Terms of Service

Last Updated: 11/16/2021

Please read these Terms of Service ("Terms", "Terms of Service") carefully before accessing or using the http://www.penelope.co website (the “Site”) or the platform or applications that we offer (collectively, the "Service") The Terms form a binding agreement between you and Smartwork, Inc. ("us", "we", or "our").

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all users who access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

In addition, these Terms contain an arbitration provision under which you agree to arbitrate all disputes with us and waive any right to a jury or to bring a class action.

Termination

We may terminate or suspend access to our Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Service

The Service is a technology platform that allows employees (“participants”) to manage the investment of retirement funds through 401(k) and other retirement plans (“Plans”) that are offered through their employer (“Participating Employer”). The Participating Employer is responsible for subscribing to the Service and paying subscription fees on a recurring basis. Participants are not responsible for paying subscription fees.

Participants may register to create an account on the Service to manage their investments and retirement funds under the Plans. Participants will be able to change the amount set aside from their paycheck (“Elections”) for contribution (“Contribution”) to their retirement account. Participants can change the allocation (“Allocation(s)”) of their retirement funds into various investment options. Allocations changes submitted by Participants on the Service will take effect at the close of business every Friday.

As a Participant, you are responsible for providing complete and accurate information when creating an account, and to update your account information to ensure it is accurate. You are solely responsible for maintaining the confidentiality and use of your user id and password and other security data, methods and devices (collectively “User Credentials”). You are responsible for all activities that occur under your account or in connection with your User Credentials including all instructions electronically transmitted or use of any data, information or services obtained using your password and other security data. We are not under any duty to inquire as to the authority or propriety of any instructions given to by you or via your User Credentials and shall be entitled to act upon any such instructions and we will not be liable for any loss, cost, expense or other liability arising out of any such instructions. As an authorized user you accept full responsibility for the monitoring of your account including frequently checking your account information, reviewing your transaction history online and promptly reviewing any correspondence, account statements and confirmations. Notify us immediately if you become aware of any unauthorized activity, disclosure, loss, theft or unauthorized use of your User Credentials.

Plan Disclosures

We are not a broker-dealer, investment adviser sponsor or custodian of the plans that may be offered by your employer through our Service. Additional plan documents and disclosures will govern your participation in the plan that may be provided to you when you register for an account through the Service. The Terms only govern your use of the Service.

Privacy

Any personal information you submit to the Service will be subject to our Privacy Policy.

Ownership

Penelope is a trademark of Smartwork Inc.. Unauthorized use is prohibited. The Service is owned by us and protected by copyright, trademark, patent and other intellectual property and proprietary rights. You agree not to (i) modify, adapt or translate the Service or attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service; (ii) remove any copyright notice, trade mark, legend, logo or product identification from the Service; (iii) modify, translate or prepare derivative works of the Service, or any portion thereof; (iv) make any commercial use of the Service; or (v) rent, lease, distribute or lend the Service to third parties.

In addition, we may ask for or you may offer feedback, comments, suggestions, evaluations or ideas for new features or functions for the Services (the “Feedback”). You acknowledge that any Feedback you provide is entirely voluntary and agree that we will own all right, title and interest in the Feedback, and the exclusive, worldwide, perpetual, fully transferable and sublicensable, royalty-free and fully paid up right to use the Feedback for any purposes including as a part of the Services without any obligation to seek your approval or pay you any compensation. You have no expectation or right of confidentiality in any Feedback

Prohibited Conduct

You agree not to use the Services in any way that is unlawful, illegal or unauthorized or violates any rights of any third party. You further agree not to:

  1. use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Service (or any of its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Service to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the App or Services;
  2. impersonate any person or entity or provide false information on the Service, whether directly or indirectly, or otherwise disguise your identity or the origin of any message or transmittal you send to us and/or any of our other visitors or users;
  3. disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Service or the account of another user or any other systems or networks connected to the Service, by hacking, password mining, or other illegitimate or prohibited means;
  4. probe, scan, or test the vulnerability of the Service or any network connected to the Service;
  5. upload to the Service or otherwise use the Service to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; or
  6. take any action that may impose an unreasonable or disproportionately large load on the infrastructure of the Service or our systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the Service, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks.

