Version: April 13, 2017
Directive Communication Systems, Inc.
1. Use of Platform and License.
1.2. Restrictions. Licensees shall not: (a) use the Platform, any documentation or other information provided by DCS hereunder, to create any similar software or documentation; (b) reproduce or modify the Platform or any portion thereof, or embed the Platform or any portion thereof into any commercial product of Licensees; (c) sublicense, rent, sell, loan, lease, disclose, display, distribute, or otherwise transfer the Platform, or any portion thereof, or use it for timesharing, rental or service bureau purposes, or do so for the benefit of a third party; (d) remove or obscure any proprietary notices on the Platform, and shall reproduce such notices exactly on all permitted copies of the Platform; or (e) copy, reverse assemble, reverse compile or reverse engineer the Platform, or any portion thereof, or otherwise attempt to discover any Platform source code, or otherwise circumvent any technological measure that controls access to the Platform.
1.3. Ownership. Title to and ownership of the Platform and all copies thereof shall be and at all times remain in DCS. No ownership of the Platform is transferred by this Agreement. Any reports, developments, recommendations or modifications made by DCS or Licensees relating to the Platform (“Feedback”), whether or not influenced or suggested by Licensees, are the sole property of DCS. Licensees hereby assign and agree to assign to DCS any interest Licensees have or may acquire in any of the foregoing, as well as all related intellectual property rights; and will cooperate to perfect or further evidence such assignments. All Feedback shall be DCS’s sole property and shall constitute DCS’s Confidential Information (as defined below).
1.4. Support. Licensees shall notify DCS by telephone or electronic mail to the contact designated from time to time by DCS upon the discovery of a material error or difficulty in respect of use of the Platform. DCS may in its sole discretion attempt to resolve such error, but shall be under no obligation to do so.
1.5. Additional Terms of Service. DCS shall be permitted to contact Licensees by email, regular mail or courier, or other methods of written communication in connection with annual renewal of Licensees’ subscription and invoicing. In the event of automatic annual renewal, DCS shall be permitted to charge any credit or debit card, or by any other means of electronic payment, provided to DCS by Licensees without Licensees’ further authorization.
2. Confidentiality. Licensees acknowledge that, in the course of using and accessing the Platform and performing Licensees’ duties under this Agreement, Licensees may obtain or develop information relating to the Platform and/or to DCS (“Confidential Information”), including, but not limited to the software, code, technology, algorithms, schematics, testing procedures, user interface, documentation, problem reports, analysis and performance information, inventions (whether patentable or not), trademarks, service marks, copyrighted or copyrightable materials, and other technical, business, product, marketing, financial and customer information, plans and data. During and after the term of this Agreement, Licensees shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Confidential Information, unless such Confidential Information becomes publicly known without breach of this Agreement by Licensee. Licensees shall not, without the prior written consent of DCS, disclose or otherwise make available the Platform, Feedback, documentation or other supporting materials, including any information relating to the performance or operation of the Platform (including any testing results, opinions, benchmarking or other evaluation conclusions), or copies thereof to any third party. Licensees acknowledge and agree that due to the unique nature of DCS’s Confidential Information, there can be no adequate remedy at law for any breach of Licensees’ obligations hereunder, that any such breach may allow Licensees or third parties to unfairly compete with DCS resulting in irreparable harm to DCS, and therefore, that upon any such breach or threat thereof, DCS shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
4. Term and Termination. This Agreement shall commence on the date Licensees (or an authorized representative on Licensees’ behalf) clicks the “ACCEPT” button below and shall continue in effect until terminated by either party. Licensees may terminate this Agreement and the license granted herein at any time by deleting Client’s profile. DCS may terminate this Agreement and the license granted herein immediately in its sole discretion, including without limitation by reason of breach of the Agreement or non-payment of fees. Upon termination of this Agreement, Licensees agree to discontinue all use of the Platform. Upon termination of this Agreement, Licensees’ license to use the Platform will automatically terminate. Sections 1.2, 1.3, and 4 through 10, as well as this sentence, shall survive any termination of this Agreement for any reason. The parties agree that Licensees shall have no duty to rent, lease, license or purchase the Platform from DCS after termination of this Agreement, nor shall DCS have any obligation thereafter to rent, lease, license or sell the Platform to Licensees.
