SUBSCRIPTION AGREEMENT AND USER LICENSE
IMPORTANT! MORNINGSTAR RESEARCH, INC ("MORNINGSTAR") WILL ONLY LICENSE THE WWW.MORNINGSTARADVISOR.CA WEB SITE AND ANY ADVISOR WORKSTATION MODULE TO THE BELOW-DEFINED SUBSCRIBER AND/OR LICENSEE AND THOSE INDIVIDUALS ACCESSING OR USING THIS PRODUCT THROUGH OR ON BEHALF OF THAT SUBSCRIBER AND/OR LICENSEE (THE SUBSCRIBER AND EACH SUCH INDIVIDUAL, AN "AUTHORIZED USER") TO ACCESS AND USE THE PRODUCT, THE AUTHORIZED USER MUST AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT AND USER LICENSE ("AGREEMENT") BY CLICKING ON THE <<I ACCEPT THESE TERMS>> RADIO BUTTON BELOW. IF THE AUTHORIZED USER DOES NOT WISH TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT, HE OR SHE MAY CLICK ON THE <<I DO NOT ACCEPT THESE TERMS>> RADIO BUTTON BELOW BUT WILL THEN BE PREVENTED FROM ACCESSING OR USING THE PRODUCT.
IF AUTHORIZED USER DOES NOT UNDERSTAND OR AGREE WITH ANY OF THESE PROVISIONS AND HAS NOT REGISTERED FOR THE PRODUCT, HE OR SHE MAY RETURN THE UNREGISTERED PRODUCT TO MORNINGSTAR (OR THE PROVIDER OF THE PRODUCT, E.G., THE SUBSCRIBER). IF THE UNREGISTERED PRODUCT IS RETURNED TO MORNINGSTAR WITHIN THIRTY DAYS, MORNINGSTAR WILL CREDIT SUBSCRIBER IN FULL FOR ANY UNACCRUED SUBSCRIPTION FEES PAID BY SUBSCRIBER FOR THE THEN-CURRENT SUBSCRIPTION TERM, LESS A $25.00 CANCELLATION FEE.
THIS AGREEMENT SHALL SUPERSEDE ANY PREVIOUS AGREEMENT BETWEEN MORNINGSTAR, ON THE ONE HAND, AND SUBSCRIBER/AUTHORIZED USERS, ON THE OTHER HAND, WITH RESPECT TO THE PRODUCT.
IF (1) MORNINGSTAR IS A PARTY TO A SEPARATE LICENSE AGREEMENT ("SEPARATE AGREEMENT") WITH ONE OR MORE ENTITIES (SINGLY OR COLLECTIVELY, "LICENSEE") THROUGH WHICH MORNINGSTAR AGREES TO MAKE THE PRODUCT AVAILABLE TO AUTHORIZED USERS OF THAT LICENSEE AND (2) THAT SEPARATE AGREEMENT PROVIDES ONE OR MORE AUTHORIZED USERS WITH USAGE RIGHTS THAT ARE DIFFERENT FROM, OR ADDITIONAL TO, THOSE SET FORTH HEREIN, THEN THE TERMS OF THE SEPARATE AGREEMENT WILL CONTROL WITH RESPECT TO THOSE DIFFERENT/ADDITIONAL USAGE RIGHTS (BUT ONLY AS TO THE SPECIFIC NUMBER OF DESIGNATED AUTHORIZED USERS TO WHOM LICENSEE IS ENTITLED TO MAKE SUCH RIGHTS AVAILABLE UNDER THE SEPARATE AGREEMENT AND ONLY TO THE EXTENT THAT THE TERMS OF THE SEPARATE AGREEMENT AND THIS AGREEMENT ACTUALLY CONFLICT).
