Terms of Service
2. Acceptance. By using one or more aspects of the Service, you hereby agree to the Terms. You accept these terms by either (a) clicking to “agree” or to “accept” the Terms when opening a user account or logging onto your user account to access the Services, or by (b) using the Services. You may not use the Services or accept the Terms if (a) you are younger than 18 or you are not of legal age to form a binding contract with OnPointe, or (b) you are a person barred from receiving the Services under any applicable laws or regulations. OnPointe reserves the right to amend these Terms at any time by posting the amended terms to its web site or otherwise providing you notice of the amended Terms. Your continued use of the Services constitutes acceptance of such amended terms. If you do not agree with these Terms (as amended from time to time), your sole and exclusive remedy is to discontinue using the Services.
3. Not Investment Advice. The Services are for informational purposes only and do not constitute investment advice or an investment recommendation offered by OnPointe. OnPointe is not registered with the Securities and Exchange Commission as an investment advisor or a broker-dealer. You agree and acknowledge that OnPointe, its employees and its agents, are not financial advisors, financial planners or broker-dealers, and each cannot advise you or your clients through the Services or otherwise. You acknowledge that OnPointe and/or its affiliates may earn revenue from third parties based on your use of the Services.
You agree and acknowledge that OnPointe makes no representation as to the suitability of the Services for any purpose, and OnPointe will not be held liable in any way for any consequences or damages that may arise through your use of the Services. You agree and acknowledge that OnPointe may modify the Services from time to time.
You certify that you are a licensed investment advisor, a licensed insurance agent or a qualified administrator employed by a licensed entity or individual licensed to sell or offer securities or insurance products under applicable law. You agree and acknowledge that if you choose to make any investment decisions for your clients in reliance on information you receive from the Services, you do so at your own risk and based on your own independent judgment. You acknowledge and agree that OnPointe is not representing itself as a broker-dealer or financial or investment advisor, and that OnPointe does not independently evaluate the suitability of or recommend any investments for you or your clients. You agree and acknowledge that the information provided in the Services will not be construed as an offer to sell, an offer to buy, or a recommendation for or against any security by OnPointe or any third party. OnPointe will not be responsible for any trading decisions, damages or other losses resulting from your use of the Services. You agree that you will be responsible for effecting underlying investment transactions for all accounts under your management and supervision.
You acknowledge that you are the fiduciary advisor and maintain responsibility for your client accounts, and as a technology service provider, OnPointe cannot be a fiduciary or be responsible for ensuring trade execution is effective.
4. Third Party Asset Managers. The Services may provide access to data, analytics, research, portfolio models, products and/or the calculation of potential securities trades you may or may not choose to place with the custodians and/or broker-dealers who you utilize to manage your client assets. The third party asset managers, strategists or research firms who you access via the Services (the “Third Party Asset Managers”) are not personalizing the materials they provide through the Services, are not making investment recommendations to you, and are not acting as investment advisers or fiduciaries to your clients. You hereby agree and acknowledge that you are the sole investment adviser and/or fiduciary for your clients. 5. Client Monitoring. You agree that OnPointe and the Third Party Asset Managers are not responsible for collecting or reviewing any information about your clients, or determining whether any investment strategy or security is or continues to be appropriate for the client’s objectives or restrictions. Neither OnPointe or the aforementioned third parties are responsible for verifying client identities or compliance with anti-money laundering rules and regulations administered by the US Treasury Department’s Office of Foreign Assets Control. You agree that you, as the sole licensed investment adviser and/or fiduciary to the investor, are solely responsible for performing the foregoing duties.
7. Data Security. OnPointe agrees to take appropriate security measures to protect against unauthorized access to or unauthorized alteration, disclosure or destruction of data. These include internal reviews of our data collection, storage and processing practices and security measures, including appropriate encryption and physical security measures. Regardless of the precautions taken by us we cannot ensure or warrant the security of any information you transmit to us, and you transmit such information at your own risk.
We restrict access to personal information to only the OnPointe employees, contractors and agents who need to know that information in order to process it on our behalf. These individuals are bound by confidentiality obligations and may be subject to discipline, including termination and criminal prosecution, if they fail to meet these obligations.
