Terms of Service

GrowthVision.io Cloud Services Agreement

Last Updated: July 5, 2023

This Cloud Services Agreement (this "Agreement") is a binding contract between you ("Client," "you," or "your") and Yodlee, Inc., dba GrowthVision.io ("Provider," "we," or "us"). This Agreement governs your access to and use of the Cloud Services.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "NEXT" BUTTON BELOW OR BY ACCESSING OR USING THE CLOUD SERVICES (the "Effective Date"). BY CLICKING ON THE "NEXT" BUTTON BELOW OR BY ACCESSING OR USING THE CLOUD SERVICES YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, AND THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. THE CLOUD SERVICES ARE NOT INTENDED FOR INDIVIDUAL CONSUMER USE.

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT SELECT THE "NEXT " BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.

1. Definitions.
   1. "Authorized User" means Client and Client's employees, consultants, contractors, and agents: (i) who are authorized by Client to access and use the Cloud Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Cloud Services has been purchased hereunder.
   2. "Cloud Services" means the services provided by Provider under this Agreement that are detailed on Provider's website available at https://www.growthvision.io/.
   3. "Client Data" means, other than Deidentified Data (as defined in section 3(d) below), information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or any other Authorized User through the Cloud Services.
   4. "Documentation" means Provider's user manuals, handbooks, and guides relating to the Cloud Services provided by Provider to Client either electronically or in hard copy form/end user documentation relating to the Cloud Services available at https://www.growthvision.io/.
   5. "Provider IP" means the Cloud Services, the Documentation, and all intellectual property provided to Client or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Deidentified Data and any information, data, or other content derived from Provider's monitoring of Client's access to or use of the Cloud Services, but does not include Client Data.
   6. "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
2. Access and Use.
   1. Provision of Access. Subject the terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Provider shall provide you the necessary passwords and access credentials to allow you to access the Cloud Services.
   2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Cloud Services.
   3. Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (iv) remove any proprietary notices from the Cloud Services or Documentation; or (v) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
   4. Reservation of Rights. Provider reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP.
   5. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Client's and any other Authorized User's access to any portion or all of the Cloud Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Client's or any other Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Client or vendor of Provider; (C) Client or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Cloud Services to Client or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Client to access the Cloud Services; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Client or any other Authorized User may incur as a result of a Service Suspension.
3. Client Responsibilities.
   1. Acceptable Use Policy. The Cloud Services may not be used for unlawful, fraudulent, offensive, discriminatory or obscene activity. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://www.growthvision.io/ from time to time.
   2. Account Use. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
   3. Client Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Provider to provide the Cloud Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Deidentified Data. You will ensure that Client Data and any Authorized User's use of Client Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Client Data.
   4. Deidentified Data and Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Client's use of the Cloud Services and collect and compile data and information related to Client's use of the Cloud Services and Client Data input into the Cloud Services, to be used by Provider in an aggregate and/or de-identified manner for secondary commercial purposes ("Deidentified Data "). You acknowledge that Provider may compile Deidentified Data based on Client Data input into the Cloud Services. You agree that Provider may: (i) make Deidentified Data available for commercial purposes in compliance with applicable law, and (ii) use Deidentified Data to the extent and in the manner permitted under applicable law; provided that such Deidentified Data do not include personally identifiable information and cannot reasonably be used to identify Client or Authorized Users. As between Provider and Client, all right, title, and interest in Deidentified Data, and all intellectual property rights therein, belong to and are retained solely by Provider.
   5. Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
   6. Third-Party Products.
      1. The Cloud Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions that were presented to you at the time you signed up for such Third-Party Products, or as made available by the Third-Party Product provider by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products within the Cloud Services.
      2. When you request data from a Third-Party Product, we collect that data and provide it to you. Account linking to Third-Party Products within the Cloud Services is subject to the FastLink terms as conditions located at https://solutions.yodlee.com/fastlink-terms.html. You provide log-in credentials to your accounts at your own risk. By using the Cloud Services you agree that the Third-Party Products that maintain your accounts and any third parties that interact with your account access credentials or account data in connection with the Cloud Services are not liable for any loss, theft, compromise, or misuse whatsoever in connection with our services (including negligence), except to the extent such liability cannot be limited under applicable laws.
4. Service Levels and Support.
   1. Service Levels. This Agreement does not entitle Client to any specific service levels or availability of the Cloud Services. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Cloud Services generally available on equal access terms to all clients ("Service Levels"). Client acknowledges that the Cloud Services are in a beta release and may contain unintended or unanticipated bugs
   2. Support. This Agreement does not entitle Client to any support for the Cloud Services.
      
