These Terms (“Terms”) are incorporated into the Agreement by reference.  The Agreement, also referred to as the Terms of Service, is comprised of the Introduction, these Terms, the Acceptable Use Policy, the Sublicensing Terms, and if applicable any Additional Terms.

I. Acceptance of Terms


  1. Formation of the Agreement. You are entering into these Terms on behalf of a company or other legal entity (the “Client”), and that You represent and warrant that You have the authority the Client to these Terms, in which case “You” or “Your” shall refer to the individual user, and “Client” shall refer to the legal entity they are representing.  Please review the following terms carefully.  By using this website (the “Site”) in any way, including using, transmitting, downloading, or uploading any of the services or functionality (the “Service”) made available or enabled via the Site by WealthEngine, or merely browsing the Site, You are agreeing to this Agreement as an authorized representative of Client.
  2. Order of Precedence.  Unless otherwise expressly stated to the contrary in this Agreement, in the event of a conflict between a provision of this Agreement the order of precedence will be: (a) the Terms; (b) the Authorized Use Policy; (c) the Sublicensing Terms; (d) WealthEngine’s Security Policy; (e) the Introduction; (f) any Additional Terms.  Any terms and conditions contained in a Client’s purchase order(s) will be for administrative purposes only and will have no force or effect.   A Client purchase order that references and incorporates this Agreement may be accepted by WealthEngine as an Order, provided any, other, additional terms and conditions contained therein shall be for administrative purpose only, as indicated by the proceeding sentence.  If you have a written agreement that is signed by WealthEngine, that is currently in force, which relates to the supply of the Products and Services, then the former agreement shall prevail over any inconsistent terms of this Agreement.  Otherwise this Agreement represents the entire agreement between the Parties in relation to the licensing of the Products and Services and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
  3. Changes to this Agreement.  WealthEngine may change the Terms of Service from time to time at its sole discretion, and if WealthEngine makes any substantial changes, we will notify Client by sending an email to the last email address provided by the Client to us and/or by posting notice of the change on the Site.  Any material changes to the Terms of Service will be effective fifteen (15) calendar days following our posting of the changes on our Site, except when the changes apply to new functionality or the Sublicensing Terms in which case the terms will become effective immediately. During this fifteen-day notice period, Client may reject the changes by terminating Client’s account. These changes will be effective immediately for new users of our Site or Service. Client’s continued use of the Site or the Service constitutes Client’s acceptance of the changes.  Please regularly check the Site to view the then-current Terms of Service.
  4. Registration, Username and Password. You, on behalf of Client, must provide accurate and complete registration information regarding yourself and Client. Client is responsible for maintaining the confidentiality of any Credentials and Client is solely responsible for all activities that occur in association with any such Credentials. Actions taken using Credentials shall be deemed to be actions taken by Client, with all consequences including service termination, civil and criminal penalties. As such, Client should protect authentication keys, Credentials, and any other security credentials. Except as expressly permitted by this Agreement, Client agrees (a) not to allow a third party to use any Client Credentials or Client’s account at any time; and (b) to notify WealthEngine at contracts@wealthengine.com if Client believes the security of Client’s account has been compromised. WealthEngine reserves the right to terminate any account, which WealthEngine reasonably determines may have been used by an unauthorized third party. 

II. Confidentiality & Security


  1. Limited Use of Client Data. WealthEngine will use the Client Data in compliance with these Terms of Service, and for no other purpose. WealthEngine will limit access to the Client Data to only those of its employees and consultants who have a need for such access in order to perform the Services.  WealthEngine does not guarantee that the Confidential Information provided to it in order for WealthEngine to perform its Services will be stored indefinitely and WealthEngine reserves the right to remove such Confidential Information from its Services and systems. All Client Data will be removed from WealthEngine’s systems and destroyed, in accordance with applicable law, and WealthEngine’s Security Policy.
  2. Unauthorized Access. In the unlikely event that a third party gains unauthorized access to, or there is a loss of Client Data, WealthEngine will notify Client, within two (2) business days.  WealthEngine will use commercially reasonable efforts to provide a detailed account of the unauthorized access or loss of Client Data including if any, Client Data was viewed, removed or copied.  Furthermore, WealthEngine acknowledges that the laws of certain jurisdictions may require end user notification in the event that third parties gain unauthorized access to Client Data that is personally identifiable information and WealthEngine has failed to comply with the safe harbor provisions of such law (a “Security Breach”).  Unless the requirements of the law provide otherwise, WealthEngine will not notify the individuals of the Security Breach until WealthEngine first consults with Client and Client has had an opportunity to review any such notice and provide its written approval.  Subject to the limitations contained in this Agreement, in the event that applicable law requires that Client, and not WealthEngine, provides individuals notice of the Security Breach, WealthEngine will reimburse Client for direct demonstrable costs arising directly out of  the required disclosure.
  3. Confidential Information.
    • Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information that the receiving party is required to maintain as confidential.  For the purposes of this Agreement, the party making its Confidential Information available is the (“Disclosing Party”) and the party receiving such Confidential Information is the (“Receiving Party”). Both parties agree that as between the Disclosing Party and the Receiving Party, all items of Confidential Information are proprietary to the Disclosing Party and will remain the property of the Disclosing Party.  For the purposes of this Agreement, (“Confidential Information”) means all written or oral information disclosed by the Disclosing Party to the Receiving Party under this Agreement that is identified as confidential at the time of disclosure or that should be reasonably understood by the Receiving Party to be confidential by the nature of the information or the circumstances of its disclosure.  Without limiting the foregoing, the WealthEngine Content will be Confidential Information of WealthEngine and the Client Data shall be deemed Confidential Information of Client.
    • Mutual Confidentiality Obligations.  Except as necessary for a party to perform  its obligations or exercise its rights under this Agreement, the Receiving Party agrees as follows: (i) to use Confidential Information only for the purposes described herein; (ii) not to reproduce Confidential Information and to protect such Confidential Information in the same manner that it uses to protect its own Confidential Information of a like kind, but in no event less than reasonable care; (iii) to use appropriate safeguards to not disclose Confidential Information to any individuals or third parties, except those of its employees, agents, and consultants, who have a need to know such information to assist such party in performing its obligations or exercising its rights under this Agreement, but only to the extent that such employees, agents, and consultants are bound by confidentiality obligations substantially the same as those in this Agreement; and (iv) to return or destroy, all Confidential Information that is in its possession within a reasonable time after termination or expiration of this Agreement.
    • Confidentiality Exceptions. The provisions of this section will not apply to information that (i) is publicly available or in the public domain through no fault of the Receiving Party, with the understanding that this public domain exception will not apply to any personally identifiable information contained within the Client Data or the WealthEngine Data; (ii) is rightfully communicated to the Receiving Party without an obligation of confidentiality by persons not known by the Receiving Party to be bound by confidentiality obligations; (iii) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the Receiving Party; or (v) is approved for release or disclosure by the Disclosing Party without restriction.  Notwithstanding the foregoing, in the event that the Receiving Party is requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any Confidential Information, the Receiving Party will provide (to the extent legally permissible and reasonably practicable) the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive the Receiving Party’s compliance with the provisions of this Agreement.  In the event that such protective order or other remedy is not obtained, or compliance with the provisions of this Agreement is waived, the Receiving Party will disclose only that portion of the Confidential Information that is legally required, based on the advice of Receiving Party’s counsel, and will exercise reasonable efforts, at the Disclosing Party’s sole cost and expense to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.  The Receiving Party shall also be permitted to disclose Confidential Information as reasonably required to establish its rights under this Agreement, including, to make such court filings as it may be required to do.
    • Injunctive Relief.  The parties agree that the WealthEngine would be irreparably injured by a breach or threatened breach of this Agreement by the Client and that WealthEngine would not have an adequate remedy at law. Additionally Client acknowledges that the Services contain valuable Confidential Information and trade secrets and that unauthorized use or copying in harmful to WealthEngine. Therefore, in the event of a breach or threatened breach by Client of this Section I, WealthEngine shall be entitled, in addition to any and all other remedies, to seek injunctive relief and specific performance.  The Receiving Party further agrees not to resist such application for relief on the basis that the WealthEngine has an adequate remedy at law and agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.
  4. Security.  WealthEngine will comply with its Security Policy in the performance of this Agreement.  Client shall provide adequate industry “best practice”: standards to ensure reasonable security for integration between applications at the Client site and any Service(s) hosted by WealthEngine.  Client shall provide accurate input information in the manner reasonable prescribed by WealthEngine in connection with the Service(s) provided under this Agreement. Client represents and warrants that it will keep the WealthEngine Content secure, including that it has implemented and maintains a data security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any Client Data or WealthEngine Content at issue.  Client will use best efforts to: (i) protect WealthEngine Content; (ii) prevent unauthorized use of the WealthEngine Content in whole or in part (iii) prevent the transfer or conveyance of the WealthEngine Content.
  5. Safeguards. Client will safeguard, and ensure that all Authorized Users safeguard any usernames and passwords, or similarly utilized information, (“Credentials”) provided to any Authorized User to access the Product and Services.  Client will be responsible for all acts and omissions of Authorized Users and any activities conducted using their Credentials.  Client will notify WealthEngine immediately if it learns of any unauthorized use of any Credentials or any other known or suspected breach of security. The maximum number of Client’s employees, contractors, volunteers, and other agents that are simultaneously accessing or utilizing the Services at any given time shall not exceed the user limit specified in the applicable Order.

