FOR ELECTRONIC PRODUCTS AND SERVICES
IMPORTANT - READ CAREFULLY:
YOU HEREBY (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, LPL WILL NOT AND DOES NOT MAKE AVAILABLE THE ONLINE SERVICES TO YOU, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE ONLINE SERVICES.
Right to Access and Use the Online Services. Subject to and conditioned upon your compliance with all the terms and conditions set forth herein, LPL hereby grants to You a limited, revocable, non-transferable right to access and use the Online Services for your internal business purposes during the term and within the specific jurisdictions in which You are fully licensed to conduct business, in each case in accordance with the Representative Agreement between you and LPL.
2.1 Acceptable Use. You shall use the Online Services only in accordance with these Terms, in a manner consistent with applicable laws, all applicable professional and ethical standards and requirements, and otherwise in accordance with the rules, policies and procedures established by LPL for use of the Online Services. You are solely responsible for compliance with all legal and regulatory requirements with respect to your use of the Online Services. By using the Online Services, you hereby represent and warrant that all information provided to LPL in connection with the Online Services, including the information provided in the process of logging in to access and use the Online Services is true, accurate and complete.
2.2 Restrictions. You shall not and shall not permit any third party to sell, rent, lease, provide service bureau or timeshare services, transfer, transmit, distribute or otherwise make the Online Services or any component thereof or any data contained therein available to third parties. Notwithstanding the foregoing, to the extent expressly permitted by LPL in the Documentation and/or in any other applicable LPL policies and procedures made available to You, You may (i) provide copies of reports generated by using the report generation features/functions (if any) of the Online Services (“Reports”) to your customers and, at the request of any such customer, third parties, on the customer’s behalf; provided, however, that such copies of Reports shall be used and distributed only in furtherance of your internal business purposes and not for commercial sale or distribution to third parties and, in each case, in accordance with all applicable rules, regulations, and LPL’s policies and procedures applicable to the use and distribution of Reports; and (ii) provide read-only access to AccountView to third party advisors of your customers, as requested by your customer.
2.3 No Reverse Engineering; No Unauthorized Use. You shall not, and shall not permit any third party to access or use the Online Services in whole or in part for any purpose, except as expressly provided under these Terms. Without limiting the foregoing, You shall not and shall not permit any third party to (i) attempt to decompile, decode, disassemble, or otherwise reverse engineer the Online Services; (ii) attempt to gain unauthorized access to the Online Services or its related systems or networks; (iii) attempt to interfere with or disrupt the operation of the Online Services or its related systems or networks, including through, but not limited to, the use of methods such as viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming; (iv) copy, in whole or in part, the Online Services or any component thereof; (v) modify, enhance, create derivative works of, combine with other programs, or otherwise change the Online Services; (vi) screen scrape, screen surf or employ any other data scraping method; (vii) provide access to the Online Services by framing the Online Services in a domain not supported by LPL; or (viii) develop or have developed any product or service using or based on any component of the Online Services.
Further, You shall not, and shall not permit any third party to use any communication feature of any of the Online Services: (1) for any purpose that is unlawful, fraudulent, tortious, abusive, intrusive on another's privacy, harassing, libelous, defamatory, embarrassing, obscene, pornographic, threatening or hateful; (2) to transmit any material that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech, and any other material that degrades, intimidates, incites violence against, or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category; (3) in connection with unsolicited or harassing messages (commercial or otherwise), including unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes; (4) in any manner that materially violates industry standards, policies and applicable guidelines published by (a) the CTIA (Cellular Telecommunications Industry Association), (b) the Mobile Marketing Association, or (c) any other generally recognized industry associations; (5) to engage in any unsolicited advertising, marketing or other activities prohibited by applicable law or regulation covering anti-spam, data protection, or privacy legislation in any applicable jurisdiction, including, but not limited to anti-spam laws and regulations such as the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act; (6) to harvest or otherwise collect information about individuals, including email addresses or phone numbers, without their explicit consent or under false pretenses; (7) to transmit any material that infringes the intellectual property rights or other rights of third parties; or (8) to receive, send or otherwise process Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended.
