Terms of Use

Last modified September 2020

PLEASE READ THE FOLLOWING TERMS OF USE (“Terms”) CAREFULLY AS IT IS A BINDING AGREEMENT BETWEEN YOU AND PENCHECKS, INC. AND ITS SUBSIDIARIES AND AFFILIATES (“PenChecks”).

These Terms govern your access to and use of PenChecks’ websites, platforms, portals and services (collectively “Sites”). By accessing, using or logging into the Sites, you agree to be bound by the Terms below. If you do not agree to the following Terms, do not access the Sites. By accessing the Sites, you accept and agree to be bound by the Terms, and you represent and warrant that you are of legal age to form a binding contract with PenChecks.

PenChecks may revise these Terms at any time without prior notice in our sole discretion. By accessing the Sites, you agree to be bound by any such revisions. Your use of the Sites is governed by the version of the Terms in effect on the date each Site is accessed by you. PenChecks offers many services. Your use of PenChecks services are provided by PenChecks pursuant to a separate manually or digitally executed agreement. If you use the services or log into the Sites, those additional terms become part of your agreement with PenChecks.

The PenChecks Privacy Policies (Privacy Policy Statement & Legal Notice) are incorporated herein by reference.

Prohibited Uses

You shall not use the Sites, or any Site information, in a way that violates laws, infringes on anyone’s rights, or interferes with the Sites or any features of the Sites. Additionally, you shall not use PenChecks Sites in any manner that could damage or overburden any PenChecks server, or any network connected to any PenChecks server.

Copyrights and Other Intellectual Property Rights

The Sites and their entire content, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by PenChecks, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Accordingly, you may not copy, distribute, modify, post or frame-in the PenChecks Sites, including any information, name, text, graphic, image, video, audio, software code, user interface design, icons, products, programs, documents, materials or logos (collectively “Information”).

You are NOT being granted a license under any copyright, trademark, patent or other intellectual property right in the Information, and the Information may not otherwise be reproduced, displayed, downloaded, licensed, modified, re-posted, retransmitted, disseminated, sold, distributed, published, broadcast, circulated, used to create a derivative work or otherwise used for commercial purposes without the express written consent of PenChecks, Inc.

Trademark Notices

All trademarks, logos, and service marks (collectively “Trademarks”) displayed on the Sites belong to PenChecks, Inc., its subsidiaries or an affiliate, except third-party trademarks and service marks, which are the property of their respective owners. Nothing contained on the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the site without the written permission of PenChecks or such third party that may own the Trademarks displayed on the Site. Your use of the Trademarks displayed on the Sites, or any other content on the Sites, is strictly prohibited. You are also advised that PenChecks will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

Third-party content

The PenChecks Sites include general news and information, observations, reports and data concerning the retirement plan industry and other subjects. Some of this content is supplied by companies that are not affiliated with any PenChecks Entity (“Third Party Content”). Third Party Content is protected by copyright pursuant to United States laws and international treaties and is owned or licensed by the Third Party Content provider(s). PenChecks does not directly or indirectly endorse or approve such Third Party Content. Third Party Content is provided for informational purposes only and PenChecks and the Third Party Content providers specifically disclaim any responsibility for Third Party Content available on the Sites. You will use Third Party Content only at your own risk.

Access

Certain parts of the PenChecks Sites require a login. You may not obtain or attempt to obtain unauthorized access to such parts of the PenChecks Sites through any means not intentionally made available by PenChecks for your use.

Password Security and Notification

To use certain services or features on the Sites, you may be required to create an account and specify a password. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Sites or portions of it using your username, password, or other security information. You are solely responsible for maintaining the confidentiality and use of the password and should monitor your account diligently. You are solely responsible for all activities that occur in relation to your password. PenChecks shall not be under any duty to inquire as to the authority or propriety of instructions given to PenChecks by you or via your password. PenChecks shall be authorized to act upon any such instructions. PenChecks will not be liable for any loss, cost, expense or other liability arising out of any such instructions.

Contact PenChecks immediately if you suspect any unauthorized activity, disclosure, loss, theft or unauthorized use of your password. You agree to cooperate with PenChecks in any investigation and agree to take actions to protect your account from fraudulent activity. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

PenChecks has the right to disable any username, password, or other identifier, whether chosen by you or provided by PenChecks, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

Terms of Use for Documents

PenChecks grants the use of Documents (such as white papers, press releases, datasheets and FAQs) from this server (“Server”), provided that (1) the copyright notice appears in all copies and that both the copyright notice and this permission notice appear, (2) use of such Documents from this Server is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media, and (3) no modifications of any Documents are made. Use for any other purpose is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.

