Terms of Service
Updated August 26, 2022
I. About NextCapital
Welcome to NextCapital. We strive to be the most investor-centric company, where everyone can find and follow their optimal path to a secure retirement.
NextCapital is an experienced provider of automated portfolio management and financial planning software. NextCapital's founding team was responsible for building out one of the first automated 401(k) portfolio management platforms, one of the first digital wealth advisors, and one of the first online banks. Whether you're a workplace plan participant or a retail investor, we provide a retirement plan that’s tailored to you.
Before you get started, we ask that you take a few minutes to carefully read the important Terms of Service below.
II. Agreement & acceptance of terms
"NextCapital" means NextCapital Advisers, Inc. (“NextCapital Advisers”), and NextCapital Software, Inc. (“NextCapital Software”). NextCapital is part of The Goldman Sachs Group, Inc., (“GS”) a public company that is a bank holding company, financial holding company and a world-wide, full-service financial services organization. All financial software provided by NextCapital is provided by NextCapital Software (“Software Platform”). These Terms of Service apply solely to your use of NextCapital Services, as described below, and your use of NextCapital's website. Any financial advice or investment advisory services provided by NextCapital Advisers are subject to the terms of separate agreements between investment advisory clients and NextCapital Advisers, an investment adviser registered with the SEC.
NextCapital ("We" or "Us") looks forward to providing you with our Services. In exchange for using NextCapital Services, clients of our Services (that's you) are expected to read and follow these Terms of Service.
Your use of any of the NextCapital Services is subject to our Privacy Policy and Privacy Notice, which addresses how we gather, use, disclose and manage your personal information.
To use NextCapital Services, you need to understand and agree to follow these Terms of Service. You also must understand, i) that the Terms of Service may change from time to time at the sole discretion of Us; ii) by downloading our app(s), visiting our website, actively or passively enrolling in a NextCapital service, using our free tools prior to registration, or manifesting your affirmative acceptance of these terms by way of a click-box, modal, or pop-up, (collectively “Services”) you are agreeing to the Terms of Service herein. For clarity, the definition of Services includes any NextCapital content provided through the Services.
NextCapital Services are provided for general information, education, and guidance purposes only and you should not construe any such information or the features, tools, or other content available through NextCapital Services as advice. You have the ultimate responsibility for evaluating the merits and risks associated with NextCapital Services and use of the information provided by NextCapital before making any decisions. No information generated by NextCapital or content on NextCapital Services constitute a solicitation, recommendation, endorsement, or offer with respect to any securities or other financial instruments.
Also, the financial information utilized by NextCapital is historical in nature. Historical financial information is not a guarantee of future financial results. While We will endeavor to keep the information used at NextCapital as up-to-date and correct as possible, We make no representations or warranties of any kind, expressed or implied, about the completeness, accuracy, reliability or suitability of the information contained in, or generated by use of, NextCapital Service for any purpose. Any reliance you place on such information is therefore strictly at your own risk. Remember, we are trying to help you make informed decisions, but you are responsible for your decisions. You are urged to consult with your own financial, legal, tax and other advisors prior to making any investment decisions based on the Services.
In exchange for using NextCapital Services, you agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other websites. You agree not to misrepresent your identity or your account information. You also agree to keep your account information up to date and accurate. Remember, We cannot help you make informed decisions if you do not give us accurate information.
We reserve the right to terminate or restrict your access to NextCapital Services for any reason, including but not limited to, the violation of any laws, regulations or rulings, infringing upon other’s rights, a security event or any violation of these Terms of Service. NextCapital also reserves the right to change, modify or discontinue any of the Services at its sole discretion and without notice.
III. Ownership
The technology and content used to offer, or provided in connection with, the Services are either owned by NextCapital or licensed to NextCapital from third-party licensors. As part of these Terms of Service, We grant you a nonexclusive, limited, royalty-free, non-transferable, non-sublicensable, revocable license to use NextCapital’s Services, website and content only for your personal, non-commercial purposes. Except as described in this paragraph, you may not copy, reproduce, distribute or create derivative works from the Services, website and content, including content generated by the Services, without our express written consent. Further, you agree not to do any of the following with respect to the NextCapital software or Services: (i) reverse engineer, reverse compile or create test harnesses to run against any NextCapital software or the Services; (ii) transmit anything that is unlawful, libelous, intended to harass or violate the rights of another; (iii) resell or otherwise use in a commercial manner; (iv) use any robot, spider, webcrawler, scraper, deep link or similar automated extraction or data gathering mechanism, program or tool to access, copy or monitor software or Services or any portion thereof without our prior written consent; (vii) post or transmit any file or email which contains viruses, worms, Trojan horses or any other damaging or destructive elements.
