Revised 1/1/2015
NICHOLAS PENSION CONSULTANTS, INC.
ON-LINE ACCESS AGREEMENT
1. LIMITED RIGHT TO USE. By accessing or using the nicholaspension.com website (the "Site"), you agree that your access to and use of the Site, including any Content (as defined below) provided by Nicholas Pension Consultants, Inc. or its affiliates (hereafter "NPC"), shall be exclusively governed by the terms and conditions set forth in this On-Line Access Agreement (the "Agreement"). You should read the terms and conditions of this Agreement carefully before using the Site and/or entering or logging in to restricted portions of the Site through use of your user identification and password. Each time you use the Site, your use indicates your full acceptance of and agreement to abide by this Agreement in its then current form. If you do not accept the terms and conditions stated in this Agreement, do not use the Site. NPC may refuse access to and usage of the Site to anyone at any time, in its sole discretion. NPC reserves the right to modify or discontinue the Site without notice at any time. In addition, NPC reserves the right to change the terms and conditions governing your access to and use of this Site at any time.
2. CONTENT FOR INFORMATIONAL PURPOSES ONLY. Nothing on the Site is intended to be, and you should not consider anything on the Site to be, investment, accounting, tax or legal advice. If you would like investment, accounting, tax or legal advice, you should consult with your own financial advisors, accountants or attorneys regarding your individual circumstances and needs.
3. USER IDENTIFICATION CODES AND PASSWORDS. You may receive a password to access certain restricted areas of the Site. You agree that you will treat and maintain this information confidentially and will not permit others to sign onto the Site through the use of the user identification and password assigned to you. You accept full responsibility for maintaining the confidentiality and security of your password and any use of your password, and you will notify us immediately of any actual or suspected loss, theft or unauthorized use of your password. Unless information contained on the Site is otherwise public information, all Content contained on the Site is considered to be confidential information (including the Site's features, functions, options, tools, capabilities, format and layout, etc.) (hereafter collectively called the "Confidential Information"), and you agree not to copy, republish or redistribute the Confidential Information or disclose the same to any third parties unless and only to the extent NPC has given you written permission to do so. The user identification and password are personal for your use only, and any violation of the terms of this Agreement shall permit NPC to immediately suspend or terminate your further access to the Site. We are not obligated to inquire as to the authority or propriety of any use of or action taken under your password. We will not be responsible for any loss to you that arises from such use or action or from your failure to comply with these provisions.
4. DISCLAIMERS. The Site is operated by NPC on an "AS IS," "AS AVAILABLE" basis, without representations or warranties of any kind. NPC AND ITS AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIS SITE AND ITS CONTENTS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, NPC and its affiliates do not represent or warrant that the Content on the Site is accurate, reliable, complete or current or that the Site will operate without interruption or error. NPC makes reasonable efforts to avoid technological problems, but at any time the Site may have and may cause problems, such as viruses. NPC and its affiliates are not liable for any action you take or any decision you make in reliance on the Site. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
5. LIMITATION OF LIABILITY. Under no circumstances, shall NPC and its affiliates or any of their employees, directors, officers, agents, vendors or suppliers be liable for any direct or indirect losses or damages arising out of or in connection with this Agreement, the use of the site or inability to use the Site. This is a comprehensive limitation of liability that applies to all losses and damages of any kind (whether general, special, consequential, incidental, exemplary or otherwise, including, without limitation, loss of data, income or profits), whether by statute, law or in contract, negligence or other tortuous action, even if an authorized representative of NPC or its affiliates has been advised or should have known of the possibility of such damages. If you are dissatisfied with the Site or any Content on the Site, or with the terms and conditions of this Agreement, your sole and exclusive remedy is to discontinue using the Site. You acknowledge, by your use of the Site, that your use of the Site is at your sole risk. Applicable law may not allow the limitation of liability set forth above, so this limitation of liability may not apply to you. If any part of this limitation of liability is found to be invalid, inapplicable or unenforceable for any reason, then the aggregate liability of NPC and its affiliates in such circumstances for liabilities that otherwise would have been limited shall not exceed the amount of fees that you have paid NPC for the plan year in which the damages occurred.
6. INDEMNIFICATION. You agree to indemnify, defend and hold harmless NPC and its affiliates, agents and employees from and against any and all suits, losses, claims, demands, liabilities, damages, costs and expenses (including reasonable attorneys' fees) that arise from or relate to: (1) your use of the Site; (2) your breach of this Agreement or any representation, warranty or covenant made by you in this Agreement; (3) your violation of any applicable law, statute, ordinance, regulation or of any third party's rights; or (4) claims asserted by third parties which, if proven, would place you in breach of representations, warranties, covenants or other provisions contained in this Agreement. You further release NPC and its affiliates, agents and employees and you agree to hold them harmless from any claims, demands and damages of every kind and nature that may arise out of or in any way are connected with a dispute between you and any third party.
