By using Fi360 products you agree to the terms of this end user license agreement
End User License Agreement
Fi360 Technology Products
This End User License Agreement ("User Agreement") is an agreement between you (“User”), whether as an individual person executing this User Agreement for yourself and/or on behalf of a corporation, limited liability company, partnership or other entity (“Entity” or, collectively, “Entities”) and fi360, Inc. (“Fi360”), a Delaware corporation. By using Fi360’s products and services (collectively, the “Products”), you indicate your acceptance of and agree to be bound by the terms of this User Agreement. If you are accepting this User Agreement or use the Products on behalf of, or in connection with your employment by, an Entity, you represent and warrant that you have the authority to take such actions and to bind the Entity to this User Agreement, and this User Agreement will be binding on that Entity unless the Entity has a separate agreement in place with Fi360 that applies to your use of the Products (an “Entity Agreement”), in which case the Entity Agreement will prevail.
USER ACKNOWLEDGES THAT THIS USER AGREEMENT WILL TAKE EFFECT AT THE TIME THE USER ACCEPTS THIS USER AGREEMENT (THE “EFFECTIVE DATE”) AND WILL CONTINUE UNTIL CANCELLED BY EITHER USER OR FI360. BY AGREEING TO THE TERMS OF THIS USER AGREEMENT, TO THE EXTENT USER IS AN INDIVIDUAL CUSTOMER THAT HAS MADE INDIVIDUAL PAYMENT ARRANGEMENTS WITH FI360 DIRECTLY, USER HEREBY CONSENTS TO AUTOMATIC PAYMENT FROM USER’S METHOD OF PAYMENT (I.E., CREDIT CARD) AT THE RECURRING INTERVALS (I.E., MONTHLY OR ANNUALLY) SPECIFIED BY USER AT THE TIME OF USER’S INITIAL PAYMENT. Fi360 RESERVES THE RIGHT TO REQUIRE USER TO PAY ON A RECURRING MONTHLY OR ANNUAL BASIS IN ADVANCE. IF USER CANCELS HIS OR HER SUBSCRIPTION BUT REINSTATES THE SUBSCRIPTION AT A LATER DATE, FI360 RESERVES THE RIGHT TO CHARGE A REINSTATEMENT FEE. USER MAY CONTACT FI360 BY PHONE AT 1-844- 394-9960, MONDAY THROUGH FRIDAY, 8:00 A.M. TO 8:00 P.M. EASTERN TIME, OR BY E-MAIL AT ANY TIME AT SUPPORT@Fi360.COM, OR BY US MAIL AT FI360 INC., TWO CHATHAM CENTER, 112 WASHINGTON PLACE, 11th FLOOR, PITTSBURGH, PA 15219, IF USER WANTS TO CANCEL USER’S SUBSCRIPTION HEREUNDER. USER ALSO ACKNOWLEDGES THAT FI360 RESERVES THE RIGHT TO REMOVE USER’S DATA FROM THE PRODUCTS UPON USER’S CANCELLATION OF HIS OR HER SUBSCRIPTION OR TERMINATION OF USER’S SUBSCRIPTION BY FI360. FI360 RESERVES THE RIGHT AT ANY TIME AND FOR ANY REASON IN ITS SOLE DISCRETION TO DENY THE USER ACCESS TO THE PRODUCTS OR ANY PORTION THEREOF AND TO TERMINATE THIS USER AGREEMENT WITHOUT NOTICE. IF REQUIRED UNDER STATE LAW, FI360 WILL REFUND RECURRING SUBSCRIPTION FEES THAT WERE CHARGED TO USER AS LONG AS USER NOTIFIES FI360 WITHIN SIXTY (60) DAYS AFTER THE CHARGE WAS MADE THAT USER DID NOT WISH TO CONTINUE HIS OR HER SUBSCRIPTION. FI360 RESERVES THE RIGHT TO CHANGE, MODIFY, UPDATE OR REVISE THE TERMS OF THIS USER AGREEMENT AT ANY TIME. FI360 WILL POST ANNOUNCEMENTS REGARDING CHANGES, MODIFICATIONS, UPDATES OR REVISIONS IN A VISIBLE AREA OF YOUR USER SITE. USER MAY BE REQUIRED TO ACKNOWLEDGE ITS ACCEPTANCE OF ANY REVISED TERMS BEFORE ACCESSING THE PRODUCTS. USER’S ACCEPTANCE OF CHANGES TO THE USER AGREEMENT AND/OR CONTINUED USE OF THE PRODUCTS AFTER ANY CHANGE TO THIS USER AGREEMENT WILL INDICATE USER’S ACCEPTANCE OF THE REVISED TERMS OF THIS USER AGREEMENT.
