including personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of good will, or loss of data. You hereby expressly Agree to waive any right or claim to incidental, special, indirect, cover, punitive, exemplary, or consequential damages or loss of revenue, profit, savings, or business, including personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of good will, loss of data, or any other damages You may have or which may arise in the future in connection with any such proceeding, claim or controversy, whether the same is resolved by investigation, negotiation, mediation, the courts, or otherwise.
Accordingly, in no event shall We be liable to You for any direct, indirect, general, incidental, special, punitive, compensatory, or consequential damages whatsoever resulting from any: (i) use of the Platform and Services; (ii) errors, mistakes, or inaccuracies of content; (iii) personal injury or property damage of any nature whatsoever resulting from Your access to and use of the Platform and Services; (iv) any unauthorized communication to Us, access to or use of Our servers and/or any and all personal information and/or financial information stored therein; (v) any interruption or cessation of transmission to or from Our servers; (vi) any bugs, viruses, malware, trojan horses, or the like that may be transmitted to or through the Platform, documentation, or services by any third party or which otherwise effect Your systems; (vii) any direct or indirect loss arising from the use of the Platform and Services; (viii) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of Your use of any content posted, transmitted, or otherwise made available via the Platform and Services, whether based at law, equity, or theory, and whether or not We are advised of the possibility of such damages; and (ix) the disclosure of information pursuant to these terms of use or Our the current Privacy Policy.
Accordingly, under this limitation of liability provision, in its entirety, YOU WAIVE YOUR RIGHTS TO BRING ANY ACTION AGAINST US IN LAW OR IN EQUITY OR IN THEORY WHICH YOU OR PARTIES IN INTEREST NOW HAVE, OR WHICH MAY HEREAFTER ACCRUE OR OTHERWISE BE ACQUIRED, ON ACCOUNT OF, OR MAY IN ANY WAY GROW OUT OF ANY RELATED MATTER. ACCORDINGLY, THE PRECEDING PROVISIONS BAR THE PARTIES IN INTEREST FROM ANY RESULTING CLAIM.
In the event a breach or any failure to fulfill or comply with of any provision herein by any Parties in Interest, and said breach or failure is the actual or proximate cause of a loss, whether such actual or proximate cause is established by the “but for test” or “chain of events test,” Our liability for said loss or damage of any kind arising out of this Agreement or in connection with the Platform and Services, or relationship established by or related Account it is reduced to zero dollars ($0) even is such cause in fact or proximate cause by any Parties in Interest is less than one percent (1%). This reduction applies whether the liability is in contract, tort (including negligence), under any statute or otherwise. The Parties in Interest waive and are barred from all claims, objections and Affirmative Defenses pursuant to the foregoing and the concurrent causes theory, sufficient combined cause theory or market share evidence theory.
The provisions of this binding legal Agreement, as a “contract”, constitute an express “meeting of the minds” between the Parties with respect to any and all rights, waivers, releases, hold harmless, indemnifications and other discharges and limitations applicable to losses, damages, or any other claims under any statute or regulation as they may be enacted by any particular state, including with respect to any rights or obligations concerning Security Procedures, contract rights, damages, objections, defenses or claims that may otherwise exist in the absence of an expressed agreement between the Parties, and any other statute or regulation, now or hereafter in effect, shall have no application to the Agreement or any claim asserting a loss, damage, or any defense or objection.
Nothing in the Agreement shall affect any non-waivable statutory rights that may apply. In such event, the associated provision shall be modified only to the extent necessary to fulfill the applicable statutory rights, and all other elements of said provision shall survive.
All exculpatory provisions, including waivers, releases, agreements to hold harmless, limitation, and indemnification protections under this Agreement shall survive in their entirety and for perpetuity. Further, We shall be released from any duties hereunder or under any associated Account Documents should: (i) the Account, for any reason or cause, be terminated or decanted; (ii) or We resign or are removed.
Notwithstanding any other provision of the Agreement, We shall retain liability for a breach of the Account if it is proven beyond any reasonable doubt that We knowingly and willfully acted in Bad Faith. However, the foregoing is superseded by (i) the Contributory Negligence provision, and additionally (ii) in the event We fulfill Our duty pursuant to the Security Procedure or Alternative Security Procedure. Then in such circumstances Our associated liability is waived and thus zero ($0).
As outlined in the Alternative Dispute Resolution section herein, Your sole (only) recourse and remedy for any grievance or dispute against Us is via the Alternative Dispute Resolution process herein outlined; when an action is brought improperly, or outside the mechanisms of the Alternative Dispute Resolution process, no tolling shall occur. Further, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT, THE PLATFORM, SERVICES, OR THE ACTIVITY OF THE UNDERLYING ACCOUNT MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
The Parties in Interest Agree that they have an ongoing duty hereunder to monitor their Account at least daily, and since Account Statements and Account activity is available for review twenty-four (24) hours a day, seven (7) days a week, any discrepancy or question can be easily and readily discovered by the Parties in Interest. The Parties in Interest have an ongoing duty to monitor the activity of the Account and Agree that any resulting damages stemming from the failure to monitor the Account is solely the liability of the Parties in Interest arising from their failure to monitor and in no case is any loss Our liability.
Both You and Us enter into a contractual relationship with the understanding that mutual performance and satisfaction of Your and Our respective duties and responsibilities is an elemental basis of this Agreement and Our contractual relationship. As such, For Us to sufficiently, efficiently, and accurately perform Our obligations under this Agreement and the related Account Documents, Your performance of Your duties and responsibilities hereunder is a necessary and threshold condition that must be satisfied for Us to perform hereunder. Your failure to satisfy this condition precedent will result in Our impossibility of performance being triggered. For purposes of clarity and the avoidance of doubt, Your failure or delay in performing any of Your duties and responsibilities hereunder directly and materially renders Our ability to perform Our duties and responsibilities impossible. Accordingly, any failure or delay on Your part to perform Your duties and responsibilities hereunder immediately and irrevocably grants Us the right to (i) stop performance hereunder, (ii) waive Our duties hereunder, (iii) terminate Services offered to You, and/or (iv) seek all additional remedies available to Us under this Agreement and the law. If You voluntarily give or involuntarily provide access to an associated username or password to someone as a result of a failure to secure Your system, devices, networks communication or data, then every transaction that Person or Entity performs in the Account is considered to have been authorized. The User whose username and password were utilized are solely responsible, directly and indirectly, for all transactions that such Person or Entity may perform while using the Platform, whether or not the User authorized a particular transaction. We have no duty (fiduciary or otherwise), directly or indirectly, to verify the identity of any Person or Entity who accesses the service using a valid username and password combination. We are not liable for any losses resulting from the unauthorized use of or access to of the Platform, or Account Assets, by any Person or Entity to whom a User has given, provided access to, or by omission or commission failed to secure an associated username, email account, password or system. If We receive Notice that a Person or Entity is no longer authorized to access Your account, then only transactions performed by that Person or Entity after We received Notice told Us, and after We have had a reasonable amount of time to act on the Notice, are considered unauthorized transactions.
We are not, directly or indirectly, responsible for completing transactions when:
i. Through no fault of Ours, You do not have enough money in Your account to fund the transaction;
ii. If Our system, for any reason, was not working properly;
iii. If Force Majure circumstances beyond Our control (such as fire or flood, etc.) banking systems or financial market limitations prevent the transfer;
iv. You provide wrong or incomplete instructions or do not enter information (such as account names and account numbers combinations and payment amounts) correctly when using the Platform and Services;
v. You submit a Request outside of Our process procedures;
vi. If circumstances beyond Our control prevent You from accessing or using the service; or
vii. If You, fail to secure Your systems or devices, passwords or other security information or anyone to whom You provide Your password or username, uses the service improperly or for any fraudulent or illegal purpose.
The provisions of this Agreement shall expressly apply, and specific performance to the requirements is required by You upon:
i. Acceptance of the Agreement, irrespective of the means of acceptance (i.e., browse- wrap, click-wrap, or via Account Document or other incorporation);
ii. Utilization of the Platform without objection;
iii. Creation of an Online Portal;
iv. Utilization of Your Online Portal;
v. Receipt of Platform and Services;
vi. Funding of an Account;
vii. Execution of any Account Document; or
viii. Causing or allowing a fee to accrue or a payment to be made, or become payable as a receivable to Us.
We shall have the right to demand, seek, and compel specific performance and injunctive or other equitable relief of Our rights hereunder in the Court of Jurisdiction and all other rights and remedies at law, equity, or theory. All such rights and remedies shall be cumulative. Any combination of Us may initiate, in the Court of Jurisdiction, legal proceedings in law, equity, or theory to obtain damages, to enforce specific performance, to enjoin any violation(s), or to obtain any relief or any combination of the preceding Us may elect to pursue.
You expressly waive any defense, including any and all Affirmative Defenses or objection in any action that specific performance would be adequate. This waiver is consistent with the purposes of this Agreement.
The Parties in Interest Agree that We and the Platform and Services operate in a unique and highly specialized business sector, which is international in scope with a limited number of competitors; that We possess a valuable body of confidential information and Collective Intellectual Property and that the Parties in Interest’s access and use of such knowledge of confidential information and Collective Intellectual Property directly benefits them by enabling them to use and garner advantageous financial outcomes from said same; and that the protection of our confidential information, Collective Intellectual Property, suppliers, goodwill, the stability of the Platform and Services, and / or any other Associated Undertaking(s) are business interests requiring and deserving protection from misuse or disclosure. The Parties in Interest further Agree that the misuse or disclosure of confidential information or Collective Intellectual Property or that the disclosure of any confidential information or Collective Intellectual Property to any actual or potential competitor of Ours and / or any other Associated Undertaking would place Us and / or Our relevant Associated Undertaking(s) at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Relevant Business. The Parties in Interest therefore acknowledge that the highly competitive nature of Our Relevant Business and the Parties in Interest’s derived benefits and contractual obligations hereunder justify restricting the Parties in Interest’s activities. Accordingly, during the term of this Agreement, and for a period of sixty months (60) months following the latter of (i) the date of the last service provided by Us; or (ii) the last access or use of the Platform and Services; or (iii) the termination of the associated User Account(s) from the system (the “Restricted Period”), the Parties in Interest shall not, in any manner whatsoever, directly or indirectly, (a) engage or conspire in any capacity with or in any existing of new competitive activity with any of Our Relevant Businesses then engaged in by Us, any of Our subsidiaries or any of Affiliates for any Parties in Interest’s own benefit or for the benefit of any Person or Entity other than Us or any subsidiary or affiliate; (b) disclose in any capacity Our confidential information or Collective Intellectual Property to any Person, Entity, business or organization directly or indirectly competitive with Our Relevant Business; or (c) have any interest as owner, sole proprietor, stockholder, partner, lender, director, officer, manager, employee, consultant, agent, salesman, promoter, collaborator, or otherwise in any Person, Entity, business or organization directly or indirectly competitive with Our Relevant Businesses; provided, however, that Parties in Interest may hold, directly or indirectly, solely as an investment and purchased on an national securities exchange or an over-the-counter market, not more than one percent (1%) of the outstanding securities of any Person or Entity, that is not a bank, insurance or trust company, which is listed on any national securities exchange or regularly traded in the over-the-counter market notwithstanding the fact that such Person or Entity is engaged in a business competitive with Our Relevant Business.
The Parties in Interest further Agree that they will not disclose to, organize with, or otherwise participate in any manner or fashion in any Person, Entity, business or organization directly or indirectly that is in competition, directly or indirectly, in any manner whatsoever with Our Relevant Business, in or about any market in which We have, or have publicly announced a plan for doing business, and additionally Agree that the restrictive covenant set forth in this paragraph is Commercially Reasonable as to duration, terms, and geographical area and that the same protects Our legitimate interests, imposes no undue hardship on the Parties in Interest, and is not injurious to the public or contrary to public policy. For clarity, and by way of limitation, the Parties in Interest Agree that they will not (i) induce or engage existing customers, client relationships, agents, or other sources of distribution of Our Relevant Businesses which have a or had within the preceding five (5) years a contractual relationship with Us or which are doing (or have done) business with Us to terminate, reduce, alter, or divert business with or from Us, and (ii) during the Restricted Period the Parties in Interest shall not, directly or indirectly, either as a principal, agent, employee, employer, consultant, partner, member or manager of a limited liability company or any other Entity compete with Our Relevant Business, or serve as a partner or shareholder of any Entity which engages in providing services which compete with Our Relevant Business.
In addition, during the Restricted Period, the Parties in Interest shall not develop any software, business or financial methods, operational processes, documents, forms or services for use related to Our Relevant Business on behalf of any Person or Entity other than Us and Our subsidiaries and Affiliates.
It is the desire and intent of the Parties in Interest and Us that the provisions of this paragraph be enforced to the fullest extent permissible under applicable laws. Further, it is the desire of the Parties in Interest and Us that this paragraph will not be in violation of any applicable public policies. Accordingly, if any particular portion of paragraph shall be deemed to be invalid or unenforceable, this paragraph shall be deemed amended to apply in the broadest allowable manner and to delete therefrom the portion deemed to be invalid or unenforceable, such amendment and deletion to apply only with respect to the operation of this paragraph.
Thus, the Parties in Interest Agree that (i) compliance with the restrictive provisions contained herein is necessary to protect the business and goodwill of the Platform and Services, and (ii) that a breach of this paragraph will result in irreparable and continuing damage to Us, for which monetary damages may not provide adequate relief. Consequently, the Parties in Interest Agree that in the event of a breach or threatened breach of any of the restrictive covenants described herein, We, in Our discretion, shall be entitled to seek both: (i) a preliminary and/or permanent injunction in order to prevent such damage, or continuation of such damage, and (ii) monetary damages as determinable and anticipated damages. Nothing herein, however, shall be construed to restrict and/or prohibit Us from pursuing any and all other remedies; the Parties in Interest Agree that all remedies are cumulative. The Parties in Interest specifically Agree that, in the event of a conspiracy by or between to breach this Agreement of more than one Person or Entity, the Parties in Interest shall account for and pay over to Us an award amount that is treble (3 times) damages for all lost revenues, including expected or forecasted revenues for ten (10) years) from the first breach, in addition to any profits, monies, accruals, or other benefits derived or received by the Parties in Interest as a result of any transaction constituting a breach of the provisions herein.
The Parties in Interest Agree that We may make available to You functionality, content, and work product(s) arising from Our Collective Intellectual Property, including Trade Secrets that is not generally known to the public during the course of providing services. You, as the receiving party, Agree to treat all Collective Intellectual Property,including Trade Secrets, (and the related and derivative functionality, content and work product(s) arising from Our Collective Intellectual Property) as strictly confidential and take all reasonable precautions to protect the confidentiality and secrecy of such information. Further, the Parties in Interest Agree that they will not engage in, cause another to engage in, cause the engagement of, or not prevent the engagement of Misappropriation of Our Collective Intellectual Property and Trade Secrets.
The Parties in Interest Agree that they will not, directly or indirectly, attempt to Reverse Engineer any of Our Collective Intellectual Property and Trade Secrets disclosed or otherwise made available by Us. This prohibition applies regardless of whether the Collective Intellectual Property and Trade Secrets are in their original form, modified form, or in any other state. Any reverse engineering or similar actions, or any attempts thereof, are strictly prohibited and shall constitute a breach of this Agreement and a violation of state and federal law.
We grant The Parties in Interest a non-exclusive, revocable, nontransferable Limited Use License to use the Platform and Services solely for Your own non-competitive purposes. The Parties in Interest agree that they are prohibited from any direct or indirect, reverse engineering or derivative use or reselling of the Platform and Services. The Parties in Interest are limited to non-commercial purposes, and only hold a non-exclusive, revocable, nontransferable license to use the Platform and Services provided by Us solely for so long as You maintain full compliance with the provisions of these Terms of Use.
You may not use the Platform and Services or Collective Intellectual Property, including Trade Secrets, for any other commercial purpose, or purpose which results any gross revenue, fees or derived income or in connection with any other website, application, software or content.
The Parties in Interest Agree that using the Platform and Services for purposes outside the scope and purpose(s) contemplated in the Limited Use License constitutes a prima facie Misappropriation of Our Collective Intellectual Property and Trade Secrets and a breach of the Limited Use License.
Further, the Parties in Interest Agree that Our granting the Parties in Interest a Limited Use License does not constitute a transfer of ownership of the Platform and Services, including the Collective Intellectual Property and Trade Secrets. For purposes of clarity and avoidance of doubt, any Collective Intellectual Property and Trade Secrets are and shall remain Our exclusive property. Additionally, the granting of the Limited Use License does not transfer any ownership rights, title, or interest in the Collective Intellectual Property and Trade Secrets. The Parties in Interest Agree that they will not claim any ownership of the Collective Intellectual Property and Trade Secrets, and shall not use the Collective Intellectual Property and Trade Secrets for any purpose other than as expressly permitted by the Limited Use License and applicable law. Nothing in this provision shall be construed as granting any rights to the Parties in Interest or any other Person or Entity, by license or otherwise except as expressly stated herein or in another properly executed written agreement approved by Our Board of Directors.
The Parties in Interest Agree that any breach of the Limited Use License or the Misappropriation of Our Collective Intellectual Property and Trade Secrets will cause immediate and long-lasting irreparable harm to Us. In the event of such a breach or Misappropriation of Our Collective Intellectual Property and Trade Secrets, We shall be entitled, in addition to any other rights or remedies We may have under these Terms of Use and applicable state and federal law, to seek an ex-parte injunction or other equitable relief from the Court of Jurisdiction without the necessity of posting a bond, to prevent or attempt to remedy any actual or threatened breach of the Limited Use License or the Misappropriation of Our Collective Intellectual Property and Trade Secrets. As such, the Parties in Interest waive any argument or defense against Us seeking the entry of an ex-parte injunction by the Court of Jurisdiction.