We always welcome your correspondence, feedback, comments, complaints and suggestions (collectively, “Feedback”), as this will help us improve our Services. You agree that your Feedback is provided without restriction of any kind and that NextCapital shall have the right to use your Feedback for any purpose.
We may contract with third parties, known as "NextCapital Service Providers" to help us provide you with NextCapital Services. You also agree that you are licensing to Us and NextCapital Service Providers any information you provide to Us, including, but not limited to, data, passwords, materials or other content (collectively "Content"). We and NextCapital Service Providers may use, modify, display, distribute and create new material using such Content to provide NextCapital Services to you. By submitting Content, you agree that the owner of the Content grants Us and NextCapital Service Providers the right to use the Content for these purposes. Regardless, as between NextCapital, NextCapital Service Providers and you, you own your confidential information.
The NextCapital trademark belongs to Us, and you agree not to use the NextCapital trademark without the prior written consent of NextCapital. All marks not owned by NextCapital are property of their respective owners. You may not copy, reproduce, perform, create derivative works from, republish, upload, post, transmit, or distribute any such trademarks without our express, written consent. Any goodwill arising out of Your use of NextCapital’s trademarks in contravention of this paragraph shall inure to the benefit of and belong to NextCapital.
IV. Accessing account data
You agree that We and NextCapital Service Providers may access third party sites designated by you, on your behalf, to retrieve information you requested and to register accounts requested by you (“Third Party Sites”). Through NextCapital Services, you may be able to access other Third Party Sites that are not controlled by Us. The inclusion of a link does not imply a recommendation or endorsement of any views expressed therein. WE ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY SITES OR FOR THE ACCURACY OF THE DATA OBTAINED FROM SUCH THIRD PARTY SITES AND DISPLAYED OR REPORTED THROUGH OUR SERVICES. ANY RELIANCE UPON SUCH THIRD PARTY SITES IS AT YOUR OWN RISK. The overall integrity and quality of the data presented by NextCapital to you is an important element in providing you with our Services. NextCapital, however, is not responsible for and cannot guarantee the accuracy or timeliness of information We retrieve on your behalf directly, from third party technology providers, from third party financial institutions where your accounts are held, or from third party research/market data providers used to provide NextCapital Services.
NextCapital may not be able to foresee or anticipate technical or other difficulties which may result in failure to obtain data, personalization settings or other Service interruptions. NextCapital assumes no responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any Content or user data or for any loss of Content or user data, communications or personalization settings. NextCapital encourages you to periodically confirm the accuracy of your information and Content through independent sources, such as an investment adviser, broker-dealer or other financial institution.
To use NextCapital Services, you grant Us and NextCapital Service Providers a limited power of attorney, and as your true and lawful attorney-in-fact and agent, with full power substitution and re-substitution, for you and in your name, place and stead in any and all capacities, to access third party internet sites, servers or documents, retrieve information, and use your information and Content, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities.
You acknowledge and agree that when We or NextCapital Service Providers access or retrieve information from third party sites, NextCapital and NextCapital Service Providers are acting as your agent, and not the agent or on behalf of the third party. You agree that the third party advisors you select shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by You. You also understand and agree that NextCapital is not endorsed or sponsored by any third party account providers accessible through NextCapital.
V. Disclaimers & warranties
NEXTCAPITAL SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. YOU USE NEXTCAPITAL SERVICES AT YOUR SOLE RISK, AND WHILE WE WILL DO WHAT WE CAN, YOU UNDERSTAND THAT WE, ALONG WITH NEXTCAPITAL SERVICE PROVIDERS, DISCLAIM ANY WARRANTIES OF ANY KIND AS TO NEXTCAPITAL AND ALL INFORMATION, PRODUCTS AND OTHER MATERIALS INCLUDED IN OR ACCESSIBLE FROM NEXTCAPITAL, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE AND NEXTCAPITAL SERVICE PROVIDERS MAKE NO WARRANTY THAT NEXTCAPITAL WILL (I) MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) RUN UNINTERRUPTED, TIMELY, SECURELY OR ERROR-FREE, (III) PROVIDE ACCURATE OR RELIABLE RESULTS, OR (IV) BE FREE OF ERRORS IN THE TECHNOLOGY.