1. Grant of License. The Products are provided by Fi360 or one of its affiliates to User. This User Agreement provides User with a single, limited, revocable, nonexclusive, nontransferable license for the term of this User Agreement to use the Products and reports and materials produced through and from the Products (“Reports”) for business purposes in the United States only and conditioned on User's continued compliance with this User Agreement. User shall be deemed to have reaffirmed his or her acceptance of this User Agreement with each use of the Products. Reports are a subset of, and are included in the definition of, “Products”.
2.1.The Productsshall not be used by anyone other than User. The Reports shall not be copied or distributed to any third party except as provided below in this User Agreement. Notwithstanding the foregoing and except as otherwise expressly permitted in this User Agreement, User shall not translate, decompile, disassemble, attempt to discover the source code of, access, use, modify, sublicense, copy, distribute, broadcast, transmit, reproduce, publish, encumber, lease, rent, disclose, license, transfer, resell, mirror, frame, reverse-engineer, export, sublicense, rent, sell, publicly display, or create derivative works of the Products or Reports.
2.2. User may (as and to the extent applicable to the Product and the User’s subscription tier):
2.2.1.use the Products and print and download Reports solely for User’s investment advisory or consulting business purposes; and
2.2.2.distribute Reports to User’s clients solely for the purpose of providing investment advisory or consulting services or service proposals.
2.3. Prohibited uses of the Products and Reports outside the scope of this User Agreement for which additional and/or separate licenses and special use agreements must be requested by User include, but are not limited to:
2.3.1.Use by a salesperson or employee of a service provider firm, such as a recordkeeper, asset management firm or mutual fund company in printing, producing, or preparing Reports and delivering them to investment advisors or other investment professionals;
2.3.2.Use of Products, Reports, or information extracted from the Products or Reports as a part of a general mailing or other mass communications, such as advertisements;
2.3.3.Use of the Reports or information extracted from the Reports as part of a third party website, newsletter or other publication;
2.3.4.Modifying, copying, or extracting information from the Products or Reports for external use in third-party materials, including but not limited to sales and marketing materials, reports, charts, tables, graphs, spreadsheets, and similar documents and materials;
2.3.5.Use of the Products or Reports on a timesharing or service bureau basis or in a manner that competes, directly or indirectly, with Fi360; and
2.3.6.Use of the Products or Reports in excess of the subscription tier for which User is subscribed.
2.4. User represents and warrants to Fi360 that (i) User will not use the Products and Reports for any purpose that is unlawful or prohibited by this User Agreement and User will comply with all local, state, national, and international laws, rules, regulations, orders and regulatory guidances that are applicable to User and User’s use of the Products and Reports; (ii) User has the right to use the Products and Reports for the purposes permitted under this User Agreement and all necessary permissions to access, view and, if permitted hereunder, export, any plan data contained in the Products and Reports; and (iii) to the extent that User has access to plan data through User’s use of the Products and Reports, User shall only use plan data in connection with providing services to the plan as permitted by applicable law and User’s agreements with the plan sponsor and such use of plan data will be solely for the benefit of the applicable plan to which the data relates. User is solely responsible for obtaining any required consents, licenses or approvals for its use of the Products and Reports. If User sees or receives data through its use of the Products or Reports that User does not have the right to view or access, User shall notify Fi360 immediately.
2.5. Fi360 reserves the right to delete and purge User’s account and other data if any of the following occurs: (i) Fi360 receives notice from the Entity with whom User was associated with or employed by that the User is no longer associated with that Entity and should no longer have access to the account data; (ii) User’s account is not active for a period of one month or more; (iii) User breaches any terms of this User Agreement; or (iv) User cancels his or her subscription. User’s sole recourse for the occurrence of (i) or (ii) above shall be directly with the Entity with which User is or was associated.
2.6. Fi360 reserves the right to place limits on, and to monitor, User’s usage of the Products. Any use by User in excess of the limits set forth in User’s subscription tier may result in the imposition of additional fees and/or a requirement that the User upgrades to a higher subscription tier or an Entity Agreement.
2.7. For subscriptions to Fi360’s RFP Director Product only: Fi360 may, in its discretion, make RFP information available for up to one year and shall have the right to impose limits on the size of files that may be uploaded at any time in Fi360’s sole discretion.
