Questis Terms and Conditions

 

 

Policy Effective Date: June 1, 2013

Questis, Inc ("Questis") operates an online financial advisor at www.myquestis.com (the “Site”). You understand and agree that by providing content or other information to Questis via the Questis Solution (defined below), you are granting Questis all necessary rights to use that content and information on all instances of the Questis Solution, described in more detail in Section 7(d)(i) below.

 

The Site, and all content available thereon, are collectively referred to herein as the “Questis Solution”. Please read the following important terms and conditions (“Terms of Use”) carefully. These Terms of Use govern your access to and use of the Questis Solution, including any content