8. Intellectual Property Rights. The Services are protected by a combination of copyright, trade secret laws and patent protection. Portions of the Services contain information and data from third party providers, subject to their own copyright provisions. You acknowledge and agree that OnPointe and our third-party licensors retain ownership of all intellectual property rights of any kind related to the Services, including applicable copyrights, trademarks and other proprietary rights. We are not granting any license to you under any of those intellectual property rights by virtue of your use of the Services, except for the limited right to use the Services in accordance with the Terms. Other product and company names that are mentioned in the Services or provided as part of the Services may be trademarks of their respective owners. The content contained in the Services is owned by or licensed to OnPointe. This includes, without limitation, the text, software, scripts, graphics, photos, video, sounds,
interactive features and the trademarks, service marks and logos contained therein. Any content or information provided by OnPointe through the Services is provided to you “AS IS” for informational purposes only and may not be used, copied, reproduced, modified, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes. We reserve all rights not expressly granted in and to the Services. You agree not to copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof.
9. Confidentiality. Subject to your duty to comply with applicable laws, including the demand of any applicable regulatory or taxing authority, OnPointe hereby agrees to keep confidential all information concerning the financial affairs and matters of you, your advisors and their clients, and will not reproduce or distribute the same to any party at any time, except for the purposes of this Agreement, without you prior written consent. You hereby agree to keep confidential all information concerning the financial affairs and matters of OnPointe, including research, development, products, software, source code, trade secrets, forms, procedures or business affairs and will not disclose, reproduce or distribute the same to any party at any time. Both you and OnPointe may comply with a valid and lawful legal process or government order to disclose information, but will immediately notify the other party of their compliance with that order, to the extent permitted by law. All terms of any agreement entered into between you and OnPointe are considered confidential and will not be disclosed by either you or OnPointe. Upon termination, both OnPointe and Customer agree to maintain the confidentiality of all confidential information received from the other party under this Agreement.
10. Use of the Services. You acknowledge that each OnPointe user account is designed, intended and licensed for use by a single named user only. You must use your personal email address for authentication and compliance purposes. You are responsible for maintaining the confidentiality of your account login information and are fully responsible for all activities that occur under your user account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your account or any other breach of security. OnPointe cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. If you become aware of any unauthorized use of your password or of your user account, you agree to notify OnPointe immediately at firstname.lastname@example.org
You agree to provide accurate and correct information about your identity, your firm, and your status as a licensed investment advisor, licensed insurance agent or qualified administrator of a licensed investment advisor or licensed insurance agent. You agree to use the Services only for purposes that are permitted by (a) the Terms, and (b) any applicable laws or regulations. You agree not to access any of the Services by any means other than the interface provided by OnPointe. You specifically agree not to use automated means (including the use of scripts or web crawlers) to access the Services. You agree not to engage in any activity that interferes with or disrupts the Services, or the servers and networks connected to the Services. You may not use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Services. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose, or use the outputs of the Services in general mailings, mass communications or advertisements without the express written consent of OnPointe.
11. Fair Use Policy. You agree that the Services are subject to a fair use policy, which is detailed below. If we provide notice of non-compliant usage, and you refuse to correct your compliance, OnPointe reserves the right to charge up to twelve (12) months in arrears for the actual fair usage of the Services, and to adjust your billing for the remainder of your contract term to reflect your actual fair usage of the Services at the time of notice.
The Fair Use Policy is as follows: OnPointe user accounts may not be shared between multiple individuals, or used by one individual to produce the outputs of the services en masse for multiple advisors. OnPointe user accounts licensed only for administrative assistants may not be used by individuals holding a securities license who meet with clients and/or provide advice. For example, if you present the individual as an advisor or representative of your firm on your web site, they do not qualify for an administrative assistant license. OnPointe reserves the right to determine which named individuals may qualify, to change that determination if their role with your firm changes, and to limit the number of administrative assistant licenses available to you.
12. License to Use Marketing Resources. Subject to your continued status as a paying customer in good standing, OnPointe hereby grants you a limited, non-exclusive, non-transferrable license to utilize its logo and brand images, marketing copy, content resources, white papers, print collateral, slide decks and other marketing resources (the “Marketing Resources”) provided to you, for the sole purpose of promoting your advisory and/or insurance firm’s use of the Services in your marketing communications directed at acquiring and/or retaining clients. You agree to utilize the Marketing Resources in accordance with any Brand Image Guidelines provided to you by OnPointe. You agree to cease and desist from the use of the Marketing Resources if (a) you terminate your OnPointe account and are no longer a paying customer, or (b) OnPointe requests in writing that you do so for any reason.
13. Billing, Payment and Term of Contract. The Services are licensed to you under a contract that you enter into with OnPointe at the time of your subscription. The terms of your contract are encapsulated in an order form that we email to the “account owner” at the time of purchase. If you did not receive or cannot find a copy of your order form, simply request one by sending an email to email@example.com
Any additional user licenses, add-ons or other services added during the course of your contract will be committed for the remainder of your current contract term, unless otherwise noted on an Order Form for the additional licenses, add-ons or services. All fees are non-refundable once billed. If you believe you have been billed in error, please email firstname.lastname@example.org and we will be glad to assist.