Further, the Parties in Interest Agree that in the event of a breach of the Limited Use License or the Misappropriation of Our Collective Intellectual Property and Trade Secrets, We shall be entitled to the following monetary damages, which shall constitute stipulated damages. For clarity and the avoidance of doubt, these stipulated damages are not meant (and thus shall not be interpreted to be) punitive damages; these stipulated damages are a good-faith estimation of the harm a breach of the Limited Use License or the Misappropriation of Our Collective Intellectual Property and Trade Secrets will cause to Us.
The Parties in Interest Agree that the measurement of harm is incalculable and thus agree to pay to Us, as a stipulated damage and not as a penalty, the sum of one million dollars ($1,000,000) and disgorgement of all revenue derived, directly or indirectly per count or instance of breach of the Limited Use License, and per instance of breach of the Misappropriation of Our Collective Intellectual Property and Trade Secrets provision. Said count or breach instance shall be measured on a per diem basis, meaning that each day of offering any service or product acquired as a result of breaching of the Limited Use License and/or breaching the Misappropriation of Our Collective Intellectual Property and Trade Secrets provision.
Finally, any attempt to Misappropriate Collective Intellectual Property or Trade Secrets violates Our rights. You may be subject to possible prosecution under applicable federal and state laws and subject to statutory and contractual damages, including stipulated damages if You breach these restrictions. You may not use the Platform and Services in any anti-competitive manner or for any purpose that would be contrary or competitive to Our business interest or Our actual or potential economic disadvantage in any aspect. All rights not specifically and expressly granted under these Terms of Use or the applicable Account Documents are reserved by Us. The Platform and Services are licensed, not sold, gifted, or otherwise transferred in any manner. The Limited Use License confers no title or ownership and should not be construed as a sale or transfer of any rights to You or any other person or entity.
We respect the rights of others to compete lawfully in the marketplace. As such, the Parties in Interest likewise Agree to equally respect and protect Our Trade Secrets and Collective Intellectual Property and related or derivative intellectual property information and intellectual property rights. Therefore, the Parties in Interest and (i) any of the Parties in Interest’s related employee(s), agent(s), attorney(s), partner(s), co-venturer(s), subcontractor(s), or other person(s) with which the Parties in Interest may have a joint or related interest or relationship, including but not limited to a banking, accounting, legal, business, or economic interest or relationship or other linked interest or relationship, and (ii) any party which may participate,aid, abet, conspire or act in concert with any action or inaction which results in a breach of any element or scope of this provision, Agree to not use or Surveil, in any unauthorized manner, including modification, Reverse Engineering, or replication in any manner, with the intent to claim ownership, launch a derivative service or product, gain competitive advantage, or conspire with any other party to use, bootleg, pirate, emulate, clone, plagiarize, or steal Our Industrial Property.
As such, the Parties in Interest, jointly and severally, Agree that our Industrial Property is solely Our property,proprietary information, and confidential data and is of critical and significant current and future economic and competitive value. Accordingly, the Parties in Interest Agree to the following:
The Parties in Interest shall not, under any circumstances, engage in, support, or facilitate any form of industrial espionage or Surveillance targeting, directly or indirectly, Our Industrial Property or any activities that could be construed as or indicative of such, including but not limited to:
a) Unauthorized access, Surveillance, acquisition, or theft;
b) Unauthorized access to Our facilities, systems, forms, business processes, procedures, or documents;
c) Attempting to solicit or obtain Industrial Property through improper or furtive means or methods;
d) Using deception or misrepresentation to obtain Industrial Property, including but not limited to (i) accessing or use of the Platform or (ii) creating a User Account or Account to gain access to Our Industrial Property;
e) Bribing or otherwise inducing in any form, including by any form of economic inducement (including discounts), profit sharing, fee payments, or inducement by gift to any employee or associate or any other party to disclose or make use or benefit from Our Industrial Property.
The Parties in Interest shall not, under any circumstances, use or Surveil Our Industrial Property in any unauthorized manner,including modification, Reverse Engineering, or replication in any manner, with the intent to claim ownership, launch a derivative service or product, gain competitive advantage or in breach of the Non-Compete and Non-Disclosure provisions of this Agreement. Likewise, the Parties in Interest Agree to not conspire with any other party to use or Surveil, in any unauthorized manner, including modification, Reverse Engineering, or replication in any manner, with the intent to claim ownership, launch a derivative service or product, gain competitive advantage, to emulate, clone, plagiarize, or steal Our Trade Secrets and Collective Intellectual Property or any related or derivative rights or other proprietary information, material, designs, web functions, processes, products,intellectual property, or proprietary or confidential information of anyone,including suppliers, customers, business partners.
The Parties in Interest shall, without exception or limitation, fully protect and safeguard any Industrial Property in their possession (whether actually in possession or constructively) against unauthorized disclosure and use, whether accidental or intentional, using all possible means and indemnify Us from all projected future lost revenue, for a period of at least ten (10) years which may result or gross revenue that the Parties In Interest may acquire as a direct, indirect or secondary result.
The Parties in Interest shall, without exception or limitation, comply with all applicable state and federal laws, including but not limited to the Economic Espionage Act and other relevant intellectual property protection laws and provisions of this Agreement.
The Parties in Interest shall, without exception or limitation, have the stipulated duty to promptly and without delay report and Notice Us in writing of any known or suspected unauthorized use, Surveillance, or disclosure of Our Industrial Property or any act,conspiracy, or plan of industrial espionage or Surveillance related to Our Industrial Property and cooperate with the disclosing Party to protect the domestic and international confidentiality and ownership of all Industrial Property rights in and to the Confidential Information, and report any known or suspected unauthorized use or Surveillance of Our Industrial Property or industrial espionage related to Our Industrial Property.
The Parties in Interest shall, without exception or limitation, maintain the confidentiality of all of Our Industrial Property with at least the same degree of care the Parties in Interest use to protect the Parties in Interest’s own confidential information or client information, but no less than a reasonable degree of care. Further, the Parties in Interest shall not disclose, publish, or otherwise reveal any of Our Industrial Property received from any other party whatsoever except with Our specific prior written authorization.
Accordingly, the Parties in Interest, without exception or limitation, Agree to:
a) Restrict access to Our Industrial Property to employees, agents, attorneys, or other persons who have a “must need to know” basis; the Parties in Interest Agree to ensure that all employees, agents, attorneys, or other persons having access to Our Industrial Property are notified of their obligations and bound by confidentiality obligations at least as restrictive as those in this provision;
b) Advise each employee, agent, attorney, partner, co-venturer, subcontractor, or another person with whom the Parties in Interest have a joint or related interest, including but not limited to a banking, accounting, legal, business, or economic interest or other linked interest, who receives Our Industrial Property of their obligations with respect to Our Industrial Property;
c) Notice these and all related terms disclosing Our rights and the associated limitations on all copies or uses of Our Industrial Property, including any party with said access or opportunity of access.
The Parties in Interest Agree that any breach, anticipated or threatened, of this provision may result in irreparable harm for which monetary damages would be inadequate. Accordingly,in addition to any other remedies and awards available under the law and within this Agreement, including the following stipulated damages, We shall be entitled to seek ex-parte injunctive relief to restrain any such breach, threatened or actual.
In the event of any breach of this provision, each associated breach shall be a separate event (or “count”). For clarity, each day of a breach of use is a separate breach. Each associated Party in Interest shall be jointly and severally liable for each of the following consequence and damage elements:
a) All direct and known actual damages and costs incurred by the Us as a result of the breach;
b) Any gross revenue, regardless of direct or indirect expenses, made by the breaching party as a result of the breach;
c) Punitive damages or other damages or awards as may be provided for by statute or otherwise determined by a court;
d) Our attorney fees and all legal costs incurred in enforcing this provision and Agreement, including Our related internal costs and associated internal and external investigative expenses;
e) Stipulated Damages: as the calculation and identification of future actual damages are impossible to determine, the Parties in Interest further agree to five Million Dollars ($5,000,000) per party “per count”. For clarity, each impacted or lost client relationship is a separate count, and these Stipulated Damages do not offset or rescind any other damages within this Agreement.
Each of the foregoing damage elements may be separately assessed, and they are interdependent on one another for their applicability. For clarity, the foregoing Stipulated Damages are not penalties nor intended to be punitive damages. Instead, they constitute an alternative method to establish damages. Thus, the Parties in Interest jointly and severally Agree that the Stipulated Damages elements do not violate public policy when the Agreement contains Stipulated Damages, the circumstances are such that the actual damages likely to flow from a subsequent breach would be difficult for Us to establish or the parties to estimate or for Us to prove, and the Stipulated Damages sum(s) agreed upon are designed merely to compensate Us for the Parties in Interest’s failure to perform or breach as well as the long term persistent and compounded effects which will logically transpire.
The breaching Parties in Interest may also be subject to criminal penalties as provided for under applicable laws governing trade secret theft and industrial espionage.
The obligations set forth under this provision shall remain in effect for a minimum period of seven (7) years after the termination or expiration of the main agreement.
With respect to Trade Secrets, the obligations shall continue for as long as such information remains a Trade Secret under applicable law or is defined as such by the terms of this Agreement,whichever is longer.
Nothing in this provision shall be construed as granting any rights to the Parties in Interest or any other Person or Entity, by license or otherwise, to any of Our Industrial Property, except as expressly stated herein or in another properly executed written agreement approved by Our Board of Directors.
This Industrial Espionage and Industrial Property provision is intended by all parties to be applied and interpreted in the broadest possible context in its (i) application to protect Our Industrial Property and (ii) the application of the associated contract consequences and damages to the maximum extent possible without offset or exclusion.
The Parties in Interest and any of their co-conspirators Agree that:
Consistent with the foregoing; in the event that one or more Parties in Interest and their co-conspirators breach the terms of this Agreement by breaching the (i) Non-Compete and Non-Disclosure provision, or (ii) the Public Statements and Non-Disparagement provision; or engages in (i) Industrial Espionage, or (ii) Misappropriation of Collective Intellectual Property, or (iii) Misappropriation Trade Secrets or (iv) Industrial Property, then the Parties in Interest and their co-conspirators Agree to disgorge to Us all Direct and Indirect Misgotten Revenue. Accordingly, the following provisions shall apply:
The breaching Parties in Interest and their co-conspirators acknowledge and Agree that in the event of any breach of the (i) Non-Compete and Non-Disclosure provision, or (ii) the Public Statements and Non-Disparagement provision; or engagement in (iii) Industrial Espionage, or (iv) Misappropriation of Collective Intellectual Property, or (v) Trade Secrets, or (vi) Industrial Property, any financial benefit (whether monetary or otherwise) obtained from such breach shall be subject to disgorgement. The disgorgement includes, but is not limited to, all Direct and Indirect Misgotten Revenue made by the breaching Parties in Interest and their co-conspirators from any one or more of the foregoing breaches.
The breaching Parties in Interest and their co-conspirators consent to provide a full accounting of all Direct and Indirect Revenue derived from the breach, including that of their Agents, affiliates, and alter egos. For the purposes of this provision, Direct and Indirect Revenue includes but is not limited to any and all revenues, commissions, payments, concessions, overrides, contracts, business deals, secondary investment income or any other compensation or consideration gained or facilitated directly or indirectly through the violation by the Parties in Interest or their co-conspirators (“Direct and Indirect Revenue”). We reserve, at Our sole discretion, the right to review all relevant financial records, business dealings, and any other materials to verify and calculate the Direct and Indirect Revenue subject to disgorgement.
The breaching Parties in Interest and their co-conspirators shall, within thirty (30) days of notice from Us, provide said Calculation of Direct and Indirect Misgotten Revenue accounting and return the full and complete amount of such Direct and Indirect Misgotten Revenue to Us. If the breaching Parties in Interest and their co-conspirators fails to do so, We shall have the right to pursue all available legal remedies to recover the Direct and Indirect Misgotten Revenue, including seeking an injunction for a constructive trust over the Direct and Indirect Misgotten Revenue, resulting from the breach or any other remedy available under applicable law.
The foregoing thirty (30) days period will not be tolled for any reason and under any circumstances.
The Disgorgement of Direct and Indirect Misgotten Revenue under this clause shall be in addition to, and not in lieu of, any other remedies available to Us under this Agreement or applicable law, including but not limited to injunctive relief, actual and stipulated damages, and all internal and external legal costs. We retain the right to seek other remedies for the harm caused by the breaching Parties in Interest and their co-conspirators actions, including any consequential, punitive, or statutory damages to which We may be entitled.
The breaching Parties in Interest and their co-conspirators acknowledge that the breaching Parties in Interest and their co-conspirators breach of the (i) Non-Compete and Non-Disclosure provision, or (ii) the Public Statements and Non-Disparagement provision; or engagement in (iii) Industrial Espionage, or (iv) Misappropriation of Collective Intellectual Property, or (v) Trade Secrets, or (vi) Industrial Property, causes irreparable harm to Us, which may not be adequately compensated by monetary damages alone. Therefore, We may seek any equitable remedies, including but not limited to injunctive relief, in addition to Disgorgement of Direct and Indirect Misgotten Revenue, to prevent further harm.
The obligations under this Disgorgement of Profits clause shall survive the termination or expiration of this Agreement for a period of ten (10) years from the date of the breach.
Any Person or Entity that engages in Unjust Enrichment or the following shall be deemed an Infringing Party. Such actions Include:
Using leverage or control over resources or relationships to pressure or to persuade others not to conduct business with Us or intentionally cutting off Our market access, partnerships, or customer bases.
Intentionally attempting to interfere, exclude, or cut off market access, partnerships, or customer bases with a direct relationship to Us or the associated marketplace.
Withholding or interfering with necessary resources, including access to existing financial partners or suppliers, data, or services beneficial or essential for Our operations.
Unfairly gaining a competitive or business advantage through any act of interference or breach of this Agreement or violation of applicable law or otherwise hinder Our ability to compete in the market.
Engaging in activities that harm or attempt to harm Us or Our public image, reputation, business acumen, or business relationships.
Should We determine that an Infringing Party has been Unjustly Enriched, We will notify the Infringing Party in writing, detailing the specific acts constituting said violation, infringement, or breach.
Upon receipt of such notice, the Infringing Party must cease the alleged Unjust Enrichment practices and all related future acts of infringement or breach within five (5) days without tolling for holidays or weekends.
Additionally, We may seek injunctive and all other available relief under this Agreement and applicable laws to enforce this provision. We will further seek—and the Infringing Party(ies) waives all objections to Us collecting—attorney’s fees, costs, and expenses (Including internal costs and expenses) related to said injunctive and other available relief.
Further, upon Our finding that Unjust Enrichment has occurred, the Infringing Party found liable of such practices shall be liable for any direct and indirect damages caused by these actions, all gross revenue derived therefrom (without offset of costs or expenses) in addition to any other remedies available under the Stipulated Damages Schedule of this Agreement and applicable law.
This clause does not prohibit actions taken by a party that are:
The Infringing Parties agree not to retaliate, directly or indirectly, against Us in any manner for raising concerns about potential violations of this Agreement or related Account Documents, or for seeking enforcement of the same. Accordingly, the Infringing Parties are barred from any litigation that would be retaliatory or from filing, or causing to be filed, with any governmental agency or entity any notice, filing, inquiry, information, complaint, or communication targeting Us.
The Parties in Interest and the Infringing Parties Agree that We may conduct periodic reviews or audits, Including Customer Due Diligence and Enhanced Due Diligence to ensure compliance with all applicable laws, regulations, this Agreement, and all applicable Account Documents.
In the event of any breach, Conspiracy to breach, or plan to Misappropriate Intellectual Property, Trade Secrets, and Industrial Property, then immediately upon delivery to the Infringing Party or their Agent(s) of the Notice of Breach and Infringement, the following shall apply:
Pursuant to Disgorgement of Misgotten Revenue by Breach provision herein, any Infringing Party found to act, directly or indirectly, in the Misappropriation of Our Collective Intellectual Property and Trade Secrets or otherwise misappropriate or gain access to Our Intellectual Property, Trade Secrets, or Industrial Property, directly or indirectly by any means, Including by means of Industrial Espionage, shall immediately disgorge to Us all Direct and Indirect Misgotten Revenue, as well as all direct, indirect, derivative or consequential benefits derived, directly or indirectly, therefrom, and any other form of improper enrichment as “fruit of the poisonous tree.”
Within five (5) business days of receiving a Notice of Breach and Infringement, the Infringing Party shall immediately cease and desist all actions that directly or indirectly relate to, arise from, or have been otherwise derived from the use of, access to, or possession of the Misappropriated Property.
Any Infringing Party misappropriating or gaining directly or indirectly access through Industrial Espionage shall immediately disgorge to Us all Derivative Work Product.
Within ten (10) business days of receiving Notice of Breach and Infringement, each Infringing Party must return all tangible and intangible copies, records, and derivatives of all Misappropriated Property to Us. This includes but is not limited to, documents, digital files, prototypes, Alpha Test, Beta Test, development or “dev copies,” prior or staged versions, or any material, regardless of type or character, containing or embodying such information.
Each Infringing Party shall certify in a signed writing that all copies, adaptations, or reproductions of the Misappropriated Property, whether in physical or digital form, and any derived copies, adaptations, reverse-engineered system or process, or reproductions have been permanently deleted, destroyed, or rendered irretrievable. Destruction shall occur in the presence of legal counsel appointed by Us and, in Our sole and absolute discretion, such technical experts as may be required to confirm the destruction to prevent recovery or misuse of said Misappropriated Property. Each said Infringing Party shall bear the cost of supervision and destruction, along with all associated costs.
