Last updated on February 15, 2023
THIS AGREEMENT REQUIRES ALL DISPUTES TO BE RESOLVED BY WAY OF BINDING ARBITRATION. THE TERMS OF THE ARBITRATION CLAUSE APPEAR IN SECTION 20 OF THIS AGREEMENT.
1. Description of our Services
Financial account aggregation
We offer financial account aggregation, where you can aggregate your financial account information, such as your account balances, transactions and holdings, from financial institutions you designate. Financial account aggregation is an optional service you may utilize by providing financial account credentials, allowing you to securely connect with third-party financial institutions to present your financial information on the Dashboard. Our account aggregation services are regularly refreshed, providing you with up-to-date financial account information (some financial institutions may require you to re-authenticate your credentials on a regular basis to update your account balances).
Your financial account information, collected through account aggregation or manual account information that you provide, is used to display your consolidated financial picture. Financial visualizations include charts, detailed transactional data and other financial account data that we present to you, summarizing your financial life at a glance.
Your financial account information, along with optional personal and financial information that you may provide, are used to generate financial insights. We utilize your aggregated account data, along with stated assumptions or information that you provide, to share important financial observations that can make you aware of your overall financial picture and opportunities to improve it.
You may be eligible to receive a free financial consultation from one of our registered investment advisors. The consultation is optional and may be offered directly to eligible Dashboard users or through our marketing partners. A financial consultation is a personalized analysis of your financial situation, based on the information gathered from your use of our Dashboard or interactively with a registered advisor, to make you aware of potential risks and opportunities within your current financial situation. Your participation in this Service may result in an offer to enroll in our wealth management services, which are separate from the free financial consultation Service.
2. About Empower Personal Wealth Co.
- Personal Capital Advisors Corporation: Personal Capital Advisors Corporation (“PCAC”) provides discretionary and non-discretionary investment advisory services to retail investors, and operates as an investment advisor registered with the Securities and Exchange Commission (“the SEC”) under the Investment Advisers Act of 1940, as amended. Any investment advisory services are offered only by PCAC*.
- Personal Capital Services Corporation: Personal Capital Services Corporation (“PCSC”) manages our Empower Personal Cash program, which provides services to customers who have opened an Empower Personal Cash account.
3. Agreement and Acceptance of Terms
This Agreement does not modify any other separate agreements between you and any Empower affiliate for other services or products you may elect to use. For example, you may elect to enter into an agreement with Advisor for wealth management services, or an agreement with PCSC for the services it provides to Empower Personal Cash customers, as applicable. In such cases, the terms of those separate agreements shall govern the services covered therein.
- You are able to enter into legally binding contracts, and you agree that this Agreement legally binds you in the same manner that a signed, written, paper contract does. You may not use the Dashboard Services in any manner or attempt to access the Dashboard Services if you are not willing to be bound and abide by this Agreement.
- WE ARE NOT RESPONSIBLE FOR AND DO NOT GUARANTEE THE ACCURACY, TIMELINESS, COMPLETENESS OR USEFULNESS OF ANY DATA OR OTHER CONTENT OBTAINED FROM THIRD-PARTY SOURCES (“THIRD PARTY CONTENT”) THAT IS DISPLAYED OR REPORTED THROUGH THE DASHBOARD SERVICES. We do not explicitly or implicitly endorse or approve Third Party Content. Reliance on Third Party Content available on or through the Dashboard Services is at your own risk. While the Dashboard Services provided by Empower may provide significant assistance in helping you manage your finances, you should consult with a professional financial advisor before making investment decisions or deciding on significant changes to your personal financial strategy.
- The Dashboard Services are intended to be accessed and used only by individuals that have reached the legal age of majority in the jurisdiction where they reside, which may be 18 years or older, depending on the jurisdiction. You may not use or access this Dashboard Services unless you have reached the legal age of majority in the jurisdiction where you are a resident.
4. Your Registration Information
In order to use our Dashboard Services, you will first need to create an Empower user account (“Account”) through the Dashboard.