7. LINKS. THE SITE CONTAINS LINKS TO OTHER WEB SITES CONTROLLED OR OFFERED BY THIRD PARTIES (NON-AFFILIATES OF NPC). IN PARTICULAR, THE SITE LINKS TO A FILE SHARING AND DATA STORAGE PLATFORM HOSTED BY CITRIX SYSTEMS, INC. NPC HEREBY DISCLAIMS LIABILITY FOR ANY INFORMATION, MATERIALS, PRODUCTS OR SERVICES POSTED OR OFFERED AT ANY OF THE THIRD PARTY SITES LINKED TO THE SITE. BY CREATING A LINK TO A THIRD PARTY WEB SITE, NPC DOES NOT ENDORSE OR RECOMMEND ANY PRODUCTS OR SERVICES OFFERED OR INFORMATION CONTAINED AT THAT WEB SITE, NOR IS NPC LIABLE FOR ANY FAILURE OF PRODUCTS OR SERVICES OFFERED OR ADVERTISED AT THOSE WEB SITES. SUCH THIRD PARTIES MAY HAVE TERMS OF USE DIFFERENT FROM THAT OF NPC AND THE THIRD PARTY WEBSITES MAY PROVIDE LESS SECURITY THAN THE SITE. IN ADDITION, SUCH THIRD PARTIES MAY ALSO LIMIT THEIR LIABILITY WITH RESPECT TO ANY DAMAGES YOU MAY SUFFER FROM UTILIZING THEIR SERVICES.
8. INTELLECTUAL PROPERTY RIGHTS. All of the content you see, hear or otherwise experience on the Site (the "Content"), including, for example, all of the page headers, images, illustrations, graphics, audio clips, video clips, and text, are subject to trademark, service mark, trade dress, copyright and/or other intellectual property rights or licenses held by NPC, its affiliates or by third parties who have licensed their materials to NPC. The entire Content of the Site is copyrighted as a collective work under U.S. copyright laws, and NPC owns a copyright in the selection, coordination, arrangement and enhancement of the Content. The Content of the Site, and the Site as a whole, is intended solely for your internal use. You may download, print and store selected portions of the Content, provided you (1) only use these copies of the Content for your own internal use; provided, however, you may discuss the Content with your financial, legal or tax advisors, and other with whom you share investment decisions; (2) do not copy or post the Content on any network computer or broadcast the Content in any media; and (3) do not modify or alter the Content in any way, or delete or change any copyright or trademark notice. No right, title or interest in any downloaded materials is transferred to you as a result of any such downloading. NPC reserves complete title and full intellectual property rights in any Content you download from this Site. Except as noted above, you may not copy, download, reproduce, modify, publish, distribute, transmit, transfer, exploit or create derivative works from the Content without first obtaining written permission from NPC.
9. REPRESENTATIONS AND WARRANTIES. You represent and warrant that: you have full authority and all rights necessary to enter into and fully perform all of your obligations pursuant to this Agreement; you have not and you will not enter into any agreement or perform any act which might contravene the purposes and/or effects of this Agreement; all information that you provide in connection with your use of the Site is true and complete.
10. NO HARMFUL ACTION. You agree not to take any action that might compromise the security of the Site, render the Site inaccessible to others or otherwise cause damage to the Site or any Content contained on the Site. You agree not to add to, subtract from, or otherwise modify the Content on the Site.
11. MONITORING THE SITE. NPC reserves the right to monitor and record activity on the Site at its sole discretion, and may report any activity that it suspects may violate any law or regulation as it deems appropriate.
12. LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., excluding its conflicts of law principles.
13. ARBITRATION. Unless otherwise expressly noted, any disputes between NPC and you under this Agreement shall be finally resolved in accordance with the rules then in effect of the American Arbitration Association and shall take place in Sacramento, California. The award of any arbitration panel shall be final and binding on the parties.
14. GENERAL INFORMATION. This Agreement constitutes the entire Agreement between you and NPC governing your use of the Site, and shall supersede any prior agreements between you and NPC concerning this subject matter, but this Agreement does not alter the terms or conditions of any separate service agreement between you and the Company. Certain areas of the Site may include additional terms and conditions that govern use of those areas. You will be bound by those additional terms and conditions, and they will be considered part of this Agreement. NPC may assign this Agreement at any time without your consent. You may not assign this Agreement or delegate any of your obligations under this Agreement. The failure of NPC to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court or arbitration panel to be invalid or unenforceable, the parties nevertheless agree that the court or arbitration panel shall endeavor to give effect to the parties’ intentions as reflected in this Agreement, and the other provisions of this Agreement shall remain in full force and effect.