Advisor Terms and Conditions of Use
REGISTRATION, SECURITY & MONITORING
Morningstar has registered you to use the Morningstar Software as a Subscribed Advisor and provided you with a Username and Password (“Logon”). You agree to keep your Logon secure and confidential and to prevent unauthorised use of and access to the Morningstar Software. You are entirely responsible for all activities associated with or arising from any use of your Logon (regardless of whether you authorised such use). The Logon must be used only by you and cannot be transferred to another Advisor or any other person or third party. You must notify Morningstar immediately if you become aware of any unauthorised use of your Logon. Morningstar may (but has no obligation to) monitor usage of the Morningstar Software via your account (including but not limited to concurrent usage of your Logon) and may take any action it deems appropriate, including immediately terminating this Agreement.
If the Subscriber is trialling the Morningstar Software, the Subscriber’s Trial will begin on the date that Morningstar notifies the Subscriber of the Logon for the Subscriber’s Advisors. The Company, and the Subscriber’s Advisors, will have unlimited use of the Morningstar Software during the Trial. If the Subscriber is trialling the system on a commercial basis, at the end of the Trial, the Subscriber may be asked by email to subscribe. After the end of the Trial, Morningstar may terminate the Subscription without notice. If the Trial ends without an agreement to move to a commercial subscription, any data submitted by Subscriber or the Subscribed Advisors or Clients to the Morningstar Software during the Trial shall be destroyed, unless Morningstar is required to retain the data pursuant to the laws of Canada.
LICENSE, INTELLECTUAL PROPERTY RIGHTS, AND RESTRICTIONS
In respect of the Morningstar Software, Morningstar is the owner or licensee of:
- all copyrights, trade or service marks, designs, patents, trade, business or company names or other proprietary rights related to the Morningstar Software;
- any right to registration or application for registration of the rights referred to in paragraph (a); and
- algorithms, trade secrets, ideas, concepts, methods, know-how and techniques related to the Morningstar Software (collectively, “Morningstar’s Intellectual Property Rights”).
This Agreement only gives the you some rights to access and use the Morningstar Software. Morningstar reserves all other rights. You are granted a non-exclusive, non-transferable, non-assignable, terminable permission to access and use the Morningstar Software for the duration of the Trial or paid Subscription subject to the terms and conditions of this Agreement. The Morningstar Software may be accessed and used by you solely in connection with the Subscriber’s and/or your business, and the access is granted without the right to further sub-license or sub-contract. You are expressly prohibited from using the Morningstar Software in a ‘back-office’ environment for persons who are not Subscribed Advisors. You are expressly prohibited from using the Morningstar Software for more than 100 Clients for any particular Subscribed Advisor. You accept that in relation to your access to and use of the Morningstar Software:
- You will not seek to register any of Morningstar’s Intellectual Property Rights;
- You are only permitted to use the Morningstar Software for the purposes of providing financial advice to Clients as set out in this Agreement, and during the term of this Agreement;
- You will not exploit, sell, redistribute, lease, rent or sublicense access to or use of any of the SuitabilityPro Modules to any person;
- You will not copy, publish, modify, adapt or reproduce any part of the Morningstar Software, except insofar as such is for you or your Clients’ use in the management of your Clients’ financial affairs;
- You will only use the Morningstar Software only as described in the Documentation;
- If you use mappings and/or descriptors within the Morningstar Software you are responsibility to monitor whether there have been changes in the strategic asset allocations from those that applied when the mappings and descriptors were created, as these strategic asset allocations may be changed by the third party from time to time at their sole discretion;
- You will not make copies of any related Documentation, Reports or other outputs for any purpose unconnected to this Agreement;
- You will not reverse engineer, decompile, decode, decrypt or disassemble the whole or any part of the Morningstar Software or directly or indirectly allow or cause a third party to reverse engineer, decompile, decode, decrypt or disassemble the whole or any part of the Morningstar Software except to the extent otherwise authorized by applicable law;
- You will not do or omit to do, or authorize any third party to do or to omit to do, anything which could invalidate or be inconsistent with Morningstar’s Intellectual Property Rights or the Morningstar Software or this agreement;
- You will not commit any act or omission the likely result of which is that PlanPlus’s or the Morningstar Software’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Morningstar’s interests;
- You will promptly advise Morningstar if you become aware of any unauthorized use of the Morningstar Software or any infringement of Morningstar’s Intellectual Property Rights;
- You will not remove, alter or otherwise tamper with any trade-marks, trade names, logos, numbers or other means of identification on any aspects of the Morningstar Software which come into your possession, custody or control, and will not place any other trade mark or trade name on any aspects of Morningstar Software or on any packaging or other materials used in connection therewith without the express consent of Morningstar;
- You will promptly advise Morningstar of any complaint received by you regarding the Morningstar Software; and
- You will report to Morningstar all software errors or interruptions in the use of the Morningstar Software as soon as they come to your attention.