5. Your Electronic Disclosure Consent
6. Automated Calls, Pre-Recorded Voice Messages, and SMS/Text Messaging
You may receive calls and/or SMS/text messages from Empower about account-related news and alerts and/or promotional and marketing offers for Empower and its affiliates’ products and services. By enrolling for use of the Dashboard or any of Empower or its affiliates’ products or services, you agree to receive such calls and/or text messages from Empower and its affiliates to the phone number you provided, and you certify that your number provided is correct and that you are authorized to enroll the designated number to receive such calls and/or text messages. You acknowledge and agree that the calls and/or text messages may be sent using an automatic telephone dialing system or pre-recorded voice messages and that standard message and data rates may apply. Consent to receive calls or text messages for promotional purposes is not required as a condition of purchase, and you may unsubscribe from such calls or texts at any time as described in the next paragraph. The calls or text messaging may not be compatible with all phone models and standard message and data rates may apply. Empower is not responsible for any delays upon sending or receiving text messages.
To unsubscribe from receiving promotional text messages at any time reply STOP, END or QUIT to any text message you receive from Empower and its affiliates. You may unsubscribe from receiving promotional or marketing calls at any time by contacting us at 855-823-3040 or email@example.com.
You consent that following such a request to unsubscribe, you may receive one final text message from Empower and its affiliates confirming your request. Note that unsubscribing from promotional or marketing calls or texts will not prevent Empower and its affiliates from sending you text messages or calling you for transactional, security, and/or authentication purposes.
7. Dashboard Services – Disclaimers
By using the Dashboard Services, you understand and acknowledge that the investment results that you could obtain from investment information and financial insights provided by Empower cannot be guaranteed. All investments entail a risk of loss and you may lose money. You also understand that all investments are subject to various market, currency, economic, political, business and other risks. Investments, particularly those in international stocks and stocks of smaller companies, present numerous risks, can be very volatile and can result in a loss of principal. International investments include risks of currency fluctuation, political and economic instability and differences in financial reporting, in addition to the risks present in domestic investments. Investments in smaller companies may involve greater risks than investments in larger, more mature companies. The value of debt securities frequently is reduced (sometimes dramatically) by increases in interest rates. While the financial insights that we provide may assist in helping you manage your finances, you should consult with a professional investment advisor before making investment decisions or deciding on significant changes to your personal financial strategy.
At the sole discretion of Empower, and for select users only, wealth management services may be offered or solicited through an Empower personal advisor (“Personal Advisor”). All Personal Advisors are registered investment advisor representatives of Advisor. Your election to become a client is subject to your explicit enrollment and acceptance of a separate agreement and related fee schedule; all such wealth management services are separate from the Dashboard Services defined within this Agreement. Please read the disclosure brochure, available at https://www.personalcapital.com/disclosures/, which explains our separate wealth management services in more detail.
8. Cost of Service
Your use of the Dashboard Services are offered free of charge. We may offer you additional services, such as wealth management services provided by Advisor, which you may elect to participate in, for a fee. Empower reserves the right, at its sole discretion, to amend or change its pricing policy for its current Services or any additional services that we may offer.
9. Data and Data Integrity
The overall integrity and quality of the data presented by Empower to you is an important element in providing you with a high quality and accurate picture of your personal finances. Empower, however, is not responsible for and cannot guarantee the accuracy or timeliness of account information we retrieve on your behalf directly from third-party technology providers, from third-party financial institutions where your accounts are held, or from third-party research/market data providers used to provide the Services.
Empower may not be able foresee or anticipate technical or other difficulties which may result in failure to obtain data, personalization settings or other Service interruptions. Empower assumes no responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, loss of user data, communications or personalization settings. Empower encourages you to periodically confirm the valuation or execution price of particular investments through independent sources, such as an investment adviser, broker-dealer or other financial institution.
10. Other Obligations While You Use the Dashboard Services
Confidentiality: You agree and understand that you are responsible for maintaining the confidentiality of your Account’s login information and password. You should also maintain appropriate anti-virus and anti-malware software on your computer, so that your Account login information is not compromised. If you receive evidence that someone has committed fraud by accessing your Account you must contact us IMMEDIATELY at firstname.lastname@example.org.
