ANY ACCESS TO, OR USE OF, THE BELOW-DEFINED MORNINGSTAR DIRECT APPLICATION OR ANY CONTENT HOUSED ON, OR ACCESSED THROUGH, THAT APPLICATION (INCLUDING, BUT NOT LIMITED TO, ANY TOOLS OR OTHER PRODUCTS OR SERVICES) BY ANY PERSON IS STRICTLY LIMITED TO THOSE INDIVIDUALS WHO MANIFEST THEIR ASSENT TO THE TERMS OF THIS SUBSCRIPTION AND USE AGREEMENT ("AGREEMENT") BY CLICKING THE "ACCEPT" ICON. BY CLICKING THE "ACCEPT" ICON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND AGREE TO BE BOUND BY THEM.
BY CLICKING THE "ACCEPT" ICON, YOU FURTHER REPRESENT, WARRANT AND COVENANT THAT: (1) YOU ARE A MORNINGSTAR DIRECT LICENSEE IN GOOD STANDING OR ARE AN EMPLOYEE OR AGENT OF SUCH LICENSEE (AS DEFINED BELOW) ; (2) YOU ARE A FINANCIAL/INVESTMENT PROFESSIONAL/ACADEMIC AND YOU HOLD YOURSELF OUT AS SUCH; (3) YOU WILL NOT HOLD OUT MORNINGSTAR (AS DEFINED IN SECTION 1) OR ANY OF ITS AFFILIATES, AS AN "INVESTMENT ADVISER," AS SUCH TERM IS DEFINED IN THE U.S. INVESTMENT ADVISERS ACT OF 1940 ("ADVISERS ACT") OR ANY OTHER SIMILAR LAW OR REGULATION IN ANY JURISDICTION IN WHICH THE PRODUCT IS ACCESSED, USED OR DISTRIBUTED BY YOU; (4) YOU ASSUME ALL SUITABILITY (OR OTHER RELATED) RESPONSIBILITIES FOR YOUR CLIENTS; (5) YOU WILL LIMIT DISTRIBUTION OF THE PRODUCT (OR ANY PORTION THEREOF) TO THOSE INDIVIDUALS PROVIDED HEREIN; (6) YOU WILL HOLD YOUR USER NAME AND PASSWORD IN CONFIDENCE AND NOT SHARE IT WITH ANY OTHER PERSON; (7) YOU WILL COMPLY WITH THE TERMS OF THE ACCEPTABLE USE POLICY; AND (8) YOU UNDERSTAND AND AGREE THAT WE MAY MONITOR YOUR ACCESS AND USE OF THE PRODUCT VIA A SUBSCRIPTION LOG OR OTHER SIMILAR SYSTEMS MAINTAINED BY US AND THAT ANY UNAUTHORIZED ACCESS OR USE MAY RESULT IN ADDITIONAL CHARGES TO LICENSEE.
YOU FURTHER REPRESENT, WARRANT AND COVENANT THAT, IF YOU PROVIDE TO ANY PERSON ANY PRODUCTS OR SERVICES IN CONNECTION WITH YOUR USE OF THE PRODUCT HEREUNDER THAT COULD REASONABLY BE CONSTRUED AS "INVESTMENT ADVICE" UNDER THE TERMS OF THE ADVISERS ACT OR ANY OTHER SIMILAR LAW OR REGULATION IN ANY JURISDICTION IN WHICH YOUR COMPANY IS LOCATED OR IN WHICH YOU PROVIDE ANY SERVICES OR IN WHICH YOU ACCESS, USE OR DISTRIBUTE THE PRODUCT AND, IF YOU ARE NOT OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS THEREIN, YOU WILL ACT AS THE "INVESTMENT ADVISER" TO THAT PERSON AND COMPLY WITH ALL APPLICABLE LAWS AND OBLIGATIONS RELATED TO THAT ROLE.
THIS AGREEMENT SUPERSEDES ANY PREVIOUS AGREEMENT BETWEEN YOU AND MORNINGSTAR WITH RESPECT TO THE PRODUCT.
IF (1) MORNINGSTAR IS A PARTY TO A SEPARATE SUBSCRIPTION FORM OR LICENSE AGREEMENT ("SEPARATE AGREEMENT") WITH ONE OR MORE LICENSEES THROUGH WHICH MORNINGSTAR AGREES TO MAKE THE PRODUCT AVAILABLE TO AUTHORIZED USERS OF THAT LICENSEE AND (2) THAT SEPARATE AGREEMENT PROVIDES ONE OR MORE AUTHORIZED USERS WITH USAGE RIGHTS THAT ARE DIFFERENT FROM, OR ADDITIONAL TO, THOSE SET FORTH HEREIN, THEN THE TERMS OF THE SEPARATE AGREEMENT WILL CONTROL WITH RESPECT TO THOSE DIFFERENT/ADDITIONAL USAGE RIGHTS (BUT ONLY AS TO THE SPECIFIC NUMBER OF DESIGNATED AUTHORIZED USERS TO WHOM LICENSEE IS ENTITLED TO MAKE SUCH RIGHTS AVAILABLE UNDER THE SEPARATE AGREEMENT AND ONLY TO THE EXTENT THAT THE TERMS OF THE SEPARATE AGREEMENT AND THIS AGREEMENT ACTUALLY CONFLICT).
