Advisor Agreement – December 2020
This agreement covers our relationship with you. In addition to setting out the terms by which we provide advisory services to you, it also sets out the terms and conditions applicable to your use of our Sites (as defined below). Your electronic signature (hereafter referred to as “E-signature”) to this agreement constitutes your agreement to contract with UNest Advisors Inc., which operates under the tradename UNest, under the following terms and conditions.
YOU ACKNOWLEDGE THAT THESE AGREEMENTS MAY BE AMENDED FROM TIME TO TIME AND THAT THE AMENDED AGREEMENTS WILL BE DELIVERED ELECTRONICALLY BY POSTING ON THE UNEST WEBSITE AND THE APPLICATION. YOU AGREE TO CHECK THE UNEST WEBSITE AND/OR THE APPLICATION FOR NEW VERSIONS OF THESE AGREEMENTS. YOU AGREE THAT, BY KEEPING YOUR UNEST 529 ACCOUNT, UNEST UTMA/UGMA ACCOUNT, UNEST BROKERAGE ACCOUNT, OR USING ANY OF THE SERVICES PROVIDED IN THE PROGRAM WITHOUT OBJECTING AFTER UNEST POSTS A NEW VERSION OF ANY OF THE APPLICABLE AGREEMENTS LISTED ABOVE ON THE UNEST WEBSITE, YOU WILL AGREE TO AND ACCEPT ALL TERMS AND CONDITIONS OF ANY AMENDED AGREEMENT, INCLUDING ANY NEW OR CHANGED TERMS OR CONDITIONS.
For purposes of this Agreement, “you” or “your” refers to the person who has signed this Agreement under the person’s own name electronically, i.e., the person opening a college funding account (“Account”) for the benefit of a future student (“Student”). You, the person(s) who has signed this Agreement, is our investment advisory client. Nobody else, e.g., the Student or any person who contributes money to the Account other than you (a “Contributor”), is our client. “We,” “us,” “our” “UNest” refers to UNest Holdings, Inc. an internet investment adviser registered with the Securities and Exchange Commission.
This Agreement provides us with a limited power of attorney and appoints UNest as your attorney-in-fact and agent, to access and provide your personal information to 529 Plans/UTMA/UGMA account providers and their proper agents, and to retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities as if you were doing them personally. Among other valid things, this Agreement means we are authorized to receive confirmations and statements, initiate contributions, perform investment option changes, make qualified withdrawals, inquire, and have access to your Account. We will not be permitted to change the owner of the Account, and we will not be able to add, change or delete banking instructions, or to transfer assets out or roll assets out of your Account without your permission.
You consent to the electronic delivery of all documents and other information (including our Form ADV, Privacy Notice and any 529 Plan/UTMA/UGMA account disclosure documents). You confirm that you have received our Form ADV Part 2A brochure and our Privacy Notice You understand that UNest does not provide tax, legal, or other professional guidance, and you should seek such advice prior to investing any money.
All of UNest’s clients are advised on a discretionary basis; UNest, rather than the client, will ultimately select the investment based on key information provided by the client. When a client deposits money, UNest constructs purchases to align the client’s account to their investment strategy. You confirm that you do not need, require or desire in-person or other personal investment advice.
You acknowledge that UNest provides investment advice on only one or certain 529 Plans, and on only certain of the investment options available in those 529 Plans. You acknowledge that UNest provides investment advice on portfolios for UTMA/UGMA accounts. These choices, which we refer to as “Investment Choices,” are listed on our website.
You represent that, upon selecting an investment, you will complete any documentation that the investment requires, which currently requires that you provide your name, a U.S. permanent street address, and date of birth, among other things, that will be used to verify your identity.
UNest uses Plaid for bank authorization. Banking credentials are never made accessible to UNest. Plaid takes deliberate steps designed to protect end-user information in their possession. These steps include maintaining information security controls such as data encryption, firewalls, logical and physical access controls, and continuous monitoring. These controls are regularly evaluated for effectiveness against industry standards internally and by independent security auditors. (More resources on the security and privacy policies with Plaid: https://plaid.com/security/ https://plaid.com/legal/). You authorize UNest to use account and routing numbers obtained by Plaid, as required on enrollment forms, to open your 529 and/or UTMA/UGMA account. Use may vary by 529 Plan or UTMA/UGMA account and can be transferred to the enrollment/account application form as needed in either physical or digital form. If there are any changes made to your bank account via Plaid or directly with the plan provider, you must submit to UNest proof of account ownership in the form of bank statement before any additional deposits or withdrawals can be made to your account. Any deposits made to your UNest account may be subject to a holding period of no less than 30 days (depending on plan provider) before withdrawals on the account can be made.
We may change our technologies and support services in our discretion at any time. We may change the Investment Choices, or reduce or expand the Investment Choices available, in our discretion from time to time. We reserve the right to implement a minimum investment or a minimum balance in our discretion. In the instance that UNest changes the Investment Choices, you consent to the use of your E-signature on any forms needed for such changes.
By signing this Agreement,
- You confirm that the information provided to us in the Account opening process is accurate, and you agree to update us promptly when the information changes;
- You confirm that by selecting the US citizenship option during account registration, that the beneficiary is also a citizen of the United States. You agree to update us promptly if this information is incorrect or changes.
- You agree to use our services only for lawful purposes;
- You agree to provide us with a limited power of attorney;
- Before August 6th, 2020* you agree that the Account will be invested in the BrightDirections Advisor Guided 529 College Savings Plan maintained by the State of Illinois
- After August 6th, 2020* you agree that the Account will be invested in either the Unique College Investing Plan (New Hampshire/National) through Fidelity Investments or the BrightDirections Advisor Guided 529 College Savings Plan maintained by the State of Illinois.
- Clients that have New Hampshire as their residential address will be placed in the Unique College Investing Plan.
- Clients who have Illinois as their residential address will be placed in the BrightDirections Advisor Guided 529 College savings plan.
