Terms of Service
IMPORTANT -- READ CAREFULLY: These Terms of Service ("Terms") create a legal agreement between you (either an individual or a single law firm) and WealthCounsel, LLC and ElderCounsel, LLC (individually "WealthCounsel" and "ElderCounsel," respectively, and collectively "The Companies") to govern your use of Internet-based access to the WealthDocx® or ElderDocx® software and any other software applications provided by The Companies as a part of your membership in either WealthCounsel, ElderCounsel, or both (collectively the "Services"). These Terms incorporate by reference the following legal agreements, which are made a part of these collective Terms:
- Any Membership Agreement currently in place between The Companies and you, as amended from time to time ("Membership Agreement");
- Any End User License Agreement currently in place between The Companies and you, as amended from time to time ("EULA");
- The current Flashpoint Informatics, Inc. Terms of Service.
YOU AGREE TO BE BOUND BY THESE TERMS BY INSTALLING OR USING THE SERVICES. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SERVICES.
- GRANT OF LICENSE. The Companies grant you a non-exclusive, non-transferable license to use the Services. This license modifies the EULA to the extent that remote access technologies will now include the services described in the Flashpoint Informatics, Inc. Terms of Service.
- MONTHLY PAYMENTS. You agree to pay The Companies $40 per month (subject to change) in addition to your monthly payment under your Membership Agreement. The first payment is due and payable on the date when you accept these Terms and we process your order (the "Effective Date"). We will automatically charge subsequent payments of the then-current monthly rate (currently $40) to the credit or debit card we have on file each month following the Effective Date.
- Sales Tax Notice. If you reside in any of the following states, sales tax will be assessed on each monthly payment for the Services under these Terms: CO, FL, ID, ME, NV, TX, UT, WA, and WI.
- Automatic Credit/Debit Card Billing Authorization. The Companies will automatically charge your credit or debit card each month for the monthly payment according to the rate indicated above.
- RESERVATION OF RIGHTS AND OWNERSHIP. Except for those rights owned by Flashpoint Informatics, Inc., The Companies reserve all rights not expressly granted to you in these Terms. The Services are protected by copyright and other intellectual property laws and treaties. The Companies or Flashpoint Informatics, Inc. owns the title, copyright, and other intellectual property rights in the Services. The Services are licensed -- not sold. These Terms do not grant you any rights to the respective trademarks or service marks of The Companies or Flashpoint Informatics, Inc.
- MODIFICATION. The Companies reserve the right to update or modify these Terms at any time, without prior notice, by posting such revised version of these Terms behind the link marked "Terms of Service" on the login pages provided to access the Services. Your continued use of the Services after The Companies has posted the revised Terms constitutes your agreement to be bound by the revised Terms.
- ADDITIONAL SOFTWARE/SERVICES. These Terms apply to updates, supplements, add-on components, or other Internet-based components of the Services (collectively "the updates") that The Companies may provide to you or make available to you after the date of these Terms unless the updates are accompanied by separate terms.
- INTERNET-BASED SERVICES. These Terms supersede the EULA by allowing you to use these specific Internet-based Services, which you may use consistent with these terms, including without limitation the Flashpoint Informatics, Inc. Terms of Service.
- TERMINATION. Without prejudice to any other rights, The Companies may terminate these Terms if you fail to comply with these conditions. In such event, you must destroy all copies of the Services and all of its component parts. You may terminate your use of The Services with 20 days' notice to The Companies.
- INDEMNIFICATION. You agree to indemnify and defend The Companies from and against any claims or lawsuits including attorneys' fees that arise from or result from the use of the Services.
- LIMITED WARRANTY AND MAINTENANCE. Despite the provisions of the EULA and/or Membership Agreement, these Services do not provide a 30-day refund policy solely for the purpose of your review of the functionality of the Services. The Companies are not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Services, including without limitation the software, with any software not furnished by The Companies.
THE COMPANIES MAKE NO WARRANTIES OF ANY KIND REGARDING THE SERVICES. ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUALITY, ACCURACY, PERFORMANCE, OR FREEDOM FROM ERROR ARE DISCLAIMED AND EXCLUDED.
- LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR INCREASED COST OF OPERATIONS RESULTING FROM THE SERVICES PROVIDED UNDER THESE TERMS. YOU AGREE THAT THE COMPANIES' TOTAL LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR THESE SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE COMPANIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
- APPLICABLE LAW. These Terms will be governed by and construed in accordance with the laws of the State of Wisconsin without reference to its conflict of law principles, subject to the choice and conflict of law provisions contained in the Flashpoint Informatics, Inc. Terms of Service to the extent applicable and to the extent inconsistent with this paragraph.
- ENTIRE AGREEMENT; SEVERABILITY; ASSIGNMENT.
- Entire Agreement. These Terms, including the agreements and other documents incorporated by reference above, constitute the entire agreement between the parties with respect to the Services and supersedes any other understandings.
- Severability. If any provision of these Terms is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.
- You also may be subject to additional terms and conditions, rules, regulations, and applicable law that may apply when you use or purchase certain other updates to the Services.
- Any and all provisions limiting The Companies' liability will survive the expiration or termination of these Terms or of the agreements and other documents incorporated by reference above.
- Assignment. Subject to the Flashpoint Informatics, Inc. Terms of Service, The Companies may assign or transfer (whether by merger, reorganization, consolidation, Intellectual Property or otherwise) these Services or any obligation incurred under these Terms. The Companies may assign these Services without the need for your consent to a subsidiary or affiliated company now existing or organized in the future. These Terms shall be binding upon and inure to the benefit of the parties and their respective successors.
- ACCEPTANCE. To evidence your agreement to these Terms, you will click "Login" on the login page.
Flashpoint Informatics Terms of Service: (printable version)
Terms of Service
Thank you for choosing to use this virtual desktop and cloud hosting solution (herein after referred to as "Services"). Services are hosted and provided by Flashpoint Informatics, Inc. (herein after referred to as "Hosting Provider") located at 120 Skyview Drive, Bellefonte, PA 16823. While you or your company / organization (herein after referred to as "Client") may have signed up for this service through a partner or value added reseller (herein after referred to as "Partner") of Hosting Provider; this agreement exists between Client and Hosting Provider. This website is operated by Hosting Provider. By using Hosting Provider's products, services and website (collectively, the "Services") Client agrees to the following terms, conditions, policies, guidelines or amendments thereto (the "Terms of Service" or this "Agreement") and all applicable laws.
Please take the time to read these Terms of Service carefully before using Services.
By visiting or browsing Hosting Provider's website or using Services, you, on behalf of Client, accept, without limitation or qualification, these Terms of Service. If you do not agree to these Terms of Service, you may not access or use Services provided by Hosting Provider.
Hosting Provider reserves the right to update or modify these Terms of Service at any time, without prior notice, by posting any such revised version of these Terms of Service behind the link marked "Terms of Service" on the login pages provided to access Services. Client's continued use of the website or Services after Hosting Provider has posted the revised Terms of Service constitutes Client's agreement to be bound by the revised Terms of Service.
REPRESENTATIONS AND WARRANTIES OF HOSTING PROVIDER
Hosting Provider represents and warrants that in performing the Services provided in this Agreement that:
o It shall, at a minimum, conform to generally accepted industry standards and practices;
o It shall be qualified by education and experience to perform the duties required in this Agreement;
o It is sufficiently staffed and equipped to fulfill its obligations under this Agreement and that it will not interfere with or derogate from full performance of this Agreement;
o It shall update necessary software and programs to ensure the availability of access to the services that Hosting Provider provides;
o It shall from time to time perform maintenance on hardware and software that provide Services to Client. Occasionally such maintenance will require Hosting Provider to turn off access to Services (this type of event herein referred to as a "Maintenance Outage"). In the event of a Maintenance Outage, Hosting Provider will make a reasonable attempt to notify effected Clients and Partners but does not guarantee prior notification to Client or Partner.