5. Death of Client. Upon Client’s death, the Platform shall remain accessible to Client’s estate for a period of ONE YEAR. No contact shall be made with respect to any Client profile or Platform Data after such time, including by Client’s estate, attorney, or other authorized representative, unless otherwise required or mandated by state or federal law or by court order. The estate of Client shall be permitted to add up to 20 additional personal accounts for contact by DCS at no additional charge in a single submission following Client’s death, provided that the account information is furnished to DCS within 60 days. Any additional submissions or the submission of more than 20 accounts for contact, whether in one or more submissions shall be subject to additional fees as in effect from time to time and determined by DCS.
5.1 Default Directive. If, at the time of Client’s death, Client has not specified a directive or selected their own default directive for Client’s non-financial accounts, the request will default to “Delete” or “Close.”
5.2 Estate Contacts. At the time of Client’s death, Client’s attorney, estate administrators, or authorized representatives must provide DCS with at least two methods for communication, including email address (required) and/or telephone number or fax number.
5.3 No Guarantee of Personal Account Access After Client’s Death. DCS will not take any action that would breach or encourage the breach of any agreement or other terms of service between Client and the institutions with which he or she has personal accounts. DCS makes requests on behalf of the estate and in accordance with the directives set forth in the estate documents or, if no specific directives have been set forth in the estate documents, in accordance with the direction from Client’s representative(s). Final decisions on any request so made are determined by the applicable institutions and not by DCS. DCS assumes no liability or responsibility for any action or in action, activity or inactivity or decisions on the part of any institution.
5.4 Verification Documents. Upon Client’s death, a duly appointed personal representative of Client’s estate must provide DCS with one or more of the following: Certificate of Death, copy of the DCS provision in Client’s testamentary documents, a Letter of Authorization (or equivalent), a Letter of Explanation, and a photocopy of Client’s government ID so that DCS may verify Client’s passing and initiate Client’s directives with respect to Client’s personal accounts, subject to Section 5.3 above.
5.5 Estate Administration Fee. DCS is entitled to charge an Estate Administration Fee to compensate DCS for the services provided under this Agreement.
5.6 Other Fees. Client’s estate is solely responsible for all third-party costs, including but not limited to, document fees, government fees, site fees, and any other costs incurred in performing DCS’ Services as ordered by Client. In the event that DCS, in its discretion, advances any third party costs on behalf of Client’s estate, such costs must be fully reimbursed to DCS within thirty (30) days of Client’s estate receiving an invoice from DCS. Upon request, Client’s estate is entitled to itemized receipts for all third-party expenses.
6. Warranty Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE PLATFORM IS PROVIDED “AS IS,” “AS AVAILABLE” AND MAY NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT. DCS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND DCS EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, FREEDOM FROM ERRORS, FREEDOM FROM PROGRAMMING DEFECTS, NONINTERFERENCE AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN, DCS, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT (A) THE PLATFORM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) THE PLATFORM WILL BE INTEROPERABLE WITH ANY OPERATING SYSTEM, WEB BROWSER OR OTHER USER INTERFACE, OR (E) THE RESULTS OF USING THE PLATFORM WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK.
7. No Provision of Professional Services. DCS DOES NOT PROVIDE LICENSED PROFESSIONAL SERVICES. DCS IS NOT A LAW FIRM, A FINANCIAL ADVISORY FIRM, OR OTHER LICENSED PROVIDER. THE PLATFORM IS NOT, AND SHOULD NEVER BE, A SUBSTITUTE FOR THE ADVICE OF A LICENSED PROFESSIONAL. NOR SHOULD LICENSEES RELY ON OR EXPECT ANY PRIVILEGE, DUTY OF CONFIDENTIALITY, OR OTHER BENEFIT TYPICALLY CONFERRED BY AN ATTORNEY-CLIENT OR OTHER PROFESSIONAL SERVICE RELATIONSHIP.