- Clients who do not have either New Hampshire or Illinois as their residential address will be placed in either the Unique College Investing Plan or the BrightDirections Advisor Guided 529 College Savings Plan based on their residential address. Clients who live in Alaska, Tennessee, Florida, New Hampshire, South Dakota, Wyoming, Texas, Washington and Nevada will be placed in the Unique College Investing Plan. Clients who live in all other states or territories will be placed in the BrightDirections Advisor Guided 529 College Savings Plan until August 13th, 2020*.
- After August 13th, 2020* clients will be placed in the Unique College Investing Plan (New Hampshire/National) through Fidelity Investments.
- All accounts opened after October 2, 2020 will be invested in a UNest Tax-Advantaged Investment Account for Kids (“UNest Account for Kids”), a non-retirement custodian account established under the Uniform Gifts to Minors Act or Uniform Transfer to Minors Act, that will be established for you at Apex Clearing Corporation (“Apex”). Each UNest Account for Kids identifies a beneficiary who will take control of the account at the age of transfer determined by the custodian. Please refer to the Apex Customer Account Agreement that you executed during UNest account registration. A copy of the Apex Customer Account Agreement can also be provided upon request.
- Apex charges additional fees for its services, and these fees are included in Appendix A.
- You agree to the additional representations, warranties and agreements set forth on Exhibit A hereto; and
- You agree, per the TCPA, to receive periodic communication via SMS which you may opt-out of at any time by replying STOP.
*UNest operates on Pacific Standard Time (PST). August 5th cut off time is 5pm PST. August 13th cut off time is 1pm PST.
Fees. UNest charges a monthly fee (i.e., service fees) for its services, including the personal use of the UNest web or mobile application. This fee is $3 per month; provided that UNest reserves the right to increase this fee on 30 days’ notice. Clients with over two accounts will have their total fee capped at $6 per month. Accounts that have a balance of $50,000 or greater will be charged based on a percentage of assets under management (i.e., an AUM fee). The AUM fee is 0.25% of the average account balance over the course of a year and is charged monthly; that is, 1/12 of 0.25% of each month’s account balance will be charged. The fee includes advisory services, execution, and account reporting. The fee will be collected by the same method of payment that you selected for your investment contributions to the Account. At it’s sole discretion, UNest may forfeit the advisory fee for a period of time specified in the promotional materials.
In addition to UNest’s fees, your Account is subject to any distribution or transaction fees charged by a 529 Plan or intermediary and the UTMA/UGMA account or intermediary, the 529 Plan’s and/or UTMA/UGMA account fees and expenses, and the Investment Choices’ fees and expenses, and that those fees and expenses are generally disclosed in their disclosure documents. You understand that, even though UNest does not receive those fees and expenses, the Account’s investment returns will be reduced by this double-layering of fees.
Limitation of liability and indemnification. UNest, its personnel, its service providers, and its agents shall not be liable to you for any error of judgment or mistake of law or for any loss arising out of any investment or for any act or omission in advising or administering the Account or the performance UNest’s duties under this Agreement, except for willful misfeasance, bad faith, or gross negligence in its performance of its duties and obligations under this Agreement. In no event shall UNest be responsible or liable, whether in contract, warranty, tort (including negligence), or otherwise, for any indirect, special, incidental, exemplary, liquidated, or punitive damages. To the extent permitted by law, UNest’s liability shall be limited to fees actually received from the account. Notwithstanding the foregoing, nothing contained in this paragraph or elsewhere in this Agreement shall constitute a waiver by you of any of your legal rights under applicable U.S. federal securities laws or any other laws whose applicability is not permitted to be contractually waived. We have no liability for events beyond our control. The Account should be considered a long-term investment, and changes to the Account (such as choosing different Investment Choices) should not be expected to be implemented on any particular timing, even if market events or other occurrences suggest urgency.
You agree that you will, or you will cause the Account to, indemnify UNest, its personnel, its affiliates, its service providers, and its agents, for and to hold them harmless from any loss, claim, or dispute that may arise out of any inaccurate personal or other information that you have provided UNest in connection with this Agreement, during the Account opening process, in updating the Account information; out of any action relating to any tax liabilities to which the Account may become subject; and out of any damage to our website or otherwise due to malware, viruses, cybersecurity breaches, or other harm arising due to your accessing or using of the website.
Intellectual Property. The contents of the Sites, including text, logos, and images, our software, our processes, our business methods, and all of our other materials that may constitute intellectual property are our property, and are protected under national and international copyright, trademark, and other laws.
Amendments to this Agreement. By giving you 30 days’ notice and effective beginning at the end of that 30 day period, we may amend this Agreement in any way, except to change the investment advisory fee structure or if we determine in our fiduciary duty that you, the Student, and/or the minor or the Account would be materially adversely affected by the amendment (unless we determine that the amendment is required for compliance with law). Any other amendments will only take effect upon your and our mutual agreement.
Assignment. Neither UNest nor you may assign this Agreement (as “assignment” is defined for purposes of the Investment Advisers Act of 1940) without the prior consent of the other party. In the event of an assignment of this Agreement by UNest, or a deemed assignment due to a change in control of UNest, UNest agrees to provide at least 30 days’ notice to you, and you agree that, if you continue to accept services under this Agreement after such notice, that shall constitute your consent to the assignment for all purposes.
Governing law and arbitration. This Agreement will be governed by and interpreted in accordance with the laws of the State of California. To the extent permitted by law, any controversy under this Agreement shall be determined by arbitration, in accordance with the rules of the American Arbitration Association.
Miscellaneous. The enforceability or validity of any section, paragraph or provision of this Agreement shall not affect the enforceability or validity of the balance of this Agreement. A party’s failure to insist at any time on strict compliance with this Agreement or with any of the terms of the Agreement or any continued course of such conduct on its part will not constitute a waiver by it of any of its rights or privileges.
Termination. UNest may immediately terminate this Agreement at any time by emailing you written notice or by other appropriate means of notice. You may terminate this Agreement without penalty upon 60 days’ written notice to us, with effect at quarter end, unless otherwise agreed by UNest. If termination is effective on a date other than month end and if UNest has been paid its investment advisory fee in advance, UNest shall refund any portion of its investment advisory fee to which it was not entitled, as calculated by us in good faith based on the pro rata portion of the month during which it provided services. For any investment advisory fee that remains owing, UNest is entitled to invoice you, and you agree to promptly pay the invoiced amount in full. After termination of this Agreement takes effect, the Contributors, the Student, and the Account will lose access to our technology solutions that support investments by family and friends.
