This agreement is between FundNET Systems Inc.
("FundNET")
217-116 Research Dr.
Saskatoon, Sk. S7N 3R3
And you, the user.
In this Agreement, "We", "us" and "our" refer to FundNET and "you" and "your" refer to the user.
The Advisor shall enter into this Agreement by clicking, "I Accept" below.
1. DEFINITIONS
In this Agreement, the following words will have the following meanings.
1.0 RepSuiteTM
FundNET's online Subscription Services for Advisors which include NetREP Online ReportingTM, RepMailTM E-Newsletter, AdvisorCareTM Surveys, AdvisorSiteTM Website and RepSyncTM Integration
1.1 NetREPTM Client Reporting
Advanced Custom Client Reporting Module that integrates with your Back Office System. NetREPTM Client Reporting allows you to provide clients with custom branded online portfolios which include Advisor commentary, custom headers, rep images and report coloring.
1.2 RepMailTM E-Newsletter
Online branded email newsletters which can be produced from either a library of content, with your own content or with content from product suppliers.
1.3 AdvisorCareTM Surveys
Online branded survey which allow advisors to survey clients and get back results on individual or aggregate basis.
1.4 AdvisorSiteTM Website
Online Advisor Website which allows for dynamic content publishing by representatives.
1.5 RepSyncTM Integration
Online data integration module which reports on online activity by individual clients or prospects to the advisor.
1.6 ComplianceLinkTM
Online Compliance tool which allows advisors to proactively manage advisor content prior to publishing.
1.7 Client Online Waiver
Online waiver form disclaiming liability clients must agree to prior to viewing online portfolio data.
1.8 Online Pricing Service
Prcing provider of mutual fund and seg fund information. Currently FUNData Canada.
1.9 FundNET Managed Content
Content listed below (but not exclusively limited to) provided by FundNET on behalf of the Advisor.
1.10 Weekly Editorial Module
The Editorial Module provides an investor editorial each week generated by our own in-house journalist or via industry standard from other industry communications providers that we may choose in the future. You can choose either to access and preview the report every day before it is posted on your website, or to have the report uploaded automatically.
1.11 Daily Market Report Module
The Daily Market Report Module provides a mutual fund report each business day. The report is currently generated by our own in-house journalist, although we may choose to obtain this report from another industry communications provider in the future. You can choose either to access and preview the report every day before it is posted on your website, or to have the report uploaded automatically.
1.13 Quick Poll Module
The e-Business Intelligence Quick Poll Module gives you the ability to know which of your clients have answered specific poll questions that have been posted on your website.
1.14 Financial Glossary Module
The Financial Glossary Module provides your clients with a list of mutual fund and insurance terms and definitions.
1.15 Fund Facts Module
Fund Facts Module is a collection of the most common client based questions about mutual funds presented in an easy to read and understand format.
1.16 Fund Objectives Module
The Fund Objectives Module is a database of mutual fund objectives based on information provided by the relevant fund companies.
1.17 Tax Tips Module
The Tax Tips Module provides timely tax information tips from various sources.
2. SERVICES & MODULES
Subject to the terms and conditions of this Agreement, we will provide you with the included services described in section 1. By utilizing the subscription, you agree to the following.
2.1 Client Data Accessibility
You agree that to provide certain aspects of the subscription agreement FundNET must access certainly data provided to us by your dealer. While FundNET utilizes network and security procedures which are recognized as best practices within the financial services industry, you however agree that the Internet is an inherently insecure environment and unless we breach financial services industry best practices with respect to security that specifically cause financial loss, we will not be held responsible or liable for losses or damages incurred. This includes but is not limited to data communicated through the Service if accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws which may exist in our or your systems.
2.2 Staff Access to FundNET
You agree that you are responsible for all access granted to your staff and their actions on your behalf. FundNET will not be held liable for the actions of Advisors or of Advisors Staff. You furthermore agree that should you wish to terminate access to any past or present staff member that you will do so immediately by requesting such addition or deletion with your Dealership Approved person.
2.3 Content & Modules
You agree that we can provide copies of your content to compliance officers employed by or under contract with Professional Investments. We or Professional Investments, may modify, remove or refuse to post content that you have provided if these compliance officers give us reason to do so or we feel that the content is unappropriate at our discretion.