1. Definitions
1.1. The Product. The term "Product" shall mean the computer programs, Internet web pages, data, analyses, research, screens, manuals and other information of any kind described in or provided under the Separate Agreement that are made available to you through the Morningstar Direct application ("Morningstar Direct Web Site") as well as all updates, enhancements and modifications thereto, and all intellectual property contained therein. Without limiting the generality of the foregoing, the Product constituting the Morningstar Direct application shall include: (i) a database of data and analyses, and updates thereto, accessible via the Morningstar Direct Web Site by means of a subscription paid for by the below-defined Licensee and/or otherwise made available to Authorized Users through a non-revenue user license (the "Database"); (ii) the format and organization of information entered by a user of the Product, and the integration of such information with the Database (the "Product Format"); (iii) the HTML code, Java code, C++ code, C# code, ASP scripts, Python packages, text, help screens, CGI scripts, other computer programs and associated documentation that provide a graphical user interface and system or programmatic access to store, process, retrieve and output information contained in either or both the Database and the Product Format (the "Programs"); and (iv) the content, format and organization of information generated by the Product, including, without limitation: internet web page reports, pdf reports, and other reports, spreadsheets, graphs, charts, documents and other materials, whether in printed, electronic or any other form, that contain copies of all or part of the Database and Product Format, as well as any works derived from such information/content ("Product Output").
1.2. Licensee. The term "Licensee" shall mean the person, whether an individual or entity, that is responsible for subscribing to, and paying for, the license to use the Product hereunder through a Separate Agreement. For absence of doubt, the Licensee may be denominated as the Subscriber, the Licensee or otherwise defined in that Separate Agreement.
1.3. Acceptable Use Policy. The term "Acceptable Use Policy" means the Morningstar policy attached here to as Attachment A, as may be updated by Morningstar from time to time. The Acceptable Use Policy is available on the Morningstar Direct Web Site.
1.4. Authorized User. The term "Authorized User" shall mean an individual who accesses or uses the Product pursuant to the Separate Agreement, including, but not limited to, each individual to whom Licensee provides a separate username and password combination, and for whom Licensee is obligated to pay Morningstar the relevant licensing and related fees under the Separate Agreement. An Authorized User must be the Licensee (if an individual) or a partner, employee or agent of the Licensee. No person other than an Authorized User may access any Product functionality or distribute any Product Output hereunder and Morningstar expressly disclaims any and all responsibility or liability to anyone other than the Authorized User under this Agreement.
1.5. Asset Manager. The term "Asset Manager" shall mean any individual or entity that underwrites, establishes or creates investment vehicles either through subadvisory relationships or direct portfolio management, including, but not limited to, management of hedge funds, separate accounts, insurance policies, mutual funds, ETFs, etc.
1.6. Client. The term "Client" shall mean any individual or entity to whom the Licensee or Authorized User sells or is proposing to sell financial products or services. Client does not include any individual that acts as an Asset Manager except in the case where Licensee and Client have an advisor/subadvisor relationship.
1.7. Insubstantial Amount. "Insubstantial Amount" shall mean an amount or type of the data from the Database that, in Morningstar's sole discretion, meets all of the following criteria: (i) it has no independent commercial value, (ii) it cannot be used by Licensee or the Authorized User to compete with, replace or as a substitute for any of Morningstar's products or services or any part of them, including the Product, (iii) it is not separately marketed by Licensee, its affiliates, if any, or the Authorized User (either alone or with other data), and (iv) it is not retrieved by Licensee or Authorized User on a regularly scheduled, recurring or systematic basis.
1.8. Company Content. The term, "Company Content" shall mean any code, data or text (collectively, "content") (other than content originally sourced from Morningstar or any of its affiliates) that Licensee or any Authorized User enters into the Product for the purpose of performing analysis and/or producing Product Output.
1.9. Morningstar. "Morningstar" shall mean the Morningstar entity through which the Product is licensed and/or made available hereunder in any particular jurisdiction as set forth in the Separate Agreement.
1.10. Third Party Content. "Third Party Content" shall mean any content provided through or in conjunction with the Product by one or more designated third-party content providers (each, a "Content Provider") pursuant to a separate license/authorization between Licensee and the individual Content Provider. For purposes of this Agreement, Third Party Content shall not be considered part of the Product hereunder and no Authorized User may access or use any Third Party Content without having first obtained permission from the relevant Content Provider(s) to access those data.
2. Grant of License. Subject to the terms and conditions of this Agreement (and any additional terms or conditions contained in any Separate Agreement between Morningstar and Licensee, including, without limitation, territorial restrictions on Product use/distribution), Morningstar grants to Authorized User a limited, nonexclusive, nontransferable (except as otherwise provided by Morningstar in writing) license to do the following:
2.1 Authorized User's Use to Generate and Distribute Product Output. Subject to the terms of this Agreement and those of the Separate Agreement, the Authorized User may use the Programs and Database internally to generate reasonable amounts of Product Output on an ad hoc basis and use/distribute that Product Output as follows:
Internal Distribution
Authorized User may distribute that Product Output internally, subject to all of the following additional restrictions:
(a) Product Output may not consist of more than an Insubstantial Amount of the Database. (For absence of doubt, any Product Output that is extracted or retrieved on a regularly scheduled, systematic or recurring basis (e.g., a weekly extraction of fund expense numbers) does not qualify as an Insubstantial Amount and therefore may not be redistributed, absent a separate license from Morningstar);
(b) Product Output (or materially similar versions of that Product Output) may not be distributed to more than twenty-five (25) individuals in total and, absent a separate license from Morningstar, these persons may not redistribute that Product Output to anyone.