IN CONSIDERATION OF THE FOREGOING AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HEREBY AGREE, AS FOLLOWS:
1. The Product Licensed. The term "Product" shall mean the web site, computer programs, data, analyses, screens, manuals and other information of any kind that are contained within the below-defined Package, as well as all updates, enhancements and modifications thereto, and all intellectual property contained therein; Without limiting the generality of the foregoing, the term Product shall include: (i) a database of data and analyses, and updates thereto, provided by Morningstar by means of a subscription paid for by the Subscriber and made available to Users pursuant to this Agreement (the "Database"); (ii) the format and organization of information entered by a user of the Product, and the integration of such information with the Database (the "User-Entered Information"); (iii) the computer programs and associated documentation that provide a graphical user interface and system to store, process, retrieve and output information contained in either or both the Database and the User- Entered Information and to download and access the Product (the web site and computer programs); (iv) the format and organization of information output by the Product; and (v) reports, spreadsheets, graphs, charts, documents and other materials, whether in printed, electronic or any other form, that contain copies of all or part of the Database or User-Entered Information, together with any works derived from such materials ("Product Output").
The term "Package" means the following, as applicable: (i) the www.MorningstarAdvisor.ca web site, (ii) specifically chosen modules, and (iii) where modules shall mean any or all of the following modules: Morningstar Portfolio Module and/or Morningstar Research module and/or Morningstar Hypothetical Illustrations module and/or Portfolio Builder module and/or Retirement Income Strategist and/or Retirement Income Education Centre and/or any additional modules Morningstar creates as part of the Advisor Workstation offering.
2. Subscriber. The term "Subscriber" shall mean the person, whether an individual or entity, who is responsible for subscribing to, and paying for, the license to use the Product hereunder.
3. Authorized User. The term "Authorized User" shall mean an individual for whom Subscriber or Licensee, as applicable, purchases a user license hereunder. Only the (i) Subscriber (if an individual) and/or (ii) a partner, employee or agent of the Subscriber and/or (iii) a partner, employee or agent of Licensee qualifies as an Authorized User hereunder.
4. Authorized Business Partner. The term "Authorized Business Partner" shall mean an entity that Morningstar permits to access or otherwise use the Product for the purpose of integrating certain of its products and services with the Product. User is responsible for verifying with Morningstar if a particular entity is an Authorized Business Partner prior to using the Product in conjunction with that entity's products or services.
5. User. The term "User" shall mean, generally, any person who accesses or otherwise uses the Product hereunder, including, but not limited to, the Subscriber, any Authorized User and/or any other third party.
6. Grant of License. Subject to the terms and conditions of this Agreement, Morningstar grants the following limited nonexclusive, nontransferable rights and licenses:
6.1 The product may only be used by one (1) person per license, namely the individual user who has acquired the license from Morningstar or an authorized representative of any corporation who has acquired the license (the "license"). The license to use the Product may not be transferred. The Licensee may: Use the product for purpose of serving the internal business needs of the User; to demonstrate the Product to clients or potential clients for business promotion or presentation purposes. (ii) redistribute, but not promote client specific generated reports, data, output for the Users individual financial gain as specified in
6.2 License Limitations: The Product, any portion thereof and any Intellectual Property may be used by Subscriber/Licensee only for the purpose and only in the manner specifically set forth in Section 1 of this License Agreement. Any use of the Product or the Intellectual Property in a manner or for a purpose other than that specifically authorized hereunder is a material breach of the Agreement. Except as otherwise explicitly permitted herein, Licensee may not: (i) alter, modify or create derivative works of the Product or the Intellectual Property; (ii) combine, compile, mix, bundle or integrate the Product or the Intellectual Property with the products of the Licensee or any other entities; (iii) sublicense, lease, share, publish, transmit, transfer, sell, reproduce, distribute, display, or in any way exploit: (1) the Product or the Intellectual Property; (2) any alterations, modifications or derivative works of the Product or the Intellectual Property; or (3) any combinations, compilations, mixes, bundles or integrations of the Product or the Intellectual Property with any other products or intellectual property; (iv) operate a timeshare, service bureau or application service provider environment providing access to the Product or the Intellectual Property; (v) where the Product or the Intellectual Property is provided to the Licensee in a web-based environment, permit any other third party to have access to the Product or the Intellectual Property; (vi) create or distribute a data feed or other similar service using the Product or the Intellectual Property or any portion thereof; (vii) use or actively market the Product or the Intellectual Property outside of Canada or its territories; (viii) distribute the Product or the Intellectual Property or any portion thereof to any of the "Direct Competitors"; or (ix) reverse engineer, decompile or otherwise attempt to discover the source code to any software included as part of the Product or the Intellectual Property.