III. License Terms


  1. Subscription Products. (“Subscription Product(s)”) means Products that are identified as such in the applicable Order.  The subscription fee is fixed for the term of the applicable Order.  Following the conclusion of the applicable Order any Subscription Product(s) will automatically renew for successive one (1) year term(s), at the then current fee, unless Client provides written notice to WealthEngine at least sixty (60) days prior to the expiration of the anniversary of the applicable Order.  WealthEngine will provide a renewal invoice only, and the renewal of the Subscription Products will be subject to this Agreement, or any successor Agreement.  Reinstatement of a lapsed Subscription Product requires full payment of fees that would have been due from the expiration of the last active Order through the reinstatement date, and execution of a new agreement.
  2. Services Provided via Internet; Grant of Access.  Subject to this Agreement, including, the usage restrictions and/or limitations in this Agreement, WealthEngine hereby grants solely to Authorized Users a limited, non-exclusive, non-transferable, and non-sublicensable right to access the applicable Products during the period(s) set forth in an Order solely for the purpose of receiving the applicable Services ordered on Client’s behalf.
  3. License in WealthEngine Content; Client’s Internal Use.  Subject to this Agreement, including the usage restrictions and/or limitations in this Agreement, and to the extent the Services do not contain a Prospecting Product, Client is hereby granted a perpetual, non-exclusive, non-transferable, and non-sublicensable right and license to use, reproduce and analyze the WealthEngine Content provided through any Results, in the ordinary course of Client’s business, solely for Client’s internal business purposes and to market Client’s products and services and not for the benefit of any third party. 
  4. Licenses and Use of Prospecting Product(s). Notwithstanding immediately preceding section, subject to this Agreement, including the obligations of suppression, and additional restrictions applicable to Prospecting Products, to the extent that WealthEngine Content includes a Prospecting Product, WealthEngine hereby grants Client a limited, non-exclusive, non-transferable, and non-sublicensable right and license to use a Prospecting Product for Client’s internal business purposes and to market Client’s products and services and not for the benefit of any third party during the term listed on the Order.  If no term is listed on the Order, the term of the Order will be the one year period beginning on the effective date of the applicable Order.  Client will ensure that except as necessary for legal, regulatory or other compliance purposes, Client will destroy all Prospecting Products in compliance with the applicable Order, but no later than 12 months after the effective date of the applicable Order.  Client agrees to provide WealthEngine with certification of destruction of applicable WealthEngine Content, upon request by WealthEngine. Subject to applicable law, nothing shall limit, beyond the prescribed 12-month (one-year) prospect file term, Client's use of the Data Subject contained in a Prospecting Product, for any Data Subject that is retained in Client's database as a result of a Conversion. For the avoidance of uncertainty, a Conversion shall mean: (i) a Data Subject's voluntary submission of data to Client in any manner or medium; and/or (ii) a Data Subject's purchase through any of Client's means of distribution (“Conversion”). At such time, all such information shall be deemed Client Data and shall no longer be subject to the restrictions described in the Agreement.  Notwithstanding anything to the contrary in the foregoing, WealthEngine and the Data Owners shall have no liability to Client for any continued use of Client Data that has been obtained by a Conversion.
  5. Build Applications. You may write a software application or create a website (an "Application") that interfaces with the Services. You acknowledge that we may change, deprecate or republish application programming interfaces (“APIs”) and software development kits (“SDKs”) for any Service or feature of a Service from time to time, and that it is Client’s responsibility to ensure that calls or requests Client makes to or via our Service are compatible with then-current APIs for the Service. WealthEngine will attempt to inform Client of any changes with reasonable notice so Client can adjust Client’s Application, but we are under no obligation to do so. SDKs may be subject to additional terms separate from the license grant outlined above in section II (3).
  6. Limitations.  Client agrees that Client will not: (a) permit any party to access and/or use the Service, other than the Users authorized under this Agreement; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service, including without limitation, any external websites that contain Third Party Content and that are linked to via the Service; (d) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) without WealthEngine’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (f) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (g) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means, if any; (h) to access (or attempt to access) the administrative interface of the Services by any means other than through the interface that is provided by WealthEngine in connection with the Services, unless you have been specifically allowed to do so in a separate agreement with WealthEngine; (i) access the Service for the purpose of bringing an intellectual property infringement claim against WealthEngine.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Client or Authorized User(s) regarding the Service or any part thereof.
  7. Reservation of Rights.  Except for the limited licenses granted in this Agreement, Client acknowledges and agrees that any technology underlying the Products, Results, Services, and WealthEngine Content, is proprietary to, and/or exclusively owned by WealthEngine, or the Data Owner(s) and/or Publisher(s), and comprises:  (a) works of original authorship, including compiled information containing WealthEngine or Data Owners’ selection, arrangement and coordination and expression of such information or pre-existing material it has created, gathered or assembled; (b) confidential and trade secret information; and (c) information, including the source of the Products and Services, has been created, developed and maintained by WealthEngine or Data Owner(s) at great expense of time and money, such that misappropriation or unauthorized use by others for commercial gain would unfairly or irreparably harm WealthEngine or Data Owner(s).  Client agrees that Client will not commit or permit any act or omission by its agents, employees, or any third party that would impair WealthEngine or Data Owners’ copyright or other proprietary and intellectual rights in the relevant Products, Services or WealthEngine Content.  The Product(s), Results, Services, and WealthEngine Content are for the Client’s use only, and the information contained therein may not be sold or otherwise transferred by Client to any third party. Client will not use any WealthEngine or Data Owner trade names, trademarks, service marks or copyrighted materials in listings or advertising in any manner without the prior written approval of the WealthEngine or the relevant Data Owner(s).  Client shall reproduce WealthEngine or Data Owners’ copyright notice and proprietary rights legend on all authorized copies of such WealthEngine Content, as appropriate.  Client reserves all rights, title and interest in the Client Data except for those rights and licenses expressly granted in this Agreement. In addition, Client shall not divulge any of the information furnished to Client to any person or entity whatsoever, other than to those subject to confidentiality agreements at least as strenuous as the terms contained herein. WealthEngine will have sole discretion to take any action that it deems appropriate to enforce its, or the Data Owners’, ownership rights.
  8. License in Client Data.  To provide the Services and for no other purpose; Client hereby grants to WealthEngine its applicable, Data Owners and Publishers, a worldwide, non-exclusive, non-sub-licensable, non-transferable right and license to use the Client Data, solely for the purpose of providing the Services to the Client.  Except for the limited right and license granted in this Agreement, Client retains all right, title and interest in and to the Client Data and its data sources, including, without limitation, all rights of reproduction, modification, distribution, display, disassembly and decompilation and all copyright, patent, trademark, trade secret and other proprietary rights and interests in the Client Data.  Subject to the terms of this Agreement, Client reserves and retains all rights, title, and interest in the Client Data or any other data supplied to WealthEngine.
  9. Utilization of Collected Data. In connection with the Services provided by WealthEngine hereunder, WealthEngine may collect and maintain information about Clients and other data (“Collected Data”), which will not include personally identifying information, but which may include, without limitation, (a) business information including but not limited to number and content of advertisements, campaign statistics, interactions, click-throughs, and page impressions; (b) media monitoring and research data and (c) any “metadata” or other analysis of any data collected by WealthEngine hereunder. As between Client and WealthEngine, WealthEngine has the sole and exclusive ownership, interest and title in and to all Collected Data. For any Collected Data not deemed to be the property of WealthEngine, Client hereby grants WealthEngine: (i) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to store and use any such information without restriction; and (ii) on a perpetual basis, to use the Collected Data for product development, or to create and compile aggregated data, and/or statistics; provided, however, in any such Product, aggregated data or statistics WealthEngine will ensure that the Collected Data is disclosed only and in a manner that is not directly attributable to or identified with Client. WealthEngine may disclose any non-personally identifiable information about Client’s without disclosing the source of such information to its affiliates, partners and contractors that are reasonably associated with Services.
  10. Comments & Suggestions. Any information, comments, suggestions, ideas or materials (including original or creative materials) provided by Client to WealthEngine about the Services, upon WealthEngine’s receipt, become WealthEngine Confidential Information.  WealthEngine is free to use, copy, modify and/or distribute any such (“Feedback”) to others, without limitation, for any purpose, commercial or otherwise, without obligation, compensation or acknowledgement to Client; provided, however, that WealthEngine will not disclose Client’s identity in connection with the Feedback.
  11. Publicity. WealthEngine may identify Client as a customer of WealthEngine, specifically including permission for WealthEngine to tastefully use of Client’s name, logo and/or marks. Client hereby grant WealthEngine a limited, non-exclusive, non-transferable, non-sublicenseable license during the Term of this Agreement to display Client’s trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that Client uses the Services.
  12. Trademarks.  For purposes of this Agreement, WealthEngine hereby grants to Client a limited, non-exclusive, non-transferable, non-sub-licenseable, revocable license during the Term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of WealthEngine (each, a “WealthEngine Mark”) for the purpose of promoting or advertising that Client uses the Services, solely in accordance with the terms and conditions of this Agreement. In using WealthEngine Marks, You may not: (i) display a WealthEngine Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by WealthEngine; (ii) use WealthEngine’s Marks to disparage WealthEngine or its products or services; or (iii) display a WealthEngine’s Mark on a site that violates any law or regulation. Notwithstanding the above, WealthEngine may determine in its sole discretion whether its marks may be used in connection with any Client Application(s). Furthermore, WealthEngine may modify any WealthEngine Marks provided to Client at any time, and upon notice, Client will use only the modified WealthEngine Marks and not the old WealthEngine Marks. Other than as specified in this Agreement, Client may not use any WealthEngine Mark unless Client obtains WealthEngine’s prior written consent. All uses of the WealthEngine Trademarks and goodwill associated therewith shall inure to the benefit of WealthEngine.