2.8. For subscriptions to the Matrix Business Intelligence (“BI”) module of Fi360’s Fiduciary Focus Toolkit Product only: User will be able to view an aggregated view of his/her retirement book of business that is either custodied at or traded through Matrix Trust Company, an Fi360 affiliate. Matrix BI does not include the data aggregation of other recordkeepers or custodians. Data aggregation of other recordkeepers or custodians requires full access to Fi360’s BI Product, which must be separately licensed from Fi360. Fi360 will make reasonable good faith efforts to map the appropriate plans to the User based on data provided by the recordkeepers or custodians. User shall inform Fi360 at email@example.com immediately upon becoming aware of any missing plans or improperly provisioned plans.
3. Intellectual Property Rights; Ownership.
3.1. Fi360 and/or its third party content providers (including, without limitation, Morningstar, Inc. and any other data providers, which data providers and third party content providers are, collectively, “Third Party Providers”) are the sole owners of the Products and Reports, including any adaptations or copies thereof and the information contained therein and retain all right, title and interest, including, without limitation, all patent, copyright, trademark, trade secret and all other intellectual property rights in and to the Products and Reports. Fi360 reserves all rights that are not specifically granted to User pursuant to this User Agreement. Fi360 shall own all feedback that the Users provide with regards to the Products and Reports.
3.2. User shall not remove any copyright, trademark or other proprietary notices or legends or any disclaimers that appear on or are embedded in the Products and Reports and shall reproduce such notices, legends and disclaimers in any Reports that User is expressly permitted to distribute under this User Agreement. User shall not remove any copyright, trademark or other proprietary notices or legends or any disclaimers that appear on or are included or embedded in the Products and Reports. If any printout page or other tangible form of retrieved data does not contain the full text of such notices and legends, the User shall stamp or otherwise affix on each such copy of the data, including any subsequent adaptation thereof, the appropriate copyright notice.
3.3. Fi360 and all other names, logos, and icons identifying Fi360's products and services are proprietary marks of Fi360, and any use of such marks without the express written permission of Fi360 is strictly prohibited. Other product and company names mentioned in this User Agreement are the marks of their respective owners.
4. Confidentiality; Data Privacy.
4.1. Confidential Information. “Confidential Information” means any and all information, whether oral or written or via computer disk or electronic media, to which a party is given access or which is made available by or on behalf of one party (the “Disclosing Party”) to the other (the “Receiving Party”), whether directly or through a third party at the Disclosing Party’s request, that is identified in writing as “confidential” or “proprietary” or would otherwise reasonably be deemed to be confidential or proprietary based on the nature of the contents of the information and/or circumstances of disclosure including, without limitation, the Products, the Reports, nonpublic personally identifiable information, all information relating to Fi360 offerings, business plans, pricing, products, trade secrets, physical and information security policies and processes, audit reports, vendor due diligence responses, systems, processes, confidential reports, customer lists, sales and/or trading strategies, software, financial information, vendor or third party information, and arrangements with customers and suppliers, inventions, procedures, methods, designs, source and object code, data, programs, improvements and other works of authorship of the Disclosing Party whether received before, on or after the Effective Date of this User Agreement. Except as expressly provided in Section 4.2 of this Agreement or with the Disclosing Party’s prior written consent, the Receiving Party shall: (i) hold all Confidential Information of the Disclosing Party in confidence and shall use the same standard of care that it uses to protect its own confidential information of similar importance, but in any event no less than reasonable care; (ii) not disclose, make available, transfer to, or allow the Disclosing Party’s Confidential Information to be accessed by, any third party (other than to the extent permitted under this Agreement); and (iii) use the Confidential Information of the Disclosing Party only for the performance of the Receiving Party’s obligations and responsibilities or provision or receipt of Products under this User Agreement. Except to the extent necessary to perform its obligations hereunder or as otherwise expressly set forth herein, neither party will disclose the other party’s Confidential Information to any third party (each, a “Representative”) without express authorization of the Disclosing Party and the Receiving Party shall be liable for any breach of this User Agreement by its Representatives. If User or an affiliated Entity requests that Fi360 issue its response to a vendor due diligence request to a third party, or via an online form hosted by a third party or a third party platform, such third party is expressly a “Representative” pursuant to this Agreement. The terms of confidentiality under this User Agreement will not limit either party’s right to independently develop or acquire products, software or services without use of or reference to the other party’s Confidential Information.