Survival. The following provisions shall survive termination of this Agreement: “Limitation of liability and indemnification” and “Termination.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY.
BY USING THE WEBSITE LOCATED AT UNEST.COM, AS WELL AS ANY SUBDOMAINS THEREOF AND THE RELATED MOBILE WEBSITE (COLLECTIVELY, THE “SERVICE”), YOU AGREE TO BE BOUND BY THE FOLLOWING, WHETHER OR NOT YOU BECOME A CLIENT OF UNEST.
These terms and conditions of use apply solely to your access to, and use of, the web sites or mobile applications of UNest (“UNest” “we” or “our”), located at www.UNestapp.com and any other sites or mobile applications operated by UNest that link to these Site Terms (the “Sites”).
UNest reserves the right to change or modify any of these Site Terms or any policy or guideline of the Sites, at any time and in its sole discretion. If UNest makes changes to these Site Terms, we will provide notice of such changes, such as by posting a notice on the Sites or updating the “Last Updated” date above. Your continued use of our Sites following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Site Terms and applicable policies whenever you access the Sites and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to you and your use of the Sites. If you do not agree to the amended terms, you must stop using the Sites.
Copyright and Limited License. Unless otherwise indicated in the Sites, the Sites and all content and other materials on the Sites, including, without limitation, the UNest logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Site Materials”) are the proprietary property of UNest or our licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use the Sites and electronically copy, (except where prohibited without a license) and print to hard copy portions of the Site Materials for your informational, non-commercial and personal use only. Such license is subject to these Site Terms and does not include: (a) any resale or commercial use of the Sites or the Site Materials therein; (b) the distribution, public performance or public display of any Site Materials; (c) modifying or otherwise making any derivative uses of the Sites and the Site Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Sites, the Site Materials or any information contained therein, except as expressly permitted on the Sites; or (f) any use of the Sites or the Site Materials other than for its intended purpose.
Any use of the Sites or the Site Materials other than as specifically authorized herein, without the prior written permission of UNest, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Site Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, UNest has adopted a policy of terminating, in appropriate circumstances and at UNest’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. UNest may also at its sole discretion limit access to the Sites and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Copyright Complaints. If you believe that anything on the Sites infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by UNest or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Trademarks. The UNest logo and any other product or service name or slogan contained in the Sites are trademarks of UNest and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of UNest or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “UNest” or any other name, trademark or product or service name of UNest without our prior written permission. In addition, the look and feel of the Sites, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of UNest and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Sites are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by UNest.
Hyperlinks. You are granted a limited, non-exclusive right to create a text hyperlink to the Sites for non-commercial purposes, provided such link does not portray UNest or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a UNest logo or other proprietary graphic of UNest to link to this Sites without the express written permission of UNest. Further, you may not use, frame or utilize framing techniques to enclose any UNest trademark, logo or other proprietary information, including the images found at the Sites, the content of any text or the layout/design of any page or form contained on a page on the Sites without UNest’s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of UNest or any third party.
UNest makes no claim or representation regarding and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Sites, or Web sites linking to the Sites. Such sites are not under the control of UNest and UNest is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. UNest provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by UNest of any site or any information contained therein.
Third Party Content; No Endorsement of UNest by Third Parties. UNest may provide third party content on the Sites and may provide links to Web pages and content of third parties (collectively, “Third Party Content”) as a service to those interested in this information. UNest does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that UNest is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk. Third parties who are identified on the Sites do not sponsor, endorse or promote UNest or UNest’s business. Third parties and their documentation, whether available by link via the Sites or otherwise, may contain intellectual property of such third parties which is protected by applicable law.
Third-Party Products and Services. UNest may provide or allow users to provide information about or links to third-party products or services on the Sites. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. UNest is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-UNest advertisers or third party information on the Sites.
Feedback. You acknowledge and agree that any questions, comments, suggestions, feedback, ideas, plans, notes, drawings, original or creative materials or other information or materials regarding the Sites, UNest or UNest’s general products or services (but excluding any client information) (the “Feedback”) that are provided by you in the form of email or other submissions to UNest, or any postings on the Sites, are (as between you and UNest) non- confidential and shall become the sole property of UNest. UNest shall own, and you hereby assign to UNest, all exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
User Content and Interactive Services or Areas. The Sites may include interactive areas or services (“Interactive Areas”), such as forums, chat rooms or message boards, online hosting or storage services, or other areas or services in which you or other users create, post or store any content, messages, materials, data, information, text, music, sound, photos, video, graphics, applications, code or other items or materials on the Sites (“User Content”). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Sites any User Content that (i) is unlawful, libelous, defamatory, obscene, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (ii) that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (iii) that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content; (iv) that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; (v) that constitutes (a) unsolicited promotions, political campaigning, advertising or solicitations; (b) private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; or (c) viruses, corrupted data or other harmful, disruptive or destructive files; and (vi) that, in the sole judgment of UNest, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Sites, or which may expose UNest or its users to any harm or liability of any type.
UNest takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is UNest liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, or profanity you may encounter. Your use of Interactive Areas is at your own risk. Enforcement of the user content or conduct rules set forth in these Site Terms is solely at UNest’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Sites will not contain any content that is prohibited by such rules. As a provider of interactive services, UNest is not liable for any statements, representations or User Content provided by its users in any public forum, personal home page or other Interactive Area. Although UNest has no obligation to screen, edit or monitor any of the Content posted in any Interactive Area, UNest reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Sites at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense. Any use of the Interactive Areas or other portions of the Sites in violation of the foregoing violates these Site Terms and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Sites.
If you post User Content to the Sites, unless we indicate otherwise, you grant UNest and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media on or in connection with the Sites and the promotion thereof. You grant UNest and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if we choose. You understand and agree that the use of your or other users name, likeness, voice or identity in connection with various features on the Sites does not imply any endorsement of such feature or of the Sites of UNest unless explicitly stated otherwise. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Sites; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Site Terms and will not violate any rights of or cause injury to any person or entity.