(c) Product Output in non-static format may only be made available to another Authorized User; and
(d) Product Output may not be distributed to anyone who is providing financial services/advice of any kind to Clients;
External Distribution
Authorized User may distribute that Product Output externally to a Client subject to the following additional restrictions:
(a) Product Output must be in print or static electronic format;
(b) Product Output (or materially similar versions of that Product Output) may not be distributed to more than twenty-five (25) individuals in total and, absent a separate license from Morningstar, these persons may not redistribute that Product Output to anyone;
(c) Product Output must not consist of more than an Insubstantial Amount of the Database, and cannot be used as part of a general distribution, including, without limitation, in any advertising, sales, promotion or general mailing;
(d) any portion of the Database included in the Product Output must be incorporated into a value-added report or presentation which is part of the regular services offered by the Licensee or Authorized User to its Clients, and which is not offered on a stand-alone basis or for a stand-alone fee; and
(e) if the Product is used in the United States, Product Output containing any fund-specific performance information on an unregistered investment vehicle (e.g., a hedge fund) may be distributed only to a Client who qualifies as an Accredited Investor (as such term is used in Rule 501(a), as promulgated pursuant to the Securities Act of 1933), or who is acting on behalf of an Accredited Investor or who is exempt from such qualification requirement.
The distribution of any Product Output that does not meet all of the conditions set forth herein will require the express prior written consent of Morningstar, and the payment of additional fees or royalties to be determined in Morningstar's sole discretion. Subject to applicable law and the terms of the Product's Privacy Policy, Morningstar reserves the right to monitor and/or audit Authorized User's access and/or use of the Product. If Morningstar determines that an Authorized User is not authorized to use the Product or is using and/or distributing the Product (including without limitation any Product Output) in a manner or for a purpose not expressly authorized under this Agreement (or the Separate Agreement, if applicable), Morningstar reserves the right to suspend or terminate further access to the Product unless and until Licensee has paid all fees (at Morningstar's then-current rates) for such additional/unauthorized use/distribution, including, without limitation, fees for additional/unauthorized use occurring in past periods that is subsequently discovered by Morningstar.
Except as otherwise explicitly provided in Sections 2.1 and 2.2, in no event shall Product Output be copied or distributed to any person. If the Product is used in Europe, Authorized User agrees that it is using any credit research and/or credit ratings provided by Morningstar for its own professional investment management purposes and not for regulatory purposes (as defined by ESMA or under applicable European credit ratings legislation).
For absence of doubt, notwithstanding any other provisions contained herein around access, use or distribution, anyone who is allowed to access the Product pursuant to this Agreement on a trial basis: (i) shall have no right to distribute any Product Output hereunder; and (ii) shall promptly cease further use of the Product and delete all Product Output upon the expiration or termination of the term of his/her trial.
Any Product Output that is distributed externally to Clients must contain the below statement, in legible type. Authorized User shall ensure that all internal persons who gain access to such Product Output are aware of and comply with the terms of this statement:
(a) In all jurisdictions other than Australia or New Zealand:
(c) Morningstar [Insert Year]. All rights reserved. The information contained herein: (1) is proprietary to Morningstar and/or its content providers; (2) may not be copied, adapted or distributed; (3) is not warranted to be accurate, complete or timely; and (4) do not constitute advice of any kind, whether investment, tax, legal or otherwise. User is solely responsible for ensuring that it complies with all laws, regulations and restrictions applicable to it. Neither Morningstar nor its content providers are responsible for any damages or losses arising from any use of this information, except where such damages or losses cannot be limited or excluded by law in your jurisdiction. Past performance is no guarantee of future results.
If the last sentence of the above disclaimer or substantially similar language is included elsewhere, where it is clear that it pertains to all data including that of Morningstar, it is not necessary for Authorized User to repeat it.
(b) In Australia or New Zealand:
(c) [insert year] Morningstar, Inc. All rights reserved. Neither Morningstar, its affiliates, nor their content providers guarantee the data or content contained herein to be accurate, complete or timely nor will they have any liability for its use or distribution. Any general advice or 'regulated financial advice' under New Zealand law has been prepared by Morningstar Australasia Pty Ltd (ABN: 95 090 665 544, AFSL: 240892) and/or Morningstar Research Ltd, subsidiaries of Morningstar, Inc, without reference to your objectives, financial situation or needs. For more information refer to our Financial Services Guide (AU) and Financial Advice Provider Disclosure Statement (NZ) at www.morningstar.com.au/s/fsg.pdf and www.morningstar.com.au/mca/s/fapds.pdf. You should consider the advice in light of these matters and if applicable, the relevant Product Disclosure Statement before making any decision to invest. Our publications, ratings and products should be viewed as an additional investment resource, not as your sole source of information. Morningstar's full research reports are the source of any Morningstar Ratings and are available from Morningstar or your adviser. Past performance does not necessarily indicate a financial product's future performance. To obtain advice tailored to your situation, contact a professional financial adviser. Some material is copyright and published under licence from ASX Operations Pty Ltd ACN 004 523 782.
(c) Where ESG-related information, methodologies, tools, ratings, data and opinions are being distributed, the following language needs to be added to the applicable disclaimer above:
The ESG-related information, methodologies, tools, ratings, data and opinions contained or reflected herein are not directed to or intended for use or distribution to India-based clients or users and their distribution to Indian resident individuals or entities is not permitted, and Morningstar accepts no responsibility or liability whatsoever for the actions of third parties in this respect.
(d) In all jurisdictions:
Such additional disclaimers as may be specified in the Separate Agreement.