4.2. Confidential Information does not include information that the Receiving Party can establish: (i) has entered the public domain without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) has been rightfully received by the Receiving Party from a third party without confidentiality restrictions; (iii) is known to the Receiving Party without any restriction as to use or disclosure prior to first receipt by the Receiving Party from the Disclosing Party; (iv) has been independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (v) is aggregated/anonymized data. Restrictions on use or disclosure of Confidential Information do not apply to use or disclosure authorized in writing by the Disclosing Party that expressly releases the Receiving Party from its duty of confidentiality.
4.3. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information by law or a governmental authority, including pursuant to a subpoena or court order (a “Disclosure Order”) such Confidential Information may be disclosed, provided that the Receiving Party, where practicable and legally permissible, (i) reasonably notifies the Disclosing Party of the disclosure requirement, (ii) cooperates with the Disclosing Party’s reasonable efforts to resist or narrow the disclosure and to obtain an order or other reliable assurance that confidential treatment will be accorded the Disclosing Party’s Confidential Information, and (iii) furnishes only Confidential Information that the party is legally compelled to disclose.
4.4. In connection with Fi360’s provision of the Products to User, Fi360 may share the User’s name and e-mail address with any Entity at which the User is employed or with which the User is otherwise associated (i.e., Franchisee Investment Representative, Independent Contractor Representative, Employee Broker Dealer, etc.) or with an Entity through whom User is obtaining access, realizing a discount or licensing the Products.
4.5. Except as otherwise provided in this User Agreement, Fi360 will keep User and User’s client information confidential and Fi360 will not share, rent, distribute or otherwise disseminate User or User’s client information with third parties outside of Fi360’s company or affiliates, subcontractors or agents who may provide related goods and services to User (except to the extent such dissemination is prohibited by applicable law). If such dissemination is prohibited by applicable law, Fi360 shall not retain, use or disclose the personal information of User or User’s clients for any purpose other than for the specific purpose of performing the services set forth in this User Agreement for the business or as otherwise permitted under applicable law.
4.6. Personal Data. If the delivery or performance of any applicable Products involves processing by Fi360 of any personal data for which User is responsible, then this section shall apply. In accordance with the definitions of applicable law on the protection of personal data, User shall be deemed the controller of personal data and Fi360 shall be deemed the processor of personal data. Each of User and Fi360 shall comply with applicable law on the protection of personal data for the purposes of this User Agreement. User shall provide Fi360 with reasonable instructions on the processing of personal data and Fi360 shall comply with such reasonable instructions. User warrants that it has all necessary approvals from any relevant personal data subjects and shall indemnify and hold Fi360 harmless from any third party claims, losses or liabilities arising from or in connection with User’s breach of the foregoing. Fi360 shall implement appropriate technical and organizational security measures for the processing of personal data under this User Agreement. Such measures shall be subject to an appropriate level of security having regard to the technical possibilities available, the implementation cost for such measures, the specific risks connected with the processing of the data in question and the sensitivity level of the data in question. For the purposes of fulfilling its contractual obligations to User, and to the extent permitted under applicable law, Fi360 may transfer personal data for which User is responsible to other Fi360 affiliates, agents or subcontractors located in and/or outside of the country or countries in which User operates.
4.7. Fi360 shall have the right to collect and aggregate data pertaining to and resulting from User’s use of the Services that does not identify User as the source of such data (“Aggregated Anonymous Data”). Fi360 shall own all right, title and interest (including, without limitation, all intellectual property rights) in and to the Aggregated Anonymous Data. For the avoidance of doubt, Fi360 may use, sell, license, access, disclose, modify and create derivative works of the Aggregated Anonymous Data in perpetuity for any purpose, including, without limitation, to generate industry benchmarks and to develop and improve Fi360’s products and services.
4.8. Upon User’s or an affiliated Entity’s request for vendor due diligence pursuant to this User Agreement, which request may be made no more than once annually, Fi360 will provide User or the affiliated Entity with a response in the form of Fi360’s standard BITS Standardized Information Gathering (“SIG”) questionnaire, or equivalent. Fi360 will not be obligated to respond to a vendor risk assessment or similar questionnaire issued by User or an Entity, and if User or Entity requires a response to a vendor risk assessment or similar questionnaire, then Fi360 reserves the right to require the User or Entity to enter into an Entity Agreement.