This Agreement does not limit any rights that Morningstar may have under trade secret, copyright, patent, trademark or other laws.
ACCESS TO THE MORNINGSTAR SOFTWARE
In order to use the Morningstar Software, you will require the necessary software, hardware and connection to the World Wide Web (WWW). The Subscriber is responsible for ensuring that you have the necessary software and hardware, and the associated WWW connections. Morningstar is not responsible for any problems caused your software or hardware, including any virus or related problems associated with their use of the Morningstar Software on your equipment. You are responsible for ensuring that you, during the continuance of this Agreement, maintain and use appropriate virus-protection software on your equipment used to access the Morningstar Software. Morningstar does not guarantee that Morningstar Software will always be available or be uninterrupted. Morningstar accepts no liability for any failure to comply with this Agreement. Morningstar has no control over your or your Client’s use of the Morningstar Software and accepts no liability for such use.
YOUR REPRESENTATIONS AND RESPONSIBILITIES
LINKED WEB SITES
The Websites may contain links to other web sites (“Linked Web Sites”). Morningstar is not responsible for the content or privacy practices associated with Linked Web Sites. Any links with Linked Web Sites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those Linked Web Sites, or of any information, graphics, materials, products or services referred to or contained on those Linked Web Sites, unless and to the extent stipulated to the contrary. Such Linked Web Sites are visited at the Subscriber’s or the Subscribed Advisor’s own risk.
MODIFICATION, SUSPENSION OR TERMINATION
Morningstar may make changes to the Morningstar Software without notification to Subscriber, Subscribed Advisors or Clients, except that if we are required by law to give the Subscriber and/or Subscribed Advisors’ or Clients prior notice of any change, the change will not take effect until the Subscriber and/or Subscribed Advisors and/or Clients have been notified. Morningstar may, in its sole and absolute discretion, suspend your access to the Morningstar Software, in whole or in part, until further notice, with immediate effect:
- to periodically maintain or improve the Websites or SuitabilityPro Modules;
- to comply with any order, instruction or request of any government, or other competent judicial, administrative, or regulatory authority; or
- if Morningstar believes that there has been an unauthorized access of the Morningstar Software or any infringement of Morningstar’s Intellectual Property Rights.
Morningstar will endeavour, where possible to provide you with reasonable notice of such suspension. Whilst Morningstar will use its best endeavours to minimise disruption to the Morningstar Software, unscheduled outages may occur from time to time. Morningstar may, in its sole and absolute discretion, immediately terminate this Agreement and the licence(s) and permission(s) to use the Morningstar Software granted herein, without notice or liability (including for any refund or credit to the Subscriber), if we determine, acting reasonably, that:
- you have breached any portion of or fails to comply with any obligations under this Agreement;
- you have made any representation to Morningstar that is inaccurate; or
- your use of the Morningstar Software violates any applicable law or regulation or otherwise inhibits any other Subscriber from using or accessing the Morningstar Software or Websites.
On termination of this Agreement for any reason, you must cease using the Morningstar Software. None of the foregoing limits any other legal, equitable, or contractual rights available to Morningstar.