You agree that you will NOT do any of the following: (i) engage in behavior that will put your personal information at unnecessary risk, such as leaving in public, transmitting, or publishing your Login or passwords; (ii) use our Dashboard Services or any of your accounts for illegal purposes, (iii) use our Dashboard Services to transmit anything that is unlawful, libelous, intended to harass or violate the rights of another; (iv) transfer, resell or make any commercial use of the Dashboard Services, as they are intended solely for your use as an end user; (v) reverse engineer or decompile any technology associated with the Dashboard Services, including, but not limited to, any software applications, Java applets or plug-ins associated with the Dashboard Services; (vi) use any robot, spider, webcrawler, scraper, deep link or similar automated extraction or data gathering mechanism, program or tool to access, copy or monitor our Dashboard Services or any portion thereof without our prior written consent; (vii) post or transmit any file or email which contains viruses, worms, Trojan horses or any other damaging or destructive elements; or (viii) create/register accounts or aggregate financial institutions with the Dashboard Services through unauthorized means, including, but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
Consent to Recording. You consent to the recording of any electronic or written correspondence, communication, or interaction, and any or all telephone conversations between you, us and any of our affiliates. Your consent is ongoing and need not be confirmed prior to or during such recording, except to the extent that applicable law expressly requires otherwise. You agree and understand that such recordings may be submitted as evidence in any legal proceeding relating to this Agreement. For compliance and regulatory purposes, we reserve the right to keep an audit trail of all financial insights or investment advice that we have provided to you.
11. Confidentiality and Feedback
We always welcome your correspondence, feedback, comments, complaints and suggestions (collectively, “Feedback”) as this will help us improve our Services. You agree that all Feedback becomes our proprietary and confidential information (“Confidential Information”). Feedback may be submitted to email@example.com.
12. Third Party Software and Service Providers
13. Insights and Third-Party Offers
You understand and agree that any insights you may gain through your use of the Dashboard Services is not deemed financial or investment advice. Advisor can provide more extensive advisory services, such as discretionary money management, under a separate advisory agreement with you.
Third-Party Offers: Some parts of the Dashboard Services may, either today or in the future, be supported by advertising or marketing partnership relationships. We will always disclose when a particular Empower third-party offer is sponsored or when a third party compensates Empower in connection with the sponsored offer.
14. User Referral Program
Empower’s Referral Program (the “Referral Program”) allows users (“Referring User(s)”) to receive benefits in the form of referral incentives (“User Incentive(s)”) by referring friends (“Referred Friend(s)”) to become new users of Empower’s Dashboard.
The Referral Program is only available to friends who are first-time users of the Dashboard and link a valid investment account as described in this Section. Investment accounts that have already been linked to any Empower user account are ineligible. Empower user accounts that have previously been closed or deleted are also ineligible.
If a Referred Friend successfully completes the required enrollment process as described in this Section, both the Referring User and the Referred Friend will qualify to receive User Incentives. User Incentives may include offers for gift cards, Empower Cash funds, physical goods, access to live or online events, or donations to organizations. The scope, variety, type, or amount of User Incentives may change and vary by promotion and will be disclosed in promotional materials. User Incentives may be delivered by physical mail or electronically to the registered emails of Referring Users and Referred Friends. Empower employees are not eligible to receive User Incentives.
Promotions offered through the Referral Program are not valid with any other offers. Except as required by law, User Incentives cannot be transferred for value or redeemed for cash. The Referral Program is available only to U.S. residents. User Incentives are void where prohibited. Unless otherwise specified, third parties, including those whose names may be associated with certain User Incentives, are not sponsors of the Referral Program or any other Empower promotion or offer.
Additional Referral Program terms
Referring Users may not receive more than 30 User Incentives in 30 days and may not receive more than 100 total lifetime User Incentives.
Referring Users and Referred Friends may be issued IRS Form 1099-MISC tax forms for User Incentives that collectively exceed $600 in value. As a result of participating in the Referral Program, Referring Users and Referred Friends may be subject to tax reporting and are responsible for tax obligations arising from the receipt of User Incentives.
