1. Grant of License
1.2 Ownership. User acknowledges and agrees that the LifeYield System is licensed and not sold. As such, all proprietary rights relating to the LifeYield System (including, without limitation, all patents, copyrights, trademarks, service marks, trade secrets and other intellectual property rights and any enhancements or modifications to the LifeYield System are and will remain the sole and exclusive property of LifeYield or its third-party licensors (“Licensors”), as the case may be, and except as expressly stated in this TOU nothing herein transfers to User any right to or interest in the LifeYield System or any data or component thereof, or any proprietary rights pertaining to the LifeYield System.
1.3 Restrictions. Except as expressly permitted herein, User will not: (i) copy any portion of the LifeYield System; (ii) display, reproduce, alter, modify, adapt, create derivative works from, transmit, publish, sell, distribute, license, sublicense, transfer or in any way exploit the LifeYield System or any portion thereof or embed the LifeYield System into other products; (iii) use (or allow any other person to use) any software, program, application or other device, directly or indirectly, to access or obtain information through the LifeYield System; (iv) remove or obscure any copyright notice of LifeYield or its Licensors; (v) use the LifeYield System for any timesharing, service bureau, subscription, rental or similar uses; (vi) use any trademarks, service marks, domain names, logos, or other identifiers of LifeYield or its Licensors; or (vii) reverse engineer, decompile or disassemble all or any part of the LifeYield System or its applications.
2. Access, User Data and Privacy
2.2 Access Codes. LifeYield will provide to User, User IDs, passwords, authentication codes or other security devices (“Access Codes”) necessary to access the LifeYield System. User will maintain the confidentiality and security of its own Access Codes. User acknowledges that each single license purchased for the LifeYield System is for use by a single user and as such will not share his/her Access Code with any other person or allow access and/or use to the LifeYield System by another person. Upon LifeYield’s reasonable belief that User is violating this section, LifeYield may block and/or terminate User’s access to the LifeYield System without any liability.
2.4 System Reports and Outputs. User acknowledges and agrees that User is solely responsible for the review and approval of all data inputted in the LifeYield System as well as the use of any data, information or services obtained through the LifeYield System. LifeYield will not review or undertake to review or approve any data outputs, results or User-generated reports (“System Reports”) and shall not be responsible for the processing of any such System Reports. User shall be solely responsible for the timely review, approval and, if appropriate, release for execution of any System Reports.
3. Hosting and Security
3.1 Co-location/Hosting. LifeYield or its third party co-location/hosting provider will host the LifeYield System on servers on its premises. Access by User to the LifeYield System will be via the Internet, provided that User is responsible for separately obtaining an ISP account and paying all associated fees.
3.2 Security. User acknowledges that while LifeYield has endeavored to make Internet access to the LifeYield system secure and reliable, LifeYield cannot guarantee and is not responsible for the security of information transmitted via the Internet or stored in the LifeYield System.
4. Warranties and Disclaimers
4.1 User Warranty. User acknowledges that the LifeYield System may generate asset allocation models that may or may not be right for his or her client’s investment preferences and do not take into account that such client’s financial goals may change. Further, User understands that the LifeYield System is designed for use by sophisticated financial advisors and User represents and warrants to LifeYield that: User will be either an (a) investment adviser registered with the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940, or is of equivalent experience and training and has been advised by counsel that (s)he is exempt from such registration, or (b) a duly licensed broker affiliated with a duly licensed broker-dealer and in good standing with the SEC and the Financial Industry Regulatory Authority. User will take all necessary steps to integrate the LifeYield System into its regulatory compliance processes and employ the LifeYield System in a manner consistent with any regulatory obligations that may apply to it.
4.2 LifeYield Disclaimer. The LifeYield System offers configurable analytic tools based on standardized mathematical formulae and proprietary investment-related information that are provided by Licensors and others, and in certain circumstances publicly available information, and is not intended to be used by the User to replace human judgment, oversite or more personalized advice that User may provide to his or her clients. The LifeYield System is primarily designed to allow Users to evaluate potential scenarios based on how the User manages investment portfolios. In certain circumstances, the LifeYield System is also designed to allow Users to evaluate and optimize investment portfolios based on one or more of the following parameters: asset allocation models, risk control criteria, benchmarks, tax efficiency and other parameters specified by the User. While LifeYield may offer default parameters, User acknowledges and agrees that LifeYield is not providing investment, tax, legal or other advice through or by granting a license to use the LifeYield System to User as described herein rather, it is supplying a portfolio management tool that the User configures for his or her own use. As such, LifeYield hereby disclaims any liability for any investment recommendations or advice rendered by the User through his or her use of the LifeYield System.
