Embedded Investing Solution Terms of Use

Acceptance of Terms

Welcome to the Embedded Investing Solution made available to you by your credit union or bank. When you access the Embedded Investing Solution, whether via website or your mobile application, as well as any of our other online services and websites (collectively, the “Platform”) you are agreeing to be bound by the following Terms of Use, which may be amended from time to time as outlined herein. 

Each time you access, view, or use the Platform, you agree to be bound by these Terms of Use, including any policies referenced herein.

The “Arbitration Clause” section below requires all claims to be resolved by way of binding arbitration. The “Class Action Waiver” section below contains a binding class action waiver. Please read both sections carefully as they affect your legal rights.

The “Permission to Use Your Information” section and the “Privacy” section outline the rights you are giving to us (including our affiliates) related to data you make available within the Platform. Please read both sections that carefully as they affect your legal rights.

General

These Terms of Use are different from and in addition to other agreements provided to you for the provision of our services via the Platform. Specifically, the provision of advisory services to you is governed by your Investment Advisory Agreement with Envestnet Embedded Advisory, Inc., and the provision of brokerage services to you is governed by the DriveWealth LLC Documents that you review and accept during the onboarding process. Each of the foregoing agreements, collectively or individually, are referred to herein as the “Client Agreements.” You should read any applicable Client Agreements carefully before accessing the Platform and determining whether to engage Envestnet Embedded Advisory, Inc. to provide you with advisory services and/or other financial services.

In general, references to “EEA” on the Platform refer to Envestnet Embedded Advisory, Inc. and references to “EFT” refer to Envestnet Financial Technologies, Inc. However, for purposes of these Terms of Use, the term “Envestnet” refers collectively to Envestnet Financial Technologies, Inc. and Envestnet Embedded Advisory, Inc., as well as their respective affiliates, partners, agents, and employees.

Use of Platform

The Platform is intended solely for individuals who are age 18 or older. Any access to or use of the Platform by anyone under 18 is unauthorized, unlicensed, and in violation of these Terms of Use. By accessing or using the Platform, you represent and warrant that you are 18 or older.

The Platform is intended for use by persons located in the United States. Envestnet makes no representation that the Platform is appropriate or available for use outside of the United States. Similarly, Envestnet makes no representations that accessing the Platform from locations outside the United States is legal or permissible under local law.

Access to the Platform

For clarity, your access to and use of the Platform shall be governed by these Terms of Use, and the provision of any investment advisory or brokerage services shall be governed by the Client Agreements with respect to such services. Notwithstanding the foregoing or anything else in these Terms of Use to the contrary, in the event of any conflict between the Terms of Use and the Client Agreements, the Client Agreements shall control. We reserve the right to modify or discontinue, temporarily or permanently, all or part of the Platform, subject to the terms of our agreement with your credit union or bank. We otherwise reserve the right to terminate your access to the Platform. We will not be liable to you or any third party for any modification, suspension, or discontinuance of the Platform.

Restrictions on Use of the Platform

You must comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements, when using the Platform. You will not, and will not permit anyone else to (a) use any automated data gathering or extracting tools (i.e., deep links, robots or spiders), program algorithm or methodology to access, acquire, copy, monitor or use the Platform or any portion of the Platform; (b) use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Platform other than the search engine(s) that may be available through the Platform and other generally available third-party web browsers (such as Google Chrome or Microsoft Explorer); (c) post or transmit any file which contains viruses, Trojan horses, or any other contaminating or destructive features or otherwise interfere with the proper working of the Platform; (d) attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising or in any way making up part of the Platform; (e) modify, distribute or resell any content or services from the Platform; (f) use the Platform for any other purpose except your own personal use; (g) circumvent or disable any digital rights management, usage rules, or other security features on the Platform; or (h) use the Platform in a manner that threatens the integrity, performance or availability of the Platform. 

Permission to Use Your Information

By submitting or providing any information to the Platform you permit us to distribute that information to your credit union or bank. Without this permission, we would not be able to transmit information between you and your credit union or bank through the Platform. You acknowledge that, as a part of your use of the Platform, you’re granting us the right to compile, distribute and otherwise exploit aggregated data derived from the Platform. All such data will not be capable of identifying any person and will be combined with similar data of our other customers. 

Termination

Your right to access and use the Platform, as granted by these Terms of Use, will terminate if you fail to comply with any term or condition of these Terms of Use.