5. Username and Password Policy. Use of the Products requires both a username and password. Each username and corresponding password can only be used by User and may not be shared with anyone. The User agrees to assume sole responsibility for the security of their username and password issued by Fi360. Unless expressly approved in writing by Fi360 in advance, a password is valid for use only in the country in which it is issued. A username and password are subject to cancellation or suspension by Fi360 at any time, including upon nonuse for such period as Fi360 may determine, and reissuance or reactivation of such username and password may be subject to Fi360's standard charges. If the User believes that any username or password are being used by someone other than an authorized User, the User must notify Fi360 immediately.
6. Products Monitoring. Actual or attempted unauthorized use of the Products may result in criminal or civil prosecution. For the User's protection, Fi360 reserves the right to view, monitor, and record activity on the Products without notice or permission from the User. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal activity related use of the Products. Fi360 will also comply with all court orders involving requests for such information.
7. No Recommendations or Investment Advice.
7.1. The information in the Products and Reports is not a recommendation, offer, or solicitation to purchase or sell any security or investment product or service, nor shall any such security, product, or service be recommended, offered, purchased from, or sold to any person, in any jurisdiction in which such recommendation, offer, solicitation, purchase, or sale would be unlawful under the securities laws of such jurisdiction. The information in the Products and Reports is also not a recommendation, endorsement, or solicitation for any investment advisor, investment manager, or other investment professional or firm or its services. Further, the Products are not intended to provide fiduciary advice or compliance guarantees as is or may be future defined under the laws, statutes, rules or regulations of the U.S. Securities and Exchange Commission or the U.S. Department of Labor. All financial and investment information in the Products and Reports, as well as reference materials or links to other websites, are for general informational and research purposes only, and is not intended to be relied upon for transactional or other purposes.
7.2. Past performance is not an indication of future performance or results.
7.3. Fi360 does not offer advice regarding the quality or suitability of any investment or of any investment manager for a particular client and assumes no responsibility or liability for any investment decisions or advice, treatment, or services rendered by the User reliant upon or developed in part utilizing the Products or Reports. Fi360 and its Third Party Providers shall not have any liability for investment recommendations or decisions made by User or User's clients, based upon, or the results obtained from, the Products or Reports.
8. Content Provider Notices (Content capitalized at Content Providers’ Requests). User acknowledges that a portion of the data and other information accessible through the Products may be licensed or derived from Third Party Providers. User shall strictly comply with all terms and conditions for specific Third Party Providers that are set forth in Sections 8.1 through 8.7 of this User Agreement or are otherwise communicated to User in writing (which may be via a posting on Fi360’s website or within the Products) from time-to-time. User acknowledges that Fi360 is not waiving or purporting to waive any rights that the Third Party Providers may have to pursue any and all claims against User or its customers in connection with the unauthorized use of the third party information and data.
8.1. MORNINGSTAR, INC. CERTAIN OF THE INFORMATION CONTAINED IN THE PRODUCTS AND REPORTS: (1) IS PROPRIETARY TO MORNINGSTAR INC. AND/OR ITS CONTENT PROVIDERS; (2) MAY NOT BE COPIED OR DISTRIBUTED; AND (3) IS NOT WARRANTED TO BE ACCURATE, COMPLETE OR TIMELY. NEITHER MORNINGSTAR NOR ITS CONTENT PROVIDERS ARE RESPONSIBLE FOR ANY DAMAGES OR LOSSES ARISING FROM ANY USE OF THIS INFORMATION. PAST PERFORMANCE IS NO GUARANTEE OF FUTURE RESULTS.