You agree that you are solely responsible for any and all content published through the Service and agree not to hold FundNET liable for published materials.
You agree that FundNET has the right change modules included in this subscription service and this agreement at any time given written notice upon our discretion.
2.4 Appropriate Usage
You agree not to use FundNET's services in an unappropriate or unprofessional manner. You also agree that FundNET can and will monitor certain aspects of use behaviour and should FundNET feel you are utilizing it's services in an unappropriate manner that FundNET has the right to terminate your access to the service at its own discretion.
2.5 Client Passwords & Waiver
In order for your clients to view their online Client Reports, each client will need an ID and password and they will need to approve the Online Client Waiver. You will be responsible for providing the ID and password. You agree that you are responsible for all aspects of allowing access. You agree that you will do so in each case in a way that is reasonably designed to ensure that the appropriate ID and password are received only by the relevant client, and not by any third party.
For example, this means that:
you can provide this information over the telephone to a client whose voice you recognize, or
you can send this information to the client's home address in a letter addressed to the client
2.6 Correctness and Availability of Client Data
You agree that information published through the RepSuiteTM and it's modules are dependent on 3rd party sources which may for a variety of reasons not be either correct nor available. While every effort is made to ensure correctness and availabilty of data from outside sources, no guarantee can be made as to its availability or accurateness.
3. FUNDNET PROCESSES
3.1 Security
FundNET utilizes network and security procedures which are recognized as best practices within the financial services industry.
You however agree that the Internet is an inherently insecure environment and unless we breach financial services industry best practices with respect to security that specifically cause financial loss, we will not be held responsible or liable for losses or damages incurred if data stored or communicated through the Service is accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws which may exist in our or your systems.
3.2 Privacy and Client Data
FundNET will comply with all applicable legislation with respect to data, including privacy legislation. Electronic communications on this system are private, and only under situations where explicitly required or allowed by law will such communications be accessed, intercepted, disclosed, or used without the consent of at least one of the parties to the communication.
Although FundNET will not systematically monitor the content which is submitted to, stored on or distributed or disseminated via the Service, FundNET reserves the right, in its sole discretion, to view your data for the purposes of checking the system for purposes such as (but not exclusively) data integrtity, bug fixes. FundNET furthermore reserves the right to edit or delete any advisor-supplied content, regardless of whether it violates your wishes or preferences. FundNET agrees not to alter data supplied by your Back Office Asset Management package except if we are directed to do so by your dealer, in order to correct an error.
3.3 Content
You agree that we are not responsible for changes to content, updates, third party links or dated material provided by you or by FundNET.
3.4 Software Changes
You understand that from time to time we may make changes to the advanced RepSuiteTM software or module functionality without advanced notice. Similarly, we reserve the right to implement system wide enhancements to the RepSuiteTM without your prior consent.
3.5 Availability
We will make reasonable efforts to ensure that your content will be available for http access by third parties 99.9% of the time.
If your payments under this Agreement are in good standing and your Client Reports and content are not available 99.9% of the time in one calendar month, and you notify us within ten (10) business days of the end of the month, we will credit your account as described below unless the Client Reports or content were unavailable as a result of:
a. Regularly scheduled maintenance between midnight and 2:30 a.m. Canadian Central Standard Time;
b. Your behavior, or the performance or failure of your equipment, facilities, local Internet service provider problems or applications; or
c. Circumstances beyond our reasonable control, including without limitation:
Circumstances which require us to take the system down to investigate possible hacker activity or to complete a critical update to software, including without limitation updates urgently required to:
Deal with viruses;
Acts of any government body;
War;
Insurrection;
Sabotage;
Embargo;
Fire;
Flood;
Strike or other labor disturbance;
Interruption of or delay in transportation;
Unavailability or interruption or delay in telecommunications or third party service including DNS propagation;
Failure of third party software or hardware; or
Inability to obtain raw materials, supplies or power used in, or equipment needed for, provision of your content or Client Reports.