Registration Data. Account Security. In consideration of your use of the Sites, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to UNest, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to UNest. You are responsible for maintaining the confidentiality of any account information, user names, logins, passwords, and security questions and answers that you use to access any page or feature on the Sites, and for logging off of your account and any protected areas of the Sites. Further, you are fully responsible for all activities occurring under your accounts, user names, logins, passwords, and security questions and answers that result from your negligence, carelessness, misconduct, or failure to use or maintain appropriate security measures. If you become aware of any suspicious or unauthorized conduct concerning your accounts, user names, logins, passwords, or security questions and answers, you agree to contact UNest immediately. UNest will not be liable for any loss or damage arising from your failure to comply with this paragraph.
International use. The investment advisory services referred to on the Sites are intended to be made available only to U.S. residents. The Sites are not to be a solicitation for or offering of any service or product to any person in any jurisdiction where such solicitation or offering would be illegal.
Because of the global nature of the Internet, you agree to comply with all local rules with respect to your account and your online conduct, including all laws, rules, codes, and regulations of the country in which you reside and the country from which you access the Sites, including without limitation, all laws, rules, codes, regulations, decrees, acts, orders, directives, legislation, bills, and statutes pertaining to tax, contracts, intellectual property, securities, e-commerce, banking, technology, computers, fraud, and privacy. In addition, you agree to comply with all applicable laws, rules, codes, and regulations regarding the transmission of technical data exported from the United States or cross-border transmission of data including under applicable data privacy laws.
Disclaimer. Except as expressly provided to the contrary in a writing by UNest, the sites, the site materials contained therein and the services provided on or in connection therewith (the “services”) are provided on an “as is” basis without warranties of any kind, either express or implied. UNest disclaims all other warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non- infringement as to the sites and the services, including the information, content and materials contained therein. UNest does not represent or warrant that materials in the sites or the services are accurate, complete, reliable, current or error-free. UNest does not represent or warrant that the sites or its servers are free of viruses or other harmful components.
UNest is not responsible for typographical errors or omissions relating to pricing, text or photography. While UNest attempts to make your access and use of the sites and the services safe, UNest cannot and does not represent or warrant that the sites or its server(s) are free of viruses or other harmful components; therefore, you should use industry- recognized software to detect and disinfect viruses from any download.
Modifications to the Sites. UNest reserves the right to change any and all content contained in the Sites and to modify, suspend or discontinue the Sites or any Services offered through the Sites or any features or functionality of the Sites or the Services at any time without notice and without obligation or liability to you.
Termination. Notwithstanding any of these Site Terms, UNest reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites, and to block or prevent future your access to and use of the Sites.
Severability. If any provision of these Site Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Site Terms and shall not affect the validity and enforceability of any remaining provisions.
- PLEASE REVIEW THE PROGRAM DESCRIPTION WHICH CAN BE FOUND HERE.
UNest Referral Agreement
By agreeing to the Advisor Agreement, you are agreeing to the UNest Referral Program. By participating in the UNest Referral Program, you are agreeing to the following:
When the following capitalized terms are used above or below in this Agreement, the following definitions apply:
Act means the Investment Advisers Act of 1940, as amended. The Act is in the U.S. Code at 15 U.S.C. §§80b-1.
Brochure means the Wrap Fee Program Brochure that UNest files with the SEC on Part 2A of Form ADV and is available at: https://adviserinfo.sec.gov/
Custodian refers to the financial institution that is holding your securities.
Initial Shares means the shares that are purchased and held at Custodian, that a Referred Client purchases with the Minimum Amount.
Minimum Amount refers to the minimum amount you must deposit in order to open a UNest account. UNest requires referred client to enroll in a recurring plan with at least $25 in securities purchased per month.
Potential New Client means an individual (i) whom a Referring Client invites to open an UNest Account and (ii) who has never opened an UNest Account before being invited by the Referring Client to open a UNest Account
Referred Client means a Potential New Client who has (i) entered into an Advisor Agreement with UNest and (ii) been accepted (and not rejected) by the Custodian as a customer.
Referral means the invitation of a Potential New Client to open a UNest Account by a Referring Client using the links UNest provides in the Application for Referrals.
Referring Client means a client of UNest who has entered into the Advisor Agreement and decides to make Referrals. In addition, this agreement uses the terms “you,” “your” or “yours” to mean a Referring Client or a Referring Client’s.
Reward Amount means the referral incentive amount as indicated in the relevant referral promotion.
Reward Date means the date when UNest credits Reward Shares earned by a Referring Client in accordance with the terms and conditions of this Agreement to the Referring Client’s UNest Account.
Reward Shares are shares earned when a Referred Client enters into an Advisor Agreement with UNest and deposits the Minimum Amount into their UNest account.
Rules means the SEC’s rules under the Act. The SEC’s rules under the Act are in the Code of Federal Regulations at 17 C.F.R. Part 275.
The UNest referral program is open to all United States legal residents or citizens that currently reside in the United States. Exceptions are made for active Armed Services personnel that maintain a U.S. address and are temporarily overseas in connection with their service.
UNest Holdings, Inc. (“UNest”) is an investment adviser registered with the U.S. Securities and Exchange Commission. Referring Client means an investment advisory client of UNest who has entered into the UNest Advisor Agreement and decides to make referrals. In addition, this agreement uses the terms “you,” “your” or “yours” to refer to a Referring Client.
This Agreement is by and among UNest and each Referring Client subject to the terms and conditions of this Agreement.
By participating in the UNest Referral Program, you acknowledge and agree that you are a Referring Client and that you will have the rights of a Referring Client under this Agreement and be bound by the terms and conditions of this Agreement, including without limitation all of a Referring Client’s obligations, duties, covenants, undertakings, representations and warranties below. This Agreement contains a pre-dispute arbitration in Section 9.