DISCLAIMER AND LIMITATION OF LIABILITY
Morningstar does not warrant that the Morningstar Software is free from bugs, viruses, errors, or other program limitations and does not guarantee that the Morningstar Software will be available for your use at the times or locations of your choosing. EXCEPT AS SET OUT BELOW, THE PARTIES AGREE TO EXCLUDE ANY:
- CONDITION OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED INTO THIS AGREEMENT, RELATING IN ANY WAY TO THE MORNINGSTAR SOFTWARE (TO THE EXTENT PERMITTED BY LAW);
- LIABILITY FOR ANY LOSS OR DAMAGE, WHETHER IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, EVEN IF FORESEEABLE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT. IN PARTICULAR, MORNINGSTAR WILL NOT BE LIABLE TO THE SUBSCRIBER OR ANY SUBSCRIBED ADVISOR OR ANYONE ELSE (INCLUDING ANY CLIENT OF AN ADVISOR) FOR ANY:
- LOSS OF PROFITS, SALES, BUSINESS OR REVENUE
- BUSINESS INTERRUPTION
- LOSS OF ANTICIPATED SAVINGS
- LOSS DUE TO UNAVAILABILITY OF SYSTEMS
- LOSS OF DATA
- LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION
- ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE
ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, YOUR ACCESS TO OR USE OF (OR INABILLITY TO USE) THE MORNINGSTAR SOFTWARE, OR YOUR OR YOUR CLIENT’S RELIANCE ON THE INFORMATION AVAILABLE ON OR THROUGH THE MORNINGSTAR SOFTWARE. Nothing in this Agreement excludes or limits liability for death or personal injury arising from negligence, or fraud or fraudulent misrepresentation, or any other liability that cannot be lawfully excluded. Where any legislation implies any condition or warranty into your use of or any arrangement arising out of your access to or use of the Morningstar Software that legislation prohibits exclusion of that condition or warranty, then that condition or warranty is included to the extent that such condition or warranty cannot be lawfully excluded. TO THE EXTENT PERMITTED BY LAW, MORNINGSTAR’S LIABILITY FOR BREACH OF ANY EXPRESS PROVISION OF THIS AGREEMENT OR ANY NON-EXCLUDABLE CONDITION OR WARRANTY IS LIMITED TO THE RE-SUPPLY OF OUR SERVICES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL MORNINGSTAR’S AND/OR ITS REPRESENTATIVES TOTAL LIABILITY TO THE YOU, THE SUBSCRIBER, THE SUBSCRIBED ADVISORS AND/ OR TO A THIRD PARTY INCLUDING YOUR CLIENTS AND CLIENTS OF SUBSCRIBED ADVISORS FOR ANY AND ALL CLAIMS OR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER (INCLUDING NEGLIGENCE) EXCEED THE TOTAL AMOUNT PAID FOR THE SUBSCRIPTION FOR THE PREVIOUS 12 MONTHS BEFORE THE OCCURRENCE RESULTING IN THE CLAIM OR DAMAGE. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Morningstar and you. Morningstar would not be able to have provided this Agreement or access to the Morningstar Software without such limitations.
You agree to indemnify, defend, and hold harmless Morningstar and its subsidiaries, affiliates, officers, directors, employees, agents and contractors from any and all claims, liability, damages and/or costs (including without limitation legal fees) arising from your failure to comply with this Agreement, and from any unauthorized use of the Morningstar Software relating to or arising from you, or relating to or arising from, in any manner, any services or advice alleged to have been rendered or not rendered by you or on your behalf to any third party including Clients.