REPRESENTATIONS AND WARRANTIES OF CLIENT
By using our Services:
o You represent and warrant that you are of legal age to form a binding contract, and you are not barred from receiving services under the laws of the United States or other jurisdictions.
o You agree to provide current and accurate identification, contact and other information as part of the registration process for access to our Services.
o You agree to be solely responsible for all content on your account. Your account, including your username and password, are personal to you and should not be used by anyone else.
o You agree to be solely responsible for maintaining the confidentiality of your account information, and you are responsible for all activities that occur under your account.
o You agree to be solely responsible for backing up any and all data stored within Services provided by Hosting Provider. Hosting Provider will not be liable for any loss or damage arising from your failure to back up the data on your account
o You understand and agree that all requests for additional storage, user accounts or other services are subject to availability. Hosting Provider will not be liable for any situation in which Hosting Provider cannot immediately fill requests for additional Services.
o You agree to immediately notify Hosting Provider of any unauthorized use of your account or any other breach of security. Hosting Provider will not be liable for any loss or damage arising from your failure to provide Hosting Provider with accurate information or to keep your account secure.
o You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, files, attachments or other materials ("Content") are the sole responsibility of the owner of the account from which such Content originated.
o Hosting Provider reserves the right, but does not assume the responsibility, to monitor or review any Content on Services provided by Hosting Provider. You agree that you are responsible for the conduct of of your account and any Content that is created, transmitted, stored, or displayed by, from, or within your account while using Services and for any consequences thereof.
o You agree to use Services only for purposes that are legal, proper and in accordance with the Terms of Service and any applicable policies or guidelines.
o You agree that you will not engage in any activity that interferes with or disrupts Services offered by Hosting Provider. The determination of what constitutes interference is at the sole discretion of Hosting Provider.
o You represent and you warrant that you will not use Services in any way considered "prohibited" (listed below). Such actions are grounds for immediate suspension or termination of your Services without prior notice.
You agree that activities listed below are a non-exhaustive list of prohibited uses of Hosting Provider's Services:
o Employing programs that consume excessive CPU time (outside of allotted CPU), network capacity, disk IO or storage space.
o Sending unsolicited bulk electronic mail messages utilizing our network ("Spam")
o Utilizing "warez", including pirated software, ROMs, emulators, phreaking, hacking, phishing, password cracking or cheating, IP spoofing, etc.
o Utilizing BitTorrents, or related technology on Hosting Provider servers.
o Using a false email return address to confuse other users.
o Attempting unauthorized and/or illegal access of computers, networks and/or accounts not belonging to the party seeking access.
o Any act which interferes with the services of another user or network.
o Any act relating to the circumvention of security measures.
o Engaging in illegal activities or engaging in activities harmful to the operations of Hosting Provider or other customers using Hosting Provider's infrastructure.
o Engaging in terroristic activities.
o Providing false data on any contract or application, including fraudulent use of credit card numbers.
Any prohibited use of Services listed above, or any other use of Hosting Provider services that Hosting Provider deems to be unacceptable will result in immediate account suspension or cancellation and the possibility that Hosting Provider will impose fees; and/or pursue civil remedies without providing advance notice.
SERVICE LEVEL AGREEMENT
Services are provided AS-IS and on a best-effort basis. This Agreement does not guarantee accessibility / uptime of Services.
No monetary or other credit for service outages will be given to Client or Partner unless specified in some other agreement between Hosting Provider and Client and / or Partner.
You agree to defend, indemnify and hold Hosting Provider harmless from any and all claims, actions, losses or expenses, including court costs and attorney fees, arising out of or relating to:
a. Services performed under this Agreement;
b. Warranties made by you pursuant to this Agreement and its appendices or other attachments; or
c. Personal injury or tangible property damage caused by the act or omission of Hosting Provider and Hosting Provider personnel, including claims based on fault or negligence of Hosting Provider or Hosting Provider personnel.
Intellectual Property Indemnification
You also agree to defend, indemnify, and hold Hosting Provider harmless from any claim or action against Hosting Provider for alleged infringement of Intellectual Property rights of a third party (the "Infringing Materials") based on Client use of any Software, service, or other materials furnished to you by Hosting Provider pursuant to the terms of this Agreement.
Service Level Agreement Liability
Hosting Provider shall be held harmless from any and all claims, actions, losses or expenses, including court costs and attorney fees, arising out of or relating to the unavailability of Services, excluding the Chargeback Credit provided for in the terms of the Service Level Agreement (listed above).