2.4 Customer Data. As between You and LPL, You are solely responsible for the accuracy, completeness, quality, validity, authorization for use and integrity of any and all data and information, that is provided to LPL under this Agreement or input into the Online Services by You or on your behalf (collectively, “Customer Data”) regardless of form and format, and whether or not Customer Data is used in conjunction with the Online Services. You hereby represent and warrant that You have the right and authority necessary to provide or have provided the Customer Data to LPL as provided hereunder and that You will disclose or have disclosed to LPL on your behalf only such Customer Data as You are authorized to disclose or have disclosed to LPL. LPL is not responsible for loss of any Customer Data in transmission or improper transmission of any Customer Data by You or any third party on your behalf.
2.5 Security. Access to the Online Services is enabled only by username and password. You shall maintain your username and password in strict confidence. In no event shall you share your username or password with any third party or allow another person to access the Online Services using your username and password. You shall immediately notify LPL if you have any reason to believe that your username or password has been lost or compromised or misused in any way and you shall inform LPL of the steps being taken to terminate such unauthorized use or misuse. You are fully and solely responsible for any and all use or misuse of the Online Services using the username and password assigned to you. LPL reserves the right to revoke or deactivate your username and password if you violate the terms of the Agreement.
2.6 Review of Your Use of Online Services. You acknowledge that LPL may have certain supervisory and regulatory responsibilities with regards to the activities of the financial advisors to which LPL provides Online Services as well as to such financial advisor’s end customers. You hereby confirm and acknowledge that, and You will ensure that each of your end customers confirms and acknowledges that LPL may, in LPL’s sole discretion and to the extent permitted or required by applicable law: (a) access the Online Services and the Customer Data stored as a part of, or in connection with, the Online Services; and (b) retain backups of any Customer Data stored as a part of, or in connection with, the Online Services.
2.7 Additional Obligations. You are responsible for procuring, installing, and maintaining all computer hardware, software, communications interfaces and connectivity to the Online Services, applications, communications and office equipment necessary to access and use the Online Services, and for paying all associated charges.
2.8 Acknowledgment; Injunctive Relief. You hereby acknowledge that the provisions contained in this Section 2 are reasonable and necessary to protect LPL’s legitimate interests and You hereby agree that the remedies at law for violation of this Section 2 may be inadequate, that such violation may cause irreparable injury to LPL within a short period of time, and that LPL shall be entitled to preliminary injunctive relief and other injunctive relief against such violation without the necessity of proving actual damages.
Fees. In consideration of the right to access and use the Online Services granted to You hereunder, You hereby agree to pay the applicable charges as set forth and in accordance with your Subscription Agreement or as otherwise disclosed by LPL. If You fail to pay any applicable charges when due, LPL may, upon notice to You, suspend Your access and use of the Online Services until such payments are made in full.
Termination; Effect of Termination. LPL may immediately suspend or terminate its provision of the Online Services without notice or liability in whole or in part if You violate any of these Terms. Upon termination of the Online Services: (i) LPL will cease providing the Online Services and your access to and use of the Online Services shall terminate, and (ii) You will return to LPL all copies of LPL’s Confidential Information and any other LPL confidential documentation and technical information in your possession. Upon termination, LPL will make available to You, at your written request and expense, including LPL’s costs, an electronic file of the Customer Data within ninety (90) days of the date of termination. Notwithstanding termination of the Online Services, the following provisions shall survive and continue to apply: Section 2.3, Section 2.8, Section 3, this Section 4, Section 6, Section 7, Section 9, Section 10, and Section 11.
5.2 Changes to the Online Services. LPL reserves the right to alter, add or delete any part of the Online Services in whole or in part at any time without notice.