IV. Provision of Services


  1. Provision of Services.  WealthEngine will provide the Services ordered by Client pursuant to any Order.  Written approval is not a prerequisite to the validity and enforceability of this Agreement, or any Order, and no solicitation of any such written approval by or on behalf of Client shall be construed as an inference to the contrary.  WealthEngine is permitted to utilize sub-contractors, at WealthEngine’s own discretion in the performance of this Agreement. Client’s use of any ordered Service, in addition to the Terms of Service, will be subject to certain additional restrictions set forth in the Order, including, without limitation, restrictions on the number if usages, the number of users, the number of records applicable for any particular Product, and the period(s) set forth in an Order.  Any required Client Data must be submitted within one year from the date of the Client’s acceptance of the applicable Order, and within the Order Term.  In the event Client exceeds the limits set out in an Order Client will be charged for any excess usage at the same rate set forth on the applicable Order.
  2. Order(s) & Continuous Development.  Upon request, WealthEngine will provide Client with additional information regarding the Products listed on any Order.  Client acknowledges that WealthEngine may continually develop, modify and provide to Client ongoing innovation to the Services.  Accordingly, WealthEngine reserves the right to: (i) add new Products or to modify the description of any existing Product; and (ii) make changes to the data licensed under this Agreement, including modifications to sources and data elements. The foregoing rights include the right to remove, add or replace any data source. Client acknowledge and agree that the form and nature of the WealthEngine Services may change from time to time without prior notice to you. Changes to the form and nature of the WealthEngine Services will be effective with respect to all versions of the WealthEngine Services; examples of changes to WealthEngine Services include without limitation changes to security improvements, added or removed functionality, and other enhancements. Each update or modification will also be governed by this Agreement, unless the update or modification is accompanied by a separate license agreement, in which case the terms of that licenses agreement will govern.
  3. Product Delivery. WealthEngine will use commercially reasonable efforts to satisfy any time frames set forth in an Order.   WealthEngine will monitor performance indicators on the Services and network infrastructure in order to gauge the overall performance of its Services, and will take reasonable steps to address systems and network infrastructure as required to maintain the Service(s) performance.   WealthEngine will use an internal system to measure whether the Service(s) are available, and Client agrees that this system will be the sole basis for resolution of any dispute that may arise between Client and WealthEngine regarding this Agreement. However WealthEngine online Products may become unavailable due to: (a) required routine system maintenance not to exceed four (4) hours in any calendar month; and (b) any other circumstances beyond WealthEngine’s reasonable control (including without limitation, Internet delays, network congestion and ISP malfunctions).  WealthEngine shall not be liable to Client for the unavailability of any online Product.  Upon request WealthEngine will provide the Client with additional information regarding uptime for an online Product; Client may request, and WealthEngine may, in its sole judgment, amend an Order to compensate the Client for excessive unavailability. The parties agree that the service level and remedy stated above are Client’s sole remedy for any and all unavailability of any Product delivered online.
  4. Sourcing of WealthEngine Data.  WealthEngine will endeavor to obtain the WealthEngine Data from reliable sources.  WealthEngine reserves the right to substitute and replace the sources for the Services provided under this Agreement. WealthEngine, will not, however be liable for errors, inaccuracies or incompleteness of the WealthEngine Data as contained in any Results.  In some cases the WealthEngine Data has not been obtained directly from the Data Subjects, and such Data Subjects that have not opted in or otherwise expressly consented to having their information sold for marketing purposes. WealthEngine represents that the WealthEngine Data has been collected in accordance with applicable local, state, federal, rules or regulations related to WealthEngine’s sourcing of the WealthEngine Data.
  5. International Data. WealthEngine may source international data (data on subjects other than residents of the United States of America) on a per project basis in response to client requirements.  Orders that contain international data may include additional terms and conditions.  In some instances the additional terms and conditions associated with international data may not be available prior to the execution of the applicable Order.  In such cases Client is required to execute an amendment to any such Order to incorporate the additional terms and conditions associated with any such international data. If Client declines to execute an amended Order, as contemplated by this section III (5), WealthEngine may refrain from providing the effected international data, and will issue Client a pro rata refund for any pre-paid but undelivered services.  
  6.  Suppression Data. Except as may be required by law or necessary to prove compliance with laws, Client will not sell, rent, lease, license, exchange and/or otherwise transfer any data contained in any suppression database(s) or of any individual or entity that has unsubscribed from receiving future solicitations from Client, WealthEngine and/or a Data Provider.
  7. Responsibility for Suppression.  It is solely Client’s responsibility to ensure that the most current legally required suppression processing has been applied to Client Data, or the combination of Client Data and WealthEngine Data, before such files are used for marketing (as applicable). Client is responsible for complying with all applicable state and local laws governing use of the WealthEngine Content and Services.  WealthEngine does not guarantee that the Results meets the requirements of any applicable local, state, federal or international law, rule or regulation related to the usage of a Data Subject’s contact information, including, but not limited to, wireless suppression lists, wireless domain lists, commercial e-mail laws, telemarketing laws and "Do-Not-Call" lists. In addition to the requirements contained in section III (8), below, Client will immediately refrain from use of information covered by a Data Subject’s election to unsubscribe. Client shall honor all Data Subjects’ request, send directly to Client, or forwarded by WealthEngine, to opt out of the further commercial messages. In the event Client gives a third party access to any Services, then Client shall be responsible for contractually requiring such third party’s strict compliance with this Agreement, as if such third party where Client. Client agrees to indemnify WealthEngine for any losses related to a violation of this section III (7) or section III (8), and the activity of a third party, when such third party was provided access to the Services by Client.
  8. Suppression Requests. In any use of the Services, Client must honor all Data Subject elections, in any form, not to receive Marketing Communications.  Client is responsible for any communication initiated by a consumer arising out of Client’s use of a Prospecting Product. Client shall use good faith efforts to communicate to WealthEngine all complaints, inquiries and opt-outs made by any Data Subject with respect to the Services. For purposes of clarification, Client shall only provide notice to WealthEngine if a Data Subject requests that Client identify the original source of the database. Client shall not need to inform WealthEngine of Data Subject requests to be removed from Client's own marketing campaigns. No reference to WealthEngine or the Data Owners in a communication to a Data Subject, by Client, shall be made without WealthEngine’s and the Data Owner’s prior written approval.  Client shall be responsible for responding to any communication initiated by a Data Subject, consumer advocacy group, anti-spam advocacy group or ISP arising out of Client’s use of the Services provided hereunder.
  9. Advertising Services.  WealthEngine’s Services include a variety of campaign products. Client agrees and acknowledge that certain Product(s) result in ads being purchased through advertising exchange systems, digital media and other sources. WealthEngine will have program approval rights; WealthEngine further agrees that its approval shall not be unreasonably withheld. If required by an Order, Client shall provide WealthEngine, prior to the processing, with sample creative, and WealthEngine shall notify Client of its approval or rejection within three (3) business days of Client's notification, failure to provide notification constitutes approval by WealthEngine.  WealthEngine reserves the right to require Client to suspend any previously approved campaign if said campaign is deemed to generate high opt out numbers or complaints. Certain Publishers have pricing minimums, Client will be required to satisfy any such minimum applicable to the Publisher desired by Client. Client acknowledges and agrees neither WealthEngine nor its Publisher(s) guarantee that ad inventory meeting Client’s selected criteria will be available, that it will be available in the desired volume, or that (if applicable) Client will be the successful bidder for such inventory.  WealthEngine and its Publishers shall have no liability or responsibility for any utilization of advertising Services arising from Client’s error, or oversight. Client is solely responsible for ensuring that the ads, content, materials, and/or landing pages connected to the ads do not cause actual damage or injury to WealthEngine, its Publishers, or Data Providers.
  10. Provision of Campaign Services. Certain Services result in campaigns being executed on Client’s behalf.  In some cases WealthEngine cannot provide Client with the data that enabled the campaign.  However, if possible, Client may purchase the underlying data from WealthEngine if not already included in the applicable Order.  WealthEngine shall have no liability for the unavailability of data used to execute a marketing campaign on Client’s behalf. If applicable, when possible and desired by Client, WealthEngine will provide Client with transparency and control over the technologies used to execute a marketing campaign. If applicable, Client acknowledges and agrees that any Publisher receiving a Product may provide to WealthEngine detailed billing and invoice information for media buys between Client and that Publisher.
  11. WealthEngine as Intermediary. The purpose of this section is to flow down any obligations undertaken by WealthEngine to the Publisher, pursuant to the Publisher Agreement. (“Partner Agreement”) means a separate agreement between Client and Publisher, or WealthEngine acting on Client’s behalf, required for the utilization of a Publisher in a marketing campaign. Accordingly WealthEngine may enforce the terms of the Partner Agreement, as if WealthEngine were Publisher, or Client, as applicable.   Where Client is acting as an agency using the Services for the benefit or on behalf of an Client’s customer, Client further represents, warrants and covenants that:  (i) Client is the authorized agent of such Client’s customer and has the legal authority to bind the Client’s customer to the applicable requirements of this Agreement; and (ii) Client is authorized to make all decisions and take all actions related to Client’s customers’ account(s) as related to the Services, through a written agreement with Advertiser that provides Client with such authority.
  12. Data Owners. WealthEngine is obligated to comply with certain restrictions and requirements placed upon the use of the WealthEngine Services by Data Owners. CLIENT COVENANTS AND PROMISES NOT TO SUE ANY DATA OWNER FOR AN AMOUNT IN EXCESS OF ANY LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS.  CLIENT IS OBLIGATED TO GIVE WEALTHENGINE NOTICE OF ALL ACTIONS, CLAIMS, LOSSES OR DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SERVICES; WEALTHENGINE WILL BE RESPONSIBLE FOR FORWARDING ANY SUCH NOTICE TO THE DATA OWNER, AS APPROPRIATE.  Client agrees that the Data Owners are intended third party beneficiaries of this Agreement, and that the Data Owners may, in their own name, or in WealthEngine’s name, enforce this Agreement against the Client; provided, however, that Client agrees that Client will only look to WealthEngine and not Data Owners for performance by WealthEngine of WealthEngine’s obligations hereunder.
  13. NCOA. If Client receives National Change of Address (“NCOA”) and Delivery Sequence File (“DSF”), Client agrees that the sole permitted utilization of NCOA is to process address lists that will be submitted to the USPS for acceptance and delivery. Client acknowledges and agrees that Client must satisfy any USPS minimums and execute the forms required by USPS, prior to accessing the applicable Product.  Client warrants that it is an entity located or operating within the United States and that it will only use the applicable mailing list(s) for mailing to addresses located within the United States.
  14. Hyperlinks & Third Party Content. The Services may contain hyperlinks to other sites which are not maintained by, or related to, WealthEngine. Hyperlinks to such sites are provided as a service to Authorized Users and are not sponsored by or affiliated with the Services or WealthEngine.  WealthEngine does not continuously monitor or review any or all of such sites and is not responsible for the content of those sites.  Hyperlinks are to be accessed at the Authorized User’s and Client’s own risk, and WealthEngine makes no representation or warranties about the content, completeness or accuracy of these hyperlinks or the sites hyperlinked to the Services.  WealthEngine provides hyperlinks as a convenience, and the inclusion of any hyperlink to a third party site does not necessarily imply endorsement by WealthEngine of that site or any association with its operators.  Client represents and warrants that any Third Party Content that You use or have access to shall not (a) be copied, altered, or redistributed by Client without the prior written consent of the owner of such Third Party Content; or (b) be used in any documents, reports, presentations or publications by Client without the prior written consent and without attribution to the owner and/or author of such Third Party Content or to any other sources of such Third Party Content as may be appropriate.