ANY MATERIALS DOWNLOADED OR OBTAINED THROUGH THE USE OF NEXTCAPITAL SERVICES ARE DONE AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO INFORMATION, WHETHER WRITTEN OR ORAL, THAT YOU OBTAIN FROM NEXTCAPITAL OR NEXTCAPITAL SERVICE PROVIDERS THROUGH OR FROM NEXTCAPITAL WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
VI. Limitation of liabilities
EXCLUDING LIABILITY FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL NEXTCAPITAL, NOR ANY NEXTCAPITAL SERVICE PROVIDERS, NOR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES, AGENTS, PARTNERS OR REPRESENTATIVES (THE "NEXTCAPITAL PARTIES") OR PROVIDERS OF NEXTCAPITAL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES WHATSOEVER, AS WELL AS DAMAGES FROM DELAY OF DELIVERY, LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES, FROM THE CORRUPTION, DAMAGE OR RECOVERY OF DATA, FROM BREACHES OF DATA OR SYSTEM SECURITY, OR FOR THE FAILURE OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN YOUR ACCESS TO THE SERVICES, OR FOR ANY INTERRUPTION OR DISRUPTION OF SUCH ACCESS OR ANY ERRONEOUS COMMUNICATION BETWEEN NEXTCAPITAL AND YOU, REGARDLESS OF WHETHER THE CONNECTION OR COMMUNICATION SERVICE IS PROVIDED BY NEXTCAPITAL OR A THIRD PARTY SERVICE PROVIDER, OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR INABILITY TO USE THE SERVCIES HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE, EVEN IF NEXTCAPITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NEITHER THE NEXTCAPITAL PARTIES NOR PROVIDERS OF NEXTCAPITAL SHALL HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, TO YOU OR TO THIRD PARTIES, FOR THE CORRECTNESS, QUALITY, ACCURACY, TIMELINESS, RELIABILITY, PERFORMANCE, CONTINUED AVAILABILITY, COMPLETENESS OR DELAYS, OMISSIONS, OR INTERRUPTIONS IN THE DELIVERY OF THE SERVICES, INCLUDING ANY THIRD PARTY SITES, OR FOR ANY OTHER ASPECT OF THE PERFORMANCE OF THE SERVICES. NEXTCAPITAL WILL HAVE NO RESPONSIBILITY TO INFORM YOU OF ANY DIFFICULTIES EXPERIENCED BY NEXTCAPITAL OR THIRD PARTIES WITH RESPECT TO THE USE OF THE SERVICES OR ANY CONTENT PROVIDED THROUGH THE SERVICES OR TO TAKE ANY ACTION IN CONNECTION THEREWITH. HOWEVER NOTHING IN THESE TERMS IS INTENDED TO EXCLUDE OR RESTRICT ANY DUTY OR LIABILITY THAT NEXTCAPITAL HAS UNDER THE REGULATORY SYSTEM UNDER APPLICABLE LOCAL REGULATORY RULES OR WHICH MAY NOT BE EXCLUDED OR RESTRICTED AS A MATTER OF APPLICABLE LAW. EXCLUDING LIABILITY FOR GROSS NEGLIGENCE, FRAUD, AND WILLFUL MISCONDUCT, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL NEXTCAPITAL'S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF TEN DOLLARS ($100.00).
NextCapital shall not be liable for failure to perform any of its obligations under these Terms of Service during any period in which its performance is delayed by anything beyond its reasonable control, including: (a) war, terrorism, civil commotion and riots, fires, flood, strikes, or work stoppage; (b) requirements or acts of any regulatory, self-regulatory or governmental authority; or (c) acts of God.
VII. Indemnification
You agree to indemnify, defend and hold Us, the NextCapital Service Providers and our or their respective officers, directors, affiliates, employees, agents or representatives, harmless from and against any and all losses, claims, actions, judgments, fines, penalties, liabilities, damages, expenses and costs (including but not limited to reasonable attorneys' fees), that relate to any third party claim caused by or arising from: (i) your use of NextCapital Services or website; (ii) your violation of these terms; (iii) infringement of these terms by any other user of your account; (iv) your violation or any intellectual property or other right of anyone; or (v) your violation of these Terms of Service or the terms of any Third Party Sites.