Reservation of Rights. As between You and LPL, title to, and ownership of the Online Services including all patents, copyrights and all other intellectual property rights applicable thereto and any derivative works, translations, customized versions, or other versions thereof, is and shall at all times remain solely and exclusively with LPL and its licensors, notwithstanding that You may contribute to the cost or design of such updates, translations, customized versions or other versions or derivative works. All rights not expressly granted to You herein are expressly reserved by LPL. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of LPL’s or its licensors’ existing or future rights in or to the Online Services. LPL trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by LPL and shall inure solely to the benefit of LPL. You will not, and will not permit any third party, to use the name, logo, trademark, trade name, or other marks of LPL or any of its affiliates directly or indirectly in any manner, including but not limited to any website, advertising or list of representative clients, without LPL’s prior written consent which consent may be withheld at LPL’s discretion.
Ownership of Customer Data. As between You and LPL, LPL has and shall retain sole and exclusive title and ownership of all Customer Data.
Confidentiality. In using the Online Services, You will have access to confidential information of LPL and its licensors and suppliers that may include, but is not limited to, software, technology, logic, techniques, formats, tools, designs, concepts, methods, processes, ideas, technical materials and information, and related documentation (“Confidential Information”). You hereby agree that: (i) all Confidential Information shall remain the property of LPL and its licensors and suppliers; (ii) You will use Confidential Information solely as reasonably necessary to perform your obligations under this Agreement and to use the Online Services as permitted hereunder; (iii) You will not otherwise use and/or disclose Confidential Information to any third party, and (iv) You will maintain and safeguard vigilantly the privacy and security of all Confidential Information, including in accordance with security measures and controls that may be required from time to time by LPL and its licensors and suppliers. Without limiting the foregoing, You hereby agree to undertake all necessary measures to ensure the privacy and security of all Confidential Information including without limitation: (a) not to access, use or disclose any Confidential Information that You have no legitimate authorization to access, use or disclose; (b) not to access the Online Services or any Confidential Information for any other individual or any third party; and (c) to restrict physical and system access to the equipment which contains Confidential Information or which gives access to the Online Services.
9.1 Your Warranties. You hereby represent and warrant that on a continuing basis throughout the Term: (i) You will comply with all applicable laws with respect to your access and use of the Online Services; and (ii) You have and will have the right and authority necessary to provide the Customer Data to LPL and grant the rights to LPL to use the Customer Data as set forth in this Agreement.
9.2 Disclaimer of Warranties. NEITHER LPL, ITS AFFILIATES, PARTNERS, SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES AND SUCCESSORS AND ASSIGNS, NOR ITS THIRD-PARTY DATA OR SERVICE PROVIDERS, LICENSORS, AND THEIR RESPECTIVE PARTNERS, SUPPLIERS AND AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AS TO THE PERFORMANCE OR RELIABILITY OF THE ONLINE SERVICES OR ANY DATA OR INFORMATION OBTAINED FROM THE ONLINE SERVICES OR WITH RESPECT TO YOUR USE OF THE ONLINE SERVICES OR SUCH DATA OR INFORMATION. YOU EXPRESSLY UNDERSTAND AND AGREE THAT USE OF THE ONLINE SERVICES OR ANY DATA OR INFORMATION OBTAINED FROM THE ONLINE SERVICES IS AT YOUR SOLE RISK. THE ONLINE SERVICES AND ANY DATA AND INFORMATION OBTAINED FROM THE ONLINE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND LPL DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO THE ONLINE SERVICES AND SUCH DATA AND INFORMATION WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, LPL DOES NOT WARRANT THAT THE ONLINE SERVICES WILL BE ERROR-FREE OR BE PROVIDED (OR BE AVAILABLE) WITHOUT INTERRUPTION OR MEET YOUR BUSINESS OR OPERATIONAL PURPOSES. YOU ARE SOLELY RESPONSIBLE FOR THE USE OF THE ONLINE SERVICES AND ANY OUTCOME OF SUCH USE AND FOR ANY ACTS OR OMISSIONS ASSOCIATED WITH DATA ENTRIES OR SUBMISSIONS MADE BY YOU. FURTHER, YOU ARE SOLELY RESPONSIBLE FOR PROTECTING THE SECURITY OF YOUR DATA AND PROGRAMS ON YOUR SYSTEMS AND FOR PERFORMING REGULAR INDUSTRY STANDARD BACKUPS OF YOUR DATA AND PROGRAMS.