- Reward Shares for Referrals
After each Referred Client you invited to open an UNest Account deposits the minimum amount of $25 and maintains the Initial Shares in an UNest Account for the minimum time of 30 days, UNest will credit your UNest Account with the amounts and types of Reward Shares that correspond to your Selected Portfolio and are collectively worth the Reward Amount at the time shares are purchased on the Reward Date. You acknowledge and agree that, notwithstanding anything else in this Agreement or the Advisor Agreement, you shall not be entitled to any Reward Shares for a Referral (i) unless and until the Potential New Client is accepted as a Referred Client; (ii) unless and until the Referred Client invests the minimum amount of $25 and maintains the Initial Shares in his or her UNest Account for at least the minimum time of 30 days; (iii) if UNest determines at its sole discretion that you have breached any term, condition, obligation, duty, covenant, undertaking, representation or warranty in this Agreement (see Section 3 below on Compliance; and (iv) unless you invite a client using the links UNest provides in the Application for Referrals. UNest, at its sole discretion, may make available certain promotions with different Reward Amounts to other UNest users or prospective users. These promotions, unless offered to you, shall have no bearing whatsoever on your Agreement or relationship with UNest.
In connection with your participation in the Referral Program, you agree to the restrictions listed below.
- No spam – You agree that you will not “spam” anyone with Referrals to join UNest either by mass emailing, use of automated systems, bots or automatic dialers and to not post Referral links on websites or event or venue pages without express consent from the owner. You agree to not engage in any device or scheme that results in “spam.”
- No misrepresentations – You agree that you will not attempt to mislead anyone in connection with the Referral Program. This includes, but is not limited to, creating fake accounts, profiles, links, or messages.
- No prohibited content – You agree that you will not use any defamatory, offensive, abusive, or obscene content in connection with UNest. This includes, but is not limited to, content that violates someone else’s privacy or harassing content.
- No fraudulent activity – You agree not to defraud or abuse, or attempt to defraud or abuse, anyone in connection with the Referral Program. You agree to not engage in any activity that may be fraudulent, deceptive, or manipulative.
- No misuse of UNest’s content – You agree not to sell UNest Referral links or create websites, email addresses, or social media with UNest’s name, images or content. UNest’s content is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to law or regulation or which would subject UNestor any of UNest’s products or services to any authorization, registration, licensing or notification requirements within any jurisdictions outside those jurisdictions in which UNest and its affiliates are licensed to operate. Violation of any of these restrictions may result in termination of your eligibility to participate in the Referral Program and may deny you any Referrals earned in violation or suspected violation of these restrictions at UNest’s sole discretion.
- UNest’s Registration. UNest represents and warrants to you that it is registered with the SEC under the Act as an investment adviser.
- Legal and Regulatory History – you represent and warrant to UNest that you are not a person: (A) subject to an SEC order issued under section 203(f) of the Act, or (B) convicted within the previous ten years of any felony or misdemeanor involving conduct described in section 203(e)(2)(A) through (D) of the Act, or (C) who has been found by the SEC to have engaged, or has been convicted of engaging, in any of the conduct specified in paragraphs (1), (5) or (6) of section 203(e) of the Act, or (D) is subject to an order, judgment or decree described in section 203(e)(4) of the Act.
- Dispute Resolution, including Pre-Dispute Arbitration Clause – the arbitration provisions of the Advisor Agreement, which you, as a Referring Client, have already entered into, shall apply to this Agreement to the same extent as they apply to the Advisor Agreement. All controversies that may arise between you and UNest or between you and the Custodian concerning any subject matter, issue, or circumstance whatsoever (including controversies concerning any account, order, or transaction, or the continuation, performance, interpretation, or breach of this, the other Agreements, or any other agreement between you and UNest or the Custodian, whether entered into or arising before, on, or after the date this account is opened) shall be determined by binding arbitration through the Financial Industry Regulatory Authority (“FINRA”). You acknowledge that judgment upon any arbitration award may be entered in any court of competent jurisdiction. No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; or (ii) the class is decertified; or (iii) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Advisor Agreement except to the extent stated herein.
- Termination – you may terminate this Agreement at any time by notifying UNest in writing at firstname.lastname@example.org that you no longer desire to make Referrals or to receive Reward Shares for Referrals. Upon termination, you will no longer be a Referring Client. UNest may terminate this Agreement at any time by notifying you at the email you have provided UNest in connection with your UNest Account. If UNest terminates this Agreement and you have not breached this Agreement, UNest will credit your Account with any Reward Shares you have earned from Referrals in which the Referred Client has, before we notified you that we terminated this Agreement with you, maintained the Initial Shares in the Referred Client’s UNest Account for the Minimum Time.
- Miscellaneous – the provisions of the Advisor Agreement, which you, as a Referring Client, have already entered into, shall apply to this Agreement to the same extent as they apply to the Advisor Agreement.
By participating in the UNest Referral Program, you undertake to perform your duties under this Agreement in a manner consistent with this Agreement, any and all of UNest’s instructions to you, and the provisions of the Act and the Rules. You agree to seek guidance promptly from UNest if you are in doubt about what the Act or the Rules allow or do not allow you to say or do in connection with Referrals.
UNest Gifting Program
Terms & Conditions (Last updated: November 2020):
YOUR USE OF AND ACCESS TO THE SERVICES (AS DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Your consent to the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under these Terms and in connection with your relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to these Terms electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.
Your Right to Withdraw Your Consent. Your consent to receive Communications electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further Communications electronically at any time by contacting us at support@UNest.co or 818-275-0041. If you withdraw your consent to receive Communications electronically, we will close your UNest Account and return the combined balance of your child(ren) UNest subaccount(s) to your Bank Account as set forth in these Terms, and you will no longer be able to use your UNest Account or the Services, except as expressly provided in these Terms. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that withdrawal of your consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective.
You Must Keep Your Contact Information Current With Us. In order to ensure that we are able to provide Communications to you electronically, you must notify us of any change in your email address and your mobile device number or other text message address by updating your profile on the Website or the Application. Copies of Communications. You should print and save and/or electronically store a copy of all Communications that we send to you electronically.