Documents specified above do not include the design or layout of the PenChecks Sites or any other PenChecks, Inc. owned, operated, licensed or controlled sites or Information. Elements of PenChecks Sites are protected by trademark and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image may be copied or retransmitted unless expressly permitted by PenChecks.

DISCLAIMER OF WARRANTIES

PENCHECKS MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS OR RELATED GRAPHICS PUBLISHED ON THIS SERVER FOR ANY PURPOSE. PENCHECKS MAKES NO EXPRESS OR IMPLIED WARRANTIES ABOUT THE PENCHECKS SITES, DOCUMENTS OR THIRD PARTY CONTENT INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT. THE PENCHECKS SITES, DOCUMENTS AND THIRD PARTY CONTENT ARE MADE AVAILABLE TO YOU “AS IS” AND “AS AVAILABLE” AND PENCHECKS DOES NOT WARRANT THAT ANY DEFECTS OR INACCURACIES WILL BE CORRECTED.

PENCHECKS DOES NOT WARRANT THAT THE PENCHECKS SITES, DOCUMENTS OR THIRD PARTY CONTENT WILL MEET YOUR NEEDS, OR THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. PENCHECKS ALSO MAKES NO WARRANTY THAT THE RESULTS OBTAINED FROM THE USE OF THE PENCHECKS SITES OE DOCUMENTS WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, DOCUMENT OR OTHER MATERIAL BY YOU THROUGH THE PENCHECKS SITES WILL MEET YOUR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, PENCHECKS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, PENCHECKS AND THIRD PARTY CONTENT PROVIDERS AND THEIR PARENTS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, COMPENSATORY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS, EXPENSES, LEGAL FEES, OR LOSSES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST INCOME, LOST DATA, OPPORTUNITY COSTS OR DAMAGE THAT RESULT FROM USE, LOSS OF USE, OR PERFORMANCE OF THE PENCHECKS SITES, DOCUMENTS AND THIRD PARTY CONTENT, INCONVENIENCE OR DELAY. THIS IS TRUE EVEN IF PENCHECKS AND THIRD PARTY CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

PENCHECKS SHALL NOT BE LIABLE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH PENCHECKS DOES NOT HAVE DIRECT CONTROL. THIS INCLUDES FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATIONS LINES (INCLUDING TELEPHONE, CABLE AND INTERNET), UNAUTHORIZED ACCESS, VIRUSES, THEFT, OPERATOR ERRORS, SEVERE OR EXTRAORDINARY WEATHER (INCLUDING FLOOD, EARTHQUAKE, OR OTHER ACT OF GOD), FIRE, WAR, INSURRECTION, TERRORIST ACT, RIOT, LABOR DISPUTE AND OTHER LABOR PROBLEMS, ACCIDENT, EMERGENCY OR ACTION OF GOVERNMENT.

Indemnification

As a condition of your use of the PenChecks Sites, you agree to indemnify, defend and hold PenChecks, its subsidiaries, affiliates, officers, directors, agents, employees and its Third Party Content providers harmless from and against any and all claims, losses, liabilities, damages, costs and expenses (including but not limited to reasonable attorneys’ fees) arising from your use of the PenChecks Sites, or from your violation of these Terms.

Modification

PenChecks reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Sites on a temporary or permanent basis, without prior notice to you, without liability to you or any third party. Additionally, PenChecks may modify or update these Terms at any time without notice to you. Your use of the Sites after modifications to the Terms constitutes your binding acceptance of such changes.

Termination

PenChecks may terminate your access to the PenChecks Sites for any reason, without prior notice.

Governing Law

These Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law, and shall inure to the benefit of PenChecks’ successors and assigns, whether by merger, consolidation, or otherwise. Any legal suit, action, or proceeding arising out of, or related to, these Terms or the site shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the City of San Diego and County of San Diego, although PenChecks retains the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Site Limitations

The PenChecks Sites are provided for general informational purposes only and are not intended to provide legal, tax, or investment advice. Nothing on the PenChecks Sites should be construed as an offer, solicitation or recommendation for the purchase or sale of any security, insurance product, other financial instrument or to adopt a particular investment strategy. PenChecks acts solely as a directed custodian and is not a broker-dealer, investment manager or investment advisor. You should consult your legal, tax, or financial/investment professional regarding your specific situation. PenChecks does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. PenChecks disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Sites, or by anyone who may be informed of any of its contents.

Severability

If any part of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.