DATE APPROVED: June 26, 2017
A. Agreement and Acceptance of Terms
BY ACCESSING THE SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT. MOREOVER, YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY AMENDMENT SHALL, LIKEWISE, BE DEEMED AN ACKNOWLEDGEMENT OF THE AMENDED TERMS. IF, AT ANY TIME, YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF MARSTONE.COM.
By accepting this Agreement, you represent that you have the capacity to be bound by it or, if you are acting on behalf of a company, entity or another person, that you have the authority to bind such entity or person.
B. Modification Rights
Marstone reserves the right, in its sole discretion, to change, modify, add, or remove portions of this Agreement at any time, provided that if such modifications materially limit your rights and/or expand your obligations hereunder, we will post such changes to this Agreement on the Website. This Agreement will always indicate the date it was last revised.
You may not use the Service nor accept this Agreement if you are not of legal age or capacity to form a binding contract. By accessing or using the Website you represent that you are of legal age, and have the authority, power and legal capacity to execute, deliver and perform your obligations under this Agreement. You cannot open an account if you are under the age of 18 years old. You must also be a legal resident or citizen of the United States.
You are responsible for safeguarding your password and other Profile information. You agree not to disclose your password to anyone, and to notify us immediately if you believe that your password is lost,stolen, or compromised or if you suspect any unauthorized access to or use of your Profile. As a User, you agree that you shall be solely responsible for any activities or actions through your Profile, whether or not you have authorized such activities or actions.
ALERTS, NOTIFICATIONS, AND SERVICE COMMUNICATIONS
By creating a User Account, you automatically sign up for various types of alerts via email and mobile notification. When logged in, you may customize, modify and, in some cases, deactivate alerts by adjusting your settings accordingly. By entering this Agreement, you agree and understand that including settings for mobile notification may cause you to incur fees from your mobile carrier.
We never include your password in these communications, but we may include your name, or email address and information about your portfolio(s) if you are a Client. Anyone with access to your email, mobile device, or wireless network will be able to view these alerts.
In order to use the services and features of the Website, you will have to create an account. You will be asked to use an email address and create a password (login details) in order to access your account. You agree that you are solely responsible for safeguarding your login details. You also agree that you are solely responsible for all activities that occur under your account or password and will immediately notify us of any unauthorized use of your account at the email address firstname.lastname@example.org.
By providing us with your email address, you agree to receive all required notices electronically, to that email address, or in the event of a joint account, to the primary account holder’s email address. Like your mailing address, it is your responsibility to keep your email address current. You agree that the information you provide to us upon registration and at all other times will be true, accurate, current and complete. You agree not to engage in behavior that will put personal information at unnecessary risk, such as transmitting or publishing your login details and password. We encourage you to periodically change your login password, and not use common or easily-guessed passwords.
You may unsubscribe from marketing-oriented emails at any time.
FOR A USER WHO IS NOT A CLIENT
You agree and understand that your use of the Website is for educational purposes only and is not intended to provide legal, tax, advisory or financial planning advice. You agree and understand that Users are responsible for their own investment research and investment decisions, and that the Website is only one of many tools available as part of a comprehensive investor education process. You further agree that you will not rely on the Website as the primary basis of your investment decisions and, except as otherwise provided for herein, Marstone will not be liable for decisions/actions you take based on information you receive as a User of the Website, or information you otherwise see on it.
D. Acting As Your Authorized Agent
When using the Account Aggregation feature on the Website , as described below, you may authorize Marstone to retrieve information maintained online by third-party financial institutions with which you have accounts or engage in financial transactions (“Outside Account Information”). Marstone works with an online financial service provider to access this Outside Account Information. Marstone does not, and will not, review or analyze your Outside Account Information for accuracy, legality, non-infringement, or impact on your Marstone portfolio(s). Marstone is not responsible for the products and services offered by or on third-party sites.
By using the Account Aggregation feature, you expressly authorize Marstone to act as your agent to access Outside Account Information you have identified. To facilitate this access, Marstone will use Outside Account Information usernames and passwords you provide to log you into their sites. You hereby authorize and permit Marstone to store and use the access information provided by you (such as account passwords and usernames) to accomplish the foregoing. For purposes of this Agreement and solely to provide you access to your Account Information as part of the Account Aggregation feature of the Service, you grant Marstone a limited power of attorney, and appoint Marstone as your attorney-in-fact and agent, to access third-party sites, retrieve and use your information, with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. The Website will not make any investment decision based upon Outside Account Information.