8.2. FTSE/RUSSELL. THE FTSE/RUSSELL DATA IS PROVIDED ON AN “AS-IS” BASIS AND FTSE/RUSSELL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. USER ASSUMES THE ENTIRE RISK OF ANY USE USER MAKES OF THE DATA. FTSE/RUSSELL SHALL NOT BE LIABLE TO USER IF ANY SERVICES ARE INTERRUPTED, CHANGED OR BECOME UNAVAILABLE FOR ANY REASON. FTSE/RUSSELL DOES NOT WARRANT THAT THE DATA WILL MEET USER’S NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, ARE ERROR FREE, COMPLETE OR WILL BE PROVIDED ON A TIMELY BASIS. USER SHALL ONLY BE PERMITTED TO VIEW THE FTSE/RUSSELL DATA WITHIN ONSCREEN VIEWS AND PERMITTED REPORTS AND OTHER MATERIALS. NO OTHER USE OF THE FTSE/RUSSELL DATA SHALL BE PERMITTED. WITHOUT LIMITATION TO THE FOREGOING, USER SHALL NOT (A) COPY, STORE, SELL, LICENSE, DISTRIBUTE, TRANSMIT OR DUPLICATE TO ANY THIRD PARTY OR TO ANY PERSON (OTHER THAN ITS USERS) ANY FTSE/RUSSELL DATA OR ANY PART THEREOF IN ANY FORM OR BY ANY MEANS; (B) DERIVE, RECALCULATE, COMBINE WITH OTHER DATA OR OTHERWISE MODIFY THE FTSE/RUSSELL DATA, CREATE HISTORY AND/OR DISTRIBUTE SUCH DERIVED, RECALCULATED, COMBINED OR MODIFIED DATA OR HISTORY TO ANY THIRD PARTY; (C) MAKE THE FTSE/RUSSELL DATA AVAILABLE TO THE PUBLIC VIA THE INTERNET OR OTHERWISE; (D) USE THE FTSE/RUSSELL DATA FOR THE PURPOSE OF: (I) CREATING AND/OR OPERATING (WHETHER BY ITSELF OR BY ANY THIRD PARTY) ANY FINANCIAL PRODUCT, INDEX OR SERVICE WHICH SEEKS TO MATCH THE PERFORMANCE OF OR WHOSE CAPITAL AND/OR INCOME VALUE IS RELATED TO THE DATA OR ANY PART THEREOF; (II) CREATING AND/OR OPERATING (WHETHER BY ITSELF OR BY ANY THIRD PARTY) ANY FINANCIAL PRODUCT, INDEX OR SERVICE THE PERFORMANCE OF WHICH IS LINKED TO THE PERFORMANCE OF A THIRD PARTY'S PRODUCT, INDEX OR SERVICE WHICH, IN TURN, SEEKS TO MATCH THE PERFORMANCE OF OR WHOSE CAPITAL AND/OR INCOME VALUE IS RELATED TO THE DATA OR ANY PART THEREOF (AND WHETHER OR NOT SUCH THIRD PARTY IS LICENSED BY THE LICENSOR TO DO SO); OR (III) GENERALLY EXPLOITING THE DATA IN A MANNER DESIGNED TO BENEFIT USER OR ANY THIRD PARTY (INCLUDING THE CREATION OF ANY PRODUCT OR SERVICE); (E) TAKE A SNAPSHOT OF ANY REAL TIME OR DELAYED DATA OR DESIGNATE OR REFER TO ANY INDEX VALUES WITHIN SUCH DATA AS BEING AN END OF DAY VALUE OR CLOSING PRICE; (F) USE THE MARKS OR REMOVE ANY COPYRIGHT OR PROPRIETARY NOTICES INCORPORATED INTO THE DATA AND USER SHALL ACKNOWLEDGE THAT THE LICENSOR AND/OR ANY RELEVANT THIRD PARTY INFORMATION PROVIDERS ARE THE OWNERS OF THE INTELLECTUAL PROPERTY RIGHTS IN, AND RELATING TO, THE DATA; (G) USE THE FTSE/RUSSELL DATA IN ANY WAY OR FOR ANY PURPOSE THAT WOULD REQUIRE A SEPARATE LICENCE FROM THE LICENSOR OR ANY OTHER PERSON; AND (H) PERMIT, OR PURPORT TO PERMIT, ANY THIRD PARTY TO DO ANY OF THE FOREGOING.
8.3. MSCI, INC. ADDITIONAL PRODUCT AND REPORT INFORMATION IS PROPRIETARY TO MSCI, INC., WITH RESPECT TO MSCI, INC. THE DATA ARE PROVIDED TO USER ON AN "AS IS" BASIS. DISTRIBUTOR, ITS INFORMATION PROVIDERS, AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). DISTRIBUTOR, ITS INFORMATION PROVIDERS AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
8.4. MSCI, INC. (CONTINUED). ADDITIONALLY, REGARDING MSCI, INC., USER ASSUMES THE ENTIRE RISK OF ANY USE USER MAY MAKE OF THE DATA. IN NO EVENT SHALL DISTRIBUTOR OR FI360 OR THEIR INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA, BE LIABLE TO USER, OR ANY OTHER THIRD PARTY, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS USER AGREEMENT OR THE INABILITY OF THE CUSTOMER TO USE THE DATA, REGARDLESS OF THE FORM OF ACTION, EVEN IF DISTRIBUTOR, ANY OF ITS INFORMATION PROVIDERS, OR ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
8.5. BOFA. MOREOVER, ADDITIONAL PRODUCT AND REPORT INFORMATION IS PROPRIETARY TO MERRILL LYNCH (BOAML / BOFA). BOFA MERRILL LYNCH IS LICENSING THE BOFA MERRILL LYNCH INDICES AND RELATED DATA "AS IS," MAKES NO WARRANTIES REGARDING SAME, DOES NOT GUARANTEE THE SUITABILITY, QUALITY, ACCURACY, TIMELINESS, AND/OR COMPLETENESS OF THE INDICES OR ANY DATA INCLUDED IN, RELATED TO, OR DERIVED THEREFROM, ASSUMES NO LIABILITY IN CONNECTION WITH THEIR USE, AND DOES NOT SPONSOR, ENDORSE, OR RECOMMEND FI360 OR ANY OF ITS PRODUCTS OR SERVICES.