V. Compliance & Restrictions


  1. Ongoing Compliance. WealthEngine is obligated to comply with certain restrictions and requirements placed upon the use of the WealthEngine Data by the Data Owners. Client will strictly comply with all restrictions and requirements now or hereafter imposed upon WealthEngine or its licensees by the Data Owners to the extent such restrictions and requirements are made known to Client in writing, including, without limitation, the usage restrictions contained in this Agreement.  In the event that legislation or governmental regulations or the Data Owners’ requirements limit or prohibit the delivery or use of any Product, or if, in WealthEngine’s reasonable judgment, delivery or use of any Product would violate any such legislation, regulations or requirements, WealthEngine may suspend delivery of such Products.  At its option, WealthEngine may: (i) implement an alternative method of providing the Products or (ii) terminate the applicable Order or Product and Client shall discontinue using such Product.  If WealthEngine terminates the Order or a Product, pursuant to this Section, WealthEngine agrees to provide Client with a refund of any fees paid in advance for any Product that has not yet been delivered to Client under the applicable Order.  The foregoing remedies do not apply if such noncompliance arises out of Client’s use of the Services, or a violation of this Agreement by Client. 
  2. Restrictions Applicable to All WealthEngine Content.  For the avoidance of doubt, the parties state that the restrictions set forth in this section IV (2) are intended to apply to all WealthEngine Content made available through any Results:
    • Each party will comply will all applicable Laws in its performance of this Agreement or in the exercise of its rights hereunder. Client will only use the Results in compliance with all applicable local, state, federal and international laws, rules, regulations and requirements, including, but not limited to, those laws and regulation regarding telemarketing, customer solicitation (including fax advertising, wireless advertising and e-mail solicitation), data protection and privacy (including but not limited to the NAI Code of Conduct). Client will reasonably cooperate with WealthEngine’s specific requests as necessary to facilitate WealthEngine’s compliance with the preceding sentence.  WealthEngine or the Data Owners shall be entitled to audit Client’s use of the Services to assess Client’s compliance with this Agreement.
    • WealthEngine is not a consumer reporting agency, and Client shall not use any WealthEngine Content as a factor in establishing a consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, for employment purposes, or for any other purpose authorized under section 604 of the Fair Credit Reporting Act (15 U.S.C. § 1681b).
    • WealthEngine Content that includes real estate data may not be used for flood hazard determination (on FEMA form 81-93 or its successor or replacement). Client shall use WealthEngine Content in compliance with the Gramm-Leach-Bliley Act privacy provisions (15 U.S.C. §§ 6801 et seq.), and the Equal Credit Opportunity Act (15 U.S.C. §§ 1691 et seq.).
    • Federal, state and local political contributions (“Political Data”) may not be used as the source data to create a list or as the sole data input for developing any direct marketing program.  Client’s use of Political Data presumes that Client has already identified a source list and that the Political Data is being added as an additional element to Client’s pre-existing list.  Client is responsible for its compliance with the use restrictions applicable to Federal Election Commission (“FEC”) data, if any, included in the WealthEngine Content. 
    • Client may not sell, lease, rent or otherwise provide to any other party the WealthEngine Content or any direct marketing list, model, analysis, code or report utilizing or derived from the WealthEngine Content, except that Client may provide, without charge, the WealthEngine Content or any direct marketing list, model, analysis, code or report utilizing or derived from the WealthEngine Content to an agent or independent contractor of Client providing assistance to Client in connection with the Client’s use of the Services. Client may not use the Services: (i) in the development of any products (specifically including without limitation, derived products) or services to be provided to a third party; (ii) in the conduct of any marketing campaigns promoting a third party’s products or services; or (iii) in connection with any list enhancement or data appending projects performed for a third party.
  3. Use of Phone Numbers.  In addition to all other terms of this Agreement, the usage restrictions of this section IV (3) apply to all uses of the Services involving telephone numbers provided by WealthEngine as part of the Results:
    • Client will adhere to the Telephone Consumer Protection Act, which entitles a consumer to certain information during a phone call. Additionally Client agrees to comply with all applicable FTC regulations or opinions. If Client orders and receives FTC “Do Not Call” suppression Files, Client may be required to register with the Federal Trade Commission and Federal Communications Commission Do Not Call (“FTC DNC”).  Client represents and warrants that all Client entities shall be properly registered with the FTC, if required by law. If requested by WealthEngine Client will provide proof of registration by providing Client’s subscriber account number. Client acknowledges that it is Client’s responsibility to ensure that its files have been processed using the most current FTC DNC suppression data, as required by law, before such files are used for marketing.  Client agrees to use the FTC DNC data processing services or related flags for the sole purpose of complying with the “FTC Telemarketing Sales Rule” or otherwise to prevent telephone calls to telephone numbers on such files.  Client agrees to defend, indemnify, and hold WealthEngine and its Data Owners harmless for any claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of a Client’s failure to properly register and maintain as current the appropriate state and/or FTC registration; failure to properly qualify as an exempt entity, if asserted; and Client’s or a Client’s unauthorized or unlawful use of the FTC DNC results processing services or related flags.
    • Client agrees that use of any of the Results that contain telephone numbers for residents of Canada (“Canadian Data”) is subject to all applicable Canadian laws, rules and regulations and it is Client’s sole responsibility to ensure that Client’s use of any Canadian Data is in compliance with any such laws, rules and regulations. 
    • If Client orders telephone numbers that include suppression flags applied to a Client’s file, the following provisions shall apply: due to the varying time frames that suppression files are released to the general public, WealthEngine and Data Owner cannot guarantee that the names or telephone numbers of all consumers who have opted-out of receiving Marketing Communications have been flagged on the applicable Results.  If a Client claims exemption from the requirement to register with the FTC, Client represents and warrants that exemption is justified under the provisions of the rules and regulations of the FCC, the FTC, and/or other applicable governing agency.  If Client is requesting the restricted telephone number list, a separate waiver form signed by Client will be required. Client will only access and/or receive data processing services involving those portions of the FTC and FCC DNC file for which Client has registered or is entitled due to exemption.
  4. Use of Email. In addition to all other terms of this Agreement, the usage restrictions of this section IV (4) apply to all uses of the Services involving email provided by WealthEngine as part of the Results:
    • Client shall comply with all applicable restrictions in this Agreement including but not limited to: (i) restrictions concerning, reference to selection criteria or knowledge concerning the recipient, or the source of the name and address; (ii) with applicable federal and state laws, rules and regulations, specifically including The Can Spam Act of 2003; (iii) with applicable privacy policies, DMA ethical use and fair information practices, and the Direct Marketing Association (“DMA”) Guidelines; (iv) not infringe on any other party’s intellectual property rights; and (v) contractually requiring all third parties utilize the Services, or Results, on Client’s behalf to comply with the applicable terms and conditions of this Agreement. 
    • Any email communication will contain an opt-out provision (if applicable including a link to Client’s opt out landing page), identify Client and provide Client’s valid physical address, and clearly express the intent of the email communication. Every Data Subject who opts out shall be unsubscribed as soon as practicable by Client, but in no event more than ten (10) business days from receipt of the request. If reasonably requested by WealthEngine, Client will provide sample(s) of the applicable Marketing Communications.
    • If Client provides WealthEngine with a list and requests an email append  Client warrants that Client’s provision of Client Data for an email append product does not violate any terms of this Agreement, including but not limited to Client’s published privacy policies or notice and disclosure statements. Client will indemnify WealthEngine for any damages or losses arising in relation to a breach of the foregoing warranty.
    • If WealthEngine is prohibited from appending emails to the Client Data WealthEngine may be able to conduct an email marketing campaign on Client’s behalf. If WealthEngine is prohibited from appending emails, Client will not receive any consumer information (i.e., no email information, prospect file or any demographic data). However Client shall be entitled to retain information from email responses, which includes reports providing email campaign statistics. Client shall be entitled to retain the information it collects as a result of a Conversion.
    • In the event that WealthEngine receives an opt-out request from any Data Subject, WealthEngine shall use reasonable efforts to remove such Data Subject’s information from any data provided to Client. If Client requests, WealthEngine shall supply to Client a file that contains the email addresses of replies to the campaign by consumers requesting to opt-out.  Client agrees that any such file may be used by Client for suppression purposes only.  If asked by a Data Subject about the source of the Data Subject’s email, Client shall contact WealthEngine so that a factually correct explanation that is suitable for the Data Subject can be provided.
  5. Tasteful Use. Client may not use any WealthEngine Content to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, or weapons. 
  6. Additional Use Restrictions Applicable to Prospecting Products.  For the avoidance of doubt compliance with the additional product specific restrictions of this section is necessary, but not sufficient, for Client’s compliance with this Agreement. The restrictions of this section apply to any and all Client activity, including Marketing Communications that utilize any Prospecting Product(s):
    • Marketing Communications that utilize Prospecting Products shall not reference the selection criteria or any knowledge concerning the intended recipient, including the source of the recipient’s name and address. Upon reasonable request, Client agrees to furnish WealthEngine a copy of each mail piece and/or telemarketing script utilizing a Prospecting Product, and a written notification of the number of persons for whom such Marketing Communications applies.
    • Prospecting Product(s) may be seeded to detect any unauthorized use or duplication thereof: Client will not remove seeds from any Prospecting Products.  Client agrees to pay the full use charge for Client’s violation of the permitted uses specified herein; in addition to any other remedies that WealthEngine and its Data Owners have available under this Agreement. Client shall not use or make copies of any Prospecting Product(s) except as required under this Agreement or as necessary for Client to utilize the Prospecting Product(s), and shall limit access to the WealthEngine Content to its own employees, agents and consultants strictly on a need-to-know basis.
    • All Marketing Communications shall be devoid of any deceptive material or practices: it should always be clear what is being offered, who is offering, and not otherwise misleading or deceptive.  In all cases the attributes to select consumers to send Marketing Communications shall be appropriate, and reasonable given the legitimate goals of the Marketing Communication. Prospecting Product(s) shall be used for affirmative marketing purposes only and not for exclusionary purposes.
    • Under no circumstances shall the Prospecting Product(s) be used: (i) to advertise, sell, or exchange any products or services that involve credit repair services or other illegal or illicit activities; (ii) in connection with individual credit, employment or insurance applications; (iii) for any unsolicited fax purposes; or (iv) in violation of any applicable law, regulation or rule.
    • Client shall not use any Prospecting Product(s): (i) to develop, publish or maintain any directory, or other similar product; (ii) to permit access to the WealthEngine Content by individuals incarcerated in prisons or correctional institutions; (iii) in a manner that may cause emotional or physical harm to anyone, or to "stalk" or otherwise harass another person; or (iv) to post or distribute any content or materials that Client does not own or otherwise have sufficient rights and licenses to utilize hereunder.
    • Client shall not attempt to merge or otherwise associate anonymous data with personally identifiable information. To the extent that Client employs online behavioral advertising (OBA) data, as that term is described in the NAI code, Client agree to use commercially reasonable efforts to engage only deploy or access such OBA data through online advertising technology providers that agree to adhere to the NAI Code of Conduct or similar industry privacy standards.
    • Client shall not use the Services to transmit, provide, or otherwise make available any personally-identifiable information or sensitive information about any Data Subject. "Sensitive information" includes the following personally identifiable information about a Data Subject: his or her financial account numbers, insurance plan numbers, precise (individual-level) information about health or medical conditions, sexual orientation, government-issued identifiers (such as a Social Security number), information that describes the precise real-time geographic location of a Data Subject derived through location-based services such as GPS-enabled devices, as well as those elements described as sensitive information under the NAI Code of Conduct; any personally-identifiable information about a minor under the age of 13 is also "Sensitive Information."
  7. Audit.  WealthEngine shall have the right to audit Client’s use of the Products and Services and compliance with this Agreement at Client’s premises from time to time in WealthEngine’s sole discretion.  Client agrees to permit WealthEngine to have access to its facilities and personnel during normal business hours for the purpose of conducting such audits. In the event such audit reveals Client is exceeding the scope of this Agreement, or an applicable Order, then Client shall pay WealthEngine’s additional fees for such use (at then current prices) and reimburse WealthEngine for the cost of the audit.  Client’s rights under this Agreement will terminate automatically without notice if Client fails to comply with any term of this Agreement.