6.3 Internal Use by Authorized User. Except as set forth herein, only an Authorized User may use the Programs and Database to generate Product Output and then, only for the internal business use of Subscriber. An Authorized User may copy and distribute such Product Output, for Subscriber's internal business use, to any other Authorized User, and to an aggregate (regardless of the number of Product licenses purchased) of no more than 25 partners, employees or agents of Subscriber or Licensee, as the case may be, who work within the same organization as the Authorized User making and distributing such copies. Except as permitted pursuant to Section 6.4, in no event shall Product Output (i) be copied or distributed to any person other than an Authorized User (and such 25 partners, employees or agents), or (ii) be used for the benefit of any third-party.
6.4 Authorized Users' Use with Clients. An Authorized User may use the Software to input User-Entered Information solely for: (1) individuals who have established financial accounts for their own benefit, or who have expressed interest in establishing financial accounts for their own benefit, with Subscriber, and for whom Subscriber manages, advises or services, or intends to manage, advise or service, such financial accounts; and/or (2) an individual (but no more than one individual per trust) who serves as the trustee of a trust, who has established a financial account for the benefit of such trust, or who has expressed an interest in establishing a financial account for the benefit of such trust, with Subscriber, and for whom Subscriber manages, advises or services, or intends to manage, advise or service, such financial account (each individual described by the foregoing (1) and (2) a "Client").
An Authorized User may use the Programs and User-Entered Information to generate Product Output for the limited purpose of rendering investment recommendations in connection with a particular Client's investment portfolio or potential future investments, and such Product Output may be distributed to such Client, subject to the following conditions: (i) the Product Output is provided in connection with, and relates to, independent investment advice provided by such Authorized User that is not derived from the Product; (ii) the quantity and value of such independent investment advice predominates over the quantity and value of the Product Output distributed to such Client; (iii) the Product Output distributed to such Client relates directly to specific investments, goals, needs or interests of such Client; (iv) no Product Output or any portion thereof is used as part of a general mailing or other distribution to more than one Client, and no substantially identical Product Output or any portion thereof is distributed to multiple Clients; and (v) in no event shall the aggregate Product Output distributed to such Client consist of more than an insubstantial portion of the Database. Authorized User agrees that the distribution of any Product Output that does not meet all of the conditions set forth above in subsections (i) - (v) will require the express prior written consent of Morningstar, and the payment of additional fees or royalties to be determined in Morningstar's sole discretion according to Morningstar's then current rates for reprints and/or data licensing. Any Product Output that is copied or distributed and that does not contain a similar disclosure statement must contain the following statement, in legible type:
© 2010 Morningstar Research, Inc. All Rights Reserved. The information, data, analyses and opinions contained herein (1) include the confidential and proprietary information of Morningstar Research ("Morningstar"), its affiliates or their third party content providers, (2) may not be copied or redistributed, (3) do not constitute investment advice offered by Morningstar, (4) are provided solely for informational purposes and (5) are not warranted to be correct, complete or timely. Except to the extent otherwise specifically required by law, neither Morningstar nor its affiliates nor their third party content providers shall be responsible for any trading decisions, damages or other losses resulting from, or related to, this information, data, analyses or opinions or their use. Past performance is no guarantee of future results.