Referring Users agree not to: use individualized referral links for commercial purposes; make individualized referral links available to the general public via commercial websites (e.g., blogs, Reddit, Craigslist, coupon websites, Wikipedia); use paid social media, paid searches, or any other paid advertising to distribute individualized referral links; send individualized referral links to any deals, coupon, bonus, or rewards email distribution lists; spam anyone with referral invitations, including mass emailing, texting, or messaging individuals that the Referring Users do not know; or use automated systems, bots, or programmed scripts to distribute, post, or share individualized referral links.
Empower is not responsible for incorrect entries of information, failure to use a Referring User’s individualized referral link, or any other failure on the part of Referred Friends to meet the standards for qualifying for User Incentives. Using an ad blocker may adversely affect Empower’s ability to determine account eligibility for the Referral Program. Final determination of eligibility for promotions offered by the Referral Program will be at the sole discretion of Empower.
Individuals who participate in Empower’s Affiliate Program may not participate in the Referral Program.
Empower may update the terms of the Referral Program at any time without prior notice. If Empower modifies the terms of the Referral Program, it will post the modification on Empower’s website, which will become effective upon posting. Continued participation in the Referral Program after any modification will constitute consent to such modification.
15. Ownership, Copyright, and Trademark
Certain additional terms and conditions applicable to use of all Empower websites and applications are set forth on Empower websites and applications. These terms and conditions include certain terms pertaining to trademark, copyright and other intellectual property rights. In using the Dashboard Services, you acknowledge and agree to the terms set forth in the general terms and conditions set out on our websites at https://www.empower.com/terms, including, without limitation, terms pertaining to intellectual property terms.
16. Disclaimer of Representation and Warranty; Disclaimer of Liability
NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT TO THE CONTRARY, THE DASHBOARD SERVICES PROVIDED BY EMPOWER, ITS LICENSORS AND AGENTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EMPOWER, ITS LICENSORS AND AGENTS ASSUME NO RESPONSIBILITY FOR ERRORS OR OMISSIONS MADE BY YOU, OR ERRORS OR OMISSIONS IN THE CONTENT, INFORMATION OR OTHER DATA AND DOCUMENTS WHICH ARE REFERENCED BY, LINKED TO OR PROVIDED BY OR THROUGH THE DASHBOARD SERVICES. EMPOWER, ITS LICENSORS AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND REGARDING THE DASHBOARD SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT INCLUDED IN OR ACCESSIBLE FROM THE DASHBOARD SERVICES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITATION, EMPOWER DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOUR USE OF THE DASHBOARD SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM OUR SITE IS AT YOUR SOLE RISK.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EMPOWER, ITS LICENSORS AND AGENTS WILL NOT BE LIABLE FOR THE ACCURACY OR RELIABILITY OF ANY DATA, INFORMATION OR CONTENT, FOR ANY DASHBOARD SERVICES INTERRUPTIONS, FOR ANY FAILURE OR DELAY RESULTING FROM ANY ACTS OF FORCE MAJEURE OR ACTS THAT ARE OTHERWISE OUTSIDE OF EMPOWER’S OR ITS LICENSORS’ OR AGENTS’ REASONABLE CONTROL, FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE, OR FOR YOUR INABILITY TO ACCESS THE DASHBOARD SERVICES. NOR CAN EMPOWER OR ITS AFFILIATES, LICENSORS OR AGENTS GUARANTEE THE COMPLETE SECURITY OF THE DASHBOARD SERVICES, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE DASHBOARD SERVICES WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. YOU AGREE THAT ANY DOWNLOADS OF CONTENT OR MATERIALS RELATED TO THE DASHBOARD SERVICES IS DONE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER/SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF OR ACCESS TO ANY SUCH MATERIALS. IN ADDITION, EMPOWER CANNOT ALWAYS ANTICIPATE TECHNICAL OR OTHER DIFFICULTIES WITH THE DASHBOARD SERVICES, EITHER PRESENTLY OR AS THEY EVOLVE; THE DASHBOARD SERVICES MAY CONTAIN BUGS, ERRORS OR OTHER PROBLEMS, WHICH MAY RESULT IN LOSS OF DATA OR SETTINGS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES; ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NEITHER EMPOWER NOR ITS CONTENT PROVIDERS SHALL BE RESPONSIBLE FOR INVESTMENT AND OTHER FINANCIAL DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE DASHBOARD SERVICES. NEITHER EMPOWER NOR ITS CONTENT PROVIDERS WARRANT THAT THE DASHBOARD SERVICES COMPLY WITH THE REQUIREMENTS OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY, THE SECURITIES AND EXCHANGE COMMISSION OR ANY SIMILAR ORGANIZATION OR REGULATOR OR WITH THE SECURITIES LAWS OF ANY JURISDICTION, TO THE EXTENT THE DASHBOARD SERVICES ARE NOT LEGALLY SUBJECT TO SUCH REQUIREMENTS.