In addition to other provisions of this Agreement, within ten (10) business days of completing the requirements above, each Infringing Party must provide a sworn affidavit or other independent evidence verifying compliance with this clause. Failure to comply will result in further legal action, Including injunctive relief and punitive damages.
These obligations shall survive the termination of any relevant agreement and remain binding for ten (10) years following the Disgorgement.
This Cease and Desist, Disgorgement, Return, and Destruction of Misappropriated Intellectual Property, Trade Secrets, and Industrial Property provision is intended to be interpreted and applied in the broadest possible context to ensure the rightful protection of intellectual property rights and to deter misappropriation through equitable and corrective measures.
In the event of any applicable breach, Conspiracy, or other act or plan to Misappropriate Intellectual Property, Trade Secrets, and Industrial Property, then upon delivery to the Infringing Party or their Agent(s) of the Notice of Breach and Infringement, the following shall apply:
The Infringing Party is hereby prohibited from any further, direct or indirect, use of any Derivative Work Product technologies, business processes, systems, websites, technology, products, or services, Including direct, indirect, derivative, or consequential work product, Including but not limited to systems, source code, websites, processes, materials, procedures, marketing materials, resulting directly or indirectly from the use, or access to, or possession of the Misappropriated Property.
No Infringing Party shall transfer, license, assign, or otherwise make available any Derivative Work Product to any third party, whether directly or indirectly, without Our prior written consent. This prohibition extends to all forms of sharing, including physical, digital, and verbal dissemination.
Each Infringing Party is strictly prohibited from selling, distributing, exchanging or otherwise commercializing Derivative Work Product in any market or to any entity. Likewise, each Infringing Party is strictly prohibited from gifting, donating, or otherwise transferring Derivative Work Product to any Person or Entity without Our express, written, and duly executed consent. Any existing commercial arrangements based on the Derivative Work Product must be immediately terminated.
Within five (5) business days of delivery to the Infringing Party or their Agent(s) of the Notice of Breach and Infringement, each Infringing Party must certify in writing that all copies, records, and forms of Derivative Works in their possession or control have been permanently destroyed and are no longer accessible.
As a result of their infringement and likelihood of future infringement, each Infringing Party, or their Agent(s) or co-conspirators, are permanently and strictly prohibited from any direct or indirect, secondary, or subsequent development of a competitive or like Derivative Work Product, or from selling, distributing, or otherwise commercializing any future Derivative Work Product in any market or to any entity or doing such in concert with any other Person or Entity, or under any other secondary or derivative arrangement. Any future, potential commercial arrangements based on the Derivative Work Product are prohibited and, if such should arise, must be immediately terminated, and any associated agreements voided.
These prohibitions shall remain binding indefinitely and survive the termination of any agreement or resolution of any dispute.
Any breach of this provision will result in immediate legal action, Including claims for injunctive relief, compensatory damages, and punitive damages, as permitted by law. We shall be entitled to recover all internal and external legal costs and fees associated herewith.
This Prohibition of Future Use, Transfer, Gifting, Repacking or Sale of Derivative Technology, Business Processes, Products or Services provision is intended to be interpreted and applied in the broadest possible context to ensure comprehensive restrictions on the misuse, distribution, or exploitation of Derivative Work Product derived from proprietary or protected technologies and processes.
This provision intends to provide for the quiet enjoyment and operation of the relationship between the Parties in Interest and Us. Specifically, this provision is meant to prevent Abusive, Frivolous, Malicious, and Extortive Actions, which by their nature are designed to circumvent the purpose of this Agreement and the purpose and intent of the associated Account(s). Accordingly, such Abusive, Frivolous, Malicious, and Extortive Actions are prohibited. The Parties in Interest Agree that engaging in Abusive, Frivolous, Malicious, and Extortive Actions shall constitute a breach of this Agreement and thus be subject to the Stipulated Damages Provisions herein, along with any other legal and equitable remedies available to Us. Thus, the Parties in Interest Agree that in order to achieve the purpose of this Agreement and the purpose and intent of the associated Account(s), the Parties in Interest shall adhere to and abide by the following provisions.
(a) The Parties in Interest Agree that filing litigation against Us outside the scope of the Alternative Dispute Resolution Provisions herein outlined or attempting to modify the Alternative Dispute Resolution Provisions herein outlined after the expiration of the Free Look Period shall be strictly prohibited. In such circumstances, We may, in Our sole authority and absolute discretion, and at the cost of the Parties in Interest and the associated Account(s), petition the Court of Jurisdiction for injunctive relief and any other such legal remedies available to Us.
(b) The Parties in Interest Agree that filing litigation following any prior litigation on the same subject matter and/or arising from the same or substantially similar transaction shall be considered a violation of this provision and thus a material breach of this Agreement. In such circumstances, We may, in Our sole authority and absolute discretion, and at the cost of the Parties in Interest and the associated Account(s), petition the Court of Jurisdiction for injunctive relief and any other such legal remedies available to Us to restrict further frivolous or abusive Claims being filed.
(c) The Parties in Interest Agree that filing a Claim against Us in any court that is not the . Court of Jurisdiction shall be considered a breach of this provision and thus a material breach of this Agreement. In such circumstances, We may, in Our sole authority and absolute discretion, and at the cost of the Parties in Interest, petition the Court of Jurisdiction for injunctive relief and any other such legal remedies available to Us to restrict further frivolous or abusive Claims being filed.
(d) The Parties in Interest Agree that We and Our Third Parties have no duty to comply with the reporting requirements other than those set forth in the Account Documents and applicable laws set forth by the jurisdictions specific to the associated Account(s).
(e) The Parties in Interest have no standing to bring any action on behalf of an Account without first seeking to compel Us to bring such actions.
(f) The Parties in Interest Agree that We require adequate powers to enforce and defend this Agreement and the terms contained in the applicable Account Documents, to prevent retaliatory or abusive behavior, and to prevent anticipated breaches. Therefore, We may, in Our sole discretion and absolute authority, seek all legal and equitable remedies available to Us from the Court of Jurisdiction at the expense of the Parties in Interest and associated Account(s).
(g) The Parties in Interest Agree that they shall be jointly and severally liable for any direct or indirect damages (Including Stipulated Damages), legal fees, and all other related costs (Including but not limited to staff time spent on the matter) incurred, directly or indirectly, by the Parties in Interest fighting Abusive, Frivolous, Malicious, and Extortive Actions.
In the event of any violation of this Quiet Enjoyment and Operation Provision, and in addition to the Stipulated Damages provisions herein, the Parties in Interest shall be fully liable for any economic loss of the Indemnified Parties, Including future gross revenue loss, without offsets and economic gross opportunity loss resulting from such breach. Accordingly, using a methodology of Our selection, any resulting economic loss shall be recovered at the cost of the Parties in Interest and the associated Account(s).
The Parties in Interest Agree that We and the Platform and Services operate in a unique vertical marketplace and industry that routinely approaches or exceeds $390 Billion annually. The Parties in Interest further Agree that the Platform and Services and the associated Collective Intellectual property are unique and pioneering, providing a singular solution and advantage in the marketplace. Further, given the nature of the market, client and recommendation relationships, industry nuances, and geographic scope, that each Account is unique and must be observed within the context in which it exists; therefore, several factors influence a given Account and relationships, including but not limited to Account size, applicable rate environment, length of an Account’s existence (in some circumstances for decades), and many others. As such, determining actual damages in the event of a breach of these Terms of Use, the Privacy Policy, or the applicable Account Documents is a difficult and complex (if not impossible) task that would be overly burdensome if not unresolvable for all parties involved. Considering the unique and complex nature of the Platform and Services of any given Account(s) or relationship, and desiring to minimize dispute resolution burdens, the expenditure of resources, and wishing to maximize efficiencies, the Parties in Interest Agree to the following stipulated damages provisions as Commercially Reasonable in scope, amounts, duration, function, methodology, and process. Thus, the sums stipulated herein are reasonably intended by the parties as the predetermined measure of compensation for unknown or unascertainable actual damages. Consequently, the sums stipulated are intended by the parties to reasonably determine the damages.
For clarity and avoidance of doubt, the Parties in Interest Agree that the stipulated damages and their application are herein (i) not grossly disproportionate to the actual damages if they could, in fact, have been identified; (ii) Commercially Reasonable in light of the difficulties of identifying and projecting all resulting actual damages and losses, determining the scope, future ramifications, and proving said actual damage losses in the event of a breach; (iii) represent a reasonable estimation of damages and the difficulties of proving loss in the event of a breach; (iv) not intended to limit or be in conflict with any other stipulated damages provisions herein outlined (for purposes of clarity and avoidance of doubt, any other stipulated damages provisions herein contained shall be cumulative to those outlined in this Stipulated Damages Provisions section); and (v) not intended to be punitive damages, retaliatory damages, alternative damages, or a penalty. Accordingly, the Parties in Interest waive all Claims related to these Stipulated Damages Provisions and the related Stipulated Damages Schedule.
The Parties in Interest acknowledge the scope and size of the resulting revenues and business opportunities stemming from or related to the Platform and Services and Agree that stipulated damages shall be calculated as defined within this Stipulated Damages Schedule in case of any breach of these Terms of Use or the applicable Account Documents that results in a Negative Marketplace Effect. For purposes of clarity and avoidance of doubt, the stipulated damages outlined in this Stipulated Damages Provision section shall only apply for a breach or violation of these Terms of Use or of the applicable Account Documents which has a Negative Marketplace Effect; any breach or violation of these Terms of Use or of the applicable Account Documents which does not have a Negative Marketplace Effect shall incur actual damages as proven and decreed upon as outlined in the Investigation, Negotiation, and Mediation Phase section outlined in these Terms of Use. Moreover, the Parties in Interest Agree that any breach or other violation of these Terms of Use, or the applicable Account Documents, including but not limited to violations related to misuse of Our Collective Intellectual Property, Nondisclosure, and Non-Compete provisions, will likely have a persistent negative effect on revenues and profits that could continue for a decade or more following the breach or violation.
Accordingly, the following list of elements of this Stipulated Damages Schedule section applies jointly and severally. These Stipulated Damages Schedule elements are not intended to be a substitute or replacement for one another nor intended to be conditional upon each other. As such, the application of any one of the preceding elements is not a condition on the application or any other damage or element, nor shall the application of any one element preclude the application of any other component or all other stipulated damages element applied in total. Furthermore, each following element is stipulated to be a separate harm without duplication or overlap.
The Parties in Interest Agree that the foregoing elements are unique and separate elements and constitute no overlap or duplication and waive all associated claims and objections at law, in equity or other legal theory.
Additionally, the Parties in Interest Agree that in addition to the preceding stipulated damages, and not as a replacement or alternative thereof, We are entitled to (i) any other award an adjudicator of proper jurisdiction deems appropriate including, but not limited to, punitive damages, attorneys fees and costs, and exemplary damages; and (ii) the stipulated damages calculated hereunder above shall bear interest of six percent (6%) calculated annually, compounded from the first date of the associated breach.
Notwithstanding the waivers herein, in the event of a dispute, any party challenging the enforcement of the Stipulated Damages Provisions bears the burden of demonstrating their unreasonableness beyond any reasonable doubt. However, nothing in this provision circumvents the ADR process or confers a right to the Parties to file litigation in any venue.
Nothing in this provision shall be construed as granting any rights to the Parties in Interest or any other Person or Entity, by license or otherwise except as expressly stated herein or in another properly executed written agreement approved by Our Board of Directors.
The official depository of records is the books and records held within Our accounting systems, held by itself, or that of any Affiliate within any of their physical branches, electronic depositary system(s), home offices, branch offices, and back offices they maintain at the time. Such records may also be held in electronic computer systems, offsite archives, or by third-party service providers, either as physical documents or electronic images or data. Such images and data shall constitute the official records of the Account so long as We certify them as true copies of such records. Neither the holding of records offsite by a service provider or separately incorporated Affiliate electronically (“in the cloud” through a hosting service provider) nor the access of the Platform by a User shall be construed as Our availment of the laws of another jurisdiction or conducting business outside Our jurisdiction.
All copies of this Agreement, and the Account Documents including facsimile(s), digital, electronic, email, and photostatic images, shall be deemed to be originals and shall serve to bind the Parties and have the same force and effect as the original signatures and documents.
Notwithstanding any powers granted to Us pursuant to this Agreement or to applicable law, We shall not have any power that could give any Account the objective of carrying on a business and dividing the gains therefrom within the meaning of Section 301.7701-2 of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Account Statements are automatically provided and generally available to You in the Online Portal twenty (24) hours a day, seven (7) days a week. You hereby explicitly waive receiving paper copies of statements for any Account You maintain with Us. You may still receive other communications from Us in paper format or by mail if You so request. Should You desire physical copies of the Account Statements, please contact Us according to the Notice Section of this Agreement; additional fees may apply. If You elect to discontinue Your online statement service, We may, at Our sole discretion, stop sending You any or all other communications electronically.
Account Statements are made available in Your Online Portal via PDF format, which requires a browser supporting PDFs or a PDF reader software such as Adobe Reader® for viewing. You may view, print, or download Your online statements, and We encourage You to save copies of all statements that are important to You. Generally, account statements will remain available online for up to seven years. We may discontinue publishing Account Statements via the Online Portal at any time for any reason.
Account Statements are generally posted to the Online Portal between the third (3rd) and tenth (10th) Business Day following the last day of the calendar month or quarter, depending on Your statement cycle. To protect the assets of any associated Account from loss, fraud, theft, conversion, or misuse, the Parties in Interest Agree that They have a stipulated duty and a specific performance requirement to review the statements and reported transactions of any associated Account and Agree that any resulting damages stemming from the failure to monitor the Account is not Our liability, but rather is the sole liability of the Parties in Interest.
The Parties in Interest Agree that the existence of any Claim or cause of action that a party may have against a Beneficiary or potential recipient of an Account, whether predicated on the relationship of the parties, the relevant Account, or any other basis, shall not constitute a defense against the enforcement of the limitation, restrictive, and indemnification provisions contained within this Agreement or the Account Documents.
The Parties in Interest Agree that it is their express intent that all rights and powers of reading and interpretation of this Agreement and related Account Documents shall be exclusively vested with Us. The Parties in Interest thus instruct any mediator, negotiator, arbiter, court, or any other such Entity to defer all matters regarding reading, context, interpretation of intent, interpretation of purpose, transactional purposes, and operational basis to Us. We shall have absolute discretion of interpretation, determination of intent, purpose, and benefit in all matters related to the Account’s actions, transactions, related Account Documents, and the Agreement. Our decisions on such matters of reading and interpretation are binding on all third parties, including all Parties in Interest.
In the event of general economic and financial conditions resulting in an Abnormal Interest Environment, We, in Our sole authority and absolute discretion, shall invoke this Abnormal Interest Environment provision. If enacted, this Abnormal Interest Environment provision shall have supremacy and prevail even when in conflict with other provisions of this Agreement or the associated Account Documents.
In the event this Abnormal Interest Environment provision is enacted, the Trust Assets held in such accounts shall be assessed an additional annual Trustee fee of up to fifty basis points (.0050) on said funds.
The Parties in Interest have an express duty to conduct due diligence and review and understand the provisions of this Agreement and the associated Account Documents. IT IS YOUR DUTY TO SEEK THE ADVICE OF INDEPENDENT COUNSEL BEFORE ENTERING INTO THIS AGREEMENT. As such, the Parties in Interest Agree that They have the option to fund or not fund an Account. Should the Parties in Interest proceed to fund the Account, the Parties in Interest Agree that that They have read, reviewed, and understood the terms of this Agreement and of the associated Account Documents. Further, the Parties in Interest Agree that, by each Utilization of the Platform, it is established that the Parties in Interest have read, reviewed, and understood the terms of this Agreement and of the associated Account Documents and thus affirm or reaffirm (as the case may be) their assent to the terms of this Agreement and of the associated Account Documents.
Consequently, the Parties in Interest irrevocably, unconditionally, completely, and forever waive any and all objections and Claims, based in whole or in part upon (i) lack of diligence; (ii) failure to read this Agreement; (iii)failure to read the Account Documents; (iv) confusion; (v) lack of comprehension; (vi) lack of legal, general or subject matter education or knowledge; (vii) a failure to have a meeting of the minds; (viii) the facts or the law or the terms of the Agreement being other than believed; (ix) unconscionability; (x) lack of authority or agency; or (xi) reliance on other materials or beliefs outside of this Agreement and the Account Documents.
The Free Look Period shall allow the Parties in Interest to review the Account Documents upon the Parties in Interest receiving the Account Documents. Under this Free Look Period, the Parties in Interest Agree shall have 3 (three) calendar days from the receipt of the Account Documents to reject the Account Documents without any penalty should the Parties in Interest disagree with any provision therein. Should the Parties in Interest elect to take advantage of this Free Look Period, they must exercise this option with 3 (three) calendar days of first receiving the Account Documents and pursuant to the Notice Provisions herein outlined. For clarity and avoidance of doubt, the Free Look Period is not based on an underlying account but on the person or entity on whose behalf the Platform is accessed. Once the Free Look Period initially expires, it is no longer available to that person or entity.
This Free Look Period shall be open during the first instance of the Parties in Interest engaging in a relationship with Us. For purposes of clarity and avoidance of doubt, the Free look Period shall be open only once and at the first instance that the Parties in Interest receive Account Documents from Us.
The location of servers and networks in which this Platform are located and operate is in the Commonwealth of Virginia, and each User’s point of Use is on said servers and networks within the Commonwealth of Virginia. Accordingly, all issues and questions concerning this Agreement and the associated Account Documents shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia without regard to any choice of law or conflict of law rules or provisions (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Virginia.