6.5 Export of Data from Database. If the Software (without the use of any third party product, function, module or procedure (e.g., "cut and paste") other than those furnished by an Authorized Business Partner) provides a capability to export data from the Database to a standard, commercially-available, third-party spreadsheet program, an Authorized User may use such capability to export data from the Database to that spreadsheet program, and may use such exported data in conjunction with the spreadsheet program, only under the following conditions: (i) any file, transmission, writing, spreadsheet, graph, report, chart or other document or material, containing such exported data or any part thereof, or derived from such exported data or any part thereof, shall be deemed Product Output under this Agreement, and copying and distributing of such Product Output shall be subject to Article 6 hereof;(ii) such exported data shall be limited to information needed by an Authorized User to render investment recommendations in connection with a particular Client's investment portfolio or potential future investments, and only for Clients that have existing financial accounts with Subscriber; and (iii) in order to provide such recommendations to such Client, an Authorized User requires use of a function of the spreadsheet program that is not available in the Product and the exported data is limited to data necessary to use such function. For clarity, except for use within a standard, commercially-available, third-party spreadsheet program as outlined herein, in no event shall any User export data from the Database, or link to the Database, for use in a third party software program, application or database or for use in any proprietary Subscriber software, application or database. Except as specifically provided in this Section 6.5 or as otherwise set forth in a separate addendum or amendment to this Agreement, if any, User shall have no right to export any Data from the Database without Morningstar's prior written consent.
7. Responsibility for Users. Subscriber shall be fully responsible for the compliance of all Users with the terms of this Agreement and any other separate agreement relating to the Product to which those Users are a party. In addition to anything else set forth herein, each Authorized User shall be fully responsible for his or her own use of the Product hereunder and that of any other Users accessing the Product through that Authorized User. Authorized User shall indemnify and defend Morningstar from any cost, expenses or damages arising as a result of a breach of this Agreement by such Authorized User or by any User accessing or using the Product through, or on behalf of, such Authorized User.
8. Payment. In exchange for the rights granted hereunder, Subscriber shall pay to Morningstar the subscription fees in the amount specified in the applicable Morningstar order form, whether submitted by e-mail, direct mail or via phone order, (each a "Subscription Form"), as accepted by Morningstar. Any subscription fee or other payment due hereunder shall be payable in advance of Product receipt, or as otherwise agreed to in writing by Morningstar. Fees and other payments not received within 30 days of their due date will be subject to interest charges for all overdue amounts at the lesser of (i) 1.1715% per month or (ii) . Morningstar may also suspend delivery or access to the Product if any fees and other payments are not received. In the event that Licensee is paying the applicable subscription fees on behalf of its Authorized Users, all payment terms as between Morningstar and Licensee will be set forth in the Separate Agreement.
9. Term. The initial Subscription Term of this Agreement shall commence on the delivery by Morningstar of the Product to Subscriber or its Authorized Users, as applicable, and end on the date reflected on the Subscription Form accepted by Morningstar.
10. Ownership. User acknowledges and agrees that: (i) the Product, including, without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, "Proprietary Information"), is owned by Morningstar, its affiliates and/or its third party content providers ("Content Providers"), as applicable; (ii) the Product shall be treated as any other copyrighted material and is protected by Canadian Copyright Law and International Treaty provisions; (iii) the Proprietary Information contains valuable copyrighted and proprietary material of Morningstar; (iv) the Proprietary Information is licensed, rather than sold, to User; and (v) User has no rights in the Proprietary Information, other than the rights and licenses granted to User pursuant to this Agreement. Morningstar may disclose additional information to Authorized User in the form of upgrades, documentation or other support during the Subscription Term. User agrees that such information shall also be deemed Proprietary Information.