14. Ending your Relationship with OnPointe. In order to provide notice of non-renewal and terminate the Services, you must provide written notice to OnPointe via electronic mail at email@example.com or via postal mail to the address which is set out at the beginning of these Terms. Termination is deemed effective when you receive a message from the OnPointe Billing Team that your cancellation has been processed.
Once OnPointe has processed your cancellation, your access to and payment for the Services
will continue for the remainder of your contract term. If there is no deadline for notice of non-renewal specified on your order form, such notice of non-renewal must be received by OnPointe thirty (30) days in advance of your next billing date.
OnPointe may, at any time, terminate your account and refuse access to the Services with you if (a) you have breached any provision of the Terms (or have acted in manner which shows that you do not intend to, or are unable to comply with the provisions of the Terms); (b) OnPointe is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (c) you are no longer a licensed investment advisor, licensed insurance agent or qualified administrator of a licensed investment advisor or licensed insurance agent; (d) OnPointe is transitioning to or no longer providing the Services to users in the jurisdiction in which you are resident or from which you use the Services; (e) the provision of the Services to you by OnPointe is, in OnPointe’s sole discretion, no longer commercially viable; (f) your communication with OnPointe employees is abusive or threatening, in OnPointe’s sole discretion; or (g) you do not pay the amounts due for the Services according to the Terms.
Upon termination, all of the legal rights, obligations and liabilities that you and OnPointe have benefited from, been subject to (or which have accrued over time while the Terms have been in force) or which are expressed to continue indefinitely, will be unaffected by this termination, including the provisions of the “General Legal Terms” and “Conflict of Laws” sections below.
15. DISCLAIMER OF WARRANTIES. SUBJECT TO APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS.
IN PARTICULAR, ONPOINTE, ITS OFFICERS AND DIRECTORS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (a) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (b) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS FREE OR FREE FROM ERROR, (c) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (d) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THATRESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ONPOINTE OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
ONPOINTE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.
16. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ONPOINTE, ITS OFFICERS AND DIRECTORS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS WILL NOT BE LIABLE TO YOU FOR: ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS WILL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF YOUR OR ONPOINTE’S ACTIONS; ANY CHANGES WHICH ONPOINTE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;YOUR FAILURE TO PROVIDE ONPOINTE WITH ACCURATE ACCOUNT INFORMATION; ALL OF THE LIMITATIONS ON ONPOINTE’S LIABILITY TO YOU WILL APPLY WHETHER OR NOT ONPOINTE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE TOTAL LIABILITY OF ONPOINTE, ITS OFFICERS OR DIRECTORS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED FIFTY UNITED STATES DOLLARS ($50.00).
17. Indemnification You agree to defend, indemnify and hold harmless OnPointe, its officers and directors, its affiliates or subsidiaries, their sponsors, contractors, advertisers, vendors or their partners, and any of their successors or assigns, and any of their respective officers, directors, agents or employees (the “Released Parties”) from any loss, damages, liabilities, costs, expenses, including reasonable attorney fees, claims and proceedings arising out of or relating to: (a) your or your Advisor’s use of the Services; and (b) any alleged breach of the Terms by you.
18. General Legal Terms. The Terms, combined with your order form, constitute the whole legal agreement between you and OnPointe and govern your use of the Services, and completely replace any prior agreements between you and OnPointe in relation to the Services. If you have entered into an Enterprise Customer Agreement or a Master Services Agreement with OnPointe, it is agreed that those terms may supersede these Terms of Service if they clearly state that is the case. You agree that if OnPointe does not exercise or enforce any legal right or remedy which is contained in the Terms (or which OnPointe has the benefit of under any
applicable law), this will not be taken to be a formal waiver of OnPointe’s rights and that those rights or remedies will still be available to OnPointe. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
The Terms, and your relationship with OnPointe under the Terms, will be governed by the laws of the State of California without regard to its conflict of law provisions. You agree that any dispute regarding the interpretation or enforcement of the terms will be decided by confidential, final and binding arbitration conducted by a mutually agreed to arbitrator located within the County of Berrien, State of Michigan, United States of America. The filing fees and arbitrator’s fees and costs in such arbitration will be borne by the non-prevailing party. The parties will be entitled to reasonable discovery of essential matters as determined by the arbitrator. In the arbitration, the parties will be entitled to all remedies that would have been available if the matter were litigated in a court of law. Notwithstanding this, you agree that OnPointe will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
OnPointe may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of OnPointe, and any such attempted assignment will be void and unenforceable.
Last Modified October 24, 2018