Terms of service
SAGEWELL TERMS OF SERVICE
Date of Last Revision: April 25, 2022
Acceptance of These Terms of Service
Sagewell Financial, Inc. (“Sagewell,” “we,” “us,” or “our”) provides our services (described below) and related content to you through our website(s) located at www.sagewellfinancial.com (the “Site”) and through our mobile applications and related technologies (“Mobile Apps”, and collectively, such Mobile Apps and the Site, including any updated or new features, functionality and technology, the “Service”). All access and use of the Service is subject to the terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”). By accessing, browsing, or otherwise using the Site, Mobile Apps, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. You may read a current, effective copy of these Terms of Service by visiting the “Terms of Service” link on the Site and under the “Legal — Terms of Service” section of our Mobile App. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST SAGEWELL ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Additional Terms: The Service may be subject to additional terms, conditions, agreements, disclosures, and schedules, which are posted on the Site or made available separately from these Terms of Service (“Additional Terms”). Your use of the Service may also be subject to additional policies, guidelines, or rules we also post or make available. Additional Terms, policies, guidelines, and rules are incorporated into and form a part of these Terms of Service. If there is a conflict between these Terms of Service and the Additional Terms, the Additional Terms will control.
Access and Use of the Service
WE ARE NOT A FINANCIAL INSTITUTION, FINANCIAL ADVISOR, TAX ADVISOR, PROVIDER OF LEGAL OR INVESTMENT ADVICE OR SERVICES, REAL ESTATE OR INSURANCE AGENT OR BROKER, OR YOUR FIDUCIARY OR AGENT.
The information presented on or provided through the Service, including matching you with Third-Party Services, is solely for general, informational, or educational purposes. We make no representations, warranties, or guarantees, express or implied, regarding the accuracy, completeness, or usefulness of this information, and we do not endorse or recommend particular third parties or their products or services. We may update the content on the Service from time to time, but certain content may not be complete or up-to-date, and we are under no obligation to update such material. Any content provided by third parties, including statements and/or opinions expressed or responses to user questions, are solely the opinions and the responsibility of the person or entity providing those materials, services, or communications and do not necessarily reflect the opinion of Sagewell.
Your personal financial situation is unique, and it is your responsibility to evaluate the information and content provided before making any financial decisions. Before making any financial decisions, you should also obtain additional information and advice from a qualified professional who is fully aware of your individual circumstances. We are not responsible for any financial loss you may experience, and we do not make any claims, representations, warranties, or guarantees of any financial outcome or result.
We may receive fees or other compensation, directly or indirectly, from third parties with whom we match you in different amounts for different products in different places, based on fees for services, goods, or facilities performed or provided by us to third parties, as permitted by applicable law. These third parties may still charge you fees in connection with the products or services they offer.
Consent to Transact Business Electronically: Because the Service is offered on the internet, you consent to transact business with us electronically. You agree that we may provide notices to you by electronic means, for example, by posting it on the Site, sending you an in-app message, emailing it to an email address that you have provided us, mailing it to any postal address that you have provided us, or by sending it as a message to any mobile phone number that you have provided us.
Service Description: The Service is designed to cater to the unique banking needs of adults over the age of fifty (50). This includes supporting older adults in establishing and maintaining bank accounts, securing debit cards that provide electronic access to the funds contained in those bank accounts, providing opportunities to participate in loyalty programs with certain merchants, and helping our customers to understand their options with respect to their financial wellbeing. Users can also use the Service to receive advances against future entitlement payments from certain monthly income sources, such as amounts from the U.S. Social Security Administration.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Sagewell of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Sagewell will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Modifications to Service: Sagewell reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Sagewell will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Sagewell may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Sagewell’s or its third-party service providers’ servers on your behalf. You agree that Sagewell has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Sagewell reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Sagewell reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Conditions of Access and Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, and other materials (“content”) that you make available to Sagewell, including by uploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Service or by emailing or otherwise making available to other users of the Service (collectively, “User Content”). The following are examples of the kinds of content and/or uses that are illegal or prohibited by Sagewell. Sagewell reserves the right to investigate and take appropriate legal action against anyone who, in Sagewell’s sole discretion, violates this provision, including removing the offending content from the Service, suspending or terminating the account of such violators, and reporting the violator to law enforcement authorities. You agree to not use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, discriminatory, or otherwise objectionable; or (vii) in the sole judgment of Sagewell, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Sagewell or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
- violate any applicable local, state, national, or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
- obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Service;
- circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Service Content (as defined below)) available on or through the Service, including through the use of virtual private networks;
- any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction;
- any activities that are prohibited by the acceptable business policies of Sagewell, or the policies of Unit Finance, Inc., and/or its bank partners; or
- engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Sagewell from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).