In the event you leave your credit union or bank and are unable to access the Platform through those third-party applications or sites, please contact Envestnet at EmbeddedAdvisory@envestnet.com so that Envestnet can provide you with continued access to the Platform.

If your credit union or bank terminates its agreement with Envestnet, Envestnet will provide you with alternative means of accessing the Platform and will provide prior notice and any applicable instructions.

Privacy

As a condition of using the Platform, you agree to the terms of our Privacy Policy, located here, which is incorporated into these Terms of Use by this reference. You acknowledge that you have received and reviewed our Privacy Policy. The Privacy Policy may be updated from time to time.

Security of Data Transmission and Storage

We safeguard customer information in accordance with commercially reasonable security measures. We have implemented physical and electronic safeguards to help protect private information against loss, misuse, and interception. We make extensive use of firewall barriers and authentication procedures to maintain the security of your online sessions and to protect your accounts from unauthorized access.

Links to Third-Party Sites & Services

You may be accessing the Platform from certain third-parties’ sites. Additionally, the Platform may contain links to third-party sites and services. Those third-parties are not affiliated with Envestnet , and Envestnet is not responsible for and does not endorse or approve such content available on those third-party sites. Such content may contain terms and conditions, privacy provisions, confidentiality provisions, or other provisions that differ from these Terms of Use. Envestnet assumes no responsibility or liability whatsoever for the accuracy, reliability, or opinions contained in any third-party content.

Responsibility for Username & Password; Secured Areas

Access to and use of the Platform is restricted to authorized users only. Any username or password you adopt to log on to the Platform are personal to you and may not be shared with any other person other than a person that shares access to your account. You are responsible for all activities that occur in connection with your username and password. Unauthorized use of your username and password may result in the termination of your access to the Platform, and unauthorized persons attempting to access the Platform may be subject to legal action. To protect your account from unauthorized use, you should keep your username and password secure. Please notify us immediately of any unauthorized use of your account or any other breach of security.

Communications with EEA

You may contact Envestnet support utilizing the chat functionality within the Platform. In the event you need to contact Envestnet via other means, please email EmbeddedAdvisory@envestnet.com. Authorized employees or agents of Envestnet may monitor and record all or portions of your telephone calls, emails, text messages, chats and other communications between you and Envestnet for quality control, customer service, employee training, security, legal, compliance, and other lawful purposes. You hereby consent to such recording. That consent is ongoing and need not be confirmed prior to, or during, such monitoring or recording, except to the extent applicable law expressly requires otherwise. Envestnet may also archive your communications with Envestnet for regulatory and other purposes.

Intellectual Property Notices

All of the services, products and content on the Platform are protected by applicable federal, state, and international laws. Unless otherwise specified, we own all right, title and interest in and to all of the design and software functions, features, and tools on or available through the Platform, including but not limited to copyrights, patents, trademarks, trade names, service marks and all other intellectual property rights (collectively, our “Intellectual Property”). Nothing contained on the Platform should be construed as granting, by implication, estoppel or otherwise, any license or right to use our Intellectual Property, except pursuant to these Terms of Use.

Disclaimer of Warranties

THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, TIMELINESS, AND COMPLETENESS OF ANY INFORMATION AVAILABLE ON THE PLATFORM. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON YOUR USE OF THE PLATFORM. WE DO NOT WARRANT THAT THE PLATFORM OR ANY PRODUCT, CONTENT, SOFTWARE, THIRD-PARTY PROGRAM OR DOCUMENTATION ACCESSED ON OR THROUGH THE PLATFORM ARE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION (INCLUDING BUT NOT LIMITED TO FAILURES RELATED TO COMMUNCATION LINES), ARE COMATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR OTHERWISE WILL MEET YOUR NEEDS.

Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.

Limited Liability

IN NO EVENT SHALL ENVESTNET, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS FOR ANY INDIRECT, SPECIAL, CONSQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR INCOME, INVESTMENT LOSSES, OR LOSS OF USE OF EQUIPMENT, SOFTWARE OR DATA) RELATED TO (A) YOUR USE OF OR INABILITY TO USE THE PLATFORM, (B) YOUR RELIANCE ON ANY CONTENT CONTAINED ON THE PLATFORM, OR (C) ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR LINKED TO THE PLATFORM, EVEN IF WE ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR ACTED NEGLIGENTLY. UNDER NO CIRCUMSTANCES WILL OUR TOAL CUMULATIVE LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR YOUR USE OF THE PLATFORM, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, TORT OR OTHERWISE, EXCEED U.S. $100. THIS PROVISION IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE, AND THE LIMITATIONS DESCRIBED HEREIN WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. 