VI. General Terms


  1. Mutual Representation. Each party represents and warrants to the other that: (i) it is an entity in good standing under the laws of its state of incorporation; (ii) it has full power, right and authority to enter into and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement have been duly authorized, and will not violate any right held by a third party; (iv) it will comply with all applicable laws, rules and regulations pertaining to this Agreement; (v) this Agreement does not violate any other agreement or covenant to which it is a party or is bound; and (vi) it has obtained and will at all times maintain all rights, license and clearances from Data Providers, Publishers, or other third parties, as necessary.
  2. Client Representations. The Client represents and warrants that Client: (i) will conspicuously post a privacy policy on Client’s web site(s) that is in accordance with all applicable laws, rules and regulations, and Client will comply with any such privacy policy; (ii) it will use best efforts to maintain accurate books and records accounting for the use of the Services; (iii) has the right to use and provide Client Data to WealthEngine in association with the Services; (iv) to the best of Client’s knowledge, Client’s use of the Services will not cause or require WealthEngine to violate any applicable law, rule, regulation, opinion, or industry guidelines; and (v) has provided, if required, proper notice and secured proper consent for the collection and use of the Client Data in connection with the Services.
  3. WealthEngine Warranty. WealthEngine hereby represents and warrants to Client that the Services will be performed in a workmanlike and professional manner in conformance with industry standards. Client acknowledges that the Services have not been developed to meet the Client’s individual requirements and that it is therefore the Client’s responsibility to ensure that the facilities and functions of the Services meet the Client’s requirements. Client acknowledges that the Services may not be free of bugs or errors and Client agrees that the existence of any minor issues shall not constitute a breach of this Agreement.
  4. WEALTHENGINE DISCLAIMER.  Notwithstanding the foregoing, WealthEngine shall have no responsibility or liability for any breach of such warranty to the extent that such breach results from: (i) modification of the WealthEngine Content by Client or any third party; (ii) any use of the WealthEngine Content other than in strict accordance with this Agreement; or (iii) inaccuracies, omissions, or other defects or deficiencies in any other third-party data incorporated into or used in the creation of the WealthEngine Content. Except as set forth in this section V, neither WealthEngine nor the Data Owners make any representations or warranties, whether express, implied, or statutory (by any territory or jurisdiction) to the extent permitted by law, hereunder with respect to the Services, the Results or the method by which the Services are provided, WealthEngine expressly excludes any warranties of non-infringement, title, merchantability, fitness for a particular purpose, data accuracy, security, quiet enjoyment, usage of trade or course of dealing, to the extent permitted by law.  WEALTHENGINE DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SERVICES, OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; WEALTHENGINE DOES NOT WARRANT THAT ALL ERRORS CAN, OR WILL, BE CORRECTED. WealthEngine does not warrant that the Services will be uninterrupted or error-free.  The WealthEngine Content and Services are provided on an “AS IS” “AS AVAILABLE” basis.  Any use or reliance upon the Services or the Results shall be at Client’s own risk.  WealthEngine and the Data Owners shall not be liable regardless of any negligent acts or omissions, by WealthEngine or Data Owners, in procuring, compiling, collecting, interpreting, reporting, communicating, or delivering of the Services.
  5. Internet Delays.  THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WEALTHENGINE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
  6. Assurances. Any written or oral information or representations provided by WealthEngine agents, employees, resellers, consultant, partners, Publishers, or Data Owners with respect to the use or operation of the Services will in no way increase the scope of WealthEngine’s warranty.  WealthEngine and its suppliers do not exercise control over the content of the Client Data passing through their systems.  Client and its Authorized Users must exercise their own due diligence before distributing and/or relying on information available on the internet, and must determine that they have all necessary rights to copy, publish, or otherwise distribute such information under copyright and other applicable laws. Neither WealthEngine or its Data Owners will be liable for any consequence of providing email services, including those suffered as a result of delivering or accessing information or content, such as accessing information with offensive, inaccurate or inappropriate content, the possibility of contracting computer viruses, or unauthorized access to or alteration, theft, or destruction of any data files, programs, procedures, or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of WealthEngine’s or its Data Owners’ negligence.
  7. EXCLUSIVE REMEDY.  WealthEngine’s sole obligation and Client’s exclusive remedy for any breach of the warranty contained in section V (3), by WealthEngine, will be for WealthEngine to re-perform the Services in a manner that conforms to the warranty.  Notwithstanding the foregoing, if WealthEngine is unable to perform the Services in a manner that conforms to the warranty in a timely manner, Client shall be entitled to a refund of fees paid to WealthEngine for the non-conforming Services.
  8. Prohibition on Malicious Use.  In addition to the Authorized Use Policy, Client will not interfere with or disrupt network users, Services, or equipment with the intent to cause an excessive or disproportionate load on WealthEngine’s or its suppliers’ infrastructure by means of distribution of unsolicited bulk emails, viruses, trojan horses, worms, or other similar harmful or deleterious programming routines. Client will comply with all applicable usage policies, and Client agrees to cooperate with WealthEngine in causing any unauthorized use immediately to cease. WealthEngine reserves the right to take reasonable actions to respond to activities conducted using Client’s Credentials that may cause a denial, degradation, interference or disproportionate burden on the Services or WealthEngine systems. WealthEngine may throttle, suspend, or terminate a Client’s account without prior notice in the event that activities pose or appear to pose an unacceptable risk to the stability, integrity, or quality of the Services; WealthEngine reserves this right in order to maintain the quality of the Services.  Client may not obtain or attempt to obtain any materials, content, or Results, through any means not intentionally made available or provided for through any WealthEngine Products or Services. WealthEngine may, in its discretion, revise these use restrictions upon notice to Client.
  9. Monitoring.  WealthEngine will not systematically monitor Client Data, but WealthEngine reserves the right to review, or audit, Client Data from time to time in its discretion. WealthEngine reserves the right to (a) disable access to or delete any Client Data which it determines in its sole discretion (such discretion to be exercised in good faith) to be illegal, obscene, threatening, defamatory, fraudulent, infringing, harassing, or otherwise offensive, and (b) disable access to or delete any other Client data under justified exigent circumstances, as such circumstances are determined in good faith by WealthEngine.  WealthEngine agrees to notify the Client in a case where WealthEngine exercises it rights in this section VIII, and use good faith to establish an appropriate alterative or work around solution. 
  10. Damages. TO THE EXTENT PERMITTE BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY DATA OWNER, FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  11. Cumulative Liability. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER, OR ANY DATA OWNER, FOR ALL CLAIMS, INCLUDING NEGLIGENCE, ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED, THE GREATER OF $5,000.00 OR THE TOTAL AMOUNT OF ALL ACTUAL FEES PAID BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.  THE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
  12. Client Use of the Services. WealthEngine and the Data Providers shall not be liable for any damages, losses, costs, claims or expenses with respect to any legal or compliance violation arising out of or related to Client's or any related parties' use of Services licensed under the Agreement.
  13. Limitation on Claims.  Except for nonpayment or breach of proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought more than one (1) year after the cause of action has accrued, regardless of any statutes of limitation of applicable law.
  14. Application of Limitation on Liability.  CLIENT AGREES THAT WEALTHENGINE’S TOTAL LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT. THIS LIMITATION ON LIABILITY APPLIES TO ANY AND ALL WEALTHENGINE INDEMNIFICATION OBLIGATIONS. However nothing in this Agreement shall limit or exclude the liability, of either party, which cannot lawfully be excluded or limited. All the provisions of this Agreement shall be construed and interrupted accordingly.
