(k)quote Terms of Service

TERMS OF USE

This Terms of Use Agreement (the “Agreement”) sets forth the terms and conditions upon which an end user may visit or use this website, including software offered through this website (“Website”). Throughout this Agreement, the terms “we,” “us” and “our” refers to (k)quote, Inc., and “you” and “your” refer to you, as the end user of the Website.

By visiting the website, you are agreeing to be bound by the terms and conditions (“Terms”) of this Agreement. Please read these Terms carefully and ensure that you understand them before you use the Website.

We reserve the right to modify (a) the contents of the Website at any time, including the features, availability or operation of the Website, (b) these Terms, and (c) any and all policies or notices regarding the Website. Notices of all such modifications shall be made available via the Website, and you agree to monitor the Website for such notices. Further, you agree that your continued use of the Website following such notices signals your understanding of and agreement to such modifications. EACH TIME YOU USE THE WEBSITE, THIS AGREEMENT AS IT THEN READS WILL GOVERN YOUR USE.

Website License

We grant you a revocable, non-exclusive, non-transferable, limited license to use the Website solely strictly in accordance with the terms of this Agreement.

Accuracy, Completeness and Timeliness of Information

Although we make reasonable efforts to ensure that all information included in the Website is correct, accuracy and integrity cannot be guaranteed, and we do not assume any responsibility or obligation for the accuracy, completeness, timeliness, or authenticity of information included in or accessed through the Website. We are not under any obligation to post, forward, transmit, distribute, or otherwise provide any information and/or material available from the Website.

Regardless of any information made available via the Website, we reserve the right, without prior notice, to remove or alter content at any time without incurring any obligations.

Use of the Website

Certain portions of the Website require users to log in. You must have your own unique log-in credentials to use the Website, and you may not share those credentials with anyone for any purpose. You must safeguard your log-in credentials. You must immediately report to us any incident or occurrence that causes you to suspect that your log-in credentials, the Website, or any information made available through the Website has been compromised, disclosed, or adversely impacted in any way.

All content included in the Website, such as text, design, graphics, logos, icons, images, audio clips, downloads, interfaces and code, software, any intellectual property held by us, and the selection and arrangement of any of these, are our exclusive property and is protected by copyright, trademark and other applicable laws. The copying, downloading and/or printing of information and/or material included in the Website, other than as otherwise expressly permitted by us, is for your use only and is conditioned on your prohibition from modifying or deleting any copyright, trademark or other proprietary notice that appears on the information and/or material accessed, copied, downloaded, or printed from the Website. Any other use of such information and/or material contained in the Website, including, but not limited to, the modification, distribution, transmission, performance, broadcast, publication, licensing, reverse engineering, transfer or sale of, or the creation of derivative works from, any such material, information, software, products, or services obtained from the Website, is expressly prohibited. We retain full and complete title to such information and material provided via the Website, including all associated intellectual property rights. We do not warrant or represent that use of information and/or material from the Website will not infringe rights of third parties not affiliated with us.

Improper use of information provided in the Website, including the intent to damage or interfere with the proper working of the Website or to surreptitiously intercept any system, data or personal information from the Website, is strictly prohibited. You may not interrupt or attempt to interrupt the operation of the Website in any way and we reserve the right, in our sole discretion, to terminate access to or use of the Website in that event.

Access to and Use of Information

After your use of the Website ends or your user credentials are terminated (regardless of the manner or cause of such termination), for as long as permitted by applicable law, you will not directly or indirectly disclose, reveal, publish, communicate, divulge, or describe any Confidential Information to any person or entity, without our prior written consent.

For purposes of this Agreement, “Confidential Information” means all non-public or proprietary information, including without limitation trade secrets, which is of value to the owner thereof. Confidential Information does not include any information that is generally known by the public or generally available from a published source.

Links

The Website may contain links to other websites, which are provided only as a convenience and as an additional avenue of access to the information contained therein. We have not necessarily reviewed all the information on the other websites, and we are not responsible for the content of any other websites, information, material, products or services that may be offered through any of these other websites. Inclusion of links to other websites should not be viewed as an endorsement of the content of linked websites and different terms and conditions apply to the use of any linked websites. We are not responsible for any losses, damages or other liabilities incurred as the result of the use of any of the websites referenced in the Website.

Intellectual Property

The intellectual property, including trademarks, logos and service marks as displayed in the Website, are registered and unregistered trademarks of us, our affiliates, licensors, content providers, and other third parties. All such trademarks, logos and service marks are the property of their respective owners. Nothing in the Website shall be construed as granting in any manner or under any law any license or right to use any trademark, logo or service mark displayed in the Website without the owner’s prior written permission, except as otherwise described herein. We reserve all rights not expressly granted in and to the Website and its content.

Certain of the information contained in the Website: (1) is proprietary to Morningstar Inc. and/or its content providers; (2) may not be copied or distributed; and (3) is not warranted to be accurate, complete or timely. Neither Morningstar nor its content providers are responsible for any damages or losses arising from any use of this information. Past performance is no guarantee of future results.