Details contained in this Agreement have been prepared in accordance with the laws of the Province of Ontario, Canada and may not satisfy the laws of any other country. It is your responsibility to determine whether the services provided by you as provided for under this Agreement are permitted under the laws of the jurisdiction where you reside. If such services are not permitted, you may not access and use the Morningstar Software and you agree to indemnify Morningstar and its subsidiaries, affiliates, officers, directors, employees, agents and contractors from any and all claims, liability, damages and/or costs (including without limitation legal fees) arising from any claim brought against Morningstar or its subsidiaries, affiliates, officers, directors, employees, agents and contractors relating to your use of the Morningstar Software and/or the Agreement being in breach of the applicable law. You acknowledge that despite all reasonable precautions on our part, there is a risk of unauthorised access to or alteration of your transmissions, or to data or information contained on your equipment or on the Websites. We do not accept responsibility or liability of any nature for any such losses that you may sustain as a result of such activity. Morningstar will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your software or hardware, data or other proprietary material due to your use of the Morningstar Software or to your downloading of any content on it, or on any website linked to it. You must not misuse the Morningstar Software by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the MorningstarSoftware, the server on which the Morningstar Software is stored or any server, equipment or database connected to our Morningstar Software. You must not attack the Morningstar Software via a denial-of-service attack or a distributed denial-of service attack. In the event of such a breach, your right to use the Morningstar Software will cease immediately.
Except as provided for herein, you acknowledge that this Agreement is a complete statement of the agreement between you and Morningstar regarding your access to and use of the Morningstar Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions regarding this Agreement. The representatives of Morningstar are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Morningstar, other than in writing signed by an officer of Morningstar. Accordingly, any such additional statements are not binding on Morningstar and you should not rely upon such statements. Morningstar may make changes to this Agreement, which will become effective on the next renewal of the Subscription by the Subscriber or acceptance by the Subscribed Advisor upon Logon. If you do not accept the changes, the only remedy is to not access to the Morningstar Software, which you must do by notifying Morningstar as well as the Subscriber. If any provision or part provision of this Agreement is invalid, unenforceable or illegal for any reason, then it shall be deemed modified to the minimum extent necessary to make it valid, enforceable and legal. If such modification is not possible, the relevant provision or part provision shall be deemed omitted and the remaining provisions will continue in full force and effect and the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible achieves the intended commercial result of the original provision. This Agreement is deemed entered into at Toronto, Province of Ontario, Canada and binding on you by you clicking “Accept” and shall be construed as to its fair meaning and not strictly for or against either party. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), is to be governed by and interpreted in accordance with the laws of of the Province of Ontario, Canada and the parties agree to submit to the exclusive jurisdiction of the Courts of Toronto, Ontario and/or the Federal Court of Canada sitting in Toronto, Ontario, Canada as regards any dispute or claim or matter arising under this Agreement or in connection with its subject matter or formation (including non-contractual disputes or claims). The parties irrevocably attorn to the jurisdiction of the Courts of Toronto, Ontario and the Federal Court of Canada. Notwithstanding this, in the event a Party wishes to seek injunctive relief with respect to any matter related to this Agreement either Party may seek such injunctive relief in a court of competent jurisdiction. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. You agree that this Agreement may not be construed adversely against us solely because we prepared it.
In the event your place of residence or registered domicile of business are in Australia or New Zealand, the laws of New South Wales, Australia and the courts of Sydney will exclusively apply and all the aforementioned rights contained in these Terms and Conditions shall be assigned to Morningstar Australia Pty Ltd.
“Advisor’s Planning Assumptions” are the assumptions selected by the Advisor to align the Morningstar Software to the Advisor’s professional judgement as set out in the Settings of the SuitabilityPro Modules. The Advisor’s Planning Assumptions include, but are not limited to, inputs for the Professional Judgement Matrix, the Advisor’s capital market assumptions (“Capital Market Assumptions”) and default solutions and investment policies (“Default Investment Policies”). “Documentation” means the training and technical resources at www.planplusglobal.com as set out under Support as amended from time-to-time. “Methodology” means Morningstar’s Intellectual Property used within the Morningstar Software and the processes for using the Morningstar Software as described in the Documentation. “Professional Judgement Matrix” means the process for using the Profiler as described in the Documentation in order to calculate the Suitability ScoreTM for a portfolio.
HOW TO CONTACT US
Notices and questions concerning the Agreement or the Subscribed Advisor’s use or access to the Morningstar Software, or any aspect of this Agreement including the Privacy Statement, may be directed to Morningstar by emailing us at firstname.lastname@example.org.