2.2 Export of Data from Database. Subject to the provisions of Section 2.1, if the Product (without the use of any third party product, function, module or procedure, including, without limitation, operating system procedures such as "cut and paste") provides a capability to export/extract data from the Database, Authorized User may employ that capability to export/extract data (hereafter, "Exported Data") and use the Exported Data in support of the Authorized User's workflow, provided that all of the following conditions are met: (i) all Exported Data and any file, transmission, writing, spreadsheet, graph, report, chart or other document or material, containing any Exported Data, or derived from, or in conjunction with, any Exported Data, shall be deemed Product Output under this Agreement and subject to all restrictions on the use and distribution of Product Output; (ii) Exported Data in non-static format may not be provided to anyone who acts as, or whose duties are the functional equivalent of, a financial advisor or Asset Manager; (iii) the amount of Exported Data is limited to an Insubstantial Amount; (iv) neither the Exported Data nor any content derived from or in conjunction with it is used to create, maintain, enhance or error-check any database or application; (v) neither the Exported Data nor any content derived from or in conjunction with it is used on any intranet server, application, shared drive accessed by any person other than the Authorized User; (vi) neither the Exported Data nor any content derived from or in conjunction with it is used in any Licensee or third party system, software program, application or model; and (vii) under no circumstances may Licensee, the Authorized User or any other party link to the Database. Except as explicitly authorized hereunder, neither Authorized User nor any third party may use the Product, including, without limitation, any portion of the Database, in any manner or for any purpose. Any act or omission in contravention of any condition or restriction contained in this section is a material breach of this Agreement.
Except as specifically provided in this Section 2.2 or as otherwise set forth in the Separate Agreement, no one shall have any right to export any data from the Database.
2.3 Third Party Content. Although Third Party Content may be delivered through the Product, Authorized User understands and agrees that the individual Content Providers may separately choose to require: (i) direct license agreements outlining use of their Third Party Content by Licensee and/or Authorized User; (ii) Authorized User to comply with any Content Provider validation information requests; and (iii) Morningstar to provide any Licensee and/or Authorized User customer information to that Content Provider, in the event it chooses to audit the Morningstar's use and distribution of its Third Party Content in conjunction with the Product. Authorized User further understands and agrees that: (i) Authorized User or Licensee is solely responsible for obtaining all of the necessary licenses/authorizations/permission from each Content Provider whose Third Party Content is being accessed, used or distributed to Licensee and/or Authorized User via the Product; (ii) Content Provider license/authorizations/validations must be obtained prior to Licensee or Authorized User accessing, using or distributing that Third Party Content; and (iii) the terms and conditions on which such licenses/authorizations/validations are granted or made are at the sole discretion of the individual Content Provider(s). Authorized User understands and agrees that Licensee must inform the relevant Content Provider(s) in the event Licensee's access, use or distribution of their Third Party Content changes during the term of this Agreement. If Morningstar requests proof that Licensee has the requisite licenses/permissions/validations to access the Third Party Content, Licensee must within five (5) business days provide Morningstar with such written proof either in the form of: (i) a certification by a senior officer of Licensee that an appropriate agreement is in place with each of the relevant Content Provider(s); or (ii) a verification to that effect issued by each of the affected Content Providers. If Licensee is unable/unwilling to provide Morningstar with this proof or Morningstar otherwise has a reasonable suspicion that Licensee lacks the necessary licenses/authorizations to access the relevant Third Party Content, Morningstar reserves the right, without penalty, to bar Licensee and/or Authorized User from accessing the Third Party Content in question. In addition, Morningstar further reserves the right to terminate access to any Third Party Content without penalty if any Content Provider directs Morningstar to restrict or prohibit its Third Party Content from being disseminated to Licensee/Authorized User. In addition to the foregoing, and at any time, Morningstar reserves the right to terminate delivery of Third Party Content provided with the Product, or to impose additional delivery fees, as required by Content Provider(s) and/or Morningstar.
2.3.1 CUSIP, GICS, Index Data. Third Party Content includes, but is not limited to, identifiers (e.g., CUSIP, etc.) and Content Provider index data. For any use of CUSIP and GICS, Authorized User understands and agrees that Licensee must obtain the relevant license directly from Standard & Poors, Inc., for use of these data.
2.3.2 Index Data. For further use or distribution of any index data accessible via the Product, whether included in the Product or validated through a third party Content Provider, Licensee may be required to have additional license agreements in place, including, without limitation, for use of any Morningstar index data. Authorized User understands and agrees that it or Licensee is solely responsible for obtaining the appropriate additional licenses/authorizations, if any, to access/use such index data and that Morningstar, in its reasonable discretion, has the right, but not the obligation, to bar any Authorized User's access to those data absent proof of such an agreement.
2.3.3 Hedge Fund Data. If the Product is used in the United States and the Authorized User uses the Product to access the performance data of any unregistered investment vehicle, including, without limitation, that of a hedge fund, Authorized User represents and warrants that: (i) Authorized User is an "Accredited Investor" as such term is defined by Rule 501(a) of the U.S. Securities Act of 1933, as amended, or is effecting such access on behalf of an Accredited Investor; or (ii) the qualification requirements of Rule 501(a) do not apply to Authorized User or its activities; or (iii) Authorized User is accessing the data for background/research purposes only and not for the purpose of making or recommending any investment in any hedge fund. To the extent that U.S. securities laws apply to Authorized User and its activities hereunder, Authorized User will not invest in any unregistered investment vehicle whose information is accessed through the Product (other than funds in which Authorized User, his/her firm or their respective affiliates are already invested, have already been solicited for, or are already actively considering investing) for a period of thirty (30) days from the date on which Authorized User is first granted access to such performance data through the Product.