Hardware and Software Requirements. In order to access and retain Communications provided to you electronically, you must have: (1) a valid email address; (2) a computer or other mobile device (such as tablet or smart phone) that operates on a platform like Windows or iOS; (3) a connection to the Internet; (4) a Current Version of Internet Explorer 8 (or higher), Mozilla Firefox 7.0, Safari 5, or Chrome 15; (5) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (6) a computer or device and an operating system capable of supporting all of the above; and (7) a printer to print out and save Communications in paper form or electronic storage to retain Communications in an electronic form. “Current Version” means a version of the software that is currently being supported by its publisher.
Changes. We reserve the right, in our sole discretion, to communicate with you in paper form. In addition, we reserve the right, in our sole discretion, to discontinue the provision of electronic Communications or to terminate or change the terms and conditions on which we provide electronic Communications. Except as otherwise required by applicable law, we will notify you of any such termination or change by updating these Terms on the Website and the Application or delivering notice of such termination or change electronically.
The Services are offered as a platform to users of the Services, which may include Guests (each defined herein) and other registered users of the Services that interact with the Platform or Services. Among other features, the Services are designed to allow a user to share their child’s UNest gift page to accept financial gifts or monetary donations (“Gifts”) guest users (“Guests”) that are contributing to a child’s UNest account. For purposes hereof, the term “user” shall also be deemed to include any individual(s) designated as a beneficiary of a UNest account. Guest will pay a credit card or ACH processing fee, if applicable.
THESE TERMS INCLUDE, AMONG OTHER THINGS, YOUR AUTHORIZATION FOR DEBITS AND CREDITS FROM AND TO YOUR BANK ACCOUNT OR CREDIT CARD (AS DEFINED BELOW) VIA STRIPE PAYMENT PROCESSING, THE AUTOMATED CLEARINGHOUSE NETWORK (“ACH”) AND A BINDING ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Each child’s funds within UNest are held at Synapse’s partner First Horizon Bank and are FDIC insured for at least a balance of $250,000. By using our services, you authorize UNest to hold your deposits for your benefit at First Horizon Bank, Member FDIC, in an account (“FBO Account”). For purposes of applicable FDIC deposit insurance limitations, please note that deposits in First Horizon Bank FBO Account may not be separately insured from any other deposit accounts you may have with First Horizon Bank.
UNest uses Plaid for bank authorization. Banking credentials are never made accessible to UNest. Plaid takes deliberate steps designed to protect end-user information in their possession. These steps include maintaining information security controls such as data encryption, firewalls, logical and physical access controls, and continuous monitoring. These controls are regularly evaluated for effectiveness against industry standards internally and by independent security auditors. (More resources on the security and privacy policies with Plaid: https://plaid.com/security/ https://plaid.com/legal/). You authorize UNest to use account and routing numbers obtained by Plaid, as required on enrollment forms, to open your 529 and/or UTMA/UGMA and/or gifting account. Use may vary by 529 Plan or UTMA/UGMA or gifting account and can be transferred to the enrollment/account application form as needed in either physical or digital form. If there are any changes made to your bank account via Plaid or directly with the plan provider, you must submit to UNest proof of account ownership in the form of bank statement before any additional deposits or withdrawals can be made to your account. Any deposits made to your UNest account may be subject to a holding period of no less than 30 days (depending on plan provider) before withdrawals on the account can be made.
ELECTRONIC FUND TRANSFER DISCLOSURE STATEMENT
The following disclosures are made in accordance with the federal law regarding electronic payments, deposits, transfers of funds and other electronic transfers to and from your account(s) gift balance. There may be limitations on account activity that restrict your ability to make electronic fund transfers. Any such limits are disclosed in the appropriate agreements governing your account.
- Definitions: Electronic Fund Transfer: Any transfer of funds, other than a transaction originated by check, draft or similar paper instrument, that is initiated through an electronic device or computer to instruct us to debit or credit an account. Electronic Fund Transfers include such electronic transactions as direct deposits or withdrawals of funds, transfers initiated via telephone, website or mobile application. Preauthorized Electronic Fund Transfer: An Electronic Fund Transfer that you have authorized in advance to recur at substantially regular intervals; for example, direct deposits into or withdrawal of funds out of your account.
- Your Liability: Authorized Transfers: You are liable for all Electronic Fund Transfers that you authorize, whether directly or indirectly. Unauthorized Transfers: Tell us at once if you believe your account or PIN or Access Information (as defined below) is lost or stolen or has been or may be subject to unauthorized Electronic Fund Transfers. Support message us immediately to keep your possible losses to a minimum. You could lose all the money in your account(s). If you tell us within two (2) business days after learning of the loss or theft of your account access device, or after learning of any other unauthorized transfers from your account involving your account access device, you can lose no more than $50 if Electronic Fund Transfers are made without your permission. For these transactions, if you DO NOT tell us within two (2) business days after learning of the loss, theft or unauthorized use, and we can establish that we could have prevented the unauthorized transfer(s) if you had told us in time, you could lose as much as $500. Also, if your periodic account statement shows unauthorized transfers and you DO NOT tell us within sixty (60) days after the statement was delivered to you, you may not get back any money you lose after the sixty (60) day period if we can prove that we could have prevented the unauthorized transfer(s) if you had told us in time. If an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of a suspected lost or stolen access device or of any other suspected unauthorized transfer(s), the time periods specified in this Section B may be extended for a reasonable period.
ERRORS ABOUT TRANSACTIONS
(1) Errors or Questions about Transactions Please contact us by emailing us at email@example.com (1) if you believe a transaction receipt or a statement is wrong, or (2) if you need more information about a transaction on the receipt or statement. For consumer accounts, we must hear from you no later than sixty (60) days after we sent you the first statement on which the error or problem appeared. For business accounts, we must hear from you within one (1) business day of us sending you a receipt. Your inquiry must include: (x) your name, email associated with your account, and your account number (if available); (y) a description of the error or the transaction you are unsure about, and a clear explanation of why you believe there is an error or why you need more information; and (z) the dollar amount of the suspected error. If you tell us orally, we may require that you send us your inquiry via email within ten (10) business days.
(2) Time Periods Ten-Day Time Period – UNest will investigate promptly and, except as otherwise provided in this paragraph, shall determine whether an error occurred within 10 business days of receiving a notice of error. UNest shall report the results to the consumer in writing within three business days after completing its investigation. UNest shall correct the error within one business day after determining that an error occurred.