Website Information Not Investment Advice

If the Website is utilized to provide sample investment options for a retirement plan or other investor, you acknowledge and agree such one-time sample does not constitute individualized fiduciary investment advice for any plan, plan sponsor or other person. The sample investment information may not be presented to any plan sponsor or other plan fiduciary as individualized investment advice provided by us or our affiliates, including (k)quote, Inc. and 3(38) Investment Fiduciaries. No fiduciary investment advice shall be rendered until and unless our affiliate, 3(38) Investment Fiduciaries been retained as an investment manager.

Conflict of Interest/Prohibited Transaction

Fees for use of the Website may be waived in whole or in part by us if you have placed a specified level of assets with 3(38) Investment Fiduciaries for investment management. In that event, your referral to 3(38) Investment Fiduciaries may be considered a conflict of interest under federal or state securities laws, and a prohibited transaction under the Employee Retirement Income Security Act of 1974, due to the benefit you receive from the fee waiver. You understand and agree that you are solely responsible for seeking legal advice regarding this issue, and for any liability or damages to any third party on account of this issue.

Disclaimers

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND THE SERVICE CONTENT, AND ALL INFORMATION DERIVED FROM THEM, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TIMELINESS, ACCURACY, AND IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING. IN ADDITION, WE DO NOT WARRANT THAT THE SERVICE OR CONTENT CONTAINED IN IT WILL BE UNINTERRUPTED, ERROR FREE, FULLY AVAILABLE AT ALL TIMES OR THAT ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICE IS FREE OF ERRORS OR OTHER HARMFUL CONTENT.

Limitation of Liability

BY USE OF THE WEBSITE, YOU UNDERSTAND AND ACKNOWLEDGE FULL RESPONSIBILITY FOR USE OF THE WEBSITE AND THAT SUCH USE IS AT YOUR SOLE RISK AND DISCRETION. YOU UNDERSTAND THAT IN NO EVENT WILL WE OR OUR OFFICERS, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS OR ANY DATA PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, LOSS OF BUSINESS REVENUE OR LOST PROFITS, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH.

IN ADDITION, WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OF THE WEBSITE OR IN ANY WAY RELATED TO THE WEBSITE OR WITH THE DELAY OR INABILITY TO USE THE WEBSITE, OR FOR ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN OR OBTAINED THROUGH THE WEBSITE, OR REMOVAL OR DELETION OF ANY MATERIALS SUBMITTED TO OR MADE AVAILABLE VIA THE WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, DERIVIATIVE LIABILITY OR OTHERWISE, EVEN IF WE OR ANY OF OUR AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

THIS LIMITATION OF LIABILITY APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, ANY LOSS OF PROFITS, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE AND OUR AFFILIATES OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, ILLEGAL, OR OTHERWISE INAPPROPRIATE OR OBJECTIONABLE CONDUCT OF ANY USER OF THE WEBSITE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OF THE ABOVE CLAIMS OR ANY DISPUTE WITH US IS TO IMMEDIATELY DISCONTINUE USE OF THE WEBSITE.

Indemnification

You agree to indemnify, defend and hold harmless us, our affiliates, and our and their respective managers, members, officers, directors, employees, contractors, agents, licensors, service providers, subcontractors, and suppliers, from and against any and all losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees and court costs, arising or resulting from use of the Website, or disclosure or use of any information in or to the Website, and any violation of these Terms, including any conflict of interest and/or prohibited transaction described above. If technical disruption of the Website or the systems supporting the Website occurs due to your action or inaction, you agree to be responsible for any and all losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees and court costs, arising or resulting from that disruption. We reserve the right, at our own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification and, in such case, you agree to cooperate with us defense of such matter.

Jurisdiction

The laws of the State of California shall govern these Terms and use of the Website. If the Website is accessed from a location outside of the United States, it is done at your sole risk and discretion with the understanding that laws applicable in a foreign location may not be applicable to the Website. Enforcement and/or any action related to enforcement of these Terms are governed by the jurisdiction of courts located in Los Angeles County within the State of California.

Arbitration

To expedite resolution and control the cost of any dispute, controversy or claim related to these Agreement or the Privacy Policy (“Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days prior to initiating any arbitration or court proceeding. Any dispute, claim or controversy arising out of or relating to this Agreement or the Privacy Policy or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles, California USA, before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, we may seek (and obtain) injunctive or other equitable relief in any court of competent jurisdiction. Without limiting or waiving any right or remedy to which we may be entitled under this Agreement or applicable law, in the event of any actual or threatened breach of this Agreement by you or on your behalf, we would be irreparably damaged if this Agreement was not specially enforced and, as such, you agree that we shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. You may not, in any circumstance, seek to enjoin or limit the availability of any of our products or services. To the full extent permitted by law: (I) no arbitration shall be joined with any other; (II) there is no right or authority for any claim related to this Agreement or the Privacy Policy or our products or services to be arbitrated on a class action basis or to utilize class action procedures; and (III) there is no right or authority for any claim to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.

THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

Entire Agreement

This Agreement, along with any posted agreements, policies or operating rules, constitutes the entire understanding between us and you regarding the use of the Website and supersedes any prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect to the Website.

Severability

If any provision of these Terms is unlawful, void or unenforceable, the remaining provisions of these Terms shall remain in full force and effect.

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