3. Company Content.
3.1. Subject to the terms hereof, Authorized User may input Company Content into the Product, and use that Company Content in conjunction with the Product, for the purpose of performing analysis and/or creating Product Output hereunder.
3.2. Authorized User will ensure that Company Content and Licensee and Authorized User's use of Company Content does not violate this Agreement, the Acceptable Use Policy, any applicable law, or any person's property rights. Authorized User is solely responsible for the operation, maintenance, and use of Company Content.
3.3 Authorized User represents and warrants: (a) that it has all rights necessary to enter Company Content into the Product and to use it to generate Product Output; and (b) that neither Company Content nor its use violates the Acceptable Use Policy.
3.4. Authorized User will ensure that Company Content is free of viruses and damaging or disabling code, errors or other defects. Authorized User will only use Company Content procured from reputable sources.
3.5. Authorized User is solely responsible for taking appropriate actions to backup Company Content or any Product Output, whether derived from Company Content or otherwise.
4. Payment. In exchange for the rights granted hereunder, Licensee has agreed to pay Morningstar the subscription fees specified in the Separate Agreement. If full payment of all fees owed by Licensee is not forthcoming when due, Morningstar reserves the right to immediately terminate or suspend this Agreement and all of Authorized User's rights hereunder.
5. Term. Subject to the terms hereof, the initial term of this Agreement shall be consistent with the term length detailed in the Separate Agreement. If, for any reason the Separate Agreement expires or is terminated, then this Agreement will simultaneously terminate. In the event that the Separate Agreement contains any additional restrictions with respect to the Product (whether geographical restrictions on use or otherwise), those restrictions shall be incorporated by reference into this Agreement. Authorized User is responsible for verifying with Licensee whether any such restrictions apply.
6. Ownership. Authorized User acknowledges and agrees that: (i) the Product, including, without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, "Proprietary Information"), is owned by Morningstar and/or its third party content providers, as applicable; (ii) the Proprietary Information shall be treated as copyrighted and proprietary material of Morningstar and is protected by United States and international copyright law and international treaty provisions; (iii) the Proprietary Information is licensed, rather than sold, to Authorized User pursuant to this Agreement; and (iv) Authorized User has no rights in the Proprietary Information, other than the rights and licenses explicitly granted to it pursuant to this Agreement. Morningstar may disclose additional information to Authorized User in the form of upgrades, documentation or other support during the Subscription Term. Authorized User agrees that such information shall also be deemed Proprietary Information. Additionally, as between each Content Provider and Licensee/Authorized User, that Content Provider retains sole and exclusive ownership rights over any Third Party Content provided by it in conjunction with the Product.
7. Trademarks. Authorized User acknowledges that Morningstar, Inc. has acquired, and is the owner of, the trademark and other rights in: (1) the names and word marks: MORNINGSTAR DIRECT, MORNINGSTAR OWNERSHIP ZONE, MORNINGSTAR.COM, MORNINGSTAR, MORNINGSTAR SECTOR ALLOCATION, MORNINGSTAR REGION ALLOCATION, MORNINGSTAR RATING and the MORNINGSTAR STYLE BOX; and (2) the design marks: MORNINGSTAR, MORNINGSTAR RATING logo, MORNINGSTAR STYLE BOX grid, MORNINGSTAR OWNERSHIP ZONE graph, MORNINGSTAR SECTOR ALLOCATION graph and MORNINGSTAR REGION ALLOCATION graph. Authorized User acknowledges that these names and marks are famous and internationally known. Authorized User shall not, at any time or for any reason, challenge the validity of, or Morningstar Inc.'s ownership of, the foregoing names and marks, and Authorized User waives any rights Authorized User may have at any time to do so. All marks not owned by Morningstar, Inc., are the property of their respective owners.
8. Restrictions on Use. Except as expressly provided in this Agreement or the Separate Agreement, no Authorized User may: (i) use, copy, modify, merge, install, transfer or distribute the Product or Product Output; (ii) reverse-engineer, decompile, translate, disassemble or separate the components of the Product (including without limitation, viewing or otherwise obtaining HTML source code); (iii) sublicense, rent, sell or lease the Product or any part thereof; (iv) use any program, procedure, device or method other than the Programs and a web browser to access, use, reproduce or process the Database, the Programs, the Product Output or Product Format or any part thereof, without Morningstar's express prior written authorization; (v) use the Product or any part thereof for third-party training, commercial time-sharing, service bureau or sales desk use; (vi) distribute any Product Output as part of a general distribution or for advertising or promotional purposes, (vii) encourage or facilitate any other Authorized User's breach of the terms of its Subscription and Use Agreement; (viii) permit use of the Product by a person other than an Authorized User; (viii) use the same username or password as another Authorized User; (ix) export the Product to any country where export is prohibited by the United States, or any other export laws; (x) attempt to defeat, modify or work around any security devices protecting the Product; or (xi) install or use the Product on or through a shared terminal or other similar access configurations.
Any ESG-related information, methodologies, tools, ratings, data and opinions contained or reflected herein are not directed to or intended for use or distribution to India-based clients or users and their distribution to Indian resident individuals or entities is not permitted and Morningstar accepts no responsibility or liability whatsoever for the actions of Authorized User or any third parties in this respect.