11.Trademarks. User acknowledges that Morningstar has acquired, and is the owner of, trademark rights in the names and word marks ADVISORWORKSTATION, MORNINGSTARADVISOR.COM,RETIREMENT INCOME STRATEGIST, PORTFOLIO BUILDER, MORNINGSTAR, MORNINGSTAR RATINGand the MORNINGSTAR STYLE BOX and in the design marks, MORNINGSTAR, MORNINGSTAR RATING AND DESIGN AND MORNINGSTAR STYLE BOX AND DESIGN. User shall not make use of any of these marks or otherwise reference the Morningstar name or any derivation thereof, except as Morningstar may specifically authorized hereunder, in the Subscriber License or in a separate writing. User acknowledges that these names and marks are famous and internationally known. User shall not, at any time or for any reason, challenge the validity of, or Morningstar's ownership of, the foregoing names and marks, and User waives any rights User may have at any time to do so. All marks not owned by Morningstar are the property of their respective owners.
12. Restrictions on Use. Except as otherwise expressly set forth in this Agreement or in any addendum or amendment hereto, no User may: (i) use, copy, modify, merge, install, transfer or distribute the Product or Product Output; (ii) export any data or information, whether with or without the use of any third party product, function, module or procedure except Authorized Business Partner Software, or operating system function such as "cut and paste," from the Database to any other application, file, product, module or procedure; (iii) reverse-engineer, decompile, translate, disassemble or separate the components of the Product; (iv) sublicense, rent, sell or lease the Product or any part thereof; (v) use any program, procedure, device or method other than the Software to access, use, reproduce or process the Database, Product Output or User-Entered Information or any part thereof; (vi) use the Product or any part thereof for third-party training, commercial time-sharing or service bureau use. Notwithstanding anything to the contrary in this Agreement, no User shall distribute any Product Output as part of a general distribution or for advertising or promotional purposes; (vii) encourage or facilitate any other User's breach of the terms of its Subscription Agreement and User License; (viii) permit use of the Product by a person other than an Authorized User; (viii) use the same password and user name combination by more than one Authorized User.
13. Disclaimer of Warranty. THE PRODUCT IS PROVIDED "AS IS" WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH USER. IF THE PRODUCT IS DELIVERED OVER THE INTERNET, AUTHORIZED USER ACKNOWLEDGES FOR ITSELF AND ALL USERS ACCESSING THE PRODUCT THROUGH IT THAT THE PRODUCT MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT ANY INFORMATION TRANSMITTED OVER THE INTERNET (INCLUDING, BUT NOT LIMITED TO, THE PRODUCT OUTPUT AND THE USER-ENTERED INFORMATION) MAY BE SUBJECT TO THIRD PARTY INTERCEPTION AND MODIFICATION. MORNINGSTAR DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. NEITHER MORNINGSTAR NOR ITS CONTENT PROVIDERS WARRANT THE ACCURACY, CORRECTNESS, COMPLETENESS, OR TIMELINESS OF THE PRODUCT. NEITHER MORNINGSTAR NOR ITS CONTENT PROVIDERS SHALL BE RESPONSIBLE FOR INVESTMENT DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE PRODUCT OR THE INFORMATION CONTAINED THEREIN. PAST PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS. MORNINGSTAR SHALL NOT BE CONSIDERED AN "EXPERT" UNDER THE U.S. SECURITIES ACT OF 1933 OR ANY SIMILAR LAW IN ANY OTHER JURISDICTION. ANY RESEARCH PROVIDED SHOULD NOT BE CONSTRUED AS A SOLICITATION, ENDORSEMENT OR RECOMMENDATION TO BUY OR SELL A SECURITY. THE INFORMATION CONTAINED IN THE PRODUCT SHOULD NOT BE CONSTRUED AS INVESTMENT ADVICE OR ANY OTHER TYPE OF ADVICE. IT IS FOR YOUR INFORMATION AND EDUCATION ONLY. MORNINGSTAR DOES NOT WARRANT THAT THIS PRODUCT COMPLIES WITH THE SECURITIES LAWS OF ANY JURISDICTION OR WITH THE REQUIREMENTS OF ANY SELF-REGULATED EXCHANGE OR AGENCY.