8.6. STANDARD AND POOR’S FINANCIAL SERVICES LLC. FINALLY, CERTAIN PRODUCT AND REPORT INFORMATION IS PROPRIETARY TO STANDARD & POOR’S FINANCIAL SERVICES LLC. S&P DISCLAIMS ANY WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED. A REFERENCE TO A PARTICULAR INVESTMENT OR SECURITY, A CREDIT RATING, OR ANY OBSERVATION CONCERNING A SECURITY OR INVESTMENT PROVIDED IN THE S&P SERVICE(S) IS NOT A RECOMMENDATION TO BUY, SELL, OR HOLD SUCH INVESTMENT OR SECURITY OR TO MAKE ANY OTHER INVESTMENT DECISIONS.
8.7. CUSIP GLOBAL. NEITHER CUSIP GLOBAL SERVICES (“CGS”), AMERICAN BANKERS ASSOCIATION (“ABA”) NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO SUBSCRIBER/USER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE SUCH MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EXCEED THE FEE PAID BY SUBSCRIBER/USER FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.
9. Links to Other Sites. Fi360 may provide links, in its sole discretion, to other websites for the convenience of the User in locating related information and services and regarding related vendors that may be of interest to User in Fi360’s sole discretion. These websites have not necessarily been reviewed by Fi360 and are maintained by third parties over which Fi360 exercises no control. Accordingly, Fi360 expressly disclaims any responsibility for the content, the accuracy of the information, and/or quality of products or services provided by or advertised on these third-party websites and User’s use of any such third party websites is at the User’s sole risk. Moreover, these links do not imply an endorsement with respect to any third party or any website or the products or services provided by any third party.
10. Force Majeure. User expressly absolves and releases Fi360 from any claim of harm resulting from any cause beyond Fi360's control which affects Fi360’s ability to meet any obligations under this User Agreement, including without limitation any failure to continuously provide the Products for a given time period, failure of electronic or mechanical equipment or communication lines, telephone or other internet problems, computer viruses, unauthorized access, theft, operator errors, terrorist activity, governmental actions, severe weather, earthquakes, or natural disasters, pandemics, strikes or other labor problems, wars, or governmental restrictions. Fi360 shall use commercially reasonable efforts to resolve connectivity challenges as soon as practicable following any force majeure event.
11.1. WHILE Fi360 ENDEAVORS TO PROVIDE THE MOST ACCURATE, UP-TO-DATE INFORMATION AVAILABLE, THE PRODUCTS AND REPORTS MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. MOREOVER, Fi360 MAY MAKE MODIFICATIONS OR CHANGES TO THE PRODUCTS OR REPORTS AT ANY TIME, FOR ANY REASON.
11.2. THE USER ASSUMES THE SOLE RISK OF MAKING USE OR RELYING ON THE INFORMATION IN THE PRODUCTS OR REPORTS. FI360 AND THE THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY, LIABILITY, DAMAGES OR LOSSES RELATING TO USER’S USE OF THE PRODUCTS OR REPORTS.
11.3. NEITHER FI360 NOR ITS THIRD PARTY PROVIDERS MAKE ANY REPRESENTATIONS ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE PRODUCTS OR REPORTS. THE PRODUCTS AND REPORTS ARE PROVIDED "AS IS, WHERE IS" WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY.
12.1 TO THE GREATEST EXTENT PERMITTED BY LAW, FI360 SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, DAMAGE TO REPUTATION, REGULATORY FINES OR ACTIONS, OR LOST SAVINGS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS USER AGREEMENT OR THE USE OF THE PRODUCTS OR REPORTS OR WITH THE DELAY OR INABILITY TO USE THE PRODUCTS OR REPORTS, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF FI360 HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
12.2 THE TOTAL AGGREGATE LIABILITY OF FI360 FOR ANY REASON WHATSOEVER RELATED TO THIS USER AGREEMENT OR THE USE OF THE PRODUCTS AND REPORTS SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY USER TO FI360 FOR THE PRODUCTS FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THAT ANY CLAIM ACCRUED.
