PLEASE CAREFULLY REVIEW THIS AGREEMENT. THIS AGREEMENT GOVERNS THE TERMS BY WHICH YOU MAY USE OR ACCESS THIS WEBSITE OR ANY RELATED PRINTED OR ELECTRONIC DOCUMENTATION RELATING THERETO (TOGETHER, THE “CONTENT”). BY BROWSING TO, SIGNING INTO AND/OR OTHERWISE ACCESSING THE CONTENT YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT IS BETWEEN YOU (“YOU” OR “YOUR”) AND PARAMETRIC PORTFOLIO ASSOCIATES LLC ("PARAMETRIC") AND APPLIES TO YOUR USE OF THE CONTENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST LEAVE THIS WEBSITE AND REFRAIN FROM FURTHER ACCESSING THE CONTENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PARAMETRIC IS UNWILLING TO GRANT YOU ACCESS TO OR ANY RIGHTS TO USE THE CONTENT, AND YOU MUST NOT ACCESS THE CONTENT.
1. License Grants.
During the term of this Agreement and conditioned upon your full compliance with all the terms and conditions of this Agreement, Parametric grants to you the following:
1.1 Content. Parametric grants to you and Authorized Users (defined below) a limited, nonexclusive, nontransferable, royalty-free, non-assignable, revocable license to access, use, host, execute, copy, and display the Content to display or otherwise use the output produced from the Content, except that to the extent that the Content contains or provides access to account information, including, without limitation, transaction records and performance reports, relating to clients with whom you have a separate pre-existing relationship (“Your Client(s)”) (“Client Information”) or data that is licensed from third party data providers (“Third Party Data”), such Client Information is excluded from Parametric’s grant contained in the previous clause and such Third Party Data remains subject to the agreement granting Parametric rights to use such Third Party Data. The license granted hereunder includes your right to allow your employees and independent contractors (collectively, “Authorized Users”) to use the Contents as set forth herein. No further rights are granted to you with regard to the Content. There shall be no limit to the number of transactions or number of uses of the Content by you.
1.2 Documentation. Any documentation that accompanies the Content, exclusive of Client Information, whether in printed, electronic, or any other form, is subject to the license set forth in Section 1.1, and is subject to all of the terms of this Agreement.
2. License and Sublicense Limitations.
The license granted in Section 1 is conditioned upon your compliance with the following limitations:
2.1 Reverse Engineering. You may not decompile, decipher, disassemble, reverse engineer or otherwise attempt to access source code of the Content, except as expressly permitted by applicable law notwithstanding this limitation.
2.2 No Distribution, Rental or Transfer. You may not distribute, rent, lease, lend, transfer, sublicense, disclose or otherwise provide the Content to any third party other than as contemplated herein.
2.3 Proprietary Notices. You may not remove any proprietary notices or labels on the Content or any copy thereof.
2.4 Non-Permitted Uses. Without limiting any of the foregoing, you may not make any use of the Content in any manner not expressly permitted by this Agreement.
2.6 Parametric may modify this Agreement at any time with or without notice. Any modifications to this Agreement will be effective immediately but will not apply retroactively. You can review the most updated version of the Agreement online at https://customcore.parametricportfolio.com/Home/TermsOfUse. If a subsequent version of the Agreement or additional terms are unacceptable to you, you must terminate the Agreement by ceasing to use the Content. If you continue to use the Content after any modification of the Agreement, you will be deemed to have accepted the modifications.
3. Reservation of Rights and Ownership.
You acknowledge that the Content constitutes the valuable trade secrets of Parametric, and is being licensed by Parametric, and not sold. Except the Client Information and the Third Party Data, Parametric owns all rights, title and interests in and to the Content, including without limitation, all patents, patent registrations, patent applications, business processes, copyrights, data rights, trademarks, trade names, service marks, service names, trade secrets, know-how, rights in the foregoing, or other similar right arising or enforceable under any U.S. law, foreign law, or international treaty regime (“Intellectual Property Rights”) embodied therein. Parametric reserves all rights in the Content that are not expressly granted in this Agreement. You shall not take any actions inconsistent with Parametric’ ownership of all rights in the Content or knowingly or negligently permit any third party to take any such actions. Accordingly, except as may be specifically set forth herein or otherwise agreed by the Parties in writing, you agree not to, directly or indirectly, without the prior written consent of Parametric:
(i) sublicense, sell, lease or otherwise transfer or grant any third-party access to any portion of the Content except as expressly set forth herein;
(ii) modify, translate, distribute, or create derivative works based on the Content;
(iii) disassemble, decompile, reverse engineer the Content or any portion thereof, or otherwise attempt to derive or construct source code or other trade secrets from the Content;
(iv) remove or alter any copyright, trademark, patent or confidentiality notice or legend included in the Content or affixed to tangible media embodying the Content;
(v) merge the Content with other software; or
(vi) knowingly or negligently permit any third party to do any of the foregoing.