YOU ACKNOWLEDGE AND AGREE THAT WHEN THE WEBSITE IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD-PARTY SITES, YOUR ADVISOR OR SUBADVISOR IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS NOT SPONSORED OR ENDORSED BY ANY THIRD PARTIES ACCESSIBLE THROUGH THE SERVICE, UNLESS OTHERWISE INDICATED.
E. Acknowledgement of Risks; Disclaimers
You understand and acknowledge that the investment results you could obtain from investment information and financial insights provided through the Website cannot be guaranteed. All investments entail a risk of loss, based on a variety of factors independent from portfolio management, and you may lose money. Investment management services may be offered via the Website to individuals who become Clients, at the sole discretion of Marstone. Your election to engage our investment management services is subject to explicit enrollment and acceptance of the separate Client Agreement and fee schedule.
We do not guarantee the future performance of any portfolio generated by the Website. While we endeavor to make timely adjustment and rebalancing of your investments, we cannot not promise that any portfolio we recommend will be profitable: it may be volatile, and any investment made in reliance on a portfolio we provide may lose value. You understand that investment recommendations and/or decisions for the Service are subject to various markets, currency, regulatory, liquidity, pricing, economic, interest rate, political, business and other risks, and that those investment recommendations and/or decisions will not always be profitable.
Portfolios and investment recommendations are based on a multitude of factors and information. Though based primarily upon information you provide about your investment preferences, these factors include reliance on forecast information and certain forward-looking statements; others include historical and current information and market prices. A forecast is not a guarantee of the future performance of any particular investment. Past performance is not always an accurate predictor of the future, and reliance on historical and current data necessarily involves certain inherent limitations.
All content on the Website is presented only as of the date published or indicated, and may be superseded by subsequent market events or for other reasons. In addition, you are responsible for setting the cache settings on your browser to ensure you are receiving the most recent data.
Some of the funds and services described on the Website may not be appropriate in a workplace savings plan. Check with your employer for plan information on any investment restrictions associated with your ERISA investments, or nonqualified deferred compensation plan at work.
We will use our best efforts in rendering Services to you. You shall indemnify us and our subadvisors and their principals, partners, officers, directors, agents and employees against any losses, claims, or damages, including legal fees, which may be incurred by you as a result of our reliance upon inaccurate or untimely update of information provided by you. Except as may otherwise be provided by law, Marstone will not be liable to you for any loss that you may suffer by reason of any recommendation made or other action taken or omitted in good faith by us, or any loss arising from our adherence to your instructions. We shall not be responsible for any loss incurred by reason of any act or omission of you or any custodian, broker-dealer or other third party.
G. Service Providers, Links and Third-Party Websites
We provide links to and licenses services and tools for third-party providers. You acknowledge and agree that Marstone has no control over and is not responsible or liable for the accuracy, quality, legality, nature, availability, or reliability of such third-party websites or resources. Though we undertake considerable due diligence in the selection of its third-party resources, the Website provides these links and tools only as a convenience, and the inclusion of any link on the Website does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. You acknowledge sole responsibility for and assume all risk arising from your use of any such third-party website, information, material, products and services.
H. Copyright and Ownership
Marstone is the owner of or authorized licensee of all text, images, graphics, design, products, software, services, trademarks, logos and other content on the Website. These materials are protected by U.S. and international copyright, trademark and other laws. You may not remove, copy, reproduce, perform, create derivative works from, transmit, distribute, upload or exploit in any way these materials without our express written consent.
I. User Generated Information and Content
Prohibited uses: You agree that you will not publish, post, submit, transmit through or otherwise make available to Marstone.com: (i) any falsehoods or misrepresentations that could damage Marstone or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner.
Disclaimer: User Information and Content are not controlled, endorsed or guaranteed by us. We have no obligation to monitor such User Information and Content for any purpose and may publish or use such User Information and Content at its sole discretion.