14. Additional Representations, Warranties and Covenants.
14.1 AUTHORIZED USER: EACH AUTHORIZED USER WHO MANIFESTS HIS OR HER ASSENT TO THE PROVISIONS OF THIS AGREEMENT REPRESENTS, WARRANTS AND COVENANTS THAT HE OR SHE IS COMPLETELY AND UNCONDITIONALLY AUTHORIZED TO ENTER INTO THIS AGREEMENT, THAT HE OR SHE IS BOUND BY ALL OF ITS TERMS AND THAT HE OR SHE IS RESPONSIBLE FOR THE USE OF THE PRODUCT BY ANY OTHER PERSON (EACH, A "USER") WHO ACCESSES OR USES IT ON THE MACHINE OR SYSTEM ON WHICH IT WAS INSTALLED BY, OR ON BEHALF OF, THAT AUTHORIZED USER.
14.2 SUBSCRIBER: SUBSCRIBER REPRESENTS, WARRANTS AND COVENANTS THAT EACH AUTHORIZED USER WHO HAS MANIFESTED HIS OR HER ASSENT TO THE PROVISIONS OF THIS AGREEMENT IS AUTHORIZED BY SUBSCRIBER TO ACCESS AND USE THE PRODUCT AND THAT SUBSCRIBER IS RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ALL USERS (INCLUDING, BUT NOT LIMITED TO, ITSELF AND ALL AUTHORIZED USERS) UNDER THIS AGREEMENT.
15. Limitation of Liability. Each User is solely responsible for (i) its use of the Product, and (ii) any damages to itself, any other User, any Client and/or any other third parties arising from the Product. Morningstar will not be liable for: (i) loss of, or damage to, records or information of any User, any Client or any other third party; or (ii) any damages suffered or claimed by it, any other User or any Client based on any third party claim.
REGARDLESS OF THE BASIS ON WHICH ANY USER (INCLUDING SUBSCRIBER, ANY AUTHORIZED USERS OR ANY THIRD PARTIES MAKING USE OF THE PRODUCT HEREUNDER), CLIENT OR OTHER PARTY MAY BE ENTITLED TO RECOVER DAMAGES FROM MORNINGSTAR (INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, CONTRACT OR FIDUCIARY DUTY; FRAUD, NEGLIGENCE, MISREPRESENTATION OR OTHER TORT; OR INDEMNITY), MORNINGSTAR'S LIABILITY WILL BE LIMITED TO ACTUAL DIRECT DAMAGES (INCLUDING UNDER SECTION 14 HEREOF) THAT CAN BE PROVEN UP TO AN AMOUNT NOT TO EXCEED THE GREATER OF $25,000 AND THE AGGREGATE OF SUBSCRIPTION FEES ACTUALLY PAID BY SUBSCRIBER IN CONNECTION WITH THIS AGREEMENT. FURTHERMORE, THE PARTY SUFFERING SUCH DAMAGES OR LOSSES MUST FIRST EXHAUST ANY AVAILABLE LEGAL AND EQUITABLE REMEDIES AGAINST PARTIES OTHER THAN MORNINGSTAR. MORNINGSTAR SHALL IN NO EVENT BE LIABLE TO ANY USER (INCLUDING THE SUBSCRIBER, ANY AUTHORIZED USER OR OTHER THIRD PARTIES MAKING USE OF THE PRODUCT HEREUNDER), ANY CLIENT OR OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, SAVINGS, REVENUES, BUSINESS OPPORTUNITIES OR BUSINESS ADVANTAGES) WHATSOEVER, EVEN IF MORNINGSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Termination. Morningstar may terminate this Agreement immediately if the applicable Separate Agreement is terminated for any reason, or if any User breaches or fails to materially comply with any of the terms or conditions of this Agreement
17. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all of Subscriber's rights in and to the Product, as well as the rights of all Users accessing the Product through Subscriber or Licensee, as applicable, shall immediately terminate and all Users shall immediately cease any use of the Product. Termination shall not affect Subscriber's obligation to pay all fees and royalties due prior to termination, and termination shall not relieve any User of any liability for breach of this Agreement. The terms of Sections 7, 8, 10, 11, 13, 14, 15, 17, 18, 20, 21, 22, 23 25 and 27 shall survive expiration or termination of this Agreement.