LIFEYIELD IS NOT AN INVESTMENT ADVISER OR FIDUCIARY AND MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO USER OR ANY OTHER PERSON REGARDING THE ADVISABILITY OF ANY SOCIAL SECURITY OR OTHER INVESTMENT STRATEGY. ALTHOUGH THE LIFEYIELD SYSTEM MAY PROVIDE INFORMATION RELATING TO VARIOUS APPROACHES TO THE RECEIPT OF SOCIAL SECURITY BENEFITS AND/OR THE MANAGEMENT OF INVESTMENT PORTFOLIOS, NEITHER USER NOR USER’S CUSTOMERS SHOULD CONSTRUE ANY MARKET INFORMATION, FEATURES, TOOLS OR OTHER CONTENT AVAILABLE THROUGH THE LIFEYIELD SYSTEM AS LEGAL, TAX, INVESTMENT, FINANCIAL OR OTHER ADVICE. USER AND USER’S CUSTOMERS ALONE ASSUME THE SOLE RESPONSIBILITY OF EVALUATING THE MERITS AND RISKS ASSOCIATED WITH THE USE OF THE LIFEYIELD SYSTEM BEFORE MAKING ANY DECISIONS BASED ON MARKET INFORMATION OR CONTENT CONTAINED IN OR PRODUCED BY THE LIFEYIELD SYSTEM. USER IS SOLELY RESPONSIBLE FOR THE CONFIGURATION OF THE LIFEYIELD SYSTEM, DETERMINING WHETHER USE OF THE LIFEYIELD SYSTEM IS APPROPRIATE IN PROVIDING SERVICES TO USER CUSTOMERS, VERIFYING THAT THE LIFEYIELD SYSTEM FUNCTIONS TO THE SPECIFICATIONS SELECTED BY USER AND USER CUSTOMERS AND ENSURING THE ACCURACY, ADEQUACY AND SUITABILITY OF THE RESULTS OF USER’S AND USER CUSTOMERS’ USE OF THE LIFEYIELD SYSTEM. USER ASSUMES THE ENTIRE RISK OF THE USE OF THE LIFEYIELD SYSTEM UNDER THIS AGREEMENT AND WILL HAVE FULL RESPONSIBILITY FOR ANY DECISION OR ANALYSIS RELATING TO SUCH USE. USER IS PROHIBITED FROM MAKING ANY STATEMENTS OR REPRESENTATIONS ABOUT LIFEYIELD THAT ARE FALSE, MISLEADING OR OTHERWISE INCONSISTENT WITH THE ROLE OF LIFEYIELD AS DESCRIBED IN THIS AGREEMENT.
THE LIFEYIELD SYSTEM IS NOT INTENDED TO BE AN INVESTMENT ADVISER OR FIDUCIARY AND MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO USER, ANY USER CLIENTS, AUTHORIZED USERS OR ANY OTHER PERSON REGARDING THE ADVISABILITY OF ANY TAX OPTIMIZATION OR INVESTMENT STRATEGY. FURTHER, LIFEYIELD DOES NOT OFFER, RECOMMEND OR SELL ANY SECURITIES OR INVESTMENTS AND DOES NOT RECEIVE ANY FORM OF COMPENSATION FOR ANY SECURITIES OR INVESTMENTS PURCHASED BY THE USER. ALTHOUGH THE LIFEYIELD SYSTEM MAY PROVIDE INFORMATION RELATING TO VARIOUS APPROACHES TO THE RECEIPT OF SOCIAL SECURITY BENEFITS AND/OR THE MANAGEMENT OF INVESTMENT PORTFOLIOS, NO USER, USER CLIENT OR ANY AUTHORIZED USER SHOULD CONSTRUE ANY MARKET INFORMATION, FEATURES, TOOLS OR OTHER CONTENT AVAILABLE THROUGH THE LIFEYIELD SYSTEM AS LEGAL, TAX, INVESTMENT, FINANCIAL OR OTHER ADVICE. USER AND ANY AUTHORIZED USERS ALONE ASSUME THE SOLE RESPONSIBILITY OF EVALUATING THE MERITS AND RISKS ASSOCIATED WITH THE USE OF THE LIFEYIELD SYSTEM BEFORE MAKING ANY DECISIONS BASED ON MARKET INFORMATION OR CONTENT CONTAINED IN OR PRODUCED BY THE LIFEYIELD SYSTEM. USER IS SOLELY RESPONSIBLE FOR THE CONFIGURATION OF THE LIFEYIELD SYSTEM, DETERMINING WHETHER USE OF THE LIFEYIELD SYSTEM IS APPROPRIATE IN PROVIDING SERVICES TO USER’S CLIENTS, VERIFYING THAT THE LIFEYIELD SYSTEM FUNCTIONS TO THE SPECIFICATIONS SELECTED BY USER AND ENSURING THE