To notify us of a service interruption, you must send an email within ten (10) business days of the affected month to
support@fundnet.ca containing your website domain and the dates and times of the unavailability of your content or client reporting tools.
The credit will be calculated based on availability of the content as measured 24 hours a day in one calendar month. It will be applied to the following month's service fee as follows:
Availability Credit as a percentage of affected month's service fee
90% to 99.8% 10% credit
80% to 89.9% 25% credit
70% to 79.9% 35% credit
50% to 69.9% 65% credit
below 50% 100% credit
In no case will the credit ever exceed the monthly service charge for the affected month.
3.6 Accuracy
Neither FundNET, nor any of its employees, agents or the like, warrant that the Services offered or provided under this Agreement will be error free. We will not be liable for errors resulting from factors beyond our control or errors in content that you provide or to which you link.
4. YOUR USE OF OUR SERVICE
4.1 Intellectual Property
You warrant that no information that you have submitted or will submit to, store with or distribute via our Service infringes copyright or any other intellectual property right. You grant us the right to reproduce, copy, use and distribute any materials submitted to, stored on or distributed via the Service to the extent that it assists in operating the Service. You will not use, nor permit the any person under your control to use, the Service or any part thereof, including any hyperlinks, in violation of any applicable Copyright laws.
4.2 Securities Law
You agree to use the service in a manner that is compliant with all applicable securities legislation and regulations.
5. OUR LIABILITY
5.1 Limited Liability
Neither FundNET, its officers, agents nor anyone else involved in creating, producing or distributing the Service under this Agreement will be liable to you or your clients:
for any loss or damages that result, or are alleged to have resulted, from the use of or inability to use the Service or from mistakes, omissions, interruptions, deletion of files, loss of data, errors, defects, delays in operations, or transmission or any failure of performance, communications failure, theft, destruction or unauthorized access to FundNET's records, programs or services unless a court finds that we have been negligent; or for any indirect, incidental, special, or consequential, or punitive damages, except where a court finds we have been grossly negligent.
6. INDEMNIFICATION
6.1 Indemnification of FundNET by the Advisor
You agree to indemnify and hold us harmless from and against any and all third-party claims against us and resulting liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) of whatever nature or kind arising out of or in connection with:
the misuse of the Services by you or by any person under your control; or
the breach of this Agreement by you.
Your obligation to indemnify us will survive the expiry or termination of this Agreement by either party for any reason. You will pay for the defense of any such third party action described under this section unless you and we mutually agree that we will pay for the defense.
6.2 Indemnification of the Advisor by FundNET
We agree to indemnify and hold you harmless from and against any and all third-party claims against you and resulting liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) of whatever nature or kind arising out of or in connection with negligence or gross negligence as described in section 7, as applicable.
Our obligation to indemnify you will survive the expiry or termination of this Agreement by either party for any reason. We will pay for the defence of any such third party action described under this section unless you and we mutually agree that you will pay for the defence.
6.3 Dispute Resolution
Disputes arising under this Agreement are to be resolved, first, by discussion between the Parties, which may include the assistance of a third party mediator agreed to by the Parties. In the case of a dispute which has not been resolved within thirty (30) days of one Party notifying the other Party, either Party may serve notice on the other, requiring the matter to be referred to arbitration. In the event that the Parties are unable to agree upon the selection of a sole arbitrator or panel of arbitrators or any other matter with respect to the form of the arbitration, the Parties agree to arbitration in accordance with The Arbitration Act (Saskatchewan). Any final award rendered in such arbitration shall be final and binding upon both Parties. Judgment upon the award of the arbitrator(s) may be entered and enforced in any court having jurisdiction thereof. Discussions and proceedings to resolve disputes shall be held at a location mutually agreed upon by the Parties.
Limitation of Warranties and Liability
FundNET warrants that the FundNET Software, the Subscription Services and their Related Documentation, are the property of FundNET and/or its licensors.
FundNET warrants that the Subscription Services shall, at the time of activation for the representative, be capable of performing the functions described in their Related Documentation, but are otherwise accepted by the advisor "as is". FundNET's sole liability under this warranty shall be to modify or correct the FundNET if it does not match the form and functionality described in its Related Documentation.