9. Warranty and Disclaimer of Warranty.
9.1 Morningstar warrants that it will make commercially reasonable efforts (or their equivalent under applicable law) to ensure that the Product is free of viruses and damaging or disabling code, errors or other defects. Morningstar will also make commercially reasonable efforts to correct any correctable errors or defects in the Product within a reasonable amount of time.
EXCEPT AS OTHERWISE EXPLICITLY PROVIDED HEREIN, THE PRODUCT IS PROVIDED "AS IS" WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH AUTHORIZED USER. AUTHORIZED USER ACKNOWLEDGES FOR ITSELF AND ALL PERSON TO WHOM IT DISTRIBUTES ANY PORTION OF THE PRODUCT THAT, BECAUSE OF THE NATURE OF SOFTWARE AND THE INTERNET, THE PRODUCT MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION TRANSMITTED OVER THE INTERNET (INCLUDING, BUT NOT LIMITED TO, DATA UPDATES, THE PRODUCT OUTPUT AND THE PRODUCT FORMAT) MAY BE SUBJECT TO THIRD PARTY INTERCEPTION AND MODIFICATION. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, MORNINGSTAR DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. NEITHER MORNINGSTAR NOR ITS CONTENT PROVIDERS WARRANT THE ACCURACY, CORRECTNESS, COMPLETENESS, OR TIMELINESS OF THE PRODUCT. MORNINGSTAR IS NOT RESPONSIBLE FOR ANY DELETION, DAMAGE, LOSS OR FAILURE TO STORE ANY COMPANY CONTENT OR OTHER CONTENT. EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, NEITHER MORNINGSTAR NOR ITS AFFILIATES (COLLECTIVELY, "MORNINGSTAR PARTIES") NOR THEIR CONTENT PROVIDERS SHALL BE RESPONSIBLE FOR INVESTMENT DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE PRODUCT OR THE INFORMATION CONTAINED THEREIN. PAST PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS. MORNINGSTAR SHALL NOT BE CONSIDERED AN "EXPERT" UNDER THE U.S. SECURITIES ACT OF 1933 OR ANY OTHER SIMILAR LAW OR REGULATION IN ANY JURISDICTION IN WHICH THE PRODUCT IS ACCESSED, USED OR DISTRIBUTED. ANY INFORMATION PROVIDED SHOULD NOT BE CONSTRUED AS A SOLICITATION, ENDORSEMENT OR RECOMMENDATION TO BUY OR SELL A SECURITY. THE INFORMATION CONTAINED IN THE PRODUCT SHOULD NOT BE CONSTRUED AS INVESTMENT ADVICE OR ANY OTHER TYPE OF ADVICE. IT IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. MORNINGSTAR DOES NOT WARRANT THAT THIS PRODUCT COMPLIES WITH THE SECURITIES LAWS OF ANY JURISDICTION OR WITH THE REQUIREMENTS OF THE FINRA OR ANY OTHER REGULATORY BODY IN ANY JURISDICTION IN WHICH THE PRODUCT IS ACCESSED OR USED.
9.2 AUTHORIZED USER: EACH AUTHORIZED USER WHO MANIFESTS HIS OR HER ASSENT TO THE PROVISIONS OF THIS AGREEMENT REPRESENTS, WARRANTS AND COVENANTS THAT HE OR SHE IS COMPLETELY AND UNCONDITIONALLY AUTHORIZED BY LICENSEE TO ENTER INTO THIS AGREEMENT, AND THAT HE OR SHE IS BOUND BY ALL OF ITS TERMS.
10. Limitation of Liability. In addition to any other disclaimer, limit and/or restriction contained in this Agreement, each Authorized User expressly agrees that it is solely responsible for (i) the manner by which, and the purpose for which it accesses and uses the Product hereunder, (ii) the results it obtains (or not) from such access or use; and (iii) any damages to itself, any Licensee, any other Authorized User, any Client and/or any other third parties arising from its use of the Product. Except as otherwise specifically prohibited by applicable law, the Morningstar Parties and their content providers will not be liable for: (i) loss of, or damage to, records or information of Licensee, any Authorized User, any Client or any other third party; or (ii) any damages suffered or claimed by any such person(s) based on any third party claim related to use of the Product.
EXCEPT AS SPECIFICALLY PROHIBITED BY APPLICABLE LAW OR OTHERWISE EXPLICITLY PROVIDED HEREIN, NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY DIRECT DAMAGES ARISING UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT, THE PRODUCT OR ANY OTHER MORNINGSTAR SERVICES PROVIDED HEREUNDER WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY SHALL EXCEED TWENTY FIVE THOUSAND U.S. DOLLARS ($25,000); PROVIDED, HOWEVER, THAT IF MULTIPLE AUTHORIZED USERS ARE ACCESSING THE PRODUCT PURSUANT TO A SEPARATE AGREEMENT, MORNINGSTAR'S AGGREGATE LIABLITY TO ALL SUCH AUTHORIZED USERS SHALL BE LIMITED TO A TOTAL OF TWENTY FIVE THOUSAND U.S. DOLLARS ($25,000). THE AFOREMENTIONED LIMITATION OF LIABILITY WILL NOT APPLY TO CLAIMS ASSOCIATED WITH ANY PERSON'S MISUSE (INCLUDING, BUT NOT LIMITED TO, ANY MATERIAL VIOLATIONS OF USE RESTRICTIONS) OF THE PRODUCT OR THEFT OF MORNINGSTAR'S INTELLECTUAL PROPERTY OR DATA. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY AND EXCEPT AS OTHERWISE SPECIFICALLY REQUIRED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY:
* PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR OTHER, SIMILAR FORMS OF CONSEQUENTIAL DAMAGES: OR
* LOSS OF PROFITS; OR
* LOSS OF BUSINESS; OR
* LOSS OF REVENUE; OR
* LOSS OF GOODWILL OR ANTICIPATED SAVINGS; OR
* LOSS OF DATA;
* NEITHER PARTY EXCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY'S NEGLIGENCE OR FOR FRAUDULENT MISREPRESENTATION. NO PARTY AFFILIATED WITH MORNINGSTAR SHALL HAVE ANY LIABILITY TO ANY LICENSEE, AUTHORIZED USER, CLIENT OR ANY OTHER THIRD PARTY UNDER THIS AGREEMENT.