J. Prohibited Uses of the Service
You agree that you will not:
- Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Website or any portion thereof, without express written consent, which may be withheld in our sole discretion;
- Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Website, other than the search engines and search agents available through Marstone.com and other than generally available third-party web browsers;
- Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interferes with the proper working of Marstone.com;
- Attempt to modify, adapt, sell, sublicense, decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of Marstone.com;
- Express or imply that we endorse any statements you make without our specific prior written consent;
- Use meta tags, hidden text or code or other devices containing any reference to the Website in order to direct any person to any other web site for any purpose;
- Upload, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
- Utilize framing techniques to enclose any part of the Website without prior express written permission;
- Harass, defame, abuse, threaten or violate the rights of other Users or collect or store personal data about other Users;
- Violate any applicable law, regulation, or ordinance; or
- Use the Website or content thereon in any manner not permitted by this Agreement.
K. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WITH RESPECT TO ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE WEBSITE:
YOUR USE OF THE SERVICE AND ALL INFORMATION, DATA, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MARSTONE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (v) WILL BE ERROR FREE OR ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND 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 ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MARSTONE THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES; ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
L. Limitation of Liability and Damages
IN NO EVENT SHALL ADVISOR OR SUBADVISOR, THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS OR AGENTS’ CUMULATIVE LIABILITY TO YOU EXCEED $100 USD.
IN NO EVENT SHALL THE ADVISOR OR SUBADVISOR, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR THE INABILITY TO USE THE MARSTONE WEBSITE, OR ANY OTHER INTERACTIONS WITH THE ADVISOR OR SUBADVISOR AND WHETHER OR NOT THE ADVISOR OR SUBADVISOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER THE DAMAGES ARE FORESEEABLE.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
M. Termination; Cancellation
This Agreement shall be valid until terminated by either you or us. Either party may terminate this Agreement at any time upon written notice and termination will be become effective upon receipt of such notice.
We may at any time in our sole and absolute discretion, terminate its legal agreement with you:
- If you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement);
- If Marstone in its sole discretion believes it is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); or
- If you no longer agree to the terms of this Agreement.
You may cancel your Investment Account at any time and for any reason. Please follow the directions below to cancel your Investment Account:
- Login to your Website account, Go to “Your Profile,” and Locate the “Delete Account” option.
- Send an email to email@example.com.
Upon termination, all prepaid, but unearned management fees will be refunded to you. Such termination will not affect the liabilities or obligations of the parties under the Agreement arising from transactions initiated prior to such termination, including the provisions regarding arbitration, which shall survive any termination. Upon termination of this Agreement, Marstone shall be under no obligation to recommend any action with regard to, or to liquidate, the securities or other investments in your Investment Account. Upon termination, it shall be your exclusive responsibility to issue appropriate disposition instructions in writing regarding any assets in your Investment Account.
N. Governing Law; Jurisdiction and Venue
This Agreement, and your relationship with Marstone under this Agreement, shall be governed in all respects by the laws of the State of Delaware as such laws are applied to agreements between parties in Delaware. Each of the parties hereto irrevocably submits to the personal jurisdiction of the courts of the State of Delaware and the United States District Court for the District of Delaware for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
BY BECOMING A PARTY TO THIS AGREEMENT, EACH PARTY IS AGREEING TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT FULLY AND FINALLY DECIDED BY NEUTRAL BINDING ARBITRATION, AND IS GIVING UP ANY RIGHTS HE OR SHE OR IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY BECOMING A PARTY TO THIS AGREEMENT, EACH PARTY IS GIVING UP HIS OR HER OR ITS JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT, IF ANY, THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. BY BECOMING A PARTY TO THIS AGREEMENT, EACH PARTY CONFIRMS THAT HIS OR HER OR ITS AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
P. Indemnification; Hold Harmless
Q. Tax Advisor
Marstone does not advise on any personal income tax requirements or issues. Use of any information from Marstone.com and other websites referred to is for general information only and does not represent personal tax advice either express or implied. You are encouraged to seek professional tax advice for personal income tax questions and assistance.
Severability: The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any and all other provisions hereof to the extent permitted by applicable law.
Waiver: The failure of a party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
Entire Agreement: This Agreement, including the Privacy and Security Policy and any other documents referred to herein, constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and thereof, and any and all other written or oral agreements relating to the subject matter hereof and thereof existing between the parties hereto are expressly canceled.
Survivability: All covenants, agreements, representations and warranties made in this Agreement shall survive your acceptance of this Agreement and the termination of this Agreement.
Assignment: We reserve the right to assign this Agreement or any rights hereunder without your consent. You will be notified of any such assignment. You have no right to assign the Agreement or your rights or obligations hereunder without our prior written consent.