Forty Five-Day Time Period – If UNest is unable to complete its investigation within 10 business days, UNest may take up to 45 days from receipt of a notice of error to investigate and determine whether an error occurred, provided UNest does the following:
- Provisionally credits the consumer’s account in the amount of the alleged error (including interest where applicable) within 10 business days of receiving the error notice. UNest need not provisionally credit the consumer’s account if:
- UNest does not receive written confirmation within 10 business days of an oral notice of error; or
- The alleged error involves an account that is subject to Regulation T (Securities Credit by Brokers and Dealers, 12 CFR part 220)
- Informs the consumer, within two business days after the provisional crediting, of the amount and date of the provisional crediting and gives the consumer full use of the funds during the investigation;
- Corrects the error, if any, within one business day after determining that an error occurred; and
- Reports the results to the consumer within three business days after completing its investigation (including, if applicable, notice that a provisional credit has been made final).
- Extension of time periods. The time periods described above may be extended as follows:
- Extension of Ten-Day Time Period – The time limit for resolution is extended to 20 business days in place of 10 business days if the notice of error involves an electronic fund transfer to or from the account within 30 days after the first deposit to the account was made; or
- Extension of Forty Five-Day Time Period – The time limit for resolution is extended to 90 days in place of 45 days for completing an investigation, if a notice of error involves an electronic fund transfer that occurred within 30 days after the first deposit to the account was made.
GIFT ACCOUNT CREATION
Each account established with UNest (“UNest Account”) consists of an UTMA/UGMA custodial account (“UTMA/UGMA”) and a separate gifting account (“Gift Account”). When you sign up for a UNest Account, both an UTMA/UGMA account and a Gift Account are established for each beneficiary child. Your use of the UNest Account and all associated features is governed by the terms and conditions of the UNest Adviser Agreement and all associated agreements. You can reference and review these agreements by visiting https://unest.co/legal/. You may not be provided with access to the full suite of UNest features and products until your account has been fully approved. Approval is contingent upon multiple factors, including, but not limited to, successfully passing UNest’s customer identification program, identity verification and review and approval of any documentation requested by UNest.
GIFT PAGE AND GIFT LINK
When you create a UNest Account, you are given the option of uploading an image of your child to associate with the account. You are also given the option of labeling the account with the child’s name. By utilizing these features, you acknowledge that the image and the child’s name will be visible on the account’s gift page that is shared with anyone you send a gift request or link to or anyone who utilizes that link. By creating an account with UNest, the child’s first name is public on their gift page when requesting gifts for their UNest account. Any photo that you choose to upload is also displayed to the public on their gift page.
GIFT ACCOUNT BALANCES
All EFT transactions are performed by and deposits are held by First Horizon Bank. UNest and Synapse only transmit transaction instructions to First Horizon Bank. UNest will provide you with all transactions notifications and User Account balances in addition to providing customer support relating to your Synapse User Account as detailed below.
TRANSACTIONS HISTORY AND DISPUTES
All questions regarding gift EFT transactions or your Synapse User Account must be directed to firstname.lastname@example.org and not to Synapse or its financial institution partners. UNest is responsible for resolving issues and errors relating to transactions and account balances. If you wish to make a financial service complaint against UNest regarding your gift balance, you may email email@example.com.
In addition to any of your other representations and warranties in these Terms, you represent that: (a) your browser is equipped with at least 128-bit security encryption; (b) you are capable of printing, storing, or otherwise saving a copy of this electronic authorization for your records; and (c) the ACH transactions you hereby authorize comply with applicable law.
For purposes of these Terms, “Business Day” means Monday through Friday, excluding federal banking holidays.
While UNest strives to make Withdrawals available to you promptly, you acknowledge and agree that Withdrawals may not be available to you for use immediately, and UNest does not guarantee that Withdrawals will be available to you within any specific time frame, and UNest expressly disclaims any and all responsibility for any delay or inability to access and use Withdrawals at any specified time, and any consequences arising from such delay or inability. You, as a Family Organizer, are responsible for ensuring that the information you provide to UNest in order to process a Withdrawal, including your bank account information, is accurate and up to date.
In order to contribute to a UNest child’s gift balance, a Guest will be required to provide UNest information regarding its credit card or other payment instrument. You, as a Guest, represent and warrant to UNest that such information is true and that you are authorized to use the payment instrument. You agree that a certain minimum Gift amount may apply, and that all gift payments are final and will not be refunded unless UNest, in its sole discretion, agrees to issue a refund. Guests may have the option to contribute in two ways: 1) with an invitation of future Gift if a parent or family organizer creates a UNest account to accept Gifts. Once the guardian of the recipient of the Gift creates a new UNest account or redeems the gift into an existing UNest account, the gift amount is processed and charged to the Guest. 2) by sending a scheduled or recurring Gift Donation. In electing to contribute on a recurring basis, you, as a Guest (i) agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur and to pay the gift donation amount that you specify, and (ii) hereby authorize UNest to bill your payment instrument in advance on a periodic basis until you terminate such periodic payments, which can be done at any time through the Platform.
- A copy of your government-issued photo ID, such as a passport or driver’s license;
- A copy of a utility bill, bank statement, affidavit, or other bill, dated within three months of our request, with your name and U.S. street address on it; and
- Such other information and documentation that we may require from time to time.
You may only use the Services for your own personal, non-commercial use and not on behalf of or for the benefit of any third party. Your use of the Services must comply with all applicable law. If your use of the Services is prohibited by applicable law, then you are not authorized to use the Services. We are not responsible if you use the Services in any manner that violates applicable law. Important notice: UNest reserves the right to suspend an account at any time, and without notice, if the account has been flagged as suspicious or fraudulent for any reason by our security team. Suspended accounts will require investigation. Those with pending balances will be notified and further security measures will be taken to verify identity.