11. Suspension and Termination. In addition to any other termination right provided herein, each party may terminate this Agreement for any uncured breach of its provisions by the other party. If the breach is not subject to cure, the non-breaching party may terminate immediately upon written notice. If the breach is curable, the breaching party will have thirty (30) days from the date of receiving written notice of the breach to cure it. If a curable breach is not remedied within the 30-day cure period, the non-breaching party may immediately terminate this Agreement. In addition to the above and notwithstanding any provision in this Agreement to the contrary, Morningstar may immediately terminate this Agreement without notice in the event that Licensee commits any act or omission that is a breach of the ownership, use, copying, distribution, confidentiality provisions of the Separate Agreement or any Authorized User commits any act or omission that is a breach of the ownership, use, copying, distribution, confidentiality provisions of this Agreement. These acts or omissions include but are not limited to (i) permitting any access or use of the Product other than as expressly authorized by Morningstar (e.g., allowing more than one individual to use the same user-name and password combination); or (ii) using, copying or distributing the Product (including, without limitation, any Product Output) in a manner or for a purpose not expressly allowed under this Agreement or the Separate Agreement.
Morningstar may suspend Licensee or any Authorized User's ability to access or use the Product, in whole or in part, immediately upon notice to Licensee if Morningstar reasonably determines that Licensee or an Authorized User's use of the Product (a) poses a security risk to Morningstar or any third party; (b) may adversely impact Morningstar systems; (c) is fraudulent, unlawful, or may otherwise subject Morningstar to liability, (d) violates the Acceptable Use Policy; or (e) is using the Product in a manner or for a purpose not authorized under this Agreement or the Separate Agreement. If Morningstar's suspends Licensee or an Authorized User's ability to access or use the Product, Licensee remains responsible for all fees incurred during the suspension period.
12. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all of Authorized User's rights in and to the Product, as well as the rights of all Users and any Licensee obtaining access to the Product through such Authorized User, shall immediately terminate. Expiration or termination shall not affect any obligation to pay all fees and/or royalties due prior to that event, and expiration/termination shall not relieve any party of any liability for breach of this Agreement. In the event this Agreement expires or terminates for any reason, Authorized User will immediately cease to use the Product, and use commercially reasonable efforts to destroy all copies of the Product (in any form or media) within its possession, custody or control, including, but not limited to, the possession, custody or control of any Licensee gaining access through such Authorized User. Notwithstanding the foregoing, in the event this Agreement ends for reasons other than a material breach by Licensee or any Authorized User, Authorized Users shall not be required to destroy any materials containing all or part of the Product for the three (3) month period following that expiration or termination. Additionally, Authorized User is entitled to retain, solely for archival purposes and not for any commercial use, paper or read-only electronic copies of all materials containing the Product. The terms of those sections of this Agreement that would reasonably be expected to survive its expiration or termination shall so survive.
13. Confidentiality. Each party acknowledges that in the course of performing its obligations under this Agreement, it may become privy to information which the other party considers confidential and proprietary to its business, including, but not limited to, information concerning the identities of Clients, and other related data, internal controls, computer or data processing programs, business or financial affairs or methods of operations, accounts, transactions, proposed transactions, security procedures, trade secrets, know-how or inventions ("Confidential Information"); provided, however, that Confidential Information shall not include any information that is (i) already in the public domain at the time of disclosure; (ii) communicated to the receiving party by a third party not subject to any confidentiality obligations with respect to the Confidentiality Information; (iii) derived independently by the receiving party; (iv) excepted from this provision by the written permission of an authorized representative of the disclosing party; or (v) required to be disclosed pursuant to a valid subpoena or other order of a court or government agency of competent jurisdiction. Each party will use commercially reasonable measures, but in no event measures that are any less protective than those it uses to protect its own confidential and proprietary information, to ensure that the other party's Confidential Information is not disclosed to any third party. In addition, except as expressly provided in this Agreement, Authorized User shall keep secret and confidential and shall not disclose, provide or otherwise make available to any person the Proprietary Information and shall cause each User accessing or using the Proprietary Information through, or on behalf of that Authorized User to do the same. Authorized User (i) shall use his or her best efforts, and shall employ reasonable security measures, to prevent any unauthorized disclosure of the Proprietary Information and (ii) shall immediately advise Morningstar of any information Authorized User has or receives of any actual or potential unauthorized disclosure or access. Authorized User acknowledges that the Product is only being disclosed to Authorized User based on a confidential relationship established under this Agreement. Authorized User further acknowledges that such information is to be used only as expressly permitted hereunder, and that the restrictions of this Agreement are necessary to protect the secrecy of the information and to protect against the occurrence of irreparable injury or harm to Morningstar.