9.3 Prohibited Locations. The Online Services are intended for use only in the United States and only in those specific states where LPL is registered notwithstanding that the Online Services may be accessible from anywhere in the world. You acknowledge that it is unlawful to cause LPL to provide services or facilitate transactions for You while You are located in a country or territory where LPL is not registered or where applicable U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC") prohibit U.S. persons from providing products or services (each, a "Prohibited Location"). You agree not to use the Online Services to request or obtain any product or service or to order or conduct any transaction at any time when You are located in a Prohibited Location. Without limiting any other right of LPL under these Terms, You agree that: (i) LPL shall have the right to reject, refuse, cancel, unwind, delay or postpone the provision of any product or service or transaction requested, obtained, ordered or conducted from a Prohibited Location; and (ii) LPL shall not be responsible for any resulting losses, costs, delays or other damages. You acknowledge that, depending on the circumstances, LPL may be required to block property in a transaction involving a Prohibited Location and/or report to the U.S. government any transaction rejected or any property blocked when the rejection or blocking relates to a Prohibited Location. You agree that LPL shall have the right to block property or to report the blocking of property or rejection of transactions to the U.S. government if it deems in its discretion that it is required to do so.
9.4 Third Party Data, Information, Services, Products, and Technology. The Online Services may allow access to data, information, services, products, and/or technology disseminated by third parties and You hereby acknowledge that LPL and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of such third party data, information, services, products, and/or technology and make no warranty concerning such data, information, services, products and/or technology. YOU USE SUCH THIRD PARTY DATA, INFORMATION, SERVICES, PRODUCTS, AND TECHNOLOGY AT YOUR OWN RISK.
9.5 Advice. LPL disclaims and You hereby acknowledge that LPL is not providing investment, tax, legal or other advice through or by providing the Online Services to You.
Limitations of Liability. THE MAXIMUM AGGREGATE LIABILITY OF LPL AND ITS SUPPLIERS AND LICENSORS TO YOU OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF SUCH CLAIM, SHALL BE $1,000.00. IN NO EVENT WILL LPL OR ITS SUPPLIERS AND LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF ANTICIPATED PROFITS OR BENEFITS ARISING OUT OF THE USE, RESULTS OF USE, OR INABILITY TO USE THE ONLINE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF LPL AND ITS SUPPLIERS AND LICENSORS HAVE BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
Indemnification. You shall indemnify, defend and hold LPL and its officers, directors, managers, members, shareholders, employees, licensors, service providers, suppliers, contractors and agents and their successors and assigns (the “LPL Indemnitees”) harmless from and against any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and expenses, expert witness fees and expenses and court costs, that arise out of your use of the Online Services or any portion thereof, or any information or data derived therefrom. LPL reserves the right at its own expense to assume exclusive defense and control of any matter otherwise subject to indemnification by You and in such case You agree to cooperate with LPL in the defense and/or settlement of such matter.
12.1 No Third Party Beneficiaries; Assignment. These Agreement is made and entered into for the sole protection and benefit of the parties hereto and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with these Terms. These Terms and the rights and obligations hereunder may not be assigned, delegated or otherwise transferred by You to any third party, by operation of law or otherwise, without the prior written consent of LPL.
12.2 Governing Law. The construction and performance of these Terms will be governed by the internal, substantive laws of the State of California without regard to its choice of law rules.