TERM AND TERMINATION
The term of this Agreement (the "Term") shall commence on the date that Services provided to Client began and last through the day that Services to Client were terminated. This Agreement may be updated throughout the Term as specified in the Modification section of this Agreement above.
Hosting Provider reserves the right, at any time or for any reason, to suspend or cancel your Services account without notice. Upon cancellation or suspension of your account, your ability to access the services will immediately cease. You are responsible for backing-up your data that you use within our Services. Following account cancellation and deletion, you will not have access to any data that you stored on our Services.
You have the right, at any time or for any reason, to request that Services provided to you / Client from Hosting Provider be terminated. You may terminate your account by following the directions in your account's Management Console. Upon termination: for security purposes, you are responsible for deleting your own account. Your right to access your account and the data stored within it is terminated immediately following account cancellation and deletion. You are responsible for backing-up your data that you use within our Services. Following account cancellation and deletion, you will not have access to any data that you stored on our Services.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOSTING PROVIDER SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, PROFITS, BUISNESS INTERRUPTION, GOODWILL, USE OR OTHER INTANGIBLE LOSSES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (III) ANY OTHER MATTER RELATING TO SERVICES EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILTY OF HOSTING PROVIDER AND ANY OF ITS AGENTS, SUPPLIERS, EMPLOYEES, OR AFFILIATES IN CONNECTION WITH SERVICES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED THREE TIMES ONE MONTHS RECURRING FEE FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM AS OF THE TIME OF THE OCCURRENCE OF THE EVENTS GIVING RISE TO THE CLAIM.
EXCLUSIONS AND LIMITATIONS
Nothing in this Agreement is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited.
NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this Terms of Service, there shall not be third party beneficiaries to the Terms of Service.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. HOSTING PROVIDER DOES NOT WARRANT THE OPERATION OF ITS OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE. YOU AGREE THAT YOUR USE OF SERVICES SHALL BE AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A HOSTING PROVIDER AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
You agree that Hosting Provider may provide you with notices, including those regarding changes to the Terms of Service, by email, regular mail, or postings on Hosting Provier's websites, at Hosting Provider's sole discretion.
The Terms of Service (including any policies, guidelines or amendments that may be presented to you from time to time) constitute the entire agreement between you and Hosting Provider and govern your use of Services. You also may be subject to additional terms and conditions, rules, regulations, and applicable law that may apply when you use or purchase certain other Service updates. Any and all provisions limiting Hosting Provider's liability will survive the expiration or termination of this Agreement and all appendices and attachments.
Choice of Law and Forum
The Terms of Service and the relationship between you and Hosting Provider shall be governed by the laws of the Commonwealth of Pennsylvania, United States of America, without regard to its conflict of law provisions. You and Hosting Provider agree to submit to the personal and exclusive jurisdiction of the courts located within Centre County, Pennsylvania.
In the event of any dispute between the parties which arises under this Agreement, such dispute shall be settled by arbitration, in accordance with the laws of the Commonwealth of Pennsylvania, if a resolution cannot be attained by informal means within thirty (30) days of written notification of the dispute. Any dispute that reaches arbitration shall be held in the locale of Hosting Provider's choosing. The decision of the arbitrator shall be final and binding upon all parties.
Hosting Provider may assign or transfer (whether by merger, reorganization, consolidation, Intellectual Property or otherwise) this Agreement or any obligation incurred hereunder. Hosting Provider may assign this Agreement without the need for your consent to a subsidiary or affiliated company now existing or hereafter organized. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
Waiver and Severability of Terms
If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force.
Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Hosting Provider's Services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement for interruption of service directly or indirectly from acts of God. Neither party shall incur any liability to the other party, for any losses or damages, of any nature whatsoever, incurred or suffered by that other party (otherwise than under any express indemnity in these Terms of Service or Service Level Agreement).
As soon as is reasonably practicable following the date of commencement of a Force Majeure Event, and within a reasonable time following the date of termination of a Force Majeure Event, any party invoking it shall submit to the other party reasonable proof of the nature of the Force Majeure Event and of its effect upon the performance of the party's obligations under this Agreement.
To evidence your agreement to these Terms of Service, you will click "Login" on the login page.