You agree not to authorize any other person or entity to use your user name and password or mobile device to access the Services. You are solely responsible for the maintenance, confidentiality, and security of your username, password, and other User Information. Except as otherwise required by applicable law, you are responsible for all transactions and other activities authorized or performed using your username and password or mobile device, whether authorized or unauthorized by you. Except as otherwise expressly stated in these Terms or required by applicable law, we are not responsible for any losses arising out of the loss or theft of your User Information or your mobile device or from unauthorized or fraudulent transactions associated with your Bank Account or your UNest Account. If you suspect or become aware of any unauthorized activity or access to your username, password, or mobile device, you must contact us immediately at 1-818-275-0041 or firstname.lastname@example.org.
We offer the use of Services and the features, information, materials, and content provided and depicted through the Services (collectively, “Content”) solely for your personal use for the purposes described therein and in these Terms. Any and all other uses are prohibited. You may not restrict or inhibit any other person from using or enjoying the Services or Content.
The Services and Content are protected by copyright, trademark, patent, and other intellectual property laws. We expressly reserve all rights and remedies under applicable law. Except as expressly provided by these Terms or with our prior written consent, you may not use, modify, disassemble, decompile, reverse engineer, reproduce, distribute, rent, sell, license, publish, display, download, transmit, or otherwise exploit any Content in any form by any means. Without limiting the foregoing, you agree not to (and not to allow any third party to): (a) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Services or copy any Content, except as expressly authorized by us; (b) take any action that imposes or may impose (in our sole determination) an unreasonable or a disproportionately large load on the Services or our infrastructure; (c) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (d) rent, lease, copy, provide access to, or sublicense any portion of the Services or Content to a third party; (e) use any portion of the Services or Content to provide, or incorporate any portion of the Services or Content into, any product or service provided to a third party; (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Services or Content; (g) modify the Services or Content or create any derivative product from any of the foregoing; (h) remove or obscure any proprietary or other notices contained in the Services or Content; (i) use the Services or Content in any way that is illegal, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable, as we may determine in our sole discretion; (j) jeopardize the security of your UNest Account or any other person’s UNest Account (such as allowing someone else to use your username and password to access the Services); (k) attempt, in any manner, to obtain the username, password, account, or other security information from any other user of the Services; (l) violate the security of any computer network or crack any passwords or security encryption codes; or (m) run Maillist, Listserv, any form of auto- responder or “spam,” or any processes that run or are activated while you are not logged in to access the Services. We may, but are not obligated to, monitor your use of the Services and Content.
We do not grant you any licenses, express or implied, to our intellectual property or the intellectual property of our licensors, except as expressly stated in these Terms. We and our third-party licensors retain all right, title, and interest in and to the Services, Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets, and other intellectual property rights. The Services may permit you to submit content, send emails and other communications, and provide other information for publication or distribution to third parties (collectively, “User Content”). Any User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, or any form of “spam.” If you submit User Content, and unless we indicate otherwise, you grant us a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. We take no responsibility and assume no liability for any User Content submitted by you or any other user or third party. To the extent permitted by applicable law, we may, in our sole discretion and without liability to you, terminate (or suspend access to) your use of the Services, Content, or your UNest Account for any reason, including, but not limited to, your breach of these Terms.
If your mobile device is lost or stolen or if you suspect someone has gained unauthorized access to your username or password, you must contact us immediately at email@example.com or 818-275-0041. In order to take any action, you will need to provide certain User Information so we can verify your identity.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR THIRD-PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND AS TO THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE AND OUR THIRD-PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR OUR THIRD-PARTY SERVICE PROVIDERS THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT UNEST, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AND THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) THE PERFORMANCE OF THE SERVICES OR THE INABILITY TO USE THE SERVICES; (B) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THESE TERMS, THE SERVICES, OR CONTENT; (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF $100 OR THE AMOUNT TRANSFERRED FROM YOUR BANK ACCOUNT TO YOUR UNest ACCOUNT VIA THE SERVICES; OR (D) ANY EVENT BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. At our request, you agree to defend, indemnify, and hold harmless UNest, its affiliates, and its and their respective employees, officers, directors, agents, and third- party service providers from and against any and all claims, suits, liabilities, damages (actual and consequential), losses, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising from or in any way related to any third-party claims relating to your use of the Services, violation of these Terms, applicable law or any third-party rights, or your fraud or willful misconduct. Such indemnified parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
Assignment. You may not transfer, assign, or delegate these Terms or your rights or obligations hereunder or your UNest Account in any way (by operation of law or otherwise) without our prior written consent. To the extent permitted by applicable law, we may transfer, assign, or delegate these Terms and our rights and obligations hereunder without your consent. Third-Party Beneficiary. You agree that our third-party services providers are third- party beneficiaries of the applicable provisions of these Terms, with all rights to enforce such provisions as if such service providers were a party to these Terms.
Governing Law. These Terms are made under and will be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
BY BINDING ARBITRATION JURY TRIAL WAIVER: CLASS ACTION WAIVER. For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Services or these Terms (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean UNest and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with the Services or these Terms (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence in order to maintain the status quo pending arbitration, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. This Section will survive termination of your UNest Account and these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If, however, either subpart (a) or (b) of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence. If you wish to opt out of this arbitration provision, you must notify us of your election in writing within 30 days of the date that you first became subject to this arbitration provision or within 30 days of the effective date of any material change to these Terms by sending a written notice to us by certified mail at the following address: UNest Advisers, LLC., Compliance Department 5161 Lankershim Blvd #250, North Hollywood, CA 91601, Attn: Arbitration Opt-Out. Your opt-out notice must include your name, address, phone number, and email address.
For more information on the AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call the AAA at 800-778-7879 or visit the AAA website at https://www.adr.org.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for ourselves. The failure of either you or us to exercise, in any way, any right herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms will otherwise remain in full force and effect and enforceable.
If you have any questions, comments, or concerns regarding these Terms or the Services, please contact us at support@UNest.co, 24 hours a day, 7 days a week by email. Responses are typically between the hours of 8 am PST and 7 pm PST. You may also contact UNest by mail ATT: UNest Customer Support, 5161 Lankershim Blvd #250, North Hollywood, CA 91601 or Call us at 818-275-0041 (M-F, 9 am PST to 5 pm PST) or for legal matters, UNest , Inc., ATT: Maria Humphrey, Compliance. 5161 Lankershim Blvd #250, North Hollywood, CA 91601.
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