The Parties in Interest Agree that the Alternative Dispute Resolution process shall apply to any dispute, demand or claim brought by any Parties in Interest. You Agree to submit to the Alternative Dispute Resolution as the exclusive remedy for all claims. Thus, the Parties in Interest Agree to waive all objections to said Alternative Dispute Resolution process and consent to the Alternative Dispute Resolution for all matters arising from the Platform and Services, Account, and these Terms of Use.
Should a legal proceeding occur not preempted by the Alternative Dispute Resolution process the Court of Jurisdiction, shall hear and determine any suit, action, or proceeding and settle any dispute that may arise out of or in connection with the Platform and Terms of Use. For such purposes, You voluntarily, irrevocably, unconditionally, and completely submit to the exclusive jurisdiction of said Court. You voluntarily, irrevocably, unconditionally, and completely waive all objections and consent to the exclusive jurisdiction of the Court of Jurisdiction for all matters arising from the Platform and Services, Account, and Terms of Use.
Further, regardless of the cause of action, diversity, or amount in controversy of the claim, the Parties in Interest waive any rights to remove any action or proceeding to any federal court of the United States, any other state, or other judicial body, and hereby waive any right the Parties in Interest may have to transfer or change the venue or choice of law of any litigation brought by Us or by Parties in Interest, whether such action or proceeding arises directly, indirectly, or otherwise in connection with, out of, related to, or from the Platform and this Agreement. Any action brought in any jurisdiction other than the stated jurisdiction is an incurable breach and the Parties in Interest shall be barred for any other action.
Additionally, any Person or Entity assuming or accepting a delegation of powers or duties related to an Account (i) voluntarily, irrevocably, unconditionally, and completely submits to this Agreement and the associated Account Documents, including the Alternative Dispute Resolution, Choice of Law, Jurisdiction, and Venue provisions.
The Platform contains Collective Intellectual Property. Content, functionality, designs, concepts and business processes on the Platform is provided to You for Your information and limited personal use only and may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled or otherwise exploited for any other purposes whatsoever without Our prior written consent. As such, You Agree to not, directly or indirectly:
All rights, title, interest in, and ownership of the Collective Intellectual Property shall remain Our sole property. Nothing in the Agreement conveys any right or license to use Collective Intellectual Property other than as expressly provided herein for the stated purpose of evaluating a service for Your use. Nothing herein shall constitute or infer a limitation of Our right to enforce Our associated rights or transfer of any part or portion of Collective Intellectual Property to any other party.
You Agree that You will not, directly or indirectly, use any Collective Intellectual Property in any way detrimental to Us including by not competing or offering a competitive service which was derived from Collective Intellectual Property in anyway. You Agree to keep all Collective Intellectual Property in confidence and, except as expressly provided in this Agreement, to not disclose, or cause to be disclosed, Collective Intellectual Property to anyone without Our prior written consent. You Agree that You will not use or permit others to use Intellectual Property for any purpose other than to evaluate the possible use of services. You will use all necessary efforts and safeguards to ensure that there is no disclosure, dissemination, or unauthorized use of Collective Intellectual Property.
The content of the Platform, in all of its parts, including, but not limited to, the text, images, logos, and their arrangement, are Our copyright and trademarks (as applicable), all rights reserved.
Except as otherwise provided herein, You may not copy, upload, publish, transmit, distribute, archive, transcribe, create derivative works from the Platform, display the Platform content, make use the Platform’s Collective Intellectual Property, content, link, or redirect to the Platform without Our prior written consent.
Copies made incidentally in the ordinary course of Your use of the Platform (such as in cache memory) and a reasonable number of printed copies for Your internal and personal use are permitted, provided You do not delete or change any copyright, trademark, or other notices, disseminate or display such copies to the public, or use such copies for any direct or indirect financial gain.
Title to all Collective Intellectual Property rights in the Platform and material thereon remain Ours or the that of the licensors. If We are made aware of any unauthorized use of this material, We may demand that You immediately remove, destroy the same from all sources or take legal action to protect Our rights.
To use any Collective Intellectual Property material, You must first make a written Request according to the Notice provisions outlined in this Agreement. We may grant or withhold permission to use the material at Our sole discretion. No use is allowed unless You have Our express prior written permission. If permission to use the material is granted, You must make clear that the use of the material is under permission, and You may not incorporate any of Our Collective Intellectual Property into the other published work or commercial offering unless You otherwise have Our express prior written permission. When applicable a trademark or copyright symbol (©, ® or ™), as applicable, should follow all uses of the material. Certain expressions, postings, projects, products, and packaging may require additional or different notices. Contact Us for more information and to discuss Your intended use of Our Collective Intellectual Property.
Any violation of this Section You Agree to remove any such material immediately. In recognition of the willful and reckless nature of a violation of this section and the evident intent to harm Us associated with the unauthorized use of Collective Intellectual Property, You Agree that monetary awards are only a partial remedy. As only partial compensation for the action, You shall be liable for any loss of revenue, reputational harm, loss of trademark, or loss of copyright associated directly or indirectly with said misuse in addition to stipulated damages, as defined in the Stipulated Damages Provision herein. of one million dollars ($1,000,000) per instance of the misuse, plus any other award an adjudicator of proper jurisdiction deems appropriate including, but not limited to, punitive and exemplary damages. Additionally, You Agree that said liability shall begin from the moment the misuse is made or otherwise published, whether verbally or in writing. All damages associated with said misuse shall additionally include both Our and Our retained attorneys’ fees, along with Our other internal and external costs directly or indirectly related to said breach. You Agree the phrase “per instance of the misuse” shall consist of each and every offer to another, including but not limited to each sperate visitation by a third party to a website which a bargain to provide information or services derived or based on the unauthorized use of Our Collective Intellectual Property is proffered or can be reasonable inferred as being solicited. The foregoing stipulated damages are in addition any other applicable damages herein.
Without Our prior written permission, You shall not, directly or indirectly, issue any press release, make public statements, publications, or announcements directly or indirectly related to Us, the Platform or any of Our services. The preceding shall not apply to sworn testimony when required by law as part of a civil or criminal legal proceeding or a court order. However, voluntary false allegations made against Us in any public pleading or testimony shall be deemed disparaging and a violation of this Agreement.
You Agree that You will not make, or induce or cause another party to make any statement or communication, public or private, that (i) is intended to, or reasonably could be expected to, defame, disparage, or harm Our reputation or the reputation of the Platform and Services; (ii) is false; or (iii) that would reasonably be expected to lead to unwanted or unfavorable publicity or public perception.
Specifically, You Agree that You will not defame or disparage Us, the Platform, or the Services. You further Agree not to relay, communicate, or repeat defamatory or disparaging comments from others or cause, encourage, conspire, or sponsor, directly or indirectly, such statements to be made by a third party or through an anonymous Person or Entity. Defamation and disparagement include: public writings, remarks, comments, or statements (with or without malice or intent) that are false in nature, fact, or substance and which impugn the character, honesty, integrity, morality, or business acumen, or abilities in connection with any aspect of the operation of Our business. This includes the torts of defamation, product disparagement, insulting words, injurious falsehood, and trade libel. Any violation of this Section shall require You to immediately remove or retract any such defaming or disparaging statements. In recognition of the willful and reckless nature of, and intent to harm associated with, defaming and disparaging statements, and recognizing the difficulty in ascertaining damages caused by defamatory statements, You Agree that You shall be liable for stipulated damages of five million dollars ($5,000,000) per Defamation Instance, plus any other award an adjudicator of proper jurisdiction deems appropriate including, but not limited to, punitive and exemplary damages. You Agree that said liability shall begin from the moment the statement is published without regard to the method of publication. All damages associated with said defaming and disparaging statements shall additionally include Our attorneys’ fees and all internal and external costs.
By Your use of and access to the Platform, You Agree that any effort or coordination of action by more than one Person to cause, conspire, or coordinate to make or cause to be made defamatory or disparaging statements against Us or the Platform, is stipulated as an injury of reputation, trade, business, or profession by reason of conspiracy, and We are thus entitled to recover all damages to the fullest extent allowed under applicable statutes, including when applicable treble damages, plus any associated stipulated damages, plus the costs of the suit, including attorneys’ fees and all internal and external costs. Without limiting the generality of the term, “damages” shall include loss of profits, reputational harm, and all future expectancy of lost profits or business opportunities.
For purposes of this Agreement, the Parties in Interest Agree that limitation period for Us bringing defamation or disparagement claims forth is five (5) years from the date in which We (i) have direct sufficient knowledge of an incident, and (ii) the contents of the statements or publications, and (iii)the identity of all parties speaking or receiving the statements or publications. Further, Parties in Interest waive all defenses or objections at law, in equity or based on estoppel and accordingly, the Parties in Interest waive all Claims and are barred from any resulting Claim against Us or related to the Platform or any Account.
Eastern Point Trust Company is incorporated in the U.S. Virgin Islands and is authorized and regulated by the Department of Licensing and Consumer Affairs to provide Fiduciary Services. Its associated Business Number is 39672, and its associated License Number is 1-39672-1L.
The Indemnified Parties are fully protected in acting upon any writing, instrument, certificate, document, facsimile or electronic mail, reproduction, image, or transmission believed by Us to be (i) genuine and signed, presented, or transmitted by the proper person or persons or (ii) transmitted via a known email account, address, server or (iii) received from an Online Portal login, or (iv) the communications were affirmed the associated Security Procedure. We shall have no additional duty to investigate or inquire about any statement in any such writing or transmission; We may accept the same as conclusive evidence of the truth and accuracy of the statements contained therein. Notwithstanding anything to the contrary contained herein, any such writing, instrument, certificate, or document maybe proved by original copy or reproduced copy thereof, including without limitation a photocopy, a facsimile transmission,an electronic image, or any other electronic reproduction and We may rely on the same as if We had received the original signed writing, instrument, certificate or document.
In Our sole discretion, We may give the same effect to a telephonic instruction, voice recording, or any instruction received through electronic commerce or other electronic means as it gives to a written instruction. Our action in doing so shall be protected to the same extent as if such telephonic or electronic instructions were, in fact, written instructions. Any such instruction may be proved by audio-recorded tape, electronic reproduction, or other means acceptable to the Us, as the case may be. If We receive instructions or other information that is, as determined in Our sole discretion, incomplete or unclear, We may request instructions or other information at any time, regardless of nature or scope. Pending receipt of any such communication or other information, We shall not be liable to anyone for any loss resulting from delay, action, or inaction on Our part, and all Parties in Interest waive any related claim at law, in equity or by other legal theory and shall be barred from bringing forth such claims.
We are not responsible for determining or investigating whether a particular transaction constitutes an abusive tax shelter scheme or transaction as identified by the Internal Revenue Service (“IRS”), including whether a transaction is a prohibited tax shelter transaction as described under 26 U.S.C. § 4965, a listed transaction (including a subsequently listed transaction) as described under 26 U.S.C. § 6707A(c)(2), or a prohibited reportable transaction, which is either a confidential transaction or a transaction with contractual protection and which is a reportable transaction defined under 26 U.S.C. § 6707A(c)(1).
The execution of a transaction by Us does not express or imply any option, opinion, concurrence, or validation of a transaction’s tax nature, underlying purpose, or the applicable tax treatment.
A determination regarding whether a prohibited transaction or an abusive tax shelter scheme or transaction (as described above) has or would occur depends upon the facts and circumstances that surround a particular transaction. Prohibited transactions or an abusive tax shelter scheme or transaction may have a significant impact on the Account and may require the filing of certain tax forms with the IRS. The responsibility for filing any forms or disclosing any information to the IRS concerning any prohibited transactions or abusive tax shelter schemes or transactions resides entirely with the Parties in Interest.
We are irrevocably, unconditionally, and forever released, held harmless, and indemnified from any claims, damages, or costs (including attorney fees) arising from the Account or the Parties in Interest engaging in prohibited transactions or abusive tax shelter schemes or transactions.
The Parties in Interest Agree, in the event an Account is a Trust, ALL ACCOUNT HOLDINGS ARE SOLELY OWNED BY THE ACCOUNT TO WHICH THEY ARE GIFTED OR TRANSFERRED. THE PARTIES IN INTEREST ARE NOT THE OWNERS OF THE ASSETS OF A TRUST nor do they have any control over said funds. FOR PURPOSES OF CLARITY AND AVOIDANCE OF DOUBT, WORK PAPER ALLOCATIONS OF FUNDS ARE MEERELY NOTATIONAL, WORKBOOK, RECORD-KEEPING METHODS AND DO NOT VEST AN INTEREST IN SAID FUNDS.
We shall not be deemed to have accepted title to, and shall not act or be obligated to act in any way as a Fiduciary with respect to any real property, including any real property owned or operated by a sole proprietorship, general or limited partnership, limited liability company, or closely held corporation or any interest in any such business enterprise, which is or may become an asset of the Account until (i) an appropriate environmental audit is performed at the expense of the Account to determine that conditions at such real property or operations conducted by such business enterprise are in compliance with state and federal environmental laws and regulations affecting such real property or such business enterprise, and (ii) We have accepted such property as an asset of the Account by a separate writing delivered to the authorized Parties in Interest (or their natural or legal guardians).
You recognize that this Agreement is a legally binding contract and acknowledge that You had the opportunity to review its contents and consult with independent legal counsel before creating an Online Portal and Using the Platform or Services and providing to Us a Notice of Your non-agreement. You Agree that in any construction of the terms of this Agreement, the same shall not be construed against any party on the basis of that party being the drafter of such terms. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in the Agreement against the drafting party has no application, is expressly waived, and thus bars You from making such a Claim or defense, at law, or in equity, or in theory. The Parties in Interest acknowledge that the drafting of this Agreement is a mutual effort. It is understood that the Parties in Interest had adequate time to review and seek legal advice regarding the drafting of this Agreement and have requested no additional time to execute a complete and thorough review.
You Agree that We cannot, and do not, guarantee or warrant that files available for downloading from the internet or the Platform will be free of viruses, malware, trojans, or other such destructive code. You are solely responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to Our site for any reconstruction of any lost data.
The publicly available portions of the Platform are provided for educational purposes only and are not intended to provide legal, tax, investment, or financial planning advice. In using the publicly available portions of the Platform, You Agree that You are solely responsible for Your own investment research and decisions, that You will not rely on the Platform as the primary basis for Your decisions (investment, financial, legal, tax, or otherwise) and, except as otherwise provided herein, We shall not be liable for any actions You take based on information You receive via the Platform.
The Platform contains certain information We have filed or incorporated by reference in its reports with state and federal agencies. We expressly disclaim any duty to update any of the information set forth herein including, statements that may be considered forward-looking.
Your use of the Platform, its content, and any Services or items obtained through the Platform is at Your own risk. THE PLATFORM, ITS CONTENT, ANY SERVICES, AND ITEMS OBTAINED THROUGH OR FROM US OR THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Neither We nor any Person or Entity associated with Us makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy, or availability of the Platform or its information. Without limiting the preceding, neither We nor anyone associated with Us represents or warrants that the Platform, its content, or any Services or items obtained through the Platform will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, that Our Platform or the server that makes it available are free of viruses or other harmful components, or that the Platform or any Services or items obtained through the Platform will otherwise meet Your needs or expectations.
Although We intend to provide accurate and timely information on the Platform, its websites and collateral material, and other content hosted or included therein may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors or wording subject to misunderstanding or misinterpretation. To provide the most complete and accurate information possible, notices, and disclosures, this Agreement and information may be changed or updated from time to time without notice, including information regarding Our policies, terms, products and Services.
Accordingly, all information should be verified before relying on it. All decisions based on information contained on the Platform, its websites, collateral material, and other content hosted or included therein are solely the Parties in Interest. We shall have no liability for such decisions, assumptions or resulting losses.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE PRECEDING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
As the attributes of services differ, no party shall infer the attributes or representations regarding any one or more Service as being an attribute or representations associated with all or any other Service(s).
TO THE EXTENT THE PLATFORM OR ANY ACCOUNT CONCERNS TAX MATTERS, IT IS NOT INTENDED TO BE USED, AND CANNOT BE USED BY A TAXPAYER TO AVOID TAXES, REGULATIONS, LAWS, OR PENALTIES THAT MAY BE IMPOSED BY LAW. WE PROVIDE YOU WITH THIS INFORMATION WITH THE UNDERSTANDING THAT WE ARE NOT RENDERING ACCOUNTING, INVESTMENT, LEGAL OR TAX ADVICE. PLEASE CONSULT YOUR ACCOUNTING, INVESTMENT, LEGAL OR TAX ADVISOR CONCERNING SUCH MATTERS.
Any failure to enforce or a delay in enforcing any of Our rights hereunder shall not constitute a waiver, or estoppel, of said rights. Waivers are only valid if provided in writing, fully executed by an authorized Officer and approved by Our senior officers, any waiver by Us is not a waiver of any other right or remedy or any future right or remedy, nor is it a bar to Us to assert any rights hereunder at a time of Our choosing. Except as may be otherwise contained herein or required by law, You waive diligence, demand, presentment, protest, and notice of every kind. We reserve all rights, remedies, or provisions, including but not limited to Our Collective Intellectual Property, Trade Secrets, or Industrial Property, and You expressly agree to the reservation and preservation, without limitation, of all such rights. Any single or partial exercise of a right under this Agreement will not preclude any other or further exercise of that right or the exercise of any other right.
Any decision by Us to employ, under supplemental agreement, policy or arrangement related to a specific Account or class of Accounts, an alternative fiduciary, ministerial, operational, administrative, security, or other process or a particular method inconsistent with this Agreement, shall in no way limit or be deemed (i) a precedence applicable to other Accounts; or (ii) creation of an additional duty to any other Account or Parties in Interest; or (iii) a waiver of any rights, limitations, releases, waivers, indemnification, hold harmless or other provisions herein; or (iv) an admission of an defect or remedial measure.