VII. Use of password
In connection with the use of NextCapital Services, you may be asked to create a login ID and password. You are responsible for maintaining the confidentiality of such information so that only you can access your information through NextCapital. If you become aware that someone has obtained your login ID or password or any unauthorized access to your account, you must contact us immediately. WE ARE NOT RESPONSIBLE FOR BREACHES OF CONFIDENTIALITY OF YOUR PERSONAL INFORMATION OR PERSONAL FINANCIAL DATA THAT RESULT FROM YOUR FAILURE TO MAINTAIN THE SECURITY OF YOUR LOGIN ID AND PASSWORD.
We will take all commercially reasonable steps to protect your personally identifiable information and personal financial data. We make commercially reasonable efforts to maintain the confidentiality of all data you share with us.
IX. Electronic disclosure consent
By providing your email to enroll for use of NextCapital Services, you consent to receive all notices and information regarding NextCapital Services electronically. Electronic communications may be posted on our website and/or delivered to your registered e-mail address. All communications in electronic format will be considered to be in "writing," and to have been received no later than five (5) business days after posting or dissemination, whether or not you have received or retrieved the communication. Your consent to receive communications electronically is valid until you end your relationship with NextCapital. It is your responsibility to provide us with true, accurate and complete e-mail addresses, contact and other information related to this disclosure and to maintain and update promptly any changes to this information. You may print a copy of any electronic communications and retain it for your records. We reserve the right to terminate or change the terms and conditions on which we provide electronic communications and will provide you notice thereof in accordance with applicable law.
X. Access to Accounts; Cookies; Support
From time to time, We may use online session information for the purposes of improving NextCapital Services, website and your experience. In certain situations, such as Service support requests, We may view your information as if We were you. NextCapital support personnel will not have direct access to your investment account credentials. But to fix a problem with your user experience, we need to see what you see. We also aggregate information to understand how people like you use NextCapital Services, so that we can make improvements for everyone. By using the Services, you agree to NextCapital’s access to, and use of, the information described in this section.
XI. Digital Millennium Copyright Act
NextCapital respects the intellectual property rights of others. Upon proper notice, NextCapital will, in its discretion, remove User Content or other applicable content that violates intellectual property rights under applicable law, suspend access to the Services (or any portion thereof) to any user who uses the Services in violation of such law, and/or terminate the accounts of repeat infringers. If you believe your work has been copied in a way that constitutes intellectual property rights infringement, please send NextCapital's intellectual property agent (listed below) a written notification of claimed infringement with all of the following information:
NextCapital Legal Department
104 S. Michigan Avenue, Suite 1400
Chicago, IL 60603-5902
legal@nextcapital.com
Please do not send notices or inquiries unrelated to alleged copyright infringement to NextCapital's designated agent.
XII. Arbitration & governing law
Any controversy, claim or dispute arising out of or relating to this Agreement, including, but not limited to, those arising out of the construction, performance, or breach of this Agreement (collectively, "Claims"), shall be subject to the dispute resolution terms as set forth in the Related Agreements. You and GS agree that, in the absence of a dispute resolution mechanism set forth in a Related Agreement, any Claims shall be subject to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. ("JAMS"), in accordance with its Comprehensive Arbitration Rules and Procedures in force at the time such arbitration is commenced. The site for the arbitration shall be at a location in New York, New York agreed to by the parties, and the tribunal shall consist of three arbitrators (including one selected by GS and one selected by You). The arbitration is confidential and award of the arbitrator(s) shall be final and binding on the parties. Judgment on the award rendered may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing agreement to arbitrate Claims, each party retains the right to seek injunctive relief, including but not limited to, actions to prevent actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. Any such actions shall be brought in any Federal Court of the United States of America sitting in the Borough of Manhattan, or if that Court does not have subject matter jurisdiction, in any state court located in the City or County of New York.
You may not act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or NextCapital's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN JAMS RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR NEXTCAPITAL WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
I. About NextCapital
Welcome to NextCapital. We strive to be the most investor-centric company, where everyone can find and follow their optimal path to a secure retirement.