  15. Essential Basis of the Agreement.  The limitations of liability set forth in sections V (10) through V (14), inclusive, are intended to apply without regard to whether other provisions of this Agreement have been breached or proven ineffective. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different. The limitations of liability in this Agreement shall in no way be affected by the legal theory or form under which any action is brought.  Further, these limitations are independent from all other provisions of this Agreement and shall apply notwithstanding the failure of any remedy provided herein.
  16. WealthEngine Indemnity.  As limited by this section V, above, WealthEngine will indemnify, defend and hold Client, its directors, trustees, officers, employees and representatives (each a “Client Indemnified Party”), harmless from and against any and all third party losses, damages, and liability awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising directly out of any third party claim alleging: (i) that the Services or the WealthEngine Content infringe any U.S. patent, copyright, or trademark or (ii) that any act or omission of WealthEngine caused a Security Breach associated with the Client Data.
  17. Exclusions: Client Indemnity. Section V (16) will not apply if the alleged claim arises, in whole or in part, from (i) a breach of this Agreement, including, noncompliance, and any use or modification of the Services or the Results by Client in a manner outside the scope of any rights granted, (ii) a combination, operation or use of the Services or the Results with other software, hardware or technology not provided by WealthEngine, if the claim would not have arisen but for the combination, operation or use, or (iii) the Client Data (any of the foregoing circumstances under clauses (i), (ii) or (iii) will be collectively referred to as a (“Client Indemnity Responsibility”).Client will indemnify, defend and hold harmless WealthEngine, its Data Owners, its directors, officers, employees and representatives (each a “WealthEngine Indemnified Party”), from and against any and all Losses arising out of any third party claim arising out of any Client Indemnity Responsibility.
  18. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action, (ii) reasonably cooperating and assisting in such defense and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without the indemnified party’s prior written consent.
  19. Infringement.  If any Services or any WealthEngine Content is, or in WealthEngine’s opinion, is likely to become the subject of any infringement-related claim, then WealthEngine will, at its expense and in its discretion: (i) procure for Client the right to continue using the Services or WealthEngine Content; (ii) replace or modify the infringing technology or material so that the Services or the WealthEngine Content becomes non-infringing and remains a materially functionally equivalent; or (iii) terminate the applicable Order pursuant to which the Services or WealthEngine Content was provided and give Client a refund for any pre-paid but unused fees.  THE PROVISIONS OF THIS SECTION 10 STATE WEALTHENGINE’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES OR THE WEALTHENGINE CONTENT INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
  20. Fees.  In consideration for the rights and licenses granted to Client hereunder and the Services to be performed by WealthEngine under this Agreement, Client will pay to WealthEngine, without offset or deduction, all fees required by a particular Order, or arising out of a Client’s usage of the Services.  Unless otherwise provided in such Order, all such fees shall be due and payable within thirty (30) calendar days after Client’s receipt of WealthEngine’s correctly billed invoice. All payment obligations are non-cancelable and all amounts paid are nonrefundable. WealthEngine reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Client, which notice may be provided by email.
  21. Taxes.  Client will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges, other than taxes based on WealthEngine’s income (collectively, “Taxes”), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related Services.  Client will make all required Tax payments to WealthEngine free and clear of, and without reduction for, any withholding taxes.  Any such Taxes imposed on payments to WealthEngine will be Client’s sole responsibility, and Client will, upon WealthEngine’s request, provide WealthEngine with official receipts issued by appropriate taxing authorities, or such other evidence as WealthEngine may reasonably request, to establish that such taxes have been paid.  If Client is exempt from payment from any or all Taxes, Client shall, if requested by WealthEngine, provide WealthEngine with a valid tax exempt certificate and shall undertake to provide any update to Client’s tax exempt status during the term of this Agreement.
  22. Consulting & Onsite Training Expenses. Client agrees to pay, in addition to the fees listed in the Order, reasonable out-of-pocket expenses incurred in the performance of the Services, which may include coach class airfare, auto rental, meals and lodging. WealthEngine personnel shall be reimbursed for mileage in excess of the commute to the personnel’s local office.
  23. Collections. Client agrees to pay WealthEngine all reasonable collection and attorney fees incurred by WealthEngine whether incurred prior to or after the commencement of formal legal action.  Client agrees to pay a return check fee of $25.  In addition Client agrees that it will be charged interest at a rate of one and one-half percent (1.5%) per month on amounts payable aged beyond fifteen (15) days.  Client’s obligation to pay WealthEngine is an independent covenant and shall be payable free from any expense, charge, deduction, offset, or counter-claim by reason of any obligation of WealthEngine or any other reason.  All the provisions of this Agreement shall be construed and interrupted accordingly.
  24. Term.  These Terms will continue to apply until terminated by either Client or WealthEngine as set forth below (the “Term”).  If Client wants to terminate Client’s agreement with WealthEngine, Client may do so by closing Client’s accounts for the Service, where WealthEngine has made this option available to Client. 
  25. Termination or Suspension by WealthEngine. WealthEngine may suspend Client’s right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to Client), for any reason or for no reason, at its discretion at any time by providing Client thirty (30) days advance notice. If WealthEngine determines, in its sole discretion, that providing advance notice would negatively impact WealthEngine’s business or operations, WealthEngine may suspend Client’s right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to Client), with no notice. Client agrees that WealthEngine will not be liable to Client or any third party for such termination. Upon WealthEngine’s suspension of Client’s use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by Client, notwithstanding the suspension; (ii) Client remains liable for all fees, charges and any other obligations Client has incurred through the date of suspension with respect to the Services; and (iii) all of Client’s rights with respect to the Services shall be terminated during the period of the suspension.
  26. Termination Upon Bankruptcy or Insolvency.  Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
  27. Effect of Termination.  Termination of the Client account includes: (a) removal of access to all offerings within the Service; (b) deletion of Client’s Credentials and all related information; (c) barring of further use of the Service; (d) Client remains liable for all fees, charges and any other obligations Client has incurred through the date of termination with respect to the Services; (e) immediately discontinue all use of the other party’s Confidential Information (expressly including the Services); (f) delete the other party’s Confidential Information from its computer storage or any other media, including, but not limited to, the Client Data and the WealthEngine Content, as applicable; (g) return to the other party or destroy, all copies of such other party’s Confidential Information then in its possession; and (h) all of Client’s rights under this Agreement shall immediately terminate. Upon expiration or termination, Client shall promptly discontinue use of the Site and the Service.  However, the sections titled Intellectual Property, Payment, Customer Content License, Content Loss, Third Party Content, Disclaimer, Limitation of Liability, Indemnification, Modification and Termination and Miscellaneous of this Agreement will survive any termination of this Agreement, and any other sections or language that is intended to apply after the conclusion of the Term.
  28. Access to Customer Content On Termination.  In the event Client’s access to the Service is terminated (other than by reason of Client’s breach), WealthEngine will make available to Client a file of the Client Data if requested in writing by Client within fifteen (15) days after such termination. Client agrees and acknowledges that WealthEngine has no obligation to retain the Client Data, and may delete such Client Data, at any time on or after the sixteenth (16th) day following termination. WealthEngine reserves the right to withhold, remove and/or discard Client, without notice, for any breach, including, without limitation, Client’s non-payment. Upon termination for cause, Client’s right to access or use Client Data shall immediately cease, and WealthEngine will have no obligation to maintain or provide any Client Data.