Indemnification and Hold Harmless

You will indemnify and hold Envestnet and its officers, directors, employees, affiliates, agents or licensors harmless from any claim, demand, loss, cost or expense, including attorney’s fees, made by any person arising out of or relating to your violation of these Terms of Use, your violation of any applicable federal or state law or regulation, or your violation of any other person’s rights, including but not limited to your infringement of any copyright or your violation of any proprietary or privacy right. 

Choice of Law

All website activity and use of the Platform and these Terms of Use are governed by the laws of the United States of America and the applicable laws of the State of Illinois, without regard to conflict of law principles. Any action by you, against us, must be commenced in Cook County, Illinois, within one year after the claim arose. You consent to exclusive jurisdiction of the state and federal courts located in Cook County, Illinois.

Dispute Resolution; Arbitration

You and Envestnet (for purposes of this section, “the parties”) agree that any claim or controversy that may arise between you and Envestnet relating in any way to your use of the Platform will be determined by binding arbitration conducted under the auspices of AAA pursuant to its Arbitration Rules and Procedures. This arbitration agreement includes any controversy involving the performance, construction, or breach of these Terms of Use.

You and Envestnet agree that the arbitration shall apply the substantive law of Illinois to all state law claims, that limited discovery shall be conducted in accordance with AAA’s Arbitration Rules and Procedures, and that the arbitrator may not award punitive or exemplary damages, unless (but only to the extent that) such damages are required by statute to be an available remedy for any of the specific claims asserted. In accordance with AAA’s Arbitration Rules and Procedures, the arbitrator’s award shall consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The award shall not include or be accompanied by any findings of fact, conclusions of law, or other written explanations of the reasons for the award. You understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is severely limited under state and federal law. You acknowledge that you are waiving your right to a jury trial. Judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction and the parties hereto and their respective representatives hereby submit to the jurisdiction of any such court for the purpose of such arbitration and entering of such judgment.

Federal and state statutes of limitations, repose, and/or other rules, laws or regulations impose time limits for bringing claims in federal and state court actions and proceedings. The parties agree that all federal and state statutes of limitation, repose, and/or other rules, laws or regulations imposing time limits that would apply in federal or state court, apply to any controversy, and such time limits are hereby incorporated by reference. Therefore, to the extent that a controversy would be barred by a statute of limitation, repose or other time limit, if brought in federal or state court action or proceeding, the parties agree that such controversy shall be barred in an arbitration proceeding.

Any award of the arbitrator or a majority of the arbitrators will be final and binding, and judgment on such award may be entered in any court having jurisdiction. This arbitration provision will be enforced and interpreted exclusively in accordance with applicable federal laws of the United States, including the Federal Arbitration Act. Any costs, attorneys’ fees or taxes involved in confirming or enforcing the award will be fully assessed against and paid by the party resisting confirmation or enforcement of said award.

You agree to the following additional provisions regardless of your place of residence at the time a controversy arises:

• You agree that any arbitration hearing will be held in Cook County, Illinois.
• You agree to the personal jurisdiction of the courts located in the State of Illinois, to interpret and enforce the arbitration provisions described in these Terms of Use
• All arbitrations will be held in the English language, unless otherwise agreed by the parties.
• You agree that this agreement to arbitrate shall be binding on you, your heirs, administrators, representatives, executors, successors and assigns.

Class Action Waiver

You agree that any arbitration or proceeding shall be limited to the dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. You agree that you may bring claims against us only in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

Waiver & Severability

Any waiver of any provision contained in these Terms of Use shall not be deemed to be a waiver of any other right, term, or provision of these Terms of Use. If any provision of these Terms of Use is determined to be wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent it is legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

Assignment

You may not assign these Terms of Use (by operation of law or otherwise) without the prior written consent of Envestnet, and any prohibited assignment will be null and void. Envestnet may assign these Terms of Use or any rights hereunder without your consent.

Platform and Terms Subject to Change

We reserve the right to change these Terms of Use by posting a revised agreement. If you don’t agree with these changes, you must stop using the Platform. The information on the Platform is subject to change without notice.