NextCapital is an experienced provider of automated portfolio management and financial planning software. NextCapital's founding team was responsible for building out one of the first automated 401(k) portfolio management platforms, one of the first digital wealth advisors, and one of the first online banks. Whether you're a workplace plan participant or a retail investor, we provide a retirement plan that’s tailored to you.
Before you get started, we ask that you take a few minutes to carefully read the important Terms of Service below.
II. Agreement & acceptance of terms
"NextCapital" means NextCapital Advisers, Inc. (“NextCapital Advisers”), and NextCapital Software, Inc. (“NextCapital Software”). NextCapital is part of The Goldman Sachs Group, Inc., (“GS”) a public company that is a bank holding company, financial holding company and a world-wide, full-service financial services organization. All financial software provided by NextCapital is provided by NextCapital Software (“Software Platform”). These Terms of Service apply solely to your use of NextCapital Services, as described below, and your use of NextCapital's website. Any financial advice or investment advisory services provided by NextCapital Advisers are subject to the terms of separate agreements between investment advisory clients and NextCapital Advisers, an investment adviser registered with the SEC.
NextCapital ("We" or "Us") looks forward to providing you with our Services. In exchange for using NextCapital Services, clients of our Services (that's you) are expected to read and follow these Terms of Service.
Your use of any of the NextCapital Services is subject to our Privacy Policy and Privacy Notice, which addresses how we gather, use, disclose and manage your personal information.
To use NextCapital Services, you need to understand and agree to follow these Terms of Service. You also must understand, i) that the Terms of Service may change from time to time at the sole discretion of Us; ii) by downloading our app(s), visiting our website, actively or passively enrolling in a NextCapital service, using our free tools prior to registration, or manifesting your affirmative acceptance of these terms by way of a click-box, modal, or pop-up, (collectively “Services”) you are agreeing to the Terms of Service herein. For clarity, the definition of Services includes any NextCapital content provided through the Services.
NextCapital Services are provided for general information, education, and guidance purposes only and you should not construe any such information or the features, tools, or other content available through NextCapital Services as advice. You have the ultimate responsibility for evaluating the merits and risks associated with NextCapital Services and use of the information provided by NextCapital before making any decisions. No information generated by NextCapital or content on NextCapital Services constitute a solicitation, recommendation, endorsement, or offer with respect to any securities or other financial instruments.
Also, the financial information utilized by NextCapital is historical in nature. Historical financial information is not a guarantee of future financial results. While We will endeavor to keep the information used at NextCapital as up-to-date and correct as possible, We make no representations or warranties of any kind, expressed or implied, about the completeness, accuracy, reliability or suitability of the information contained in, or generated by use of, NextCapital Service for any purpose. Any reliance you place on such information is therefore strictly at your own risk. Remember, we are trying to help you make informed decisions, but you are responsible for your decisions. You are urged to consult with your own financial, legal, tax and other advisors prior to making any investment decisions based on the Services.
In exchange for using NextCapital Services, you agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other websites. You agree not to misrepresent your identity or your account information. You also agree to keep your account information up to date and accurate. Remember, We cannot help you make informed decisions if you do not give us accurate information.
We reserve the right to terminate or restrict your access to NextCapital Services for any reason, including but not limited to, the violation of any laws, regulations or rulings, infringing upon other’s rights, a security event or any violation of these Terms of Service. NextCapital also reserves the right to change, modify or discontinue any of the Services at its sole discretion and without notice.
III. Ownership
The technology and content used to offer, or provided in connection with, the Services are either owned by NextCapital or licensed to NextCapital from third-party licensors. As part of these Terms of Service, We grant you a nonexclusive, limited, royalty-free, non-transferable, non-sublicensable, revocable license to use NextCapital’s Services, website and content only for your personal, non-commercial purposes. Except as described in this paragraph, you may not copy, reproduce, distribute or create derivative works from the Services, website and content, including content generated by the Services, without our express written consent. Further, you agree not to do any of the following with respect to the NextCapital software or Services: (i) reverse engineer, reverse compile or create test harnesses to run against any NextCapital software or the Services; (ii) transmit anything that is unlawful, libelous, intended to harass or violate the rights of another; (iii) resell or otherwise use in a commercial manner; (iv) use any robot, spider, webcrawler, scraper, deep link or similar automated extraction or data gathering mechanism, program or tool to access, copy or monitor software or Services or any portion thereof without our prior written consent; (vii) post or transmit any file or email which contains viruses, worms, Trojan horses or any other damaging or destructive elements.