FundNET warrants that the Subscription Services do not, at the time of activation for Professional Investments, infringe any valid U.S. or Canadian copyright. FundNET agrees to defend any and all actions and suits alleging any such infringement that may be brought against Professional Investments and its Affiliates, and their officers, directors, shareholders, employees, Advisors, Clients, Authorized Users or Licensed Users ("Indemnified Persons") during the Term and any Renewal Term of this Agreement, and to defend, indemnify and hold harmless such Indemnified Persons for any and all damages and costs finally awarded against the Indemnified Persons in such actions or suits on account of such infringement, provided that:
i) FundNET shall have prompt notice of the commencement of any such action or suit and shall have carriage of same;
ii) Professional Investments and, where applicable, those for whom Professional Investments is in law responsible, shall cooperate fully with FundNET in defense of the action;
iii) the action does not arise out of the use of the FundNET Software or Subscription Services for purposes for which it was not authorized or designed or the use of the Subscription Services in combination with software or other products not supplied or authorized by FundNET.
FundNET may, instead of defending such action or suit, procure for Professional Investments the right to continue the use of the Subscription Services or replace or modify the FundNET Software so that it becomes non-infringing; provided, however, that this does not relieve FundNET of the obligation to pay any and all damages and costs awarded against Indemnified Persons in such actions or suits on account of such infringement.
THE WARRANTIES AND LIMITATIONS SET FORTH IN THIS CONTRACT CONSTITUTE THE ONLY WARRANTIES OF FUNDNET. THEY ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE INDEMNITY SET OUT IN PARAGRAPH 14 (c) ABOVE WITH RESPECT TO COPYRIGHT INFRINGEMENT, THE REMEDIES OF PROFESSIONAL INVESTMENTS SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES, INCLUDING, WITHOUT LIMITATION, EXCLUSION OF INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. NO AGREEMENTS VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR LIMITATIONS WILL BE BINDING ON FUNDNET UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF FUNDNET. FUNDNET'S TOTAL LIABILITY UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT FOR DAMAGES WHETHER IN CONTRACT OR IN TORT, OR ITS LIABILITY TO PROVIDE INDEMNIFICATION, SHALL NOT EXCEED THE SUBSCRIPTION FEES PAID BY PROFESSIONAL INVESTMENTS PURSUANT TO THIS AGREEMENT.
7. TERMINATION
This agreement may be terminated
a. by either party, without cause, by giving the other party 30 days prior written notice;
b. by either party, at any time, upon 20 days prior notice if in the reasonable judgment of that party, the other party has breached any material provision of this Agreement and has not cured same by the end of the 20 days;
c. by FundNET in the event of non-payment by you as provided in Section 3 above;
d. by FundNET, at any time, without notice, if:
(i) you are under any form of investigation by securities commissions, insurance regulators, any law enforcement agency or any financial institution for which you are or have been an agent (including your mutual fund or securities dealer), or
(ii) your right to sell financial products for any financial institution has been terminated for cause;
e. by the Advisor, immediately upon giving notice to FundNET if your content has been unavailable for 10 consecutive days for any reason, including reasons outside of FundNET's control.
8. CONFLICT
If at any time while this Agreement is in effect, it is impossible for you or us to comply with both our obligations under this Agreement and under any applicable law, the law will apply rather than the relevant obligations under this Agreement.
9. NOTICE
All notices must be sent either in writing or by e-mail, unless this Agreement expressly provides that a notice must be in writing. All notices to FundNET shall be delivered to FundNET Systems Inc.., 217-116 Research Dr., Saskatoon, SK. S7N 3R3. All notices to you shall be delivered to your mailing address and/or e-mail address as provided above. The parties may change their respective address by notice delivered to the other party. All notices delivered in writing must be sent either by overnight courier or certified mail, return receipt requested. Evidence of successful transmission of all notices delivered by e-mail must be retained by the delivering party.
10. MISCELLANEOUS
This Agreement sets forth the entire agreement between FundNET and the Advisor with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the parties. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect. The
Advisor may not transfer or assign this Agreement without FundNET's prior written consent. The relevant federal laws of Canada and the laws of the province of Saskatchewan shall govern this Agreement. |