By the Utilization of the Platform, it is Agreed that any the failure of the Parties in Interest to state, with specific and detailed particularity, in a Notice delivered to Us within two (2) Business Days of a transaction’s rejection, loss, failure, objection, or defect, is a material breach of this Agreement, which was Noticed and Disclosed and thus ascertainable by the Parties in Interest’s duty to monitor the associated Account(s), with reasonable care, review or inspection, and where We could have cured (or attempted to cure), as a last clear chance, in whole or in part, if We had been provided reasonable notice. Accordingly, the Parties in Interest irrevocably, wholly, and unconditionally, and forever release, defend, hold harmless, indemnify, and forever discharge the Us from all such claims. Accordingly, the preceding provisions bar the Parties in Interest from any resulting Claim.
AS IT RELATES TO YOU, NO WAIVER OF ANY OF YOUR DUTY OR PROVISION HEREOF OR WAIVER OF A BREACH OF ANY PROVISION, INCLUDING A RESULTING OBLIGATION OR DUTY HEREOF, SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY ANY ONE OR MORE OF OUR AUTHORIZED OFFICERS. EMAIL COMMUNICATIONS OR OTHER COMMUNICATIONS OF PURPORTED OR PROPOSED DISCUSSIONS, AGREEMENTS, OR UNAGREED TO (OR UNANSWERED) DEMANDS OR CLAIMS HAVE NO STANDING.
Account Statements and Account activity, positions and account values are continually updated and posted as they occur to Your Online Portal, which is accessible to You twenty-four (24) hours a day, seven (7) days a week. Further, We may provide separate transaction notices to You via email. Accordingly, You have sole, exclusive, and ongoing duty to monitor Your Online Portal, and transaction notices at least daily basis. Therefore, it is Your sole, exclusive, and ongoing duty to notify Us immediately and without delay of any suspicious, unrecognized, or potentially fraudulent transactions. Consequently, You Agree that any loss of Account Assets as a result of Your failure to immediately detect and notify Us of suspicious, unrecognized, or potentially fraudulent transactions by the same bad actor shall be solely and exclusively Your loss to bear. For purposes of clarity and avoidance of doubt, “same bad actor” shall be interpreted in the most general and broad manner possible. This shall include, for example, and without limitation, differing actors acting under or via the same umbrella, method, banner, or title, or pursuing the same or similar illicit activity.
Notwithstanding the foregoing, in any event, because Account Statements and Account activity are continually updated and posted as they occur to Your Online Portal, which is accessible by You twenty-four (24) hours a day, seven (7) days a week, and because You have the sole, exclusive, and ongoing duty to monitor Your Online Portal and transaction notices at least on a daily basis, and You have the further duty to Notice Us within one (1) Business Days of the occurrence of an unauthorized transaction(s). Should You fail to Notice Us within one (1) Business Days of the occurrence of an unauthorized transaction(s), You Agree that in the absence of a proper and timely notice We shall have no liability whatsoever, to You and You further Agree that You are barred from bringing any related Claim against Us.
All feedback, comments, requests for technical support, and other miscellaneous communications relating to the technical support for the Platform should be communicated to Us according to the instructions of the Notice Section.
Some of the websites listed as links herein may let You leave Our servers, are not under Our control, and are provided for Your convenience only. Access to any other internet site linked to the Platform is at the User’s own risk, and We are not directly or indirectly responsible for the safety, accuracy, or reliability of any information, data, opinions, advice, or statements made on these linked sites. We do not make any representations whatsoever concerning the content of those sites. The fact that We have provided a link to a site is NOT an endorsement, authorization, sponsorship, or affiliation by Us with respect to such site, its owners, or its providers; We are providing these links only as a convenience to You. We have not tested any information, software, products, or services found on these sites and therefore cannot make any representations whatsoever with respect thereto. There are risks in Using any information, software, products, or services found on the internet, and We caution You to make sure that You completely and forever understand these risks before retrieving, Using, relying upon, or purchasing anything via the internet.
Without limitation, We may monitor, track, log, and record all access or use of the Platform and Services, the content of the Platform and Services, emails, text messages, chats, or other communications You have with Us for quality control, customer service, training, security, legal compliance, enforcement, and other lawful purposes. You hereby consent to such monitoring, logging, tracking, and recording. Your consent is ongoing and does not require additional confirmation before or during such activities, except as required by the applicable law governing this Agreement. We may also record and archive Your access, logins, page visits, and other uses of the Platform and Services and communications for regulatory purposes, to improve the user experience, analyze website traffic, enhance security, and other purposes. Said methods may be direct or through third parties, Including Google Analytics, which shall, as the case may be, use cookies to perform said functions. You waive, without limitation, all rights and defenses, including affirmative defenses, and Claims or objections at law, equity, or under other legal theories regarding this monitoring, tracking, logging, and recording or the collection, use, or accuracy of the information collected or its use in any proceeding.
We may preserve, without limitation, any transmittal or communication by You with Us, including communications through the Platform or any service offered on or through the Platform, emails, telecommunications, video communications, and may also disclose such data if required to do so by law or when We determine that such preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce this Agreement or Associated Account Documents, (iii) respond to claims, or (iv) protect the rights, property or personal safety of Us, Our employees, Users of or visitors to the Platform, and the public.
Accordingly, We may also monitor or record web visits and phone calls for security reasons, to maintain a record or to ensure that You receive courteous and efficient service. This Agreement provides expressed consent in advance to any such recording. You waive any and all objections to the collection, use or accuracy of such information and its use in any proceeding
To provide You with the best possible service in Our ongoing business relationship for Your Account We may need to contact You about Your Account from time to time by telephone, text messaging or email. However, We first obtain Your consent to contact You about Your account in compliance with applicable consumer protection provisions in the federal Telephone Consumer Protection Act of 1991 (TCPA), CAN-SPAM Act and their related federal regulations and orders issued by the Federal Communications Commission (FCC).
Your consent is limited to Your Account, and as authorized by applicable law and regulations.
Your consent is voluntary and not conditioned on the purchase of any product or service from Us.
Accordingly, We are authorized to contact any Person or Entity for which We have a contact record regarding any Account, Our Services or any other matter Using any telephone numbers or email addresses that You have previously provided to Us by virtue of an existing business relationship or that may be subsequently provided to Us.
This consent is regardless of whether the number We Use to contact is assigned to a landline, a paging service, a cellular wireless service, a specialized mobile radio service, other radio common carrier service or any other service for which You may be charged for the call. We are further authorized to make contact through the Use of voice, voice mail and text messaging, including the Use of pre-recorded or artificial voice messages or an automated dialing device.
The Parties in Interest Agree that upon Our reasonable suspicion of any breach of Our Collective Intellectual Property, We have the right to conduct an investigation by itself or a third party to determine the nature and scope of the suspected breach. The Parties in Interest further Agree that such process may include accessing and utilizing the Parties in Interest’s websites, services, computer software, and other such publicly available or publicly accessible repository of data. As such, the Parties in Interest waive all objections and claims against Us for such Good Faith investigation of a suspected breach or violation of Our Collective Intellectual Property. Further, the Parties in Interest Agree that any evidence supporting a breach or violation of Our Collective Intellectual Property obtained in the course of said Good Faith investigation may be used in any legal proceeding or adjudicative venue to protect and defend Our rights, including Our Collective Intellectual Property rights.
No Parties in Interest or third party dealing with Us shall be obliged to see to the application of money paid or property delivered to an Account, to inquire into the propriety of Our exercise of Our powers, or to determine the existence of any fact upon which Our power to perform any act hereunder may be conditioned.
Unless the context otherwise requires or except as expressly provided herein, any reference herein to a specific part, section, clause, or rule of any statute, regulation, rule, or doctrine will be deemed to refer to the same as it may be amended, re-enacted, or replaced.
A reference to a paragraph without identifying the Section or Article in which it appears has the same effect as naming the Section or Article in which the reference appears.
No authorization or approval or other action by and no notice to or filing with any Governmental Authority is required related to this Agreement.
Ongoing use of the Platform and the associated Services is conditional. We thus reserve the right to terminate, cancel, or suspend any Account, block transactions, or freeze funds immediately and without notice if We determine, in Our sole discretion, that an Account is associated with a Prohibited Use or a Prohibited Business.
If there is any uncertainty as to whether or not a business, use, or action is a Prohibited Use or Prohibited Business, or should You have questions about how these requirements apply in a specific situation, please contact Our client services team according to the Notice Provisions.
Your use of the Platform and Services are offered to You on the condition that said use does not violate any applicable provision of the Account Documents, law or regulation, is a means to disrupt the use of others, is a means to target Our systems, Services, Platform, staff, or related third parties. We enter into this Agreement with You with the understanding that You promise and warrant that You will not use Our Platform and Services for criminal/illegal, (including tax fraud, money laundering or terrorism financing) nefarious, discourteous, harassing, stalking, or other such purposes. You expressly warrant that You enter into this Agreement with Us with the sole and exclusive goal of carrying out the stated and intended purpose of the Account. Should We find, in Our sole and absolute discretion, that Your purposes of entering into this Agreement were contrary to those stated herein, We may discontinue providing Our Services to You and We may further pursue all legal remedies available to Us at law, in equity or under any other legal theory, including fraudulent inducement.
You may use the Platform only for lawful purposes and in accordance with this Agreement and in furtherance of the purposes stated in the Account Documents. You explicitly Agree not to use the Platform:
Additionally, You and the Parties in Interest Agree not to:
We have the right to:
Subject to the terms of the Privacy Policy, and without otherwise limiting the preceding, We have the right to cooperate fully with any law enforcement authorities or court order(s) requesting or directing Us to disclose the identity or other information of anyone posting any materials on or through the Platform. YOU WAIVE ALL CLAIMS AND HOLD US HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE PRECEDING PARTIES DURING OR TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, We cannot review material before it is posted on the Platform and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, We assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
The content on the Platform is available to You exclusively for the limited purposes outlined herein. It is strictly prohibited for You to use or upload content from the Platform into any hardware, software, bot, or external application, including any use(s) for artificial intelligence technologies such as large language models, generative artificial intelligence (AI), or training a machine learning or AI system. There is an additional express prohibition on AI systems and similar systems from crawling the Platform, recording content therein, archiving content, or otherwise using it for purposes other than those expressly outlined herein.
We have obligations to protect all content on the Platform. By accessing the Platform and using the Services, You share those obligations, and Your use(s) are limited to the permitted use(s) outlined herein. If there is a specific use case You would like Us to explore, please contact Us at according to the Notice provision.
Please use the following for all Notices associated with the Agreement or the Account. All Notices shall be in writing and mailed, first class U.S. Postal Service, deliverable to:
Platform Support
c/o Eastern Point Services
P.O. Box 232
Warrenton, VA 20188
We may additionally be contacted for questions at:
Phone: 855-222-7513
Email: [email protected]
For Your protection, We will not respond to emails notifying Us of lost or stolen usernames or passwords. Additionally, if a call is placed to Us, We may require an Acknowledged Communication or verification of identity or other information.
We have no knowledge, duty, or ability to identify all Parties in Interest when We have not been provided the information regarding the identity of any or all of the Parties in Interest, beneficiaries, or Claimants. Accordingly, the Agent’s delegated duty is to ensure that all Parties in Interest have been adequately informed of and provided copies or access to the Account Documents as appropriate. Any Claims arising from the Agent’s failure to provide copies of the Account Documents are solely the Agent's liability.
You hereby expressly waive the mailbox rule, and thus any notices hereunder shall not be considered received or given until We have actual delivery and receipt of any communications.
We reserve the right to, in Our sole discretion and without notice, withdraw or amend the Platform, its contents, and any Service We provide. We will not be liable if, for any reason, all or any part of the Platform is unavailable at any time or for any period. The Platform is made available “as-is,” and thus any errors or inaccessibility are not Our liability. From time to time, We may restrict access to some parts of the Platform to Users.
User is responsible, directly and indirectly, for the following:
User may be asked to provide certain registration details or other information to access the Platform or some of the resources it offers. It is a condition of User’s use of the Platform and Services that all information User provides is correct, current, and complete. User Agrees that all information User provides to register with this Platform or otherwise, including, through the use of any interactive features on the Platform, is governed by Our Privacy Policy located at https://www.easternpointtrust.com/privacy-policy.
When User chooses a username, password, or any other piece of information as part of Our security procedures, User must treat such information as confidential and not disclose it to any other Person or Entity. User also Agrees that User’s username and password combination is personal and agrees not to provide any other Person or Entity with access to this Platform or portions of it using User’s username, password, or other security information. User Agrees to notify Us immediately of any unauthorized access to or use of User’s username, password, or any other security breach. User also Agrees to ensure that User will exit from User’s account at the end of each session. User should use particular caution when accessing User’s account from a public or shared computer so that others cannot view or record User’s password and other Personal Identifiable Information.
We have the right to disable any username, password, or other identifiers, whether chosen by User or provided by Us, at any time in Our sole discretion for any or no reason, including if, in Our opinion, User has violated any provision of these Terms of Use.
It is a violation and breach of this Agreement, and a deemed act of computer trespass subject to criminal and civil enforcement and the Stipulated Damages herein, to access the Platform, or attempt to access the Platform: (a) with a false Internet Protocol (“IP”) address location other than the IP address of User’s actual physical access location; (b) through the use of any method similar to that of a proxy server, proxy server service, proxy redirect, IP address masking software, VPN, or another such service, method, or software whose purpose is to disguise or provide an IP address other than that of User’s physical access location; or (c) through the use of a fictitious user identity and/or the creation of a fictitious user account.
The Platform may use Automated Multi-Factor Authentication (MFA) Procedures in certain circumstances to verify the identity of the User attempting to log-on to the Platform, and is not a part of the Security Procedure associated with Account transactions. MFA may not be used in every instance. The implementation of this feature does not indicate that the MFA Procedures are used for or in connection with distributions from an Account. For clarity and avoidance of doubt, the MFA implemented at the log-in portion of the Online Portal is not to be construed as the or part of the Security Procedure or the Alternative Security Procedure associated with distribution petitions and other requests. The MFA Procedures do not create or imbue any other duties on Us, and We explicitly disclaim any such imputed duties that may arise in connection to the utilization of said MFA Procedures. Additionally, the use of said MFA Procedures rely on third-party software and service providers with whom We have no contractual duties or relationship. The MFA provider is User’s choosing, and User Agrees that User has read and understood the terms of use of said providers. As such, User Agrees to indemnify Us and hold Us harmless from any issue, dispute, problem, or other kind of adversity that may arise in connection with User’s usage of said MFA Procedure third-party provider.
We may rely solely upon the verbal and written (electronic and hard copy) information, instruction(s), representation(s), and warrants We receive from You without any duty or obligation of Us to conduct any additional audit, investigation, or inquiry to investigate, detect or determine if such information, instruction(s), representation(s), or warrants are fraudulent, untrue, unauthorized, inaccurate, coerced, incomplete, inconsistent with tax laws and doctrine, or inconsistent with any other applicable law or regulation. Further, We have no duty to investigate, detect, determine, or monitor for theft, conversion, fraud, inconsistency with tax laws and doctrine, inconsistency with any other applicable law or regulation, or unauthorized fraudulent intent as it relates to the information, instruction(s), representation(s), and warrants We receive from You, and We shall rely solely on the documents and information We receive from You. For purposes of clarity and the avoidance of doubt, this information may include things like bank information, addresses, full legal names, etc.
When petitioning for the disbursement of funds from an Account, You shall complete and return to Us the then-current Petition for Distribution Form. Failure to utilize the then-current form shall result in a rejection of the Petition. When preparing a Petition for Distribution Form, You shall disclose any material mortgages, security interests, pledges, liens, easements, or encumbrances of any kind whatsoever that may exist against the Requested assets. We have no duty to audit, investigate, or verify the information contained in the Distribution Petition Form received. You Agree that We do not have any further duty to investigate, monitor, or audit that the recipient of the associated funds has free right and title to all of the property and assets, tangible and intangible, and that the related assets are free of any material mortgages, security interests, pledges, liens, easements, or encumbrances of any kind whatsoever. You Agree that there is no universal database of bank account names and numbers, thus, it is impossible for Us to verify that the receiving bank account information is accurate or even the intended receiving account.
Any Claims arising from a third party asserting a Claim shall be the sole liability of the Parties in Interest due to the Parties in Interest’s failure to disclose the applicable mortgage, security interest, pledge, lien, easement, or encumbrance. We shall entirely, and without limitation, be held harmless and indemnified by the assets of the relevant Account and the Parties in Interest, jointly and severally and without limitation, for all costs related to such Claims, including attorney fees.
This release and discharge shall apply jointly and severally to Us, and as clarity all Indemnified Parties and Other Providers, including but not limited to their respective officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, heirs and assigns, and all other Persons or Entities with whom any of the former have been, are now, or may hereafter be affiliated.
To protect the assets of the Account from theft, conversion, or misuse, You Agree that You have a stipulated duty and a specific performance requirement to implement all possible safeguards to protect all information, passwords, system access information and forms related to the processes in Your possession associated with contacting or petitioning distributions and information from Us. The preceding shall include but not be limited to securing all physical files, computers, electronic devices, data files, network, and email systems from a breach, compromise, man-in-the-middle transmission intercept, malware, or any other security lapse or compromise. Further, the Parties in Interest acknowledge their duty to conduct the continuous and ongoing monitoring of such events.