VII. Miscellaneous


  1. Insurance. WealthEngine will maintain general liability coverage.  Such insurance shall include coverage for contractual liability, products-completed operations, personal injury, advertising liability, property damage and bodily injury (including death). In addition, WealthEngine will maintain employer’s liability insurance. WealthEngine will maintain additional excess umbrella coverage that will attach to the general liability, automobile liability, and employer liability coverage.  Moreover WealthEngine will maintain Professional Liability and E&O coverage.  WealthEngine employees are covered by Worker’s Compensation insurance.  If requested, WealthEngine will provide certificates of insurance evidencing the insurance defined under this provision.
  2. Including. The words “include”, “includes”, “including”, and “e.g.”, when following a general statement or term, are not to be construed as limiting the general statement or term to any specific item or matter set forth or to similar items or matters, but rather as permitting the general statement or term to refer also to all other items or matters that could reasonably fall within its scope.
  3. Applicable Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns. In any event, each party hereby consents to the exercise of jurisdiction by courts situated in Delaware or the county in which WealthEngine’s principal place of business is currently located.    The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.                 
  4. Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection. All controversies, disputes, demands, counts, claims, or causes of action between Client and WealthEngine arising out of, under, or related to these Terms or our privacy practices (including any action we take or authorize with respect to information about or provided by Client) shall be settled exclusively through binding arbitration.
    • Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law.  The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”).  As modified by these Terms, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
    • Client is thus GIVING UP CLIENT’S RIGHT TO GO TO COURT to assert or defend Client’s rights under this contract EXCEPT for matters that may be taken to small claims court.  Client’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.  Client is entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT.  Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
    • Client and WealthEngine must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by Client and WealthEngine, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY CLEINT OR WEALTHENGINE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) 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, (f) in the event that Client is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, WealthEngine will pay as much of Client’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) WealthEngine also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either Client or WealthEngine shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/WealthEngine customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses. 
    • Notwithstanding the foregoing, either Client or WealthEngine may bring an individual action in small claims court.  In addition, if Client is a user outside of the United States, the dispute resolution provision in WealthEngine’s Privacy Policy (if any), and not this arbitration provision, shall apply to any disputes related to privacy.  Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration provision.  Such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in Delaware.  Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts.  A request for interim measures shall not be deemed a waiver of the right to arbitrate.
    • With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.  If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Client nor WealthEngine shall be entitled to arbitration.  In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between Client and WealthEngine shall be exclusively brought in the state or federal courts specified in subsection “(d)” above.
    • For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Client may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
  5. Export.  Client agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from WealthEngine, or any products utilizing such data, in violation of the United States export laws or regulations.
  6. Local Laws.  WealthEngine and its suppliers make no representation that the Service is appropriate or available for use in locations other than the United States.  If Client uses the Service from outside the United States, Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.  Any diversion of the WealthEngine Content contrary to United States law is prohibited.
  7. Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not constitute a breach, but such obligation will be performed or satisfied as soon as reasonably practicable after the termination of the circumstances causing such delay, provided that if such party is delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
  8. Notices.  All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to Client at the addresses provided to WealthEngine by Client; if to WealthEngine at: President, WealthEngine, Inc., 4330 East West Highway, Suite 950, Bethesda, MD 20814, or addressed to such other address as the receiving party may have given by written notice in accordance with this provision.
  9. No Endorsement. Client understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of the applications Client builds using the Service or Client’s Content.
  10. Electronic Communications. WealthEngine can only give Client the benefits of our service by conducting business through the Internet, and therefore WealthEngine needs Client to consent to WealthEngine giving Client Communications electronically. This Section informs Client of Client’s rights when receiving Communications from WealthEngine electronically.  For contractual purposes, Client (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that WealthEngine provides to Client electronically satisfy any legal requirement that such Communications would satisfy if it were in writing.  Client’s consent to receive Communications and do business electronically, and WealthEngine’s agreement to do so, applies to all of Client’s interactions and transactions with WealthEngine. The foregoing does not affect Client’s non-waivable rights.  Client may also receive a copy of these Terms of Service by accessing this Site.  Client may withdraw Client’s consent to receive Communications electronically by contacting us in the manner described below. If Client withdraws Client’s consent, from that time forward, Client must stop using the Site and Services. The withdrawal of Client’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time Client withdrawals Client’s consent.  Please keep WealthEngine informed of any changes in Client’s email or mailing address so that Client continues to receive all Communications without interruption.
  11. Assignment; Delegation.  Neither party may assign or transfer this Agreement without the other party’s prior written approval, except that either party may, upon written notice, assign this agreement to an entity that acquires or is merged with the party or that purchases all or substantially all of the assets of the party, and such successor entity agrees to be beyond by the terms of this Agreement as if the successor were Client.
  12. Independent Contractors.  Client and WealthEngine acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the parties are acting as independent contractors in making and performing this Agreement.
  13. Amendments; Modifications.  Except as explicitly provided in this Agreement, this Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.  This Agreement has been executed by a duly authorized representative of each of the parties hereto.
  14. Waiver.  No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought.  Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
  15. Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
  16. Third Party Beneficiaries.  The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns, except to the extent the explicit terms of this Agreement provide otherwise.
  17. Counterparts.  This Agreement may be executed electronically through acceptance of these Terms of Service within the Site or Services, in such a case the posted Terms of Service, at the time of acceptance, and as updated from time to time, will be deemed to be an original.  This Agreement may also be executed in any number of counterparts, each of which when so executed will be deemed to be an original, and electronically stored copies of such counterpart(s) will be deemed an original, so long as any such counterpart is in an unalterable format, such as a PDF file; all of which when taken together will constitute one Agreement.
  18. Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
  19. Collective Drafting.  Client has freely signed this Agreement without being subject to any coercion or duress by WealthEngine.  Client has had ample opportunity to consult with an attorney selected by Client regarding the terms and conditions of this Agreement, and Client has been encouraged to contribute to the content of said terms and conditions.  Client has fully read this Agreement and understands each of its provisions.  Any ambiguities occurring in the interpretation of this Agreement shall not be construed against either party hereto.  Client has executed this Agreement intending to be bound by each of its terms and conditions.
  20. Entire Agreement.  This Agreement sets forth the entire understanding between the parties related its subject matter and supersedes all prior oral and written understandings between the parties related thereto.  Neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.

VIII. Definitions


Certain capitalized terms, if not defined elsewhere in the Terms of Service, shall have the meanings set forth below. If certain capitalized terms are defined elsewhere in the Terms of Service, these definitions shall supplement any such definition.

  • Affiliated Companies” means, for purposes of this Agreement, any legal entities that control, are controlled by, or are under common control with Client.
  • Application” You may write a software application or create a website (an "Application") that interfaces with the Services. The Application means services provided by Client to Customers utilizing WealthEngine Content.  Any use of the WealthEngine Content, by Client, in providing an Application shall be subject to the terms of Exhibit A (located within the Sublicensing Terms), as if Client was a Customer. To limit the foregoing utilizing any WealthEngine Products or WealthEngine Data to develop, or derive, Reseller products or services, other than an Application, that will be offered to multiple Customers is strictly prohibited.
  • Authorized Territory” will mean the geographic region or territory within which and named accounts to whom Reseller will be permitted to market the WealthEngine Products.  If the Authorized Territory is not established, then the Authorized Territory shall be the Fifty (50) United States and the District of Columbia. 
  • Authorized User” means each of Client’s employees, agents, and independent contractors who are provided user names and passwords (or the equivalent thereof) by Client or WealthEngine to access the Services.  Client shall ensure all Authorized Users are aware of, and abide by, the relevant terms of this Agreement.  Client is responsible for the actions of its Authorized Users.
  • Authorized WealthEngine Products” means the WealthEngine Products made available through the API, which can be ordered by means of a WealthEngine API, and incorporated into an Application.
  • Customer Content” means any Content provided, imported or uploaded to the Services by Client or on Client’s behalf. This includes any application data transacted through the Service by customer applications.
  • Client Data” means all data submitted to WealthEngine by Client for WealthEngine’s use in performing the Services. Client represents that the data  provided in connection with the Services was not collected in violation of any law, regulation or right held by a third party or Data Subject, and does not (and will not) contain any data collected from, or targeted to any person under the age of thirteen (13).
  • Customer” will mean any entity, duly registered to do business in the Authorized Territory, to whom Client markets the WealthEngine Products.  Client shall not market any WealthEngine Products directly to consumers.
  • Customer Agreement” means the legally binding agreement between Client and each Customer that obtains WealthEngine Products from Client.  Client is required to secure a sufficient Customer Agreement prior to, delivering, or requesting delivery, of any WealthEngine Products.
  • Data Owners” means WealthEngine’s licensors of the applicable data.
  • Data Subject” means an person who is the subject of, represented within or identifiable by the Services or Client Data.
  • Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
  • Marketing Communication” means any communication between Client and a Data Subject conducted utilizing a WealthEngine Data in any way; whether by means of internet, mailing, telephone, or email.  
  • Order(s)” means one or more orders or addenda to this Agreement that incorporate into this Agreement.  An Order must reference WealthEngine’s Terms of Service. An Order sets forth the Services to be provided to Client, the order term, payment terms, and any other particulars applicable to the Order.  Orders shall become effective, upon the commencement of the provision of the applicable Services by WealthEngine, or, if sooner, when signed by authorized representatives of Client and WealthEngine.  An Order also includes an API call, or other technological means WealthEngine develops to enable Client to access purchase the Services, specifically including any Services made available to the Client on an on demand basis.  Orders placed by electronic means will be subject to the pricing presented in the applicable Service, if any, if no such pricing is present the pricing will be contained in the corresponding invoice.
  • Order Term” means the term of any Order as specified in the applicable Order.  If no Term is specified in the Order, than the Order Term shall be the twelve (12) months immediately following the commencement of the provision of the Products or Services.
  • Product(s)” means the actual Services offered by WealthEngine. WealthEngine will provide detailed descriptions of any specific Product upon request by a Client, or a prospective Client.  WealthEngine reserves the right to update the Product(s) and descriptions from time to time, at WealthEngine’s sole discretion.
  • Prospecting Product” means the Product(s) containing contact information, and Product(s) created using WealthEngine Data and not originating from Client Data. These Prospecting Product(s) are subject the additional restrictions contained in this Agreement.
  • Publisher” means WealthEngine’s providers of advertising and applicable, related, Services.  Client grants WealthEngine permission to contract with Publisher’s on Client’s behalf, solely to fulfill the Orders placed by Client, under this Agreement.
  • Results” mean the report, result or other deliverable provided by WealthEngine to Client through the WealthEngine Content, in the performance of the Services, or provision of Products, including delivery of WealthEngine Data or the combination of WealthEngine Data merged with Client Data.
  • Service(s)” means the Product(s) ordered by Client from time to time through one or more Orders solely to the extent set forth and described herein, and as limited by, the applicable Order.
  • Third Party Content” means any Content provided, imported or uploaded to the Service by a party other than the parties to this Agreement.
  •  “WealthEngine Content” means collectively the WealthEngine Data and all other texts, graphics, images, ideas, plans, sketches, links, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback,  materials and information created or licensed by WealthEngine and provided by WealthEngine to Client in any Results whether delivered through the Products or otherwise through any Services including, without limitation, analytic modeling, consulting, or training services.
  • WealthEngine Data” means all data owned or licensed by WealthEngine made available to Client through any Product(s), Services, Results, or WealthEngine Content.

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