Except as otherwise permitted herein, you are prohibited from providing copies of the Content, or making the Content accessible to third parties, except, subject to the terms of Section 9 below, you may provide reports to Your Clients. You shall treat the Content in a confidential manner and prevent disclosure of the Content to third parties other than Authorized Users. You shall cause anyone who has authorized access to the Content to comply with the terms herein.
4. Injunctive Relief.
You acknowledge and agree that any violation of any of your obligations under this Agreement would cause Parametric irreparable harm for which there would be no adequate remedy at law. Accordingly, Parametric shall be entitled to preliminary and other injunctive relief against any such violation without any requirement to post a bond; provided, however, the foregoing does not constitute a consent by you to, or otherwise prohibit you from challenging, whether a violation of a term or condition in this Agreement has occurred. Such injunctive relief shall be in addition to any other rights or remedies that Parametric may have at law or in equity including, but not limited to, damages.
This Agreement will automatically terminate upon your breach of any of the terms and conditions of this Agreement. In the event of termination, you must immediately destroy all copies of the Content, and the following Sections of this Agreement will survive: Sections 3, 6, 7, 9 and 10. Parametric may, in its sole discretion and without prior notice, terminate your access to the Content or restrict the rights in whole or in part associated with the username and password assigned to you.
6. NO INVESTMENT ADVICE; DISCLAIMERS; AND LIABILITY LIMITS:
PARAMETRIC DOES NOT MAKE ANY RECOMMENDATIONS AS TO THE SUITABILITY OF ANY INVESTMENT OR PROPOSED TRANSACTION. YOU ACKNOWLEDGE AND AGREE THAT THE CONTENT IS INTENDED FOR USE AS AN AID TO YOU IN MAKING YOUR OWN INFORMED JUDGMENTS AND RECOMMENDATIONS. YOU ACKNOWLEDGE AND AGREE THAT: (I) UNLESS PURSUANT TO A SEPARATE AGREEMENT, PARAMETRIC WILL NOT, AND IS UNDER NO DUTY TO, PROVIDE ANY INVESTMENT, TRADING OR OTHER ADVICE OF ANY KIND IN RELATION TO ANY INVESTMENT OR PROPOSED TRANSACTION THROUGH THE CONTENT; (II) USE OF THE CONTENT OR THE DATA, REPORTS OR OTHER OUTPUT OF THE CONTENT (“OUTPUT”) ARE FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE RELIED ON AS THE SOLE OR MATERIAL BASIS OF ANY INVESTMENT, TRADING OR OTHER DECISIONS OR RECOMMENDATIONS YOU MAKE; AND (III) YOU ARE SOLELY RESPONSIBLE FOR AND WILL EXERCISE YOUR OWN INDEPENDENT JUDGMENT IN: (A) MAKING ANY INVESTMENT, TRADING OR OTHER RECOMMENDATIONS OR DECISIONS OF ANY KIND; AND (B) DETERMINING WHETHER ANY TRANSACTION IS SUITABLE, APPROPRIATE OR ADVISABLE FOR YOU, YOUR CLIENTS, AND/ OR ANY ACCOUNTS OVER WHICH YOU HAVE INVESTMENT DISCRETION OR EXERCISE FIDUCIARY DUTY.
YOU ACKNOWLEDGE AND AGREE THAT CERTAIN OF THE OUTPUT CONTAIN PROJECTIONS AND FORWARD LOOKING INFORMATION, HYPOTHETICAL SCENARIOS, AND/OR BACK-TESTED DATA (COLLECTIVELY “HYPOTHETICAL DATA”). YOU ACKNOWLEDGE THAT SUCH HYPOTHETICAL DATA DOES NOT REFLECT ACTUAL INVESTMENT RESULTS AND ARE IN NO WAY GUARANTEES OR PREDICTIONS OF FUTURE RESULTS. YOU UNDERSTAND THE LIMITATIONS OF SUCH HYPOTHETICAL DATA AND AGREE TO CAREFULLY READ AND UNDERSTAND THE DISCLOSURES AND DISCLAIMERS ASSOCIATED WITH HYPOTHETICAL DATA AND EXPLAIN THEM TO YOUR CLIENTS IF SUCH OUTPUT IS SHARED WITH CLIENTS IN MEETINGS. YOU ACKNOWLEDGE THAT THE CONTENT CONTAINING HYPOTHETICAL DATA IS NOT APPROPRIATE FOR RETAIL INVESTORS.