13.1. User Obligation. User shall defend, indemnify, and hold harmless Fi360 and its affiliates and all of its and their employees, agents, directors, officers, proprietors, partners, representatives, shareholders, attorneys, predecessors, successors, and assigns, from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys' fees and litigation expenses), relating to or arising from User's use of the Products and Reports, and any breach by User of this User Agreement or other improper act or omission. In particular, User shall indemnify and hold Fi360 harmless from any claim by any client of User alleging or resulting from the failure by the User to exercise its fiduciary duties, if applicable, with respect to the client's account.
13.2. Fi360 Obligation. In the event of a third party claim of intellectual property infringement related to the Products, Fi360, in its sole discretion, may elect: (i) to procure for User the right to continue to use the Products; (ii) to replace, at Fi360’s cost, the Products, or any portion thereof, with a substitute product that functions substantially in accordance with the applicable specifications; (iii) to modify the Products so that they do not infringe or misappropriate, provided that the Products, as modified, continue to perform substantially in accordance with the applicable specifications; or (iv) to terminate this User Agreement and to pay to User a refund of any prepaid but unaccrued fees through the remainder of the applicable subscription period. This Section sets forth Fi360’s entire obligation to User with respect to any claim of infringement or misappropriation.
14. Governing Law. This User Agreement is governed by and subject to the laws of the State of New York (other than its conflicts of law principles). Any action or proceeding arising from this User Agreement must be brought in the state or federal courts located in New York County, New York. Each party hereby irrevocably consents to the exclusive jurisdiction and venue in such courts.
15. Assignment. User may not assign, sub-license or otherwise transfer its rights, duties or obligations under this User Agreement without the express written consent of Fi360. Fi360 may assign this User Agreement without consent to any affiliate or in connection with a reorganization, merger, acquisition or sale of all or substantially all of Fi360’s assets. 16. Regulatory Approvals. User is solely responsible for obtaining Financial Regulatory Authority (“FINRA”), U.S. Securities & Exchange Commission (“SEC”), or other regulatory approval for use of the Reports, as applicable and when required. While Fi360 attempts to ensure that the Reports are compliant with federal rules and regulations, Fi360 has no obligation with respect to regulatory compliance and disclaims all representations, warranties and liability associated with regulatory compliance.
17. Waiver. Failure to insist on strict performance of this User Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver by Fi360 of any right under this User Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
18. Severability. If any part of this User Agreement is determined to be invalid or unenforceable pursuant to applicable law by a court of competent jurisdiction including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and as so limited or restricted shall remain in full force and effect. In the event that any such provision or provisions shall be deemed wholly unenforceable, the remaining provisions shall remain in full force and effect.
19. No Relationship. No joint venture, partnership, employment, or agency relationship exists between the User and Fi360 as a result of this User Agreement or User's utilization of the Products or Reports.
20. Export Control. User shall not distribute, redistribute or otherwise transfer the Products (or any component thereof) or any User data (i) into (or to a national or resident of or to the government of) Cuba, Iran, North Korea, Sudan, Syria, Burma (Myanmar), Libya or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment or provision of services, goods, technology or software; or (ii) to anyone on or acting on behalf of or owned or controlled by an entity on the Specially Designated Nations and Blocked Persons List maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (the “SDN List”) or the U.S. Commerce Department’s Denied Persons List or Entities List (collectively with the SDN List, the “U.S. Prohibited Party Lists”).
21. Headings. The headings and numbering used in this User Agreement are for reference purposes only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.
22. Entire Agreement. This User Agreement represents the entire agreement between the User and Fi360 with respect to use of the Products and Reports and, except as otherwise set forth above with regard to Entity Agreements, supersedes all existing agreements and all other oral, written or other communications between them concerning its subject matter, including without limitation, any non-disclosure agreements between you and Fi360 or an Entity and Fi360 that purports to govern the confidentiality of the subject matter addressed in this User Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this User Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this User Agreement.
23. Survival. The sections that are, by their nature, intended to survive the expiration or termination of this User Agreement will survive the expiration or termination of this User Agreement.
By using the Products, you agree to the terms and conditions of this User Agreement.
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User Agreement updated July 1, 2021
Two Chatham Center 112 Washington Place, 11th Floor
Pittsburgh, PA 15219
Phone: (844) 394-9960