18. Confidentiality. Except as expressly provided in this Agreement, Authorized User shall keep secret and confidential and shall not disclose, provide or otherwise make available to any person the Proprietary Information and shall cause each User accessing or using the Proprietary Information through, or on behalf of that Authorized User to do the same. Authorized User (i) shall use its best efforts, and shall employ reasonable security measures, to prevent any unauthorized disclosure of the Proprietary Information and (ii) shall immediately advise Morningstar of any information it has or receives of any actual or potential unauthorized disclosure or access. Authorized User acknowledges (for itself and each User accessing the Product through, or on behalf of it) that the Product is only being disclosed to Authorized User based on a confidential relationship established under this Agreement. Authorized User further acknowledges for itself and any User accessing the Product through, or on behalf of it, that such information is to be used only as expressly permitted hereunder, and that the restrictions of this Agreement are necessary to protect the secrecy of the information and to protect against the occurrence of irreparable injury or harm to Morningstar.
Morningstar acknowledges that in the course of performing its obligations under this Agreement, Morningstar may become privy to information which Subscriber considers confidential and proprietary to its business or Clients, including, but not limited to, information concerning the identities of Clients and other related data, internal controls, computer or data processing programs, business or financial affairs or methods of operations, accounts, transactions, proposed transactions, security procedures, trade secrets, know-how or inventions of Subscriber, its Authorized Users or Clients ("Subscriber Confidential Information"); provided, however, that Subscriber Confidential Information shall not include any information that is (i) already in the public domain at the time of disclosure; (ii) communicated to Morningstar by a third party not subject to any confidentiality obligations with respect to the Subscriber Confidentiality Information; (iii) derived independently by Morningstar; (iv) excepted from this provision by the written permission of an authorized representative of Subscriber; or (v) required to be disclosed pursuant to a valid subpoena or other order of a court or government agency of competent jurisdiction. Morningstar will use commercially reasonable measures, but in no event measures that are any less protective than those Morningstar uses to protect its own confidential and proprietary information, to ensure that the Subscriber Confidential Information is not disclosed to any third party.
19. Compliance with Regulations. Morningstar expressly disclaims any representations or warranties that any Product Output complies with the regulations of the NASD or other similar organization. User is solely responsible for obtaining any appropriate regulatory approval of any Product Output or its use to the extent necessary. Morningstar shall have no liability with respect to any claim that the Product or any Product Output fails to comply with such regulations.
20. Audit. At any time during the term of this Agreement, Morningstar may, but no more than once per calendar quarter: (i) request written certification of the identities of any Clients who received any Product Output and (ii) upon prior notice, audit the records regarding the foregoing and to inspect all computers on which the Product was installed, to verify compliance with this Agreement. In addition, Morningstar may continually monitor the number of Subscriber installations, with the sole purpose of validating that the number of users is in accordance with the Subscription Agreement and User License set forth herein.
21. Inadequacy of Legal Remedy. Authorized User acknowledges for itself and each User accessing the Product, through, or on behalf of it, that Morningstar's legal remedies (including the payment of damages) are not sufficient in the event of any breach by User of any provisions of this Agreement regarding the ownership, use, copying, distribution, confidentiality or nondisclosure of the Product, Product Output or other Proprietary Information, and that Morningstar would suffer continuing and irreparable injury to its business as a direct result of such breach. Therefore, in the event of any such breach, Authorized User for itself and each User accessing the Product through, or on behalf of it consents to entry of any injunctive relief necessary to prevent or cure such breach (including temporary and preliminary relief, and relief by order of specific performance), without posting of bond or other security or proof of irreparable harm.