Limitations on investment guidance and professional advice

The Service is not intended to provide legal, tax, investment or insurance advice. Nothing on the Site or Service should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any security by us. Certain investment planning tools available on the Service may provide general investment education based on your input. You are solely responsible for determining whether any investment, investment strategy, security or related transaction is appropriate for you based on your personal investment objectives, financial circumstances and risk tolerance. You should consult your legal or tax professional regarding your specific situation.

Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time, and post such changes on the Site. If a revision is material we will try to provide at least 30 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. Your continued access and use of the Service after such changes are notified or posted constitutes your acceptance of them.

DISCLAIMER

THE SERVICE AND THE MATERIALS ON OUR SERVICE ARE PROVIDED “AS IS”. WE MAKE NO WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIM AND NEGATE ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. FURTHER, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON THE SERVICE OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY SITES LINKED TO THIS SITE OR AN INVESTMENTS THAT YOU MAY MAKE THROUGH THE SERVICE.

WE DO NOT WARRANT THAT THE SITE OR SERVICE WILL MEET YOUR NEEDS, OR THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. WE ALSO MAKE NO WARRANTY THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

LIMITATION OF LIABILITY

WE WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, DIRECT, OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES OR DAMAGES THAT RESULT FROM USE OR LOSS OF USE OF THE SERVICE AND THIRD PARTY CONTENT, INCONVENIENCE OR DELAY). THIS IS TRUE EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH SUCH FIDELITY DOES NOT HAVE DIRECT CONTROL. THIS INCLUDES FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATIONS LINES (INCLUDING TELEPHONE, CABLE AND INTERNET), UNAUTHORIZED ACCESS, VIRUSES, THEFT, OPERATOR ERRORS, SEVERE OR EXTRAORDINARY WEATHER (INCLUDING FLOOD, EARTHQUAKE, OR OTHER ACT OF GOD), FIRE, WAR, INSURRECTION, TERRORIST ACT, RIOT, LABOR DISPUTE AND OTHER LABOR PROBLEMS, ACCIDENT, EMERGENCY OR ACTION OF GOVERNMENT.

IF YOU LIVE IN A STATE THAT DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR IF YOU ACCESS THE SERVICE SOLELY THROUGH AN ARRANGEMENT WITH YOUR EMPLOYER OR PLAN SPONSOR, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnification

As a condition of your use of the Service and the Site, you agree to indemnify and hold us and our affiliated entities, and each of their officers, directors, employees and agents harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from your use of the Service or the Site, or from your violation of these Terms. This provision may not apply to Participants in certain employer-sponsored plans.

Arbitration

If you have a dispute with us (a “Dispute”) regarding these Terms or the Service, you agree to contact us to attempt to resolve any such Dispute amicably. If we cannot resolve the Dispute through our support team, you and we agree to arbitrate the Dispute as set forth below.

If we cannot resolve the Dispute through the informal process above, you and we agree that any Dispute arising out of or relating to this Agreement or the Services, including, without limitation, federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation, or any other legal theory, shall be resolved through binding arbitration, on an individual basis (the “Arbitration Agreement”). Subject to applicable jurisdictional requirements, you may elect to pursue your Dispute in your local small claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class and non-representative) basis. Arbitration shall be conducted in accordance with the American Arbitration Association's rules for arbitration of consumer-related disputes (accessible at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf). This Arbitration Agreement includes, without limitation, Disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement. All such matters shall be decided by an arbitrator and not by a court or judge.

CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU ACKNOWLEDGE THAT, BY AGREEING TO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.

The arbitration will be conducted by a single, neutral arbitrator and shall take place in the county or parish in which you reside, or another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. At your request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. To the extent permitted by law, the prevailing party in any action or proceeding to enforce this Agreement, any arbitration pursuant to this Agreement, or any small claims action shall be entitled to costs and attorneys' fees. If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on you , we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator's rules or applicable law.

Governing Law

Any claim relating to the use of Service shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.

General Terms

These Terms represent the entire agreement between you and us with respect to its subject matter. and supersede any and all prior or contemporaneous agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of these Terms. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms may not be changed, waived or modified except by us as provided herein or otherwise by written instrument signed by us. Neither these Terms nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with our prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. We may freely assign, transfer or delegate these Terms or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. You agree that we may send any notices under the Terms by electronic mail to the email address provided in your account.

Contact Us

If you have any questions about these Terms, please contact us at info@penelope.co.