We always welcome your correspondence, feedback, comments, complaints and suggestions (collectively, “Feedback”), as this will help us improve our Services. You agree that your Feedback is provided without restriction of any kind and that NextCapital shall have the right to use your Feedback for any purpose.
We may contract with third parties, known as "NextCapital Service Providers" to help us provide you with NextCapital Services. You also agree that you are licensing to Us and NextCapital Service Providers any information you provide to Us, including, but not limited to, data, passwords, materials or other content (collectively "Content"). We and NextCapital Service Providers may use, modify, display, distribute and create new material using such Content to provide NextCapital Services to you. By submitting Content, you agree that the owner of the Content grants Us and NextCapital Service Providers the right to use the Content for these purposes. Regardless, as between NextCapital, NextCapital Service Providers and you, you own your confidential information.
The NextCapital trademark belongs to Us, and you agree not to use the NextCapital trademark without the prior written consent of NextCapital. All marks not owned by NextCapital are property of their respective owners. You may not copy, reproduce, perform, create derivative works from, republish, upload, post, transmit, or distribute any such trademarks without our express, written consent. Any goodwill arising out of Your use of NextCapital’s trademarks in contravention of this paragraph shall inure to the benefit of and belong to NextCapital.
IV. Accessing account data
You agree that We and NextCapital Service Providers may access third party sites designated by you, on your behalf, to retrieve information you requested and to register accounts requested by you (“Third Party Sites”). Through NextCapital Services, you may be able to access other Third Party Sites that are not controlled by Us. The inclusion of a link does not imply a recommendation or endorsement of any views expressed therein. WE ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY SITES OR FOR THE ACCURACY OF THE DATA OBTAINED FROM SUCH THIRD PARTY SITES AND DISPLAYED OR REPORTED THROUGH OUR SERVICES. ANY RELIANCE UPON SUCH THIRD PARTY SITES IS AT YOUR OWN RISK. The overall integrity and quality of the data presented by NextCapital to you is an important element in providing you with our Services. NextCapital, however, is not responsible for and cannot guarantee the accuracy or timeliness of information We retrieve on your behalf directly, from third party technology providers, from third party financial institutions where your accounts are held, or from third party research/market data providers used to provide NextCapital Services.
NextCapital may not be able to foresee or anticipate technical or other difficulties which may result in failure to obtain data, personalization settings or other Service interruptions. NextCapital assumes no responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any Content or user data or for any loss of Content or user data, communications or personalization settings. NextCapital encourages you to periodically confirm the accuracy of your information and Content through independent sources, such as an investment adviser, broker-dealer or other financial institution.
To use NextCapital Services, you grant Us and NextCapital Service Providers a limited power of attorney, and as your true and lawful attorney-in-fact and agent, with full power substitution and re-substitution, for you and in your name, place and stead in any and all capacities, to access third party internet sites, servers or documents, retrieve information, and use your information and Content, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities.
You acknowledge and agree that when We or NextCapital Service Providers access or retrieve information from third party sites, NextCapital and NextCapital Service Providers are acting as your agent, and not the agent or on behalf of the third party. You agree that the third party advisors you select shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by You. You also understand and agree that NextCapital is not endorsed or sponsored by any third party account providers accessible through NextCapital.
V. Disclaimers & warranties
NEXTCAPITAL SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. YOU USE NEXTCAPITAL SERVICES AT YOUR SOLE RISK, AND WHILE WE WILL DO WHAT WE CAN, YOU UNDERSTAND THAT WE, ALONG WITH NEXTCAPITAL SERVICE PROVIDERS, DISCLAIM ANY WARRANTIES OF ANY KIND AS TO NEXTCAPITAL AND ALL INFORMATION, PRODUCTS AND OTHER MATERIALS INCLUDED IN OR ACCESSIBLE FROM NEXTCAPITAL, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE AND NEXTCAPITAL SERVICE PROVIDERS MAKE NO WARRANTY THAT NEXTCAPITAL WILL (I) MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) RUN UNINTERRUPTED, TIMELY, SECURELY OR ERROR-FREE, (III) PROVIDE ACCURATE OR RELIABLE RESULTS, OR (IV) BE FREE OF ERRORS IN THE TECHNOLOGY.