We, or You, may need to electronically transmit confidential information to each other and other entities engaged by either party. E-mail is a fast and convenient way to communicate; however, internet transmissions, including emails, are never completely private or secure. You Agree that any message or information sent to Us may be read or intercepted by others, even if a particular transmission is encrypted, for example. Thus, e-mail is not necessarily a secure means of communication, and confidentiality could be compromised. THE USE OF E-MAIL AND OTHER ELECTRONIC METHODS TO TRANSMIT AND RECEIVE INFORMATION, INCLUDING CONFIDENTIAL INFORMATION, BETWEEN US AND YOU, IS ENTIRELY YOUR CHOICE. There are other more secure options to transmit data, including the United States Postal Service (USPS), private delivery services (e.g., FedEx, UPS, etc.), fax, and more. Accordingly, any loss resulting from the use of email or other unsecured communication is solely Your loss. Accordingly, the preceding provisions bar the Parties in Interest from any resulting Claim.
As required by the Federal Electronic Signatures in Global and National Commerce Act ("ESIGN"), by clicking the sign in (login) button, the User Agrees that the User and all other Parties in Interest have read, reviewed, and consented to being bound by these Terms of Use. The User and all other Parties in Interest Agree that in order to proceed and conduct business electronically, We may provide all Notices, Disclosures, and other communications in an electronic format on the Platform and otherwise. Thus, with each access of the Platform You reaffirm the Parties in Interest’s express consent to receive communications, Notices and Disclosures and Account Statements in electronic format. The Parties in Interest may withdraw this consent at any time by written Notice.
You Agree to provide a valid email address and must meet specific system requirements enumerated herein. In the absence of and valid email or refusal to provide such You may not utilize the Platform and We may terminate without any liability Your Account with Us. If additional information cannot be provided to You in electronic format, We, at Our sole discretion, may provide information to You in writing upon Your written Request. Accordingly, additional fees may apply.
When utilizing the Platform, the typing of Your name is Your electronic signature and is the equivalent of Your manual signature; by typing Your name You Agree to be legally bound by these Terms of Use and the associated Account Documents. When acting as an Agent for the Parties in Interest, You attest under penalty of perjury that You are legally authorized to act on behalf of the Parties in Interest and have acted upon lawful direction and the affirmative electronic submission of any Request or transactions shall be legally binding on You, and such transactions shall be considered authorized by the Parties in Interest.
Additionally, You Agree that clicking on an action button constitutes a click wrap agreement, binding You to said terms.
Any electronic execution is effective on the date and at the time You typed Your name as the executing party, or on the date You clicked to accept these Terms of Use.
Beyond Your login into Your account with Your unique username and password, no additional certification, two-factor authentication, or other verification is necessary to validate any electronic signature; the lack of such certification, two-factor authentication, or other third-party verification will not erode the enforceability and binding nature of any Account Document or this Agreement.
Pursuant to the provisions of this Agreement the security of Your systems, including securing, encrypting data at rest, protecting and otherwise safeguarding the hardware, systems, software, networks, apps, communications, data and devices is paramount and You have the sole duty and responsibility to securely electronically receive, secure, protect, download, review, save, store or print the Account Documents, this Agreement and any other associated Notices or Disclosures, communications, data, devices, forms, including hard-copy versions.
You Agree that if You do not implement and follow adequate hardware, security software, physical access and physical storage security procedures regarding data, including sensitive Personal Identifiable Information, the security of the Account and/or data may be compromised. By each Utilization of the Platform, You Agree that the installation, maintenance and operation of Your (hardware and software) and related security, including, data security, physical security, system protection, passwords, firewalls, anti-virus, and anti-malware software, is Your sole responsibility, and that User and Parties in Interest are solely responsible, directly and indirectly, for (i) securing, encrypting data at rest, protecting and otherwise safeguarding the hardware, systems, software, networks, apps, communications, data and devices utilized by User; and (ii) any resulting loss or liability resulting from a failure of the preceding.
User and the Parties in Interest are solely responsible for protecting the privacy and security of their systems, networks, data, communications, devices, browsers, documents, privacy, or physical security sent, received, or stored. Additionally, User and the Parties in Interest have the sole duty, jointly and severally, to secure all systems, networks, data, communications, devices, browsers, documents, privacy, or physical security of all types with physical security, anti-virus, malware protection, encryption of data at rest, anti-breach security software, and to provide training to the associated staff on the protection of such and safeguard their Online Portal from any unauthorized use or access. Any loss resulting from a breach of any associated systems, networks, data, communications, devices, browsers, documents, privacy, or physical security shall be borne solely, exclusively, and jointly and severally by User and the Parties in Interest.
All Users must have the following items in order to use the Platform:
You and the Parties in Interest jointly and severally represents and warrants to Us that User has all of the items listed above and they are currently active and implemented.
ISPs may charge a fee for their services. We are not directly or indirectly responsible for such fees. Further, We are no directly or indirectly liable or responsible for errors, security failures, or malfunctions of Your computer equipment, devices, or software. We are further not liable or responsible, directly or indirectly, for a User’s actions, or for the actions of any third party done from User’s computer or via related communication accounts. User alone is responsible, directly and indirectly, for ensuring User’s computer is protected and that security features and software are installed and maintained correctly, and that User’s internet service is working properly to prevent unauthorized access or compromise of Your system, devices, data, communications or functions. We are not directly or indirectly responsible for the effects of, or any losses User may incur as a result of any computer virus, malware, bad actor, or other program or device that infects Your system or assumes control of any Parties in Interest’s associated system, devices, operating system, or email accounts. We are not directly or indirectly responsible for maintaining the security of Your system or losses any Parties in Interest may incur as a result of any lack of or breach of any Parties in Interest system security or for losses which may incur as a result of faulty or compromised internet access.
We have no liability whatsoever for any damage, losses, or interruptions caused by any computer viruses, hacker, malware, other malicious code or bad actor actions that may affect Your computer or other equipment, or any phishing, spoofing, or other attack. We strongly encourage the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Us. If You have any uncertainty regarding the authenticity of any communication or notice from Us, We encourage You to log into Your Online Portal or call Us to review any transactions or required actions. Accordingly, the preceding provisions bar the Parties in Interest from any resulting Claim.
For Petitions, including Petitions for Distribution Forms received by Us, You Agree that the security procedure for Requests shall consist of any security procedure mutually established in the Account Documents. Should there be no such mutually established security procedure in the Account Documents, the Parties Agree that the following shall be the mutually agreed upon Alternative Verification Security Procedure:
Prior to authorizing a distribution of funds, the Trustee shall employ at least two (2) of the following elements, in any combination, as a multi factor verification process; the elements are, listed in no particular order or priority of choice, and each having equal value and weight: (i) verification of unique algorithms or another type of code or digital or User ID (alpha, numeric, or alphanumeric), (ii) verification of identifying words (single or combinations), (iii) verification of identifying numbers (single or combinations), (iv) verification of from prior communications, indicative data user data or transactions any one of more of the following within themselves or with one of the foregoing: email addresses, email MX records, email servers, internet protocol addresses, login IDs records, digital fingerprints, signature digital IDs (such as an Adobe signature ID or DocuSign signature ID), DocuSign Identify indicative data, Digital Certificates, account numbers, dates of birth (in whole or in part), social security numbers (in whole or in part), or Employer Identification Numbers (in whole or in part).
Notwithstanding the preceding, (i) this Alternative Verification Security Procedure and the Security Procedure do not conflict or supersede the Reliance Upon Information, Instruction, Representation, and Warrants; No Duty to Audit provision of this Agreement, and (ii)We are not required to accept or fulfill a transaction or Request that violates any other associated written agreement, Account Documents, state or federal statutes, regulations or rules, Our KYC/AML Policy, or operational procedures and (iii) You agree that a telephonic “call back” to an authorized party shall fulfill the security procedure and Alternative Verification Security Procedure requirement and release Us from any direct or indirect claim or liability at law, in equity or under any other legal theory
The Parties in Interest expressly reaffirm the security procedure and the Alternative Verification Security Procedure as Commercially Reasonable and as (i) the security procedure and the, disclosed, and offered at the time of the creation of the Account; (ii) if Supervising Third-Party verification option was refused, the Alternative Security Procedures shall apply exclusively; and (iii) the contractual terms of any written Request, whether or not authorized, and accepted by Us in compliance with the Alternative Verification Procedure outlined herein are valid and binding.
Notwithstanding the preceding, if an attorney (who is an active member of a state, the District of Columbia, or U.S. Territory or any other non-U.S. jurisdiction’s bar at the time), acting or representing in any legal capacity for one (1) or more Parties in Interest and the attorney (or their office) submits any Petition for Distribution Forms, We shall be able to make a Good Faith Reliance on the attorney’s Petition for Distribution Forms as a Supervising Third Party verification as the attorney is under a continuing duty under this Agreement and the respective attorney’s bar’s rules of professional conduct to protect client’s Personal Identifiable Information, client data, and the attorney’s systems, devices, networks, data, emails, logins and other communications.
You have an affirmative duty of due diligence to monitor and immediately communicate any information to Us that would materially affect an Account, Online Portal, the Platform, or a past, pending, or future transaction. The preceding includes (i) any breach of the Parties in Interest’s, hardware, systems, software, networks, apps, communications, data, or devices; (ii) a change in circumstances, including such as revocation of powers, death, divorce, liens, litigations or bankruptcy; (iii) obtaining additional information regarding any of the attestations, representations, and warranties made to Us, contemplated by this Agreement, or the Account Documents; or (iv) which would inform Us of material details or any other disclosure requirements after the date of this Agreement. Your duty to disclose continues throughout the term of this Agreement and survives the termination of the Account.
The Parties in Interest Agree that the preceding Security Procedure and the Alternative Verification Security Procedure are Commercially Reasonable methods of providing security against unauthorized access to Account Holdings.
Further, We have no liability for any absent, conflicting, modifying, or restrictive Notice which is not received in accordance with Our procedures and notification requirements or in a manner affording Us a reasonable opportunity to act on it before the Request or transaction is processed.
IT IS YOUR DUTY TO PREVENT FRAUD AND IDENTITY THEFT. While We employ numerous systems and safeguards to protect Your information, it is Your duty to make the Account, Account information, Account communications and transactions safe and secure. Listed below are practices to protect the Account and personal information while conducting business with Us.
Social Engineering
A technique used to obtain or attempt to obtain secure information by tricking an individual into revealing sensitive information. Social engineering is, unfortunately, often successful because most targets (or victims) want to trust people and provide as much help as possible. The basic goal of social engineering is to gain unauthorized access to systems or information in order to commit fraud, identity theft, or simply to disrupt and compromise computer systems.
What You can do:
Email Scams
Protect Yourself from internet and email scams by keeping Your private information secure. Email is not best practice to send or request confidential account information through email because it may not a secure form of communication. You should NEVER enter private, personal information in a form that was sent to You by email. Here are a few ways You can protect You from internet and email fraud (phishing):
NEVER click on links in unexpected emails that request confidential information. If updates to information are needed, always type the address for the institution’s website into Your browser.
Watch for misspelling or grammatical errors on forms requesting confidential information. Hackers often make errors while rushing to get bogus websites in place. If something doesn't look right, there is a good chance that it's not.
Before submitting confidential information through forms, make sure that You are using a secure internet connection. There are two ways of determining if Your connection to a website is secure. First, look at the address bar at the top of Your browser. If the website address begins with "https://", then You have established a secure connection, but if it begins with "http://", then the connection is NOT secure. Second, look for a "lock" icon in Your browser's status bar at the bottom right-hand corner of Your browser. The lock verifies that Your connection to the Web site is secure.
Fraud Prevention
If You receive a check in the mail that You are not expecting, DO NOT CASH IT. You should call the issuing bank directly to verify that the account is valid and the check is real. If You think You are the victim of a counterfeit check cashing scam, file a complaint with the U.S. government Internet Crime Complaint Center at www.ic3.gov. The FDIC Cyber and Financial Crimes Section can also be contacted at:
FDIC's Cyber Fraud and Financial Crimes Section: 550 17th St., NW, Room F-4040, Washington, D.C. 2042
We will NEVER unilaterally request a customer's personal information (bank card number, account number, social security number, personal identification number or password) through email or by phone. If You should ever receive an email or phone call requesting Your personal, confidential information that appears to be from Us, DO NOT respond and contact Us immediately.
Corporate Account Takeover Fraud
Corporate account takeover fraud is a form of corporate identity theft where a business’ online banking credentials are stolen by malware. Criminal entities can then initiate fraudulent banking activity, including wire transfers and ACH payments. Corporate account takeover fraud involves compromised identity credentials and is not about compromises to the wire system, ACH Network or other systems.
Email Account Takeover Fraud
Email account takeover fraud is a form of identity theft where a Person’s or Entity’s personal or business email credentials are stolen or used from information available of the Dark web and other sources. Criminal can then initiate fraudulent activity, including financial transfers and payments.
How You Can Protect Your Privacy
Identity theft is one of today’s fastest growing crimes. With identity theft, a thief uses stolen personal information, such as a Social Security number or bank account number, to open accounts or initiate transactions in Your name. Most victims will not discover the fraud until they apply for a loan or receive a call from a collection agency. Clearing Your name and erasing the effects of identity theft can take months or even years re-establishing Your creditworthiness.
Contact Us immediately if You believe that Your Account has been breached or hacked.
We utilize several techniques and technologies to protect Your personal information and privacy, including:
Individualized Password
When You sign up for online access, We ask You to create a unique username to access Your accounts. We allow You to select Your own username and password (long form pass-phrases are better) combination to sign on. We strongly recommend that You do not use Your Social Security number as a password.
Further, the User Agrees to update their password every 30 days. Each new password must be novel, and cannot be a reused password.
Timed Log-Off
Our system will automatically log You off from the Online Portal after 10 minutes of inactivity. This reduces the risk of others accessing Your information from Your computer.
Firewall
Our computer systems are protected 24 hours a day by a firewall that blocks unauthorized entry.
Encryption
When using Our Platform, all online access and sessions are encrypted.
TechnologyUpdates
In an effort to resist constantly evolving online threats, We have adopted proven industry standards for technology to protect Your account security.
Surveillance
Our security team maintains and monitors Our security systems to increase the security.
Additional Security Measures
Our layered approach to online security extends beyond a unique username and password, Hypertext Transfer Protocol Secure (HTTPS) which uses encryption for secure communication over a computer network, and is widely used on the Internet for encryption of website sessions, firewalls, technology updates, and surveillance. We have additional security measures that may be activated in response to certain activities or events. If We are suspicious of any online behavior, We may restrict online access to accounts or prevent certain types of transactions. Further proof of identity may be required before online access is restored; should You fail to provide sufficient verification of identity, We may, in Our sole and absolute discretion, terminate Your Online Portal and access.
We are committed to maintaining effective enterprise-wide Know Your Client (KYC), Know Your Business (KYB), Anti-Money Laundering (AML), Client Due Diligence (CDD), and Enhanced Due Diligence (EDD) programs designed to assist in detecting and deterring the misuse of Our Services and suspicious activity such as, and without limitation, money laundering, terrorist financing, bribery, corruption, fraud, or other activities that may be illegal or violate applicable economic sanctions.
Accordingly, as required of all financial institutions, Our KYC, KYB, CDD, and EDD processes are a foundational component of applicable laws and regulations. KYC requires financial services providers to establish and verify the identities of their customers in order to assess the money laundering risk that they present and understand their transactional behavior. However, those same verification measures are also necessary when financial institutions deal with other businesses as part of a supply chain, stakeholder, beneficiary, or similar relationship. In this context, that verification process is referred to as KYB.
Our enterprise-wide policies and procedures define Our respective risk appetite and establish the minimum requirements for managing the associated risks, including:
The Currency and Foreign Transactions Reporting Act of 1970 - which legislative framework is commonly called the "Bank Secrecy Act" (BSA) - requires U.S. financial institutions (whether they are a bank or not) to assist U.S. government agencies in detecting and preventing money laundering. Specifically, the act requires financial institutions to (i) keep records of cash purchases of negotiable instruments, (ii) file reports of single and structured cash transactions exceeding $10,000 (daily aggregate amount), and (iii) report activity that might signify money laundering, fraud, or other criminal activities. The BSA is sometimes referred to as an "anti-money laundering" (AML) law or jointly as "BSA/AML." (See 12 U.S.C. § 1829b, 12 U.S.C. §§ 1951-19600, 31 U.S.C. §§ 5311-5314, 5316-5336, and 31 C.F.R. Chapter X (formerly 31 CFR Part 103)). Several acts have been enacted, including provisions in Title III of the USA PATRIOT Act of 2001 and the Anti-Money Laundering Act of 2020, to amend the BSA.
The purpose of the USA PATRIOT Act is to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and other purposes, some of which include:
Various United States federal laws, regulations, and rules require all financial institutions to obtain, verify, and record information that identifies each Person or Entity which opens or operates an account and all related Underlying Beneficial Owners (UBOs).
On January 1, 2021, Congress enacted the FY2021 National Defense Authorization Act (NDAA), which included significant reforms to the U.S. anti-money laundering (AML) regime. The NDAA contains the Anti-Money Laundering Act of 2020 (AML Act) and, within the AML Act, the Corporate Transparency Act (CTA).
On March 1, 2011, FinCEN transferred its regulations from 31 C.F.R. Part 103 to 31 C.F.R. Chapter X as part of an ongoing effort to increase the efficiency and effectiveness of its regulatory oversight.
The Federal Register contains final regulations issued after the date of codification, as well as notices of Proposed Rule Making.