      
5. Fees and Payment. Provider is currently making the Cloud Services available free of charge as part of limited pre-release beta testing. Provider reserves the right: (i) to charge fees for the Cloud Services in the future, and (ii) to discontinue access to the Cloud Services at any time.
   
   
6. Confidential Information. From time to time during the Term, Provider and Client may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
   
   
7. Privacy Notice. Provider complies with its privacy notice, available at https://www.yodlee.com/legal/privacy-notice ("Privacy Notice"), in providing the Cloud Services. The Privacy Notice is subject to change as described therein. By accessing, using, and providing information to or through the Cloud Services, you acknowledge that you have reviewed and accepted our Privacy Notice, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Notice.
   
   
8. Intellectual Property Ownership; Feedback. As between you and us: (a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Client Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
   
   
9. Limited Warranty and Warranty Disclaimer.
   
   
   1. Provider Warranty. Provider warrants that it provides Cloud Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
      
      
   2.  Client Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Client Data and that both the Client Data and your use of the Cloud Services are in compliance with the acceptable use terms.
      
      
      1. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE CLOUD SERVICES ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
         
         THIRD-PARTY PRODUCTS MAKE NO WARRANTIES OF ANY KIND RELATED TO THE DATA PROVIDED BY OUR SERVICES--WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NO DATA PROVIDED BY OUR SERVICES IS AN OFFICIAL RECORD OF ANY OF YOUR ACCOUNTS. THIRD-PARTY PRODUCTS DO NOT ENDORSE THE USE OF THE CLOUD SERVICES AND DISCLAIM ALL LIABILITY WITH RESPECT TO USE OF THE CLOUD SERVICES.
         
         
10. Indemnification
    
    
    1. Provider Indemnification.
       
       
       1. Provider shall indemnify, defend, and hold Client harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable]attorneys' fees ("Losses"), incurred by Client resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Client promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
          
          
       2. If such a Third-Party Claim is made or Provider reasonably anticipates such a Third-Party Claim will be made, Client agrees to permit Provider, at Provider's sole discretion, to: (A) modify or replace the Cloud Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
          
          
       3. This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Client Data or Third-Party Products.
          
          
    2. Client Indemnification. Client shall indemnify, hold harmless, and, at Provider's option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights; or (ii) based on Client's or any Authorized User's negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Client may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
       
       
11. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS GREATER.
    
    
12. Term and Termination.
    1. Term. The term of this Agreement begins on the Effective Date and continues until terminated.
    2. Termination. In addition to any other express termination right set forth in this Agreement: Either Party may terminate this Agreement for any reason upon 30 days' notice.
    3. Effect of Termination. Upon termination of this Agreement, Client shall immediately discontinue use of all Provider IP. No expiration or termination of this Agreement will affect Client's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.
    4. Survival. This Section 12(d), Sections 5, 6, 10, 11, 14, 15, 16, and 17, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
       
       
13. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on https://www.growthvision.io/. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services.
    
    
14. Export Regulation. The Cloud Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to, or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the US.
    
    
15. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of, or related to, this Agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    
    
16. Dispute Resolution and Arbitration.
    
    YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PROVIDER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    
    
    1. In the interest of resolving disputes between you and Provider in the most expedient and cost-effective manner, you and Provider agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms and your use of Credit Accelerator, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.
    2. Despite the provisions of Section IV(F)(1), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
    3. Any arbitration between you and Provider will be settled under the Federal Arbitration Act, and governed by the Consumer Arbitration Rules (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org or by contacting Provider.
    4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"). Provider's address for Notice is: Envestnet Data & Analytics, 621 Hillsborough Street, 10th Floor, Raleigh, North Carolina 27603. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Provider may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Provider must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Provider will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Provider in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.
    5. Fees. If you commence arbitration in accordance with these Terms, Provider will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, but if the claim is for $500 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Provider for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
    6. No Class Actions. YOU AND PROVIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR (OR ITS) INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Provider agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
    7. Modifications to this Arbitration Provision. If Provider makes any changes to this arbitration provision, other than a change to Provider's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Provider's address for Notice, in which case your account with Provider will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
       
       
17. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address at Envestnet Data & Analytics, 621 Hillsborough Street, 10th Floor, Raleigh, North Carolina 27603, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.