ANY MATERIALS DOWNLOADED OR OBTAINED THROUGH THE USE OF NEXTCAPITAL SERVICES ARE DONE AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO INFORMATION, WHETHER WRITTEN OR ORAL, THAT YOU OBTAIN FROM NEXTCAPITAL OR NEXTCAPITAL SERVICE PROVIDERS THROUGH OR FROM NEXTCAPITAL WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
VI. Limitation of liabilities
EXCLUDING LIABILITY FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL NEXTCAPITAL, NOR ANY NEXTCAPITAL SERVICE PROVIDERS, NOR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES, AGENTS, PARTNERS OR REPRESENTATIVES (THE "NEXTCAPITAL PARTIES") OR PROVIDERS OF NEXTCAPITAL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES WHATSOEVER, AS WELL AS DAMAGES FROM DELAY OF DELIVERY, LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES, FROM THE CORRUPTION, DAMAGE OR RECOVERY OF DATA, FROM BREACHES OF DATA OR SYSTEM SECURITY, OR FOR THE FAILURE OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN YOUR ACCESS TO THE SERVICES, OR FOR ANY INTERRUPTION OR DISRUPTION OF SUCH ACCESS OR ANY ERRONEOUS COMMUNICATION BETWEEN NEXTCAPITAL AND YOU, REGARDLESS OF WHETHER THE CONNECTION OR COMMUNICATION SERVICE IS PROVIDED BY NEXTCAPITAL OR A THIRD PARTY SERVICE PROVIDER, OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR INABILITY TO USE THE SERVCIES HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE, EVEN IF NEXTCAPITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NEITHER THE NEXTCAPITAL PARTIES NOR PROVIDERS OF NEXTCAPITAL SHALL HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, TO YOU OR TO THIRD PARTIES, FOR THE CORRECTNESS, QUALITY, ACCURACY, TIMELINESS, RELIABILITY, PERFORMANCE, CONTINUED AVAILABILITY, COMPLETENESS OR DELAYS, OMISSIONS, OR INTERRUPTIONS IN THE DELIVERY OF THE SERVICES, INCLUDING ANY THIRD PARTY SITES, OR FOR ANY OTHER ASPECT OF THE PERFORMANCE OF THE SERVICES. NEXTCAPITAL WILL HAVE NO RESPONSIBILITY TO INFORM YOU OF ANY DIFFICULTIES EXPERIENCED BY NEXTCAPITAL OR THIRD PARTIES WITH RESPECT TO THE USE OF THE SERVICES OR ANY CONTENT PROVIDED THROUGH THE SERVICES OR TO TAKE ANY ACTION IN CONNECTION THEREWITH. HOWEVER NOTHING IN THESE TERMS IS INTENDED TO EXCLUDE OR RESTRICT ANY DUTY OR LIABILITY THAT NEXTCAPITAL HAS UNDER THE REGULATORY SYSTEM UNDER APPLICABLE LOCAL REGULATORY RULES OR WHICH MAY NOT BE EXCLUDED OR RESTRICTED AS A MATTER OF APPLICABLE LAW. EXCLUDING LIABILITY FOR GROSS NEGLIGENCE, FRAUD, AND WILLFUL MISCONDUCT, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL NEXTCAPITAL'S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF TEN DOLLARS ($100.00).
NextCapital shall not be liable for failure to perform any of its obligations under these Terms of Service during any period in which its performance is delayed by anything beyond its reasonable control, including: (a) war, terrorism, civil commotion and riots, fires, flood, strikes, or work stoppage; (b) requirements or acts of any regulatory, self-regulatory or governmental authority; or (c) acts of God.
VII. Indemnification
You agree to indemnify, defend and hold Us, the NextCapital Service Providers and our or their respective officers, directors, affiliates, employees, agents or representatives, harmless from and against any and all losses, claims, actions, judgments, fines, penalties, liabilities, damages, expenses and costs (including but not limited to reasonable attorneys' fees), that relate to any third party claim caused by or arising from: (i) your use of NextCapital Services or website; (ii) your violation of these terms; (iii) infringement of these terms by any other user of your account; (iv) your violation or any intellectual property or other right of anyone; or (v) your violation of these Terms of Service or the terms of any Third Party Sites.