14. Compliance with Regulations. Authorized User is solely responsible - either by itself or through Licensee - for obtaining appropriate regulatory approval of any Product Output or its use to the extent necessary or required. Authorized User understands and agrees that (i) certain personally-identifiable information of Authorized User or Clients may be processed in the United States to enable Morningstar to fulfill its obligations hereunder and (ii) in providing such personally-identifiable information to Morningstar, Authorized User consents to such transfer and processing and agrees that, as between itself and Morningstar, Authorized User is solely responsible for complying with any rules or regulations applicable to such transfers. For absence of doubt, unless the Separate Agreement expressly provides otherwise, Morningstar's role in the handling of any such personally-identifiable data is strictly limited to that of being a data processor for and on behalf of Licensee.
15. No Advice. The Authorized User acknowledges and agrees that: (i) Morningstar does not provide advice of any kind, whether investment, tax, legal or otherwise via the Product, (ii) nothing within the Product constitutes such advice, and (iii) the Authorized User will not treat any Product Output as any kind of advice or make any representation to any third party to that effect. User further acknowledges and agrees that: (i) Morningstar does not recommend any financial product accessed through or analyzed by the Product; (ii) Morningstar does not recommend that any particular financial product should be bought, sold or held by the Authorized User or any Clients; (iii) nothing within Product should be construed as an offer, or the solicitation of an offer, to buy or sell securities by Morningstar; and (iv) nothing within the Product is intended to be or to be treated as an inducement or invitation to engage in any kind of investment activity.
16. Inadequacy of Legal Remedy. Authorized User acknowledges that Morningstar's legal remedies (including the payment of damages) may not be sufficient in the event of any breach by Authorized User of any provisions of this Agreement including, but not limited to those related to the ownership, use, copying, distribution, confidentiality or nondisclosure of the Product, Product Output or other Morningstar proprietary information, and that Morningstar will suffer continuing and irreparable injury to its business as a direct result of such breach. Therefore, in the event of any such breach, Morningstar may seek any injunctive relief necessary to prevent or cure such breach (including temporary and preliminary relief, and relief by order of specific performance), without notice or the need to post bond.
17. Governing Law; Place for all Disputes. In the event of any legal proceedings arising out of this Agreement or the performance thereof, the parties agree that the Agreement will be governed by the laws of the jurisdiction or city in which Morningstar's office is situated, without regard to its conflict-of- law provisions ("Governing Law"). The parties thereto agree that any and all actions relating to this Agreement will be brought in the courts located in the jurisdiction or city in which Morningstar's office is located, and that each party is subject to the personal jurisdiction of those courts. Where Governing Law conflicts with anything in this Agreement, the Governing Law shall control (to the extent of that conflict only)." The terms, "we" or "us" shall be deemed to refer to "Morningstar" in all cases.
Alternatively, at Morningstar's sole option, disputes arising out of this Agreement or the performance thereof, including all claims for non-performance by Morningstar, may be finally settled by arbitration in Chicago, Illinois, U.S.A. under the Rules of the American Arbitration Association, which rules with respect to matters not regulated by them shall incorporate the UNCITRAL arbitration rules. Such arbitration shall be conducted by one or more arbitrators appointed in accordance with such rules applying this Agreement and consistent provisions of the internal laws (except conflict of law rules) of the State of Illinois, U.S.A.
This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
18. Entire Agreement; Variation. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof. Unless otherwise provided in the Separate Agreement, Morningstar reserves the right to modify this Agreement from time to time at its discretion and Authorized User agrees that it will be bound by such modified Agreement upon Authorized User's accessing the Product after the date of the modification in question.
19. Assignment. Authorized User may not assign this Agreement without Morningstar's prior written consent.
20. Third Party Beneficiaries. There are no intended third party beneficiaries of this Agreement (including, without limitation, any Licensee) and no law or regulation providing to the contrary (e.g., the U.K. Contracts (Rights of Third Parties) Act of 1999) shall apply to this Agreement.
21. Severability. If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provisions shall be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of this Agreement shall not be affected thereby.
22. Language. In the event of any inconsistency between the English language version of this Agreement and any local language version, the English language version shall control.
23. Links. The Morningstar Direct Web Site may contain information, products, and services provided by third parties and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to Authorized Users. Morningstar does not review or control this information or these products, services, or other web sites, and Morningstar does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Product does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Morningstar with respect to any third party or its web site or content, or any information, products, or services provided by that third party.
Last Updated: January 2024
ATTACHMENT A
Morningstar Acceptable Use Policy
Last updated: April 2022
This Acceptable Use Policy ("Policy") governs your use of the products and services (collectively, the "Product") offered by the Morningstar Group Company that is the party to the Separate Agreement ("Morningstar") under which you are allowed to access the Product.
You may not use or permit others to use the Product:
* For any illegal or fraudulent activity;
* In any way that violates the intellectual property rights of any third party;
* To engage in harassment or in any way that discriminates against a person because of their age, race, religion, ethnicity or national origin, sexual orientation, marital status, pregnancy, gender identity and expression, disability, or political affiliation; or
* In any way that would damage, overburden or gain unauthorized access to Morningstar or third-party computer systems, accounts, or networks.
Morningstar may investigate any possible violation of this Policy and suspend or terminate access to applicable Product as permitted by your agreement with Morningstar.
Our business frequently changes, and we may need to update this Policy to reflect those changes. When we make changes to this Policy, we'll revise the "last updated" date at the top of this page. This document will be made available on the Morningstar Direct website.