22. Place for all Disputes. All disputes arising out of this Agreement or the performance thereof shall be determined exclusively under the laws of the Province of Ontario, without regard to its conflict-of-law provisions. In the event of any legal proceedings arising out of this Agreement or the performance thereof, Authorized User agrees and consents for itself and each User accessing the Product through, or on behalf of it to the exercise of personal jurisdiction over User by any court of law or equity located in Toronto, Ontario, Canada. User shall not initiate any legal proceeding arising out of this Agreement or the performance thereof in any jurisdiction other than in the courts located in Toronto, Ontario.
At Morningstar's option, disputes between Authorized User and Morningstar arising out of this Agreement or the performance thereof, including all claims for non-performance by Morningstar, shall be finally settled by arbitration in Toronto, Ontario under the Rules of the Canadian Arbitration Association, which rules with respect to matters not regulated by them shall incorporate the UNCITRAL arbitration rules. Such arbitration shall be conducted by one or more arbitrators appointed in accordance with such rules applying this Agreement and consistent provisions of the internal laws (except conflict of law rules) of the Province of Ontario, Canada.
23. Information Processing. User understands and agrees that information related to User's access and/or use of the Product, including, but not limited to, any personally identifiable information stored on or input into the Product, will be transferred to the U.S. for storage and/or processing. Any such information may be subject to scrutiny pursuant to U.S. law, including, but not limited to, the Patriot Act."
24. Entire Agreement; Variation. This Agreement, along with any written addenda or amendments, sets forth the entire agreement between the parties with respect to the subject matter hereof. Except as expressly provided herein, no amendment of, or modification to, this Agreement be shall be effective unless in writing and signed by a duly authorized representative of each of the parties hereto; provided, however, that Morningstar reserves the right to alter the Product or the address at which it may be accessed. No Morningstar reseller, agent or employee is authorized to make any amendment to, or modification of, this Agreement.
25. Assignment. This Agreement shall not be assigned without the prior written consent of Morningstar, which shall not be unreasonably withheld. Morningstar may assign this Agreement or any of its rights or obligations hereunder without the consent of any one.
26. Third-Party Beneficiaries. There are no intended third party beneficiaries of this Agreement (including Clients). Subscriber represents that it will be responsible for the acts or omissions of its Authorized Users and Clients that would be a breach of this Agreement if the same were done by Subscriber.
27. Severability. If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provisions shall be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of this Agreement shall not be affected thereby.
28. Discrepancies between the French and English Version. In case of discrepancies between the English version and the French version of this agreement, the English version will prevail. En cas de divergences entre la version anglaise et la version française du présent accord, la version anglaise prévaudra.
29. Additional Product Features
29.1 Links. The MorningstarAdvisor Web Site may contain information, products, and services provided by third parties and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to Users. Morningstar does not review or control this information or these products, services, or other web sites, and Morningstar does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Product does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Morningstar with respect to any third party or its web site or content, or any information, products, or services provided by that third party.
29.2 Stock Quotes. Stock quotes contained within the Product are supplied by S&P ComStock. NASDAQ stock quotes are delayed for at least 15 minutes and all other forms of stock quote are delayed at least 20 minutes. Stock quotes are believed to be accurate and timely, but neither Morningstar nor its Content Providers warrant or guarantee such accuracy or timeliness.
Should User have any questions concerning this Agreement or the Product, User may contact Morningstar by writing to: Morningstar Research, Inc., 1 Toronto Street, Suite 500, PO Box 26, Toronto, Ontario, M5C 2W4, Attn: Advisor Workstation Licensing.
© 2010 Morningstar, Research All Rights Reserved.