VII. Use of password
In connection with the use of NextCapital Services, you may be asked to create a login ID and password. You are responsible for maintaining the confidentiality of such information so that only you can access your information through NextCapital. If you become aware that someone has obtained your login ID or password or any unauthorized access to your account, you must contact us immediately. WE ARE NOT RESPONSIBLE FOR BREACHES OF CONFIDENTIALITY OF YOUR PERSONAL INFORMATION OR PERSONAL FINANCIAL DATA THAT RESULT FROM YOUR FAILURE TO MAINTAIN THE SECURITY OF YOUR LOGIN ID AND PASSWORD.
We will take all commercially reasonable steps to protect your personally identifiable information and personal financial data. We make commercially reasonable efforts to maintain the confidentiality of all data you share with us.
IX. Electronic disclosure consent
By providing your email to enroll for use of NextCapital Services, you consent to receive all notices and information regarding NextCapital Services electronically. Electronic communications may be posted on our website and/or delivered to your registered e-mail address. All communications in electronic format will be considered to be in "writing," and to have been received no later than five (5) business days after posting or dissemination, whether or not you have received or retrieved the communication. Your consent to receive communications electronically is valid until you end your relationship with NextCapital. It is your responsibility to provide us with true, accurate and complete e-mail addresses, contact and other information related to this disclosure and to maintain and update promptly any changes to this information. You may print a copy of any electronic communications and retain it for your records. We reserve the right to terminate or change the terms and conditions on which we provide electronic communications and will provide you notice thereof in accordance with applicable law.
X. Access to Accounts; Cookies; Support
From time to time, We may use online session information for the purposes of improving NextCapital Services, website and your experience. In certain situations, such as Service support requests, We may view your information as if We were you. NextCapital support personnel will not have direct access to your investment account credentials. But to fix a problem with your user experience, we need to see what you see. We also aggregate information to understand how people like you use NextCapital Services, so that we can make improvements for everyone. By using the Services, you agree to NextCapital’s access to, and use of, the information described in this section.
XI. Digital Millennium Copyright Act
NextCapital respects the intellectual property rights of others. Upon proper notice, NextCapital will, in its discretion, remove User Content or other applicable content that violates intellectual property rights under applicable law, suspend access to the Services (or any portion thereof) to any user who uses the Services in violation of such law, and/or terminate the accounts of repeat infringers. If you believe your work has been copied in a way that constitutes intellectual property rights infringement, please send NextCapital's intellectual property agent (listed below) a written notification of claimed infringement with all of the following information:
- identification of the intellectual property right (e.g., copyright, trademark, etc.) and the work claimed to have been infringed, or, if multiple rights and works are covered by a single notification, a representative list of such rights and works;
- identification of the claimed infringing material and information reasonably sufficient to permit NextCapital to locate the material on the Services;
- information reasonably sufficient to permit NextCapital to contact you, such as an address, telephone number, and, if available, an email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property rights owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the intellectual property rights owner or authorized to act on the owner's behalf; and
- your physical or electronic signature.
NextCapital Legal Department
104 S. Michigan Avenue, Suite 1400
Chicago, IL 60603-5902
legal@nextcapital.com
Please do not send notices or inquiries unrelated to alleged copyright infringement to NextCapital's designated agent.
XII. Arbitration & governing law
Any controversy, claim or dispute arising out of or relating to this Agreement, including, but not limited to, those arising out of the construction, performance, or breach of this Agreement (collectively, "Claims"), shall be subject to the dispute resolution terms as set forth in the Related Agreements. You and GS agree that, in the absence of a dispute resolution mechanism set forth in a Related Agreement, any Claims shall be subject to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. ("JAMS"), in accordance with its Comprehensive Arbitration Rules and Procedures in force at the time such arbitration is commenced. The site for the arbitration shall be at a location in New York, New York agreed to by the parties, and the tribunal shall consist of three arbitrators (including one selected by GS and one selected by You). The arbitration is confidential and award of the arbitrator(s) shall be final and binding on the parties. Judgment on the award rendered may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing agreement to arbitrate Claims, each party retains the right to seek injunctive relief, including but not limited to, actions to prevent actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. Any such actions shall be brought in any Federal Court of the United States of America sitting in the Borough of Manhattan, or if that Court does not have subject matter jurisdiction, in any state court located in the City or County of New York.
You may not act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or NextCapital's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN JAMS RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR NEXTCAPITAL WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.