YOU ACKNOWLEDGE AND AGREE THAT, UNLESS PARAMETRIC IS PARTY TO A SEPARATE AGREEMENT, IN RESPECT OF THE CONTENT, NEITHER PARAMETRIC NOR ANY OF ITS AFFILIATES ACTS AS AN INVESTMENT ADVISOR, DISCRETIONARY MANAGER OR FIDUCIARY TO YOU OR ANY THIRD PARTY OR IN RESPECT OF YOU OR ANY SUCH THIRD PARTY'S MANAGED OR FIDUCIARY ACCOUNTS. PARAMETRIC DOES NOT ASSUME ANY DUTIES OR OBLIGATIONS OTHER THAN THOSE EXPRESSLY SET OUT IN THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A WAIVER OR LIMITATION OF ANY RIGHTS EXISTING UNDER THE FEDERAL SECURITIES LAWS OR THE REGULATIONS THEREUNDER FOR THE PROTECTION OF INVESTORS WHICH CANNOT BE WAIVED OR LIMITED AT LAW.
SAVE AS EXPRESSLY SET OUT IN THIS AGREEMENT, (I) THE CONTENT AND ANY DATA OR MATERIALS SUPPLIED BY PARAMETRIC IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND NEITHER PARAMETRIC NOR ANY OF ITS AFFILIATES MAKES ANY WARRANTY, REPRESENTATION OR OTHER ASSURANCE IN CONNECTION WITH THE CONTENT, ANY OUTPUT OR ANY SUPPLIED DATA, INCLUDING AS TO AVAILABILITY, ACCURACY, COMPLETENESS, RESULTS, FUNCTIONALITY, SECURITY, RELIABILITY, PERFORMANCE, TIMELINESS, NON-INFRINGEMENT, OTHER INTELLECTUAL PROPERTY RIGHTS RELATED CLAIMS, SUITABILITY, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, AND (II) ALL REPRESENTATIONS, WARRANTIES AND ASSURANCES (STATUTORY, IMPLIED OR OTHERWISE) ARE EXCLUDED. SAVE AS EXPRESSLY SET OUT IN THIS AGREEMENT OR A SEPARATE AGREEMENT, NEITHER PARAMETRIC NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTIES IN CONNECTION WITH THE CONTENT, ANY OUTPUT OR ANY DATA. FURTHER, PARAMETRIC DOES NOT WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE CONTENT WILL BE CORRECTED. YOU ACKNOWLEDGE THAT THE ENTIRE RISK OF THE CONTENT’S QUALITY AND PERFORMANCE IS WITH YOU.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARAMETRIC NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES WHICH YOU OR SUCH OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THE AGREEMENT, USE OF THE CONTENT OR ANY DATA SUPPLIED PURSUANT TO THIS AGREEMENT, IN EACH CASE, HOWSOEVER ARISING, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, EVEN IF PARAMETRIC KNEW OF OR WAS ADVISED OF THE POSSIBILITY OF THOSE LOSSES. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSSES, DAMAGES, COSTS AND EXPENSES RESULTING FROM YOUR RELIANCE ON ANY DATA (INCLUDING ANY PARAMETRIC SUPPLIED DATA OR ANY DATA IN THE CONTENT OR RELATED THERETO) THAT PARAMETRIC OR ITS AFFILIATES MAY PROVIDE IN CONNECTION WITH YOUR USE OF THE CONTENT AND/OR RELIANCE ON THE CONTENT.
IN NO EVENT SHALL PARAMETRIC OR ITS AFFILIATES BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER OR IN RELATION TO THIS AGREEMENT BY REASON OF CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING ACTS OF GOD, ACTS OF CIVIL OR MILITARY AUTHORITY, NATIONAL EMERGENCIES, LABOR DIFFICULTIES, DISPUTES OR STRIKES (OF THEIR OWN EMPLOYEES OR OTHERWISE), FIRE, MECHANICAL BREAKDOWN, FLOOD, OR CATASTROPHE, INSURRECTION, WAR, TERRORISM, RIOTS, OR FAILURE OF TELECOMMUNICATION NETWORKS OR POWER SUPPLIES.