Competitors: No employee, independent contractor, agent, or affiliate of any competing banking services company is permitted to view, access, or use any portion of the Service without express written permission from Sagewell. By viewing, using, or accessing the Service, you represent and warrant that you are not a competitor of Sagewell or any of its affiliates, or acting on behalf of a competitor of Sagewell in using or accessing the Service.
Credit Report Consent: You authorize Sagewell and its agents to request and obtain a consumer report from a consumer reporting agency containing information about you, from time to time, for any purpose permitted by applicable law, including for use in offering financial products, to display your credit profile to you, to confirm your identity to avoid fraudulent transactions in your name, to review your account to determine whether you continue to meet the terms of your account, and for other legitimate business needs in connection with a transaction initiated by you.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Banking Services: You confirm that you qualify for receipt of electronically delivered account agreements, statements, disclosures, and any other applicable documentation in accordance with the Electronic Signatures in Global and National Commerce Act in connection with the Service. You authorize Sagewell and agree to provide written consent to Sagewell to receive the account agreements, statements, disclosures and other documentation electronically. If you revoke consent to electronic delivery in connection with the Service, Sagewell reserves the right to discontinue your access to the Service. You acknowledges that the Service does not guarantee that an account at a financial institution can be verified, that the data returned from such account will be accurate or complete, or that such authentication will otherwise prevent fraud. You acknowledge that, in order to provide the account authentication services to you, additional disclosures must be provided to you and your consent to such disclosures may be required. You agree to, and hereby, provide such consent in connection with the Service. The banking services provided in connection with the Service are provided by Choice Financial Group and not by Sagewell.
Compliance Monitoring: You must pass all compliance monitoring programs before using the Service and transaction requests may be delayed for additional review and/or may be canceled by Sagewell or its partners as a result of the compliance monitoring programs. Sagewell and its partners may lock or block your account as a result of compliance monitoring programs and other information that Sagewell may obtain regarding you at any time.
Complaints about the Service: You authorize Sagewell to record its calls with you and to disclose any such recordings to Unit Finance, Inc. or its banking partners any partners of Sagewell in connection with complaints regarding the Service, except where such recordings will result in a violation of applicable law.Mobile Services and Software
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device, and (iii) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Sagewell account information to ensure that your messages are not sent to the person that acquires your old number.
Your Consent to Receive Text Messages: Sagewell may communicate about the Service and Sagewell’s business through SMS and MMS messages and other forms of text messages. You consent to receive SMS/MMS/text messages from Sagewell and its contractors, agents, representatives or anyone messaging on Sagewell’s behalf at the telephone numbers you have provided Sagewell, or numbers Sagewell can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions relating to you, your account, the Service or Sagewell’s business. You acknowledge and agree that standard call, message and data rates apply. You represent that the telephone number you have provided Sagewell is your contact number and not someone else’s. You represent that you are permitted to receive messages at the telephone number you have provided to Sagewell. You agree to promptly alert Sagewell whenever you stop using a telephone number. Consent to receive SMS/MMS/text messages is not required as a condition of using the Service. To unsubscribe from SMS/MMS/text messages at any time, follow the unsubscribe instructions in the message you receive from Sagewell. You agree that following a request to unsubscribe, you may receive one final text message from Sagewell confirming your request.
Mobile App License: Subject to these Terms of Service, Sagewell hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App on another device on which you also agreed to these Terms of Service. Each instance of these Terms of Service that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.