As part of Our government-mandated reporting and monitoring requirements, We may demand, in Our sole discretion, at any time, and without any requirement to disclose or justify the reason or rationale of the information demanded, updated CDD, EDD, KYC, KYB, and any other information that We deem necessary. As the delay of the necessary information may be crucial to Our KYC, KYB, CDD, EDD, or AML evaluations, We shall advise You of the required response deadline. The Parties in Interest Agree that Our demands for information, explanations, or documents do not require justification, and any non-compliance or untimely compliance with a demand for information or explanation may result in criminal or civil penalties.
We shall ask and the Parties in Interest shall provide, at a minimum, all names, addresses, date of births, and other information that shall allow Us to identify any User and all associated UBO’s, Control Persons, and entities. We may also require copies of driver’s license(s), passport(s), or other identifying documents. Additionally, We may access government and commercial databases, and any other information available to Us, to verify identities and related information. In the case of an Entity being a UBO or User, said Entity is required to disclose within thirty (30) days of occurrence any change in ownership or corporate structure. In the case of an Entity, information, including all associated UBOs and Control Persons, as well as information regarding all related entities, trusts, affiliates, subsidiaries, or other holding structures, must be specifically provided as required by law.
We may also require information and documents regarding one or more specific transaction(s), either pending or previously submitted, and the associated involved parties.
In the event of non-compliance, We may, in Our sole discretion, suspend, reject, or halt transactions. Also, at Our sole discretion, We may permanently suspend or terminate such non-compliant arrangements without notice or right of appeal, regardless of the contrary provisions of the associated Account Documents. In some instances, applicable law may require Us to file reports, IRS Form 1099, and conduct other governmental reporting (U.S. and foreign).
FATCA stands for Foreign Account Tax Compliance Act. FATCA is an information-sharing agreement, created via a 2010 U.S. federal law and cooperation agreements between the United States of America and more than one hundred (100) foreign countries. Under FATCA, financial institutions are required to comply with certain reporting requirements and identify and report non-United States financial accounts opened or controlled for the purpose of avoiding United States taxes through transfer payments or operations in tax havens, tax-free countries, or countries with lower corporate tax rates to avoid taxation.
FATCA does not require reporting related to non-U.S. citizens. As such, FATCA does not apply to non-United States citizens (and non-United States corporations) that have an account in a United States-based financial institution. However, foreign companies controlled, directed, or owned by a United States citizen may be subject to FATCA reporting.
Compliance with the preceding is mandatory, and any knowing or willful fraud, misinformation, objection, delay, dispute, or other obfuscation to delay or avoidance of the production of information or documents may constitute violation of federal, state and international law and may result in civil or criminal penalties.
If, in Our opinion (which may be formed upon the advice of counsel), any action or event contemplated by this Agreement would require compliance with the laws or comparable legislation of any jurisdiction. Accordingly, We may take such actions as We may deem appropriate to ensure such compliance. For purposes of clarity and avoidance of doubt, said compliance actions shall be deemed Good Faith for the purposes of the Agreement. In no event will We be required to provide services to Persons or Entities who are citizens, residents, or nationals of anywhere which would be in conflict with Our KYC and AML polices, risk policies, unlawful, restricted, under sanctions, or watchlists.
The forms, procedures, and optional policies of Trustee are an integral part of the operation of all Accounts. We and Other Providers may require specific forms, information, and procedures to be followed related to the operation of the Trust and requesting distributions or information. Furthermore, Trustees’ and Other Providers’ forms, procedures, and optional policies may change at any time without notice and such changes shall supersede prior versions upon the date of their promulgation.
Online Transactions allow You to access data and information, communicate Requests, petition actions, access certain Services, and utilize other features of the Platform. In order to conduct Online Transactions, You must maintain and create an Online Portal user account. By creating an Online Portal user account, accessing Your Online Portal user account, and using or accessing the Platform or Services, You are executing a clickwrap agreement and thus Agree that You have read, reviewed, and understood these Terms of Use and the Privacy Policy, You Agree to be bound by them. You Agree that these Terms of Use and the Privacy Policy apply to all Accounts linked to Your Online Portal, including Accounts You may add (or add in the future).
By inputting Your unique username and password and thus accessing Your Online Portal, You give Us express authorization to electronically complete any Requests submitted by You through the Platform. Further, by accessing Your Online Portal, You Agree to these Terms of Use and the Privacy Policy; each access to Your Online Portal shall constitute a singular and discrete Agreement to be bound by these Terms of Use and the Privacy Policy.
The Platform may be used to Request, subject to these Terms of Use and the Privacy Policy, all conditions and restrictions in the associated Account Documents, and approval of any of the following:
a. Transfer funds between Your Accounts;
b. Transfer funds to execute payments to other accounts with Us, such as a transfer from a QSF to fund another trust;
d. View current balances in Accounts;
e. View transaction histories for Account, to the extent available; and
f. Do routine maintenance such as changing Your password. We may occasionally add additional services to enhance the experience.
Some of the above services may not be available to You because of the type of account You have or other restrictions that may apply.
You waived all privacy objections and privileges as We may, when necessary, disclose information to third parties about You or Your Account or transactions, consistent with Our Privacy Policy and as outlined below:
i. Where it is necessary for completing transfers;
ii. In order to verify the existence and condition of Your account for a third party;
iii. In order to comply with government agency or court orders; and
iv. As explained in Our Privacy Disclosure.
Account terms may limit the timing, number, and type of transactions allowable. Please review all applicable Account Documents for additional information.
In case You have questions or concerns regarding a transaction(s), please contact Us according to the Notice provisions herein. You are responsible for notifying Us if You think Your Account Statement or Online Portal is incorrect or if You need more information about a transfer listed on an Account Statement or Online Portal. It is Your contractual duty hereunder to contact Us as soon as possible about a discrepancy in an Account Statement or Online Portal, but in any event, You must provide Notice to Us no more than 2 (two) Business Days after We post the Account Statement on which the problem or error first appeared.
Once We receive proper Notice from You about a suspected erroneous transaction, We will investigate said transaction and determine whether an error occurred within ten (10) Business Days from the date We received proper Notice from You. However, if We need more time, We may take up to 45 Business Days (90 Business Days if We deem and notify You that We require additional time) to investigate.
We will attempt to tell You the results of Our investigation within three (3) Business Days after completing Our investigation. If We determine that there was no error, We will send You a written explanation. You may ask for copies of the documents that We used in Our investigation.
The foregoing Investigation period does not constitute a “tolling” or “stay” of the ADR timing limitation provisions or any other statutory limitations period. The ADR must be invoked pursuant to its terms and timing limitations.
You may cancel Your Login Credentials at any time by notifying Us pursuant to the Notice provisions herein. Your cancellation will become effective after We have had a reasonable period of time to enact the cancellation, but in any event, at least three (3) Business Days after Our receipt of the cancellation Notice. All transactions pending through Your Account will be canceled. Cancelling Your Login Credentials will not close any associated Accounts. If You cancel Your Login Credentials, You will remain bound by these Terms of Use.
We may cancel Your Login Credentials and access to the Platform, at any time for any reason (including, without limitation, for inactivity), with or without notice to You. We will have no liability of any kind to You in the event We cancel Your Login Credentials and access to the Platform.
In the event that either You or Us cancels Your login credentials for access to the Platform and Services, these Terms of Use and the application of the Account Documents shall survive and remain fully binding and enforceable for a period of 5 (five) years following the cancellation date.
You must provide Us with a current, accurate and secure email address, for which You have sole control and do not share with anyone else, and other contact information in order to access any Account online. You Agree to update Us immediately if Your email address or other contact information has changed or has been compromised. You may notify Us of changes to Your email address or other contact information by updating Your contact information through Your Online Portal. However, if Your systems, email, passwords, internet service, or other such service has been compromised, You must notify Us immediately and via a secure method not subject to further compromise.
You Agree that it is Your sole and exclusive duty to ensure the security of all physical and electronic files, computers, electronic devices, data files, networks, and email systems from a breach, compromise, man-in-the-middle transmission intercept, malware, or any other security lapse or compromise. Further, You Agree that You have a stipulated duty to conduct continuous and ongoing monitoring for such events and that any loss or damages resulting from such a breach or compromise is Your sole liability.
If We initiate, through an ODFI Banks, electronic funds transfer debits and/or credits Requested for Account additions (or, when applicable, apply electronic funds transfer credits to the same).
If Your financial institution should return any such electronic debit(s) for any reason, We are authorized to collect a returned item fee per its then-current fee schedule plus the associated ODFI bank fees from the associated Account. You also Agree to be bound by the ODFI financial institution’s rules governing such transactions. If an authorized funds transfer is rejected again, We will bar You from any future electronic fund transfers.
By Requesting an electronic funds transfer, the Requestor (or its Agent) Agrees that they are an authorized signer on the financial institution account associated with this Request.
We charge fees for the Services offered, as well as for work and maintenance performed on Accounts for which provide services. Fees are listed in the associated fee schedules. We reserve the right to change the fee schedules at any time, subject to any notice or other requirements under applicable law or the applicable Account Documents.
We are a non-depository institution. As such, We do not hold Your funds on deposit and thus are not a bank. All funds remain deposited and in the custody of Custodian Banks which may apply Regulation CC Compliance and other collected funds limitations. You Agree to promptly comply with all information requests necessary for all compliance conducted by Custodian Banks; Your failure to promptly comply with said requests constitutes a breach of this Agreement and may lead to Us cancelling all the Platform and Services rendered by Us. You Agree that funds received to be applied to an Account as an addition of funds will be available funds as follows:
Only monies received in United States Dollars will be applied to any outstanding balance(s)on Account(s).
The payment application process will first prioritize the oldest outstanding balance (in total) and shall not be applied to any one specific invoice or invoice line-item, regardless of any client-attempted invoice or line-item limitation declaration. Regardless of the number of invoices or line-items associated with a client's outstanding balance, payments shall be credited to the oldest unpaid (outstanding) gross balance.
The oldest outstanding balance refers to the outstanding amount that has been due for the longest period of time.
Payments will be applied to the principal amount first, followed by any applicable interest, past-due fees, or other fees associated with the outstanding balance.
Clients are notified of this payment crediting policy through various channels, including the Platform, the Online Portal, invoices, Account Statements, and other customer support channels. You Agree that, by this notice, You have received commercially reasonable notice and that the terms herein are fair and equitable.
Invoices are due within thirty (30) calendar days of receipt. If You fail to make a payment by the due date, it shall be deemed a missed payment and thus an Unpaid Invoice.
You Agree that Unpaid Invoices shall accrue a late fee of one and one-half percent (1.5%) per month that shall be assessed on the then-current outstanding past-due balance from the original due date. Said accrued late fee shall be added to the then-current balance and carried forward additively until paid. In addition, You shall, without limitation, be jointly and severally liable for any Unpaid Invoices. Further, You shall, without limitation, be jointly and severally liable for reimbursing Us for all court costs, collection fees, processing fees, late fees, and attorney fees associated with the collection or defense of any Unpaid Invoices. Moreover, You Agree that should any invoices go unpaid for more than thirty (30) days, We may, without notice and without waiving any of Our other rights, suspend all Services until all fees, including any applicable Late Fee, have been paid.
Upon the occurrence of any Event of Default or Breach, We are authorized at any time, to the fullest extent permitted by law, to set off and apply any Account Holdings (general or special, time or demand, provisional or final) to other fees or cost owed to Us against any or all related Accounts, irrespective of whether or not We shall have made any demand under this Agreement and although such obligations may be contingent and unmatured. We Agree to notify promptly, by posting the identifiable fees transaction to Your Online Portal, of any such set-off after any such set-off and application is made; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application, and shall not create a cause of action whatsoever. The rights enumerated within this provision are in addition to other rights and remedies (including, without limitation, other rights of set-off) We may otherwise have.
The Parties in Interest Agree that in order to maintain a lower cost of service, We may collect available servicing and other fees, but no securities commissions or fees, from third parties including custodians. In no case shall the receipt or collection by Us of direct, or indirect, fees or payments for services provided for in this Agreement be construed as self-dealing or a breach of duties whether such fees and payments are paid directly by the Account or by any other third parties. Therefore, the Parties in Interest hereby Agree to Us having an interest in transactions involving Account Assets and hereby acknowledge and consent to the conflict of interests between Us and the Parties in Interest, including, but not limited to, the use, enjoyment, and risks pertaining to the Account Assets. The Parties in Interest exonerate Us and affirmatively waive any breach of duty, fiduciary or otherwise, or conflict of interest, known or unknown, between Us and the Parties in Interest, including any applicable duty of loyalty to the Parties in Interest upon the condition that We act in Good Faith with due regard for the purpose of the Account and fee structure. Notwithstanding any rule of law against self-dealing, divided loyalty, or conflict of interest, We are specifically authorized to forward to the applicable custodian instruction related to all or any portion of the Account Assets through affiliated trading platforms, and to exercise all rights connected with the execution and holding of such assets. In addition, We are specifically authorized to engage Affiliate entities to provide services to the Account, including, without limitation, custodial, and agency services. We shall not be required to reimburse or credit to the Account the cost of such services, value of any benefits, or compensation received by Us or any of Our Affiliates in connection with such services.
Business operations are generally conducted on Business Days during the hours of 9:00 AM to 4:00 PM Eastern Time. We reserve the right to shorten Our operating hours or close on certain Business Days without notice.
The processing and submission cutoff is generally 1:00 PM EST; however, some processing may take place earlier in the Business Day. Requests submitted after 1:00 PM Eastern Time on a Business Day or submitted on a non-Business Day shall be scheduled for review the following Business Day. Requests You submit via other methods than through Our Platform may have other processing timelines. We may, without any guarantee of future effect, agree from time to time to extent processing time frames.
Contact Us during the above-noted Business Hours if You have questions regarding specific submission processing times. Requests that are in good form and otherwise executable, submitted after the applicable cutoff time, shall be part of the next Business Day’s review process.
Each Request, shall be processed, pursuant to Our then current policies and Account Documents, and only after an initial ministerial review to ensure the Request is (i) properly submitted via the then-applicable current form, agreement, and process, is (ii) legible, complete, executed, and conforms with the related conditions associated with the Account, the Account Documents, this Agreement and Our current policies and procedures, including KYC/AML. All Requests are subject to delay, suspension, or rejection, including when We request additional information regarding the Request or the associated parties, payee, or payor. Certain types of Requests may be subject to one or more security, authorization or verification procedures; accordingly, processing delays may occur due to said procedures.
Additionally, processing delays or rejections may occur from Institutional Custodians delaying, suspending, or rejecting a submitted transaction; We have no liability for any decision or action taken by any Institutional Custodian. Institutional Custodians may also impose specific fees or costs. These fees and costs are solely the liability of the Account and You.
NOTICE: READ THIS SECTION CAREFULLY AS IT CONTAINS BINDING AND IRREVOCABLE DISPUTE RESOLUTION PROVISIONS AS WELL AS LIMITATIONS ON DISCOVERY, DEFENSES AND SUBPOENA POWERS WHICH LIMIT YOUR RIGHTS AND AVAILABLE DEFENSES AND DISCOVERY.
You Agree to the following binding Alternative Dispute Resolution Process (“ADR”). You and We may alter the below-outlined process according to the provisions below.
This Section provides for a binding alternative dispute resolution process with the goal of ensuring a simpler, more informal, and more expeditious process.
The following Alternative Dispute Resolution Process, Defense and Discovery Limitation Provisions are not a condition of contracting with Us. You may request, in a written request titled “Request to Negotiate the Alternative Dispute Resolution Process, Defense and Discovery Limitation Provisions” within five (5) business days of from the date and time of Your initial access or use of the Platform or Services, and before any further access or use of the Platform and Services, to negotiate a mutually acceptable alternative provisions of the Alternative Dispute Resolution and Discovery Provisions provided in this Section. You must do so, prior to a second or additional access or use of the Platform or Services. Your “Request to Negotiate the Alternative Dispute Resolution Process, Defense and Discovery Limitation Provisions” notice must plainly indicate Your express intention requesting a negotiation of the terms and provisions of this Section. You shall send this “Request to Negotiate the Alternative Dispute Resolution Process, Defense and Discovery Limitation Provisions” written request according to the Notice provisions of this Agreement.
For purposes of this Section, the “Request to Negotiate the Alternative Dispute Resolution Process, Defense and Discovery Limitation Provisions notice shall be considered given and received by Us if: (i) It is postmarked within the given time period, (ii) its contents expressly state Your intent to request an amendment of this Section, and (iii) delivery is confirmed to the address contained in the Notice provisions of this Agreement.
Should You fail to provide the “Request to Negotiate the Alternative Dispute Resolution Process, Defense and Discovery Limitation Provisions” request as titled and outlined above and/or access or use of the Platform or Services a second or subsequent time, such actions or inactions (as the case may be) shall constitute an irrevocable and affirmative acceptance of the Alternative Dispute Resolution Process, discovery, and subpoena limitation provisions herein.
Finally, should You elect to request modification under this Section, We reserve the right to terminate this Agreement, all Accounts, and Services provided to You without further advance notice or cause. Should We elect to terminate the Agreement, We shall mail a notice to the Person who made the initial request stating as such; this notice will be considered given and received by the Parties in Interest when such notice is postmarked. Finally, for clarification purposes, Your election to exercise Your right to request a modification of this Section does not discharge any other right, duty or obligation under this Agreement or any other agreement You may have with Us.