12.3 Arbitration. You and LPL mutually consent to the resolution by arbitration of all claims (common law or statutory) that LPL might have against You, or that You may have against LPL; its affiliated companies; the directors, employees or agents of either LPL or any affiliated company; and all successors and assigns of any of them. If the claim is arbitrable under Your Form U-4 and the Financial Industry Regulatory Authority’s (“FINRA”) Code of Arbitration Procedure for Industry Disputes (available at http://finra.complinet.com/, or from LPL upon Representative’s request), then arbitration will be conducted by, and pursuant to the rules and regulations of FINRA. If the claim is not arbitrable before FINRA under either Your Form U-4 or FINRA’s Code of Arbitration Procedure for Industry Disputes, then arbitration will be conducted by, and in accordance with, the rules and procedures of JAMS (which are available at https://www.jamsadr.com, or from LPL upon Your request). You and LPL waive the right to have a court or jury trial on any arbitrable claim. The Federal Arbitration Act shall govern this Agreement, or if for any reason the FAA does not apply, the arbitration law of the state in which You solicited the purchase of products and services offered through LPL. Notwithstanding any provision of FINRA or JAMS Rules, arbitration shall occur on an individual basis only, and a court of competent jurisdiction (and not an arbitrator) shall resolve any dispute about the formation, validity, or enforceability of any provision of this Agreement. You waive the right to initiate, participate in, or recover through, any class or collective action. To the maximum extent permitted by law, the arbitrator shall award the prevailing party its costs and reasonable attorney’s fees; provided, however, that the arbitrator at all times shall apply the law for the shifting of costs and fees that a court would apply to the claim(s) asserted. Nothing in this Agreement prevents You from filing or recovering pursuant to a complaint, charge, or other communication with any federal, state or local governmental or law enforcement agency, and nothing in this Agreement requires arbitration of any claim that under the law (after application of Federal Arbitration Act preemption principles) cannot be made subject to a predispute agreement to arbitrate claims. The parties’ mutual promises to arbitrate shall remain in effect notwithstanding the termination of this Agreement.
12.4 Injunctive Relief; Jury Trial Waiver. Notwithstanding the foregoing Section 12.3, nothing in these Terms shall prevent either party from applying for and obtaining from a court a temporary restraining order and/or other injunctive relief. Exclusive jurisdiction and venue for any such action is in the federal and state courts located in the State of California, and both parties hereby consent to such jurisdiction and venue for this purpose. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
12.5 Relationship of the Parties. Each party hereto shall remain an independent contractor and nothing herein shall be deemed to constitute the parties as partners, agents or joint ventures. Further, neither party shall have the authority to act, or attempt to act, or represent itself, directly or by implication, as an agent of the other or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the other, nor shall either be deemed the agent or employee of the other.
12.6 Notices and Communications. To the extent permitted by applicable law, all notices and communications may be sent to You through mail, overnight express delivery, or electronically, at LPL’s discretion. Such notices and communications may include, but are not limited to, communications related to the Online Services, this agreement, LPL’s platform and policies and procedures, and information promoting LPL’s products and services. Notices and communications will be sent to the postal or electronic address at such postal or E-Address as You may provide to LPL in accordance with LPL procedures. If sent electronically, LPL may, at its option, send notices and communications to You either to your E-Address, or by posting the information on the Online Services and sending a notice to your postal address or E-Address providing instructions for viewing. To the extent permitted by applicable law, notices and communications will be deemed delivered when sent, whether actually received or not, even if LPL has notice of non-delivery. Notices and communications posted to an online location by LPL will be deemed to be delivered to, and received by, You at the time that the notice or communication is posted online and available for review. All notices and communications to LPL must be provided in writing at LPL’s postal address and will not be effective until actually received.
12.7 Consent to Delivery Communications by Text (SMS) or Multimedia (MMS) Messaging. Communications may include text (SMS) or multimedia (MMS) messages, which may be informational or transactional in nature from or on behalf of LPL. By providing a telephone number to LPL, You hereby authorize LPL to send Communications to You by text (SMS) or multimedia (MMS) message.
12.8 General. These Terms constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof (and all past dealing or industry custom). Headings are for convenience of reference only and shall in no way affect interpretation of the Terms. The failure of a party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights. Unless expressly provided otherwise, each right and remedy in these Terms is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.