7. Representations and Warranties.
(a) You represent and warrant to Parametric as follows:
(i) you are located in the United States of America,
(ii) you provide financial advice or brokerage or trust services to various clients and are an investment advisor registered with the United States Securities and Exchange Commission (“SEC”), or are eligible to provide investment advice or recommendations pursuant to an exemption from registration with the SECor registration with a state or federal securities or bank regulator,
(iii) to the extent you access Content that contains Client Information, you will access Content related solely Your Clients,
(iv) each time you access the Content, Your Clients have authorized you to access the Client Information and have not terminated such authorization, and
(v) if you use the Content in any meetings with any persons, you will ensure that such persons are sufficiently sophisticated to understand the Content, and you will not alter or modify the Content, including any disclosure language associated with such Content, in any way without Parametric’s prior consent.
You acknowledge and agree that access to the Content is conditioned on the accuracy of the foregoing representations and warranties. In the event that any of the foregoing representations and warranties become inaccurate, you shall promptly notify Parametric and cease accessing the Content.
(b) Parametric represents and warrants that Parametric is registered with the SEC under the Investment Advisors Act of 1940, as amended (“Advisors Act”) and has filed a Form ADV Brochure, which contains material disclosures relating to Parametric’s provision of investment management services and may be access through this link
8. Access Credentials.
You agree that the user name or password assigned to you shall be used solely by you, and, in the event that you are not a natural person, that all Authorized Users or any other person with access to or knowledge of the user name or password assigned to you shall be fully authorized to access such Content by you and/or your contract with Your Client.
YOU SHALL NOT PROVIDE THE USER NAME OR PASSWORD ASSIGNED TO YOU TO ANY CLIENT OR POTENTIAL CLIENT. YOU ACKNOWLEDGE AND AGREE THAT PARAMETRIC IS SUBJECT TO THE ADVISORS ACT WHICH IMPOSES RESTRICTIONS ON THE PARAMETRIC’S INTERACTIONS WITH ITS CLIENTS AND THE GENERAL PUBLIC.
YOU SHALL IMMEDIATELY NOTIFY PARAMETRIC OF ANY ACTUAL OR SUSPECTED UNAUTHORIZED USE OF THE USER NAME AND PASSWORD ASSIGNED TO YOU.
YOU SHALL IMMEDIATELY NOTIFY PARAMETRIC OF ANY CLIENT INFORMATION RELATING TO CLIENTS THAT HAVE TERMINATED THEIR RELATIONSHIP WITH YOU.
9. Client Reports.
The Content may include performance reports or other reports designed to be provided to Your Clients. Notwithstanding anything to the contrary contained herein, Parametric intends that such reports be provided to Your Clients pursuant to the terms of such separate agreements that have been entered into between you and Parametric or Your Clients and Parametric.
You agree to indemnify, defend, and hold Parametric, its affiliates, and their respective officers, members, employees, representatives and agents, harmless from and against any and all losses, liabilities, judgments, suits, proceedings, claims, damages, costs, and expenses (including attorneys’ fees and court costs) arising from or in connection with (i) the use or misuse of the Content by you, or any other person utilizing any user name or password assigned to you, (ii) your violation of any of your obligations under this Agreement, (iii) any unauthorized access caused by use of the username and password assigned to you, including, without limitation, Content related to Your Clients, or (iv) any act or omission of you, your employees, contractors or agents with respect to this Agreement.
11. Compliance with Law; Export Restrictions.
You will comply with all applicable international and national laws, rules and regulations that apply to the Content and your use of the Content, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. or other governments. You acknowledge that the Content is of U.S. origin and subject to U.S. export jurisdiction.
12. Governing Law.
This Agreement shall be governed by, subject to, and construed in all respects in accordance with the laws of the State of Washington, without regard to the choice of law provisions thereof. You irrevocably agree that any legal action, suit or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in the courts of the State of Washington.
The section titles in this Agreement are used solely for the parties’ convenience and have no legal or contractual significance. Parametric’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated. You may not assign, transfer or sublicense this Agreement or your rights (if any) under this Agreement. This Agreement will be binding upon all successors and assigns. This Agreement constitutes the entire agreement between you and Parametric with respect to the Content (including support services (if any)) and merges all prior and contemporaneous communications and proposals, whether electronic, oral or written, between you and Parametric with respect to the Content.
If you have any questions about this Agreement, or want to contact Parametric for any reason, please direct all correspondence to:
Parametric Portfolio Associates LLC
800 Fifth Avenue, Suite 2800
Seattle, WA 98104
Attn: Legal and Compliance Department