8. Limitation of Remedies and Damages. DCS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS TO LICENSEE OR ANY THIRD PARTIES, (C) FOR ANY LOSSES ARISING IN RELATION TO OR AS A RESULT OF THE PROBATE OF ANY ESTATE OR THE CONTESTING OF ANY WILL OR OTHER ESTATE PLANNING VEHICLE, OR (D) FOR ANY DIRECT DAMAGES IN EXCESS OF $500.00, EVEN IF DCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DCS SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
9. Security Measures. DCS takes appropriate security measures (including physical, electronic and procedural measures) to help safeguard information transmitted by Licensees to the Platform from unauthorized access and disclosure. For example, DCS uses SSL encryption in the transmission of sensitive personal information to and from DCS’s servers. While DCS wants users to feel confident using the Platform and endeavors to protect the privacy of Platform Data, Client profiles, and other personal information transmitted through the Platform, Licensees acknowledge and agree that no system can be completely secure. Unauthorized entry or use, hardware or software failure and other factors, may compromise the security of Client information at any time. DCS does not have any responsibilities or obligations with respect to privacy breaches of any third party, including representatives and governmental entities or investigators.
10. Enrollment. Clients must be enrolled through a licensed attorney in good standing with at least one state’s Board of Bar Overseers or other agency responsible for oversight. Participating attorneys are required to submit credentials within 30 days from date of the attorney’s enrollment in the Platform. If an attorney has not provided requested information, DCS, in its sole discretion, may choose to not recognize such attorney as a participating attorney, thereby restricting access to the Platform, including, but not limited to, the DCS web application log in, client enrollment, review of existing client profiles and/or activation of a client profile for estate administration. DCS assumes no liability for such decision which prevents profiles from being activated as a result of an attorney failing to qualify as a participating attorney due to failure to provide acceptable credentials unless Legal Authorization appointed by the court is presented to DCS. Clients’ relationship with their attorney(s) shall be governed by a separate engagement agreement between client and attorney, to which DCS is not a party. DCS shall have no liability with respect to the relationship between any client and any attorney.
11. Shared Team Duties. Licensees including, but not limited to, Clients, attorneys, and employees and other agents of the attorney’s firm who are designated for access for purposes of carrying out “Team” activities, are responsible for those activities, which include Client enrollment, profile editing/updating, and other information related to the team and profile. DCS assumes no responsibility for changes, alterations or edits made by an approved and/or assigned team member resulting in the inability of DCS to perform services, the breach of any Agreement with any institution with which a Client has an account, or placing any data or profile at risk for security breach.
12. Personal Account Data. Licensees and their agents must make best efforts to enter all of the personal account information necessary for DCS to perform its services. DCS does not conduct forensics and thus can only service those accounts that Licensees affirmatively provide. In the event DCS has insufficient information to complete Client’s Directives after Client’s death, DCS may contact executors, administrators, personal representatives, attorneys, and/or additional parties to obtain the required information.
12.1 Data Accuracy. All personal account data provided to DCS, including Client’s domicile of record, must match the information Client has provided to the institution or governmental entity to which the account corresponds. DCS is not responsible for inaccurate data, spelling, or other information provided by Client or any of its representatives or their agents which result in the inability of DCS to fulfill Client’s directives. DCS will endeavor to correctly carry out all directives, but does not guarantee the ability to fulfill the request if the information is incorrect, incomplete or if any applicable law prohibits fulfillment of the request.
12.2 Data Sharing. DCS can only recognize users based on their individual login information. DCS will not be responsible for any issues or errors that arise from Licensees sharing of their login information or email address with another individual or use of a shared computer login to access the Platform.
12.3 Password Updates. Device passwords and passcodes frequently change due to various reasons. Client passcodes for all personal accounts must be kept current at all times.
12.4. No Guarantee as to Access to Particular Content. Disclosure of or Access to Account Contents will vary upon institution requirements and/or governed by state or federal law. DCS does not guarantee a final decision granting access to content.