ACCURACY, ADEQUACY AND SUITABILITY OF THE RESULTS OF USER’S, USER CLIENTS’ AND/OR AUTHORIZED USERS’ USE OF THE LIFEYIELD SYSTEM. USER ASSUMES THE ENTIRE RISK OF THE USE OF THE LIFEYIELD SYSTEM UNDER THIS AGREEMENT AND WILL HAVE FULL RESPONSIBILITY FOR ANY DECISION OR ANALYSIS RELATING TO SUCH USE. USER IS PROHIBITED FROM MAKING ANY STATEMENTS OR REPRESENTATIONS ABOUT LIFEYIELD AND/OR THE LIFEYIELD SYSTEM THAT ARE FALSE, MISLEADING OR OTHERWISE INCONSISTENT WITH THE ROLE OF LIFEYIELD OR THE LIFEYIELD SYSTEM AS DESCRIBED IN THIS TOU.
THE LIFEYIELD SYSTEM IS PROVIDED “AS IS” AND LIFEYIELD, ITS AFFILIATES AND LICENSORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE LIFEYIELD SYSTEM (AND ANY RESULTS OBTAINED FROM THE USE OF THE LIFEYIELD SYSTEM) AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER LIFEYIELD NOR ITS LICENSORS WARRANT THAT THE LIFEYIELD SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE LIFEYIELD SYSTEM IS FREE OF UNAUTHORIZED HIDDEN PROGRAMS, VIRUSES OR OTHER HARMFUL COMPONENTS.
THE LIFEYIELD SYSTEM MAY ALLOW ACCESS TO DATA, INFORMATION, OR SERVICES DISSEMINATED BY OUTSIDE DATA SOURCES. USER ACKNOWLEDGES THAT LIFEYIELD AND THE THIRD PARTY DATA PROVIDERS DISCLAIM RESPONSIBILITY FOR THE USE, CONTENT, ACCURACY, TIMELINESS, COMPLETENESS OR AVAILABILITY OF SUCH THIRD PARTY DATA, INFORMATION, OR SERVICES AND MAKE NO WARRANTY CONCERNING THE SAME. USER USES SUCH THIRD PARTY DATA, INFORMATION, OR SERVICES AT ITS OWN RISK.
The LifeYield System is licensed on a payment or subscription basis to which the following terms apply, unless LifeYield notifies you otherwise in writing:
a. Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the LifeYield System ordering form or payment terms on the website for the LifeYield System.
b. You must pay with one of the following:
- A valid credit or debit card acceptable to LifeYield;
- Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
- Another payment option that LifeYield provides to you in writing
c. If your payment and registration information is not accurate, current and complete, and you do not notify us promptly when such information changes, we may suspend or terminate your access, terminate your license and refuse any further use of the LifeYield System.
d. If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
e. LifeYield will automatically renew your monthly, quarterly, or annual subscription at the then-current rates, unless the LifeYield System is cancelled or terminated, or unless you or we terminate this Agreement with 30-days' notice.
f. Additional cancellation or renewal terms may be provided to you on the LifeYield Website.
6. LifeYield Discontinuation Policy and Termination of Support
To the maximum extent permitted under applicable law, LifeYield reserves the right to discontinue all support for the LifeYield System, any of their discrete features, or any other features, online and other services or content accessible through the LifeYield System and Website, at any time and for any reason.