17 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF EMPOWER, ITS AFFILIATES, LICENSORS AND AGENTS TO YOU FOR ACTUAL DIRECT DAMAGES IN CONNECTION WITH YOUR USE OF THE DASHBOARD SERVICES SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). EMPOWER, ITS LICENSORS AND AGENTS SHALL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR DAMAGES MEASURED BY I) LOST PROFITS, OR FOR DAMAGES FOR LOST OPPORTUNITY, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA OR OTHER INTANGIBLE OR SPECULATIVE LOSSES, EVEN IF EMPOWER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; II) THE COST OF SUBSTITUTE GOODS OR SERVICES; III) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICES; IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; V) THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; VI) ANY PROVIDER OR THIRD PARTY WEBSITE; OR VII) ANY OTHER MATTER RELATING TO THE DASHBOARD SERVICES. Some jurisdictions do not permit the limitation or exclusion of certain categories of liability, so some of the above limitations may not apply to you.
THE DASHBOARD SERVICES MAY BE AVAILABLE THROUGH A COMPATIBLE MOBILE DEVICE, INTERNET AND/OR NETWORK ACCESS AND MAY REQUIRE SOFTWARE. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THESE REQUIREMENTS, INCLUDING ANY APPLICABLE CHANGES, UPDATES AND FEES, AS WELL AS THE TERMS OF YOUR AGREEMENT WITH YOUR MOBILE DEVICE AND TELECOMMUNICATIONS PROVIDER. EMPOWER MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (I) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
18. Ending Your Dashboard Account
This Agreement will continue to apply until terminated by either you or us as set out below. If you want to terminate your legal agreement with us for use of this Dashboard, you may do so by closing your Account.
Please use the directions below to close your Account:
Email firstname.lastname@example.org from the email address associated with your Account, indicating “CANCEL” in the subject line of the message. After confirming you are the Account owner, we will remove your accounts, transactions and login information pertaining to this Dashboard from our records, and we will only continue to retain such information as we are required by law to retain. In the event you are enrolled in other services with us, closing your Dashboard Account will not cancel those other services.
We reserve the right to terminate our legal agreement with you and your use of the Dashboard Services (by providing an email notice of such termination): (i) if you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to or are unable to comply with the provisions of this Agreement); (ii) if we believe we are required to do so by law (for example, where the provision of the Dashboard Services to you is, or becomes, unlawful); (iii) if we no longer offer any of the Dashboard Services that you utilize; (iv) if you no longer agree to the terms and conditions of this Agreement; or (v) for any other reason or no reason, in our sole and absolute discretion. In addition, we reserve the right at any time to terminate certain Dashboard Services previously offered if we no longer offer such Dashboard Services; such termination shall not impact the remaining Dashboard Services nor your Agreement with us. The termination of this Agreement will not affect any of our rights and obligations to each other arising under this Agreement prior to termination.
19. Governing Law and Venue
This Agreement and any Dashboard Services provided hereunder will be governed exclusively by the laws applicable in the State of Colorado, excluding its provisions on conflicts or choice of law. Subject to the arbitration provision below, you irrevocably and unconditionally consent to submit to the exclusive jurisdiction and venue of the state courts in Denver, Colorado or federal district court for Colorado with respect to any dispute or litigation arising under this Agreement or as the result of any Dashboard Services.
ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE DASHBOARD SERVICES, ANY MARKETING ACTIVITIES, AND/OR THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY BINDING ARBITRATION RATHER THAN A COURT, IN DENVER, COLORADO BEFORE A SOLE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO STREAMLINED ARBITRATION RULES AND PROCEDURES, AND THE ARBITRATOR SHALL APPLY THE LAWS APPLICABLE IN THE STATE OF COLORADO. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION AS SPECIFIED ABOVE UNDER “GOVERNING LAW AND VENUE.” THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING INJUNCTIONS OR OTHER FORMS OF EQUITABLE RELIEF OR PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. YOU AGREE THAT ALL DISPUTES MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU ARE WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. IN ANY ARBITRATION, THE ARBITRATOR MAY, IN THE AWARD, ALLOCATE ALL OR PART OF THE COSTS OF THE ARBITRATION, INCLUDING THE FEES OF THE ARBITRATOR AND THE REASONABLE ATTORNEYS’ FEES OF THE PREVAILING PARTY, AND SHALL DETERMINE THE PREVAILING PARTY FOR THIS PURPOSE.
In the event of any dispute regarding this Agreement, a demand for arbitration must be made within two (2) years of the date the claim arose, notwithstanding any other period that might be provided by otherwise applicable law.
21. Change of Terms
We may revise this Agreement at any time, and therefore we suggest that you periodically review this Agreement as provided on our Site. We may notify you of any changes by posting such changes on our Site, and/or at the e-mail address associated with your Account, and you agree to accept email communications, links to and/or our posting of any revised Agreement on our Dashboard, and you agree that any of these means of our communicating a change in the Agreement constitutes adequate notice to you. Your continued access or use of any of the Dashboard Services indicates your agreement to be bound by any such revisions.
You agree to indemnify, defend and hold us and any of our affiliates, licensors and agents, and all of their officers, directors, employees, agents, information providers and licensors harmless from and against any and all third-party claims, damages, liability and costs (including attorneys’ fees and costs) incurred by any of these parties that arise out of or are caused by your use of the Dashboard Services, your violation of this Agreement, your infringement of any intellectual property rights, or violation by you or any user of your Account. In the event that there are third party claims against you for which you properly seek damages from us under this Agreement, or we are subject to any claim for which we have the right to be indemnified by you, we reserve the right at our expense in the case of claims by third parties against you, and at your expense in the case of claims for which we have the right to be indemnified by you, to assume the exclusive defense and control of any such claim, and you agree that in any event no such claim can be settled without our written consent.
23. Not an Investment, Legal or Tax Advisor
We make managing your personal finances convenient and as streamlined as possible. However, neither we nor our Dashboard Services give, offer or render investment, financial, tax or legal advice. Before making financial or investment decisions, we recommend that you contact an investment advisor, or tax or legal professional. Advisor can separately offer and provide investment advice under a separate advisory agreement with you.
Empower does not waive its rights by delaying or failing to exercise them at any time. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency, local, state, or federal, it will be considered separate and severable from the Agreement and the validity or enforceability of any other provision of this Agreement shall not be affected. After termination or expiration of this Agreement, the provisions which by their nature contemplate performance after this Agreement terminates or expires shall survive and continue in full force, including, without limitation, provisions respecting indemnification, limitation of liability, arbitration, intellectual property, and governing law and venue. Except for Empower affiliates, no third party will be deemed a third-party beneficiary under this Agreement.
25. Section Headings
Section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any provision of this Agreement.
You may not delegate, transfer or assign the terms and conditions or any of your rights and obligations under this Agreement (by operation of law or otherwise) without our prior written consent, and any prohibited assignment will be null and void. We may delegate, transfer or assign this Agreement or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries.
This Agreement and any consents or approvals provided herein shall be applicable to all successors and assigns of Empower.
27. Entire Agreement