Ownership; Restrictions: The technology and software underlying the Service or distributed in connection therewith are the property of Sagewell, its affiliates, and its licensors (including the Mobile Apps, the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Sagewell.
Special Notice for International Use; Export Controls: Sagewell is headquartered in the United States. If you access or use the Service from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
Third-Party Distribution Channels: Sagewell offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third-party products and services.
Apple-Enabled Software: With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:• Sagewell and you acknowledge that these Terms of Service are concluded between Sagewell and you only, and not with Apple Inc. (“Apple”), and that as between Sagewell and Apple, Sagewell, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
• Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software. • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Sagewell’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Sagewell and you acknowledge that Sagewell, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
• In the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Sagewell and Apple, Sagewell, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.• You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Sagewell as follows:[email protected]• You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
• Sagewell and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
Google-Sourced Software: The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Service are between you and Sagewell only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Sagewell, and not Google, is solely responsible for Sagewell’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to Sagewell’s Google-Sourced Software.Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at: www.sagewellfinancial.com/open-source. If required by any license for particular open source software, Sagewell makes such open source software, and Sagewell’s modifications to that open source software (if any), available by written request to [email protected] Copyrights to the open source software are held by the respective copyright holders indicated therein.
Intellectual Property Rights
Service Content: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Sagewell, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you upload to or make available through the Service in accordance with these Terms of Service. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
Trademarks: The Sagewell name and logos are trademarks and service marks of Sagewell (collectively the “Sagewell Trademarks”). Other Sagewell, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Sagewell. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Sagewell Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Sagewell Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Sagewell be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Sagewell does not pre-screen content, but that Sagewell and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Sagewell and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Sagewell, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Third-Party Services and Websites
You agree to defend, indemnify, and hold harmless Sagewell, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Sagewell Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service, or your violation of any rights of another. You also agree to indemnify, defend, and hold harmless Sagewell from all losses arising from (i) incorrect, illegal, or improper record of information, data, or other documentation submitted by you in connection with the Service , (ii) all your acts and omissions of you, or (iii) your violations by you of any applicable law, rules or regulations. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Sagewell Party from or against any liability, losses, damages, or expenses incurred as a result of any action or inaction of such Sagewell Party. Sagewell will provide notice to you of any such claim, suit, or proceeding. Sagewell reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Sagewell’s defense of such matter. You may not settle or compromise any claim against the Sagewell Parties without Sagewell’s written consent. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SAGEWELL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.THE SAGEWELL PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SAGEWELL PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE SAGEWELL PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE SAGEWELL PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID SAGEWELL IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
1 Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Sagewell, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Sagewell are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
2 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND SAGEWELL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SAGEWELL AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
3 Pre-Arbitration Dispute Resolution
Sagewell is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected] If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Sagewell should be sent to 955 Massachusetts Avenue, #220, Cambridge, MA 02139 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Sagewell and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Sagewell may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Sagewell or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Sagewell is entitled.
4 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Sagewell and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Sagewell agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Sagewell will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Sagewell will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Sagewell will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Service will continue to apply.
8 Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Sagewell agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Sagewell written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Sagewell, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Sagewell believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Sagewell may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Sagewell may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Sagewell will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Sagewell will have no liability or responsibility with respect thereto. Sagewell reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service (together with the terms incorporated by reference herein) constitute the entire agreement between you and Sagewell governing your access and use of the Service, and supersede any prior agreements between you and Sagewell with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content or third-party software. These Terms of Service will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Sagewell submit to the personal and exclusive jurisdiction of the state and federal courts located within Suffolk County, Massachusetts. The failure of Sagewell to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Sagewell, but Sagewell may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. As used in these Terms of Service, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service. Sagewell will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Sagewell’s reasonable control.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at [email protected]; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at Sagewell Financial, Inc., 955 Massachusetts Avenue, #220, Cambridge MA, 02139, 781-332-4494.
U.S. Government Restricted Rights
The Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including the Software) by the U.S. government constitutes acknowledgement of our proprietary rights in the Service (including the Software).
Questions? Concerns? Suggestions?
Please contact us at 955 Massachusetts Avenue, #220, Cambridge MA, 02139; [email protected] to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.