Should the Parties in Interest assert a dispute or justiciable issue with Us, such disputes shall be brought forth and resolved exclusively through the ADR process contained herein. For clarification, all disputes brought by Parties in Interest against the Us alleging any Claim shall be resolved solely by the following binding triphasic ADR Process, which consists of an Investigation Phase, Negotiation Phase, and Mediation Phase and the Parties in Interest are barred from any other judicial process or litigation. The Parties in Interest Agree that the Alternative Dispute Resolution Process cannot be avoided or rendered nugatory by filing any other lawsuit or proceeding and waive all rights to do such. However, We do not waive their right to litigate a dispute, claim or issue they may have against the Parties in Interest, We explicitly and without limitation preserve all other rights and legal remedies available to Us. The Parties in Interest expressly Agree to be bound by the exclusive dispute resolution process detailed in this Section.
The Parties in Interest Agree that the Alternative Dispute Resolution Process period shall not “toll” or stay the running of any applicable statute of limitations regarding the claims or disputes in question nor toll the limitation periods contained herein. The Parties in Interest further Agree that the applicable limitation period for any claim they may have against the Us shall begin to run (expire) at the moment of the issue arises or the associated transactions is posted on the Account (generally the same day and time as the transaction itself), not when the Parties in Interest discover such issue. Finally, the Parties in Interest Agree that, in the event they file a lawsuit in violation of these Terms of Use, all tolling shall be rendered nugatory and no tolling shall occur while said litigation is pending.
The Parties in Interest Agree that the Alternative Dispute Resolution Process herein outlined is valid, enforceable, and irrevocable. Consequently, the Parties in Interest Agree to (i) limit the resolution of a dispute initiated directly or indirectly by any Parties in Interest solely to this Alternative Dispute Resolution Process; (ii) waive all rights to a jury trial; (iii) waive all rights to file any action (including class actions) in any federal or state court of the United States or any other country;(iv) waive all rights to remove any action to any federal or state court of the United States or any other country; (v) waive any rights to transfer or change the venue of any litigation brought by Us against any Parties in Interest; (vi) waive any right to an appeal; (vii) waive the right to have broad discovery as such may be provided under the Federal Rules of Civil Procedure, applicable State Rules of Civil Procedure, or other court rules; (viii) Agree to the defense, discovery and subpoena limitations set forth herein; and (ix) waive any objection to this ADR Process and associated limitations on any grounds at law, in equity or legal theory, including grounds that You may incur higher or accelerated costs as compared to litigation or have fewer grounds for claims.
For the dispute resolution process to commence, the Parties in Interest (the “Complaining Party”) must notify Us in writing by completing a Complaint Form in its entirety. The Complaint Form can be requested by calling Us at 855-222-7513, or by emailing Us at [email protected].
If the Complaining Party does not fulfill the procedures set out in this Section, including the use of the then current Complaint Form then We have the right to terminate the ADR and dismiss the dispute with prejudice, including Our right, at Our sole discretion, to petition the court of jurisdiction to affirm the dismissal with prejudice. Said right to petition the court lies solely with Us. Accordingly, failure to comply with the following provisions bar the Complaining Party from any resulting Claim, rights or litigation.
Otherwise, all Claims arising out of, or relating to, this Agreement, Our acts or inaction, Services, Accounts, Account Documents, or this Platform, or any other related matter, including any alleged breach or any other claim, defense, or objection at law, or in equity or in theory, which the Parties in Interest now have or which may hereafter accrue or otherwise be acquired or asserted on account of, or may in any way grow out of or relate to, this Agreement, Our acts or inaction, Services, Accounts, Account Documents, or this Platform, shall be solely resolved with the following procedures:
First—Inquiry. The Inquiry phase is a mandatory precondition to the Negotiation Phase. Upon timely receipt of a complete and accurate Complaint Form, a Resolution Agent will review the matter. The Resolution Agent will evaluate the matter based on the information the Complaining Party provided and information in Our possession. Within forty-five (45) Business Days of Our receipt of the Complaint Form, We will address the issues raised in the Complaint Form by sending the Complaining Party a letter ("Resolution Notice") in which the Resolution Agent will: (i) offer to resolve the complaint in the way Requested; (ii) make a determination rejecting the complaint and set out the reasons for rejection; or (iii) offer to resolve the complaint with an alternative solution. In circumstances where the Resolution Agent is unable to respond to the Complaint Form within forty-five (45) Business Days for reasons beyond Our control or because there is a need for additional information, the Resolution Agent will send the Complaining Party a communication indicating the reasons for any delay in answering the complaint, and specifying the timeframe by which the Resolution Agent will respond to the complaint; this timeframe will be no more than seventy-five(75) Business Days from Our receipt of the Complaint Form.
Inaccurate, incomplete, frivolous, misleading, or omitted related or relevant information on the Complaint Form shall not establish a basis for appeal, objection, or judicial action regarding the Resolution Agent’s determination. Should the Inquiry Phase be unsuccessful in remedying the dispute, the Parties may schedule a Negotiation of said dispute as outlined below. In the event that the Parties in Interest refuse to enter into the negotiation phase and are unsuccessful in the investigation phase, they are barred from bringing any other action. Further, in the event that the Parties in Interest ignore Our communications following the completion of the Inquiry phase for ten (10) calendar days or more from the first issuance of a communication, the entire ADR process outlined herein shall be deemed terminated. The Parties in Interest shall be deemed to have accepted the outcome stated in the original communication, and are thus barred from bringing any further action or claim whether at law, in equity or other legal theory against Us.
Second—Negotiation. The Negotiation phase is a mandatory precondition to the Mediation Phase. The Complaining Party noticing the claim or dispute and or asserting the claim - must fully satisfy all of the requirements of the Inquiry process If the preceding prerequisite Inquiry process has proceeded timely, the Complaining Party has fully complied with the requirements and procedures of the Inquiry process, and the Inquiry process fails to resolve the dispute, then a "NOTICE OF REQUESTED DISPUTE RESOLUTION BY Negotiation" shall be served to the Us pursuant to the Notice Provisions Section herein. Upon the satisfaction of the preceding then the Parties shall proceed to Negotiation within thirty (30) days unless all Parties have previously agreed to a different time frame in writing. The Parties shall coordinate and schedule a negotiation. Within ten (10) Business Days of the scheduling a negotiation, the Complaining Party shall submit a complete and detailed Written Brief. The preceding shall constitute the sole facts, arguments, exhibits, supporting citations, and analysis of all related provisions of the applicable law, associated Account, and incorporated provisions allowable by the Complaint and their related parties during the entire Alternative Dispute Resolution process and shall be solely relied upon by any future Mediator without amendment or supplement. The Written Brief must identify and not omit any and all applicable provisions (including limitation and exculpatory provisions) of this Agreement and the Account Documents.
The Complaining Party noticing the claim or dispute or asserting the claim - must fully satisfy all of the requirements of the Negotiation process detailed in the preceding paragraph prior to the initiation of the Mediation process detailed below. The parties shall make all reasonable efforts to complete the Negotiation within thirty (30) Business Days of the first Negotiation session.
The Negotiation process shall be confidential and sealed. As such, all communications, both written and oral, during the phases outlined above are confidential and treated as settlement negotiations for purposes of any applicable rules of evidence; however, documents generated in the ordinary course of business prior to the dispute in question that would otherwise be discoverable under the discovery procedures outlined below do not become confidential simply because of their use in the Negotiation process.
In the event the Negotiation process is not completed due to a failure of the Complaining Party to notice the claims or disputes in compliance or with the applicable requirements, said Complaining Party shall irrevocably, unconditionally, completely, and forever waive any resulting claim, counterclaim, defense or objection at law, in equity or theory, which the Parties in Interest now have or which may hereafter accrue or otherwise be acquired or asserted on account of, or may in any way grow out of or related to, the associated claims or causes of action and thus be barred from bringing forth any other claim, legal action at law, inequity, or in theory in any jurisdiction, court, or other adjudicatory body.
During or before the Negotiation process, We have the right, and may exercise said right at any time, not to proceed to or, to delay the Negotiation process, or dismiss the matter with prejudice due to the Complaining Party's failure to fully comply with the requirements of this Alternative Dispute Resolution process. In such an event the they are barred from bringing any other action at law, in equity or other legal theory.
In the event that the Parties in Interest refuse to enter into the Mediation Phase and are unsuccessful in the Negotiation Phase, they are barred from bringing any other action at law, in equity or other legal theory. Further, in the event that the Parties in Interest fail to respond in writing by the Notice procedure Our communications following the completion of the Negotiation Phase for ten (10) calendar days or more from the first issuance of a communication, the entire adjudication process outlined herein shall be deemed terminated. The Parties in Interest shall be deemed to have accepted the outcome stated in the original communication, and are thus barred from bringing any further action against Us at law, in equity or other legal theory.
Third—Mediation. The Investigation and Negotiation phases and their conditions are a mandatory precondition to the Mediation Phase. If the prerequisites of the Inquiry and Negotiation processes have proceeded timely, and the Complaining Party has complied fully with all associated procedures and have failed to resolve the dispute, then the Parties shall proceed to binding Mediation unless all Parties have previously agreed to a different time frame in writing. A "NOTICE OF REQUESTED DISPUTE RESOLUTION BY MEDIATION" shall be served to Us pursuant to the Notice Provisions Section herein, by the Complaining Party, signifying that the good faith negotiation was unsuccessful and requesting the commencement of the Mediation process. The Parties shall agree on a single mediator within Fauquier County; however, if they cannot mutually agree to a single mediator within sixty (60) Business days of the Notice of Requested Dispute Resolution by Mediation being served, then an attorney or law firm to be named by Us shall appoint a mediator. The Mediation location shall be in Fauquier County, Virginia, where the parties shall physically attend. Failure to attend any session or appear timely shall result in the immediate dismal of the matter with prejudice and the Parties in Interest thus shall be barred from bringing forth any other claim, legal action at law, inequity, or in theory in any jurisdiction, court, or other adjudicatory body.
The Mediation session shall be held within one hundred and twenty (120) Business Days of the retention of the mediator and last for at least three (3) full Mediation sessions of one (1) hour before any involved Party has the option to withdraw from the process. The parties involved in the Mediation may agree to continue the Mediation process beyond the initial three (3) Mediation sessions until there is a settlement agreement or one of the involved Parties or the mediator states that there is no reason to continue because of an impasse that cannot be overcome and the mediator sends a written "NOTICE OF TERMINATION OF MEDIATION" to all Parties. All reasonable efforts shall be made to complete the Mediation session within one hundred and twenty (120) Business Days of the first Mediation session.
During or before the Mediation process, We have the right, and may exercise said right at any time, not to proceed to or to delay the Mediation process due to the Complaining Party's failure to fully comply with the any requirement of this Alternative Dispute Resolution process. The Party that noticed the dispute shall solely bear the Mediation costs, including all attorneys’ fees and costs of Us, unless the Parties agree otherwise in writing. The service of the NOTICE OF REQUESTED DISPUTE RESOLUTION BY MEDIATION shall not toll or stay the running of any applicable statute of limitations or other limitation period regarding the dispute in question.
All communications, documents and work product, including those of the Mediator, both written and oral, during the phases outlined above are confidential, sealed, and treated as settlement negotiations for purposes of any applicable rules of evidence. As such, the Parties in Interest Agree that all such documents and work product are beyond the scope of discovery or a subpoena.
The Mediation process shall be confidential and treated as settlement negotiations for purposes of any applicable rules of evidence.
The Parties in Interest Agree that in the event the Mediation process is not completed due to a failure of the Complaining Party to comply with its requirements, the Parties in Interest shall irrevocably and unconditionally waive all associated claims or causes of action and be barred from bringing forth any other legal action at law, in equity or other legal theory in whatever dispute resolution venue, including a court of law.
The Mediation is final and binding, and the Parties in Interest waive all rights to other resolution processes, such as court actions, administrative proceedings, or arbitration. The Parties in Interest waive the right to bring forth any other claim at law, equity, or in theory, related to the Platform or any Account. Judgment on the mediator's award may be entered in the Court of Jurisdiction per the terms hereof. Further, in the event that the Parties in Interest ignore Our communications or the communications of the mediator following the completion of the Mediation Phase for ten (10) calendar days or more from the first issuance of a communication, the entire adjudication process outlined herein shall be deemed terminated. The Parties in Interest shall be deemed to have accepted the outcome stated in the original communication, and are thus barred from bringing any further action against Us.
Notwithstanding the preceding, and at the Our sole discretion, We have the right (without prejudice to the facts, standing, or prior Good Faith efforts) to cease the ADR process and institute any action against any party in the Court of Jurisdiction, stipulated in the Agreement, for breach, injunctive or other equitable relief or claims as We deem appropriate.
Further, the Parties in Interest shall not, directly or indirectly, make, or cause to be made, any public statements, including comments or statements to any third parties, press releases, or announcements regarding any pending, active, or resolved dispute, the ADR provision, court actions outlined above, or the underlying facts or allegations, ultimate findings or determinations in connection therewith.
The Parties in Interest irrevocably and unconditionally waive any objection which the Parties in Interest now have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of any related matter. Accordingly, the preceding provisions bar the Parties in Interest from any resulting claim, counterclaim, defense, or objections at law, in equity, or theory in any jurisdiction.
Jury Trial Waiver
YOU AND WE KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE OUR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY PROCEEDING, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM OR RECEIPT OF SERVICES REGARDLESS OF CAUSE, DIVERSITY, AMOUNT, OR THE NATURE OF THE CLAIM AT LAW, IN EQUITY, OR IN THEORY.
IN THE EVENT OF ANY ASSOCIATED LITIGATION THE PARTIES IN INTEREST IRREVOCABLY AND UNCONDITIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL AND THE PARTIES IN INTEREST VOLUNTARILY, IRRECOVERABLY AND UNCONDITIONALLY BIND THEMSELVES SOLELY TO THE ALTERNATIVE DISPUTE RESOLUTION SECTION OF THIS AGREEMENT.
THE PARTIES IN INTEREST ACKNOWLEDGE THAT THE HAVE HAD A REASONABLE OPPORTUNITY TO SEEK OR RECEIVE THE ADVICE OF COUNSEL WITH RESPECT TO THEIR DECISION TO WAIVE THEIR RIGHTS TO A TRIAL BY JURY. ACCORDINGLY, THE PARTIES IN INTEREST IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION WHICH THEY NOW HAVE, OR WHICH MAY HEREAFTER ACCRUE OR OTHERWISE BE ACQUIRED, ON ACCOUNT OF, OR MAY IN ANY WAY GROW OUT OF ANY RELATED MATTER. ACCORDINGLY, THE PRECEDING PROVISIONS BAR THE PARTIES IN INTEREST FROM ANY RESULTING CLAIM, COUNTERCLAIM, DEFENSE OR OBJECTIONS AT LAW, IN EQUITY, OR IN THEORY IN ANY JURISDICTION.
Any dispute resolution shall be conducted in a Party’s individual capacity only and not as a class action or other representative action. The Parties in Interest expressly waive their right to file a class action or seek relief on a class, multi-plaintiff or mass tort basis.
The Parties in Interest Agree that the relationship between the Parties in Interest and Us is contractual in nature. The Parties in Interest are bound by a number of contractual agreements Including these Terms of Use, the Account Documents, and the Privacy Policy. As such, in the event of litigation, the Parties in Interest Agree that We will file with the Court of Jurisdiction a Motion Craving Oyer relative to the preceding as well as other documents which may be germane to the subject litigation. The Parties in Interest further Agree that all objections to such a Motion Craving Oyer are waived and moot, and the Parties in Interest further Agree to promptly and without objection assent to a stipulated order providing that all documents sought under said Motion Craving Oyer shall be admitted under said Motion Craving Oyer. In the event that the Parties in Interest do not promptly assent to said Motion Craving Oyer or bring forth an objection to said Motion Craving Oyer before the Court of Jurisdiction, such actions shall constitute a breach of this Agreement, and We shall be entitled to recover all costs and fees (external and internal) associated with the Parties in Interest’s objection to said Motion Craving Oyer, Including attorney’s fees and court costs.
The Parties in Interest expressly waive any right to discovery except as set forth in this Agreement or written mutual agreement of the Parties. Further, the Parties in Interest Agree that the provisions of this Section shall apply to any dispute between the Parties and in any dispute resolution process such as, and without limitation, an investigation, negotiation, mediation, or court of law.
The Parties in Interest Agree that they have had an opportunity to review these terms and willingly accept to be bound by them.
The Parties in Interest Agree that discovery will be limited to activity, documents, and communications (except those which are otherwise protected by privilege or the privacy policy [found at https://www.easternpointtrust.com/docs/privacy-policy]) materially related to the relevant dispute(s). Notwithstanding the preceding sentence, the Parties in Interest expressly Agree that the Parties’ Privileged Documents shall not be discoverable, irrespective of whether the Parties or a third-party custodian has the Privileged Documents. Additionally, for the purposes of this Agreement, no Person, investigator, negotiator, mediator, or court shall have the power to subpoena any documents, records, reports, or writings of either Party. Moreover, no Person, investigator, negotiator, or mediator shall have the power to subpoena any of Our staff, affiliate, agent or third party in an individual capacity.
The Parties in Interest Agree to be bound by the following confidentiality terms in dealing with all documents produced in the course of any dispute as governed by this Agreement. The Parties in Interest Agree that only Authorized Persons will have access to Produced Documents. The Parties in Interest shall ensure that no one, except for Authorized Persons, has access to Produced Documents. This includes, by way of example and without limitation, a prohibition on the distribution, publishing, copying, photographing, transcribing, dictating, orating, reproducing, paraphrasing, citing, quoting, allowing inspection by whatever means, allowing observation, or any other means of relaying, transmitting, or delivering the Produced Documents or its contents to anyone other than Authorized Parties.
The content of www.easternpointtrust.com and its subdomains, affiliate webpages, links, and functionally as an original works of authorship are copyrights © of Eastern Point Trust Company 2007-2024. All use, copies or divertive works are prohibited without the specific written consent of Eastern Point Trust Company.
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