Subject to the foregoing, LifeYield expects to provide support for the current version of the LifeYield System and certain features accessible through the current version of the LifeYield System. We reserve the right to modify or discontinue the supported versions, services, or program features if necessary due to changes in hardware or software that our products run on, or for other reasons.
Either you or LifeYield may terminate the TOU upon 30 days’ prior written notice. In addition, LifeYield may immediately, in its sole discretion, and without notice terminate this TOU or your use of the LifeYield System if you fail to comply with this TOU or if you no longer agree to receive electronic communications. Upon termination you must immediately stop using and delete or destroy all copies of the LifeYield System and any outstanding payments will become due. Any termination of this TOU shall not affect LifeYield’s rights to any payments due to it. Sections 1 through 4, this Section 7 and Sections 8 through 10 will survive and remain in effect even if this TOU is terminated, cancelled or rescinded.
8. Limitation of Liability
User agrees that LifeYield, its affiliates and licensors, and their respective officers, directors, employees, agents and legal representatives (the “Exculpated and Indemnified Parties”) will have no liability to User, including its Authorized Users, to any of User’s clients, or to any third party, for responsibility whatsoever whether under contract, tort, or other legal or equitable theory for: (i) any claim against User by a third party based on this agreement or User’s or Authorized User’s use of the LifeYield System or any information provided by the LifeYield System; (ii) any indirect, incidental, special, consequential, punitive or exemplary damages (including lost profits, trading losses and damages) arising out of or relating to this agreement or User’s or Authorized User’s use of the LifeYield System; (iii) any losses resulting from causes beyond the control of LifeYield or its Licensors or any force majeure (e.g. earthquake, flood, severe or extraordinary weather conditions, or other acts of god, fire, acts of war, terrorism, insurrection, riot, labor dispute, strike or similar problems, accident, action of government, communications, power failure, exchange or market rulings or suspension of trading). Neither party will bring any action, regardless of form, arising out of or relating to this agreement more than two (2) years after the cause of action has accrued.
In no event will the total aggregate liability of LifeYield for any claims, losses or damages arising under this agreement, whether in contract or tort, including negligence, gross negligence, or willful misconduct, exceed five dollars ($5.00), even if LifeYield has been advised of the possibility of such claim, loss, or damage. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.
User will defend, indemnify and hold harmless the Exculpated and Indemnified Parties from and against any and all damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to third party claims against LifeYield based on (i) User’s use of the LifeYield System, (ii) any decision or analysis relating to such use, including generating System Reports for clients (iii) breach of the representation and warranty set forth in Section 4.1, (iv) any other use of any data provided by User; and (v) any damage to LifeYield resulting from User violating Section 2. Indemnification expenses shall be advanced and paid when due (even if prior to a final determination of availability of indemnification).
IMPORTANT INFORMATION REGARDING LIFEYIELD SYSTEM
IMPORTANT: THE PROJECTIONS OR OTHER INFORMATION GENERATED BY THE LIFEYIELD SYSTEM ARE HYPOTHETICAL IN NATURE AND ARE NOT GUARANTEES OF ACTUAL RESULTS. OTHER SCENARIOS OR PROJECTIONS NOT CONSIDERED BY THE LIFEYIELD SYSTEM MAY PROVIDE RESULTS SIMILAR OR SUPERIOR TO THOSE PROVIDED BY THE LIFEYIELD SYSTEM. OUTCOME BENEFITS PROJECTED BY THE LIFEYIELD SYSTEM MAY BE OVERSTATED DUE TO INACCURATE ASSUMPTIONS AND/OR ESTIMATES INCLUDING, BUT NOT LIMITED TO, LONGEVITY OF LIFE AND/OR EARNINGS, EARNINGS PROJECTIONS, MARITAL STATUS, TAX RATES, CAPITAL MARKET ASSUMPTIONS, AND VOLATILITY. THE INFORMATION PROVIDED ON ANY REPORTS GENERATED BY THE LIFEYIELD SYSTEM SHOULD BE CONSIDERED ONLY AS GENERAL INFORMATION AND SHOULD NOT BE USED AS THE FINAL DETERMINANT OF THE BEST STRATEGY ON HOW OR WHEN TO CLAIM SOCIAL SECURITY BENEFITS OR ON HOW TO MANAGE INVESTMENT PORTFOLIOS.
THIS INFORMATION PROVIDED BY THE LIFEYIELD SYSTEM IS FOR INFORMATIONAL PURPOSES AND IS BASED ON RULES AND PROJECTIONS THAT WERE AVAILABLE AT THE TIME THE LIFEYIELD SYSTEM WAS MOST RECENTLY UPDATED. THE INFORMATION PROVIDED BY THE LIFEYIELD SYSTEM IS MEANT ONLY TO ASSIST IN THE REVIEW OF POTENTIAL SOCIAL SECURITY BENEFITS, TAX-EFFICIENT ASSET ALLOCATIONS AND INVESTMENT OPTIONS AND MAY NOT ACCURATELY PORTRAY A CURRENT OR ANTICIPATED FINANCIAL SITUATION AS A RESULT OF A NUMBER OF EVER CHANGING FACTORS SUCH AS, BUT NOT LIMITED TO, MARKET VOLATILITY, ECONOMIC REALITIES, CHANGES IN SOCIAL SECURITY AND/OR TAX RULES PROVIDED BY THE UNITED STATES INTERNAL REVENUE SERVICE OR ERRORS DUE TO DATA ENTRY, WHICH MAY ALTER THE PROJECTIONS PRESENTED BY THE LIFEYIELD SYSTEM. ADDITIONALLY, DATA USED IN THIS PRESENTATION MAY BE GENERIC IN NATURE AND MAY NOT AT ALL REPRESENT ACTUAL DATA. THE RESULTS MAY VARY WITH EACH USE AND OVER TIME.
THIS INFORMATION PROVIDED BY THE LIFEYIELD SYSTEM IS NOT MEANT TO BE RELIED UPON FOR ACCOUNTING, LEGAL OR OTHER PURPOSES, INCLUDING INVESTMENT ADVICE. IT SHOULD NOT BE ASSUMED THAT RECOMMENDATIONS MADE BY THE LIFEYIELD SYSTEM WILL BE PROFITABLE OR WILL EQUAL A DIFFERENT STRATEGY.
THE LIFEYIELD SYSTEM CONTAINS INFORMATION PROVIDED BY THE USER OR A THIRD PARTY. THE ACCURACY AND AUTHENTICITY OF SUCH INFORMATION IS RELIANT SOLELY ON THE AUTHOR OF THE INFORMATION, WHETHER AN ADVISOR, A CLIENT, OR A THIRD PARTY, AND NOT CONTROLLED OR ATTESTED TO AS ACCURATE BY LIFEYIELD OR A FINANCIAL ADVISOR’S FIRM, ITS AFFILIATES OR REPRESENTATIVES. ANY INFORMATION ENTERED INTO THE LIFEYIELD SYSTEM SHOULD BE REGARDED AS INFORMATIONAL ONLY AND NOT INTERPRETED AS OFFICIAL OR LEGAL FINANCIAL INFORMATION.
IMPORTANT INFORMATION REGARDING THE CAPITAL MARKET ASSUMPTIONS USED IN LIFEYIELD SYSTEM
1. Unless otherwise specified, all input data should be in today’s value.
2. The expected price appreciation for each asset category is based on historical performance information provided in publicly available reports and information such as, the Vanguard Index Fund and is not independently calculated, analyzed or supplied by LifeYield.
3. Bonds are assigned a zero expected price appreciation.
4. Unless otherwise noted, stocks are assigned a ten year historical return minus the yield.
5. The SEC Yield is applied in yield calculations involving all stocks except for international stocks.
6. Any capital appreciation associated with an asset category is taxed according to the turnover rate.
7. Any turnover rate up to 100% is considered long-term, meaning the capital gains rate is applied according to the rate provided.
8. Any turnover above 100% is considered short-term, meaning the ordinary income tax rate is applied to that person (with the capital gains tax rate being applied to any remainder from 100% total turnover).
The capital markets assumptions used in the calculations provided by the LifeYield System only gives you a high-level and general estimate for your reference only, based on the data you provided. They should not be considered or relied upon as advice by LifeYield and should also not be considered as substitute for professional advice or recommendation on retirement planning. LifeYield shall not accept any responsibility or liability of whatsoever nature for or in connection with any use of or reliance on the LifeYield System, including the capital markets assumptions provided therein, by any person. Nothing here is or shall be considered as any recommendation or offer or solicitation to offer of any investment product.