13. Deactivation for Non-Use. If a Client Account remains unused for a period of 120 days after the Client’s death, the account will be considered abandoned, DCS will not perform its services, and no further action will be required to be taken. DCS will not issue a refund, rebate or other form of compensation for services ultimately not rendered due to an estate’s electing not to use the Platform.
14. Cessation of Notifications. Unless otherwise arranged by Client’s estate or attorney, DCS will discontinue initiating notifications to institutions for Client’s personal accounts either when the estate has completed the probate process or within 18 months after activation, whichever is earlier.
15. Estate/Personal Representative. DCS services are activated, authorized and instructed by the duly appointed representative of the estate of the decedent. DCS SHALL NOT BE RESPONSIBLE FOR ANY LOSSES ARISING OUT OF THE CHALLENGE OR CONTEST OF ANY ESTATE OR ANY OTHER ACTION TAKEN AGAINST THE ESTATE, AND IN NO EVENT SHALL DCS BE LIABLE FOR ANY LOSSES ARISING FROM DCS CARRYING OUT THE INSTRUCTIONS OF THE ESTATE OR ITS REPRESENTATIVES.
16. Provision for DCS Services. It is Client’s responsibility to warrant the right to execute a “Transfer to” or “Remove me” directive in connection with each of Client’s personal accounts, and to provide for use of the Platform in Client’s Last Will and Testament, Codicil, Revocable Trust and/or other legal documents governing the administration of Client’s estate.
17. Limited Access Fields. Certain edits or adjustment to Platform Data can only be made by Client, Client’s attorney, or an authorized agent of Client’s estate, and will require proof that corresponding legal documents have also been changed. These secured fields include, but are not limited to, the date of the estate documents and the date by which an assignment of personal representatives for the estate must be made. These fields must match the Client’s estate plan.
18. Change of Legal or Personal Representative. Should an estate’s legal or Personal Representative change at any time during the subscription of DCS services, DCS must be informed immediately. Whenever an estate’s contact changes, the passcode on the DCS account will change as well. If the new representation is an attorney, that attorney must meet the requirements of Section 10 above and must be registered, or register, with DCS. To assign a client new representation, please contact DCS at 1-800-372-8121 or firstname.lastname@example.org.
19. Subscription Payments and Renewals. Client, its representatives, and their agents acknowledges that the Platform is provided on annual subscription basis. Payment will be automatically charged to payment method on file. In the event of any non-payment or delay in payment for a period of 30 days after payment is due, DCS shall reserve the right to terminate Licensee’s access to the Platform and to delete all Platform Data, or, in the alternative, to suspend access subject to the payment of a reactivation fee as is in effect from time to time as determined by DCS. In the event of termination, DCS shall have no ongoing obligation to maintain Platform Data. Once data is destroyed, it cannot be recovered. If Client is subsequently re-enrolled, the enrollment will be treated as a new client and all records will need to be re-created.
20. Private Browsing. Websites and digital destinations visited through “Incognito”, “Private Browsing” or other means of disabling browser history and web cache may not be collected or stored by DCS. If desired to be included in Client’s profile, Client must enter the data by logging into DCS or visiting the website in a non-private manner.
21. Portfolio Plus.
21.1. Portfolio Plus must be downloaded, signed-into and maintained for proper data collection. Portfolio Plus may not be able to identify all accounts, as not all login processes are consistent and/or allow for Portfolio Plus to collect the information necessary for data capture.
21.2. Acceptance of this Agreement includes authorization for the Portfolio Plus application to access Client’s personal and account identifying files and information, as needed, to conduct DCS authorized activities. Client data collected during individual login sessions will be saved to Client’s portfolio and may be used to group accounts for presentation. Portfolio Plus may be downloaded and activated on a computer tablet, mobile, or other device for conducting digital and online activities.
22. Miscellaneous. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of DCS to act with respect to a breach of this Agreement by Licensees or others does not constitute a waiver and shall not limit DCS’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensees and may not be assigned or transferred for any reason whatsoever without DCS’s consent and any action or conduct in violation of the foregoing shall be void and without effect. DCS expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Massachusetts law, without regard to its conflicts of law rules. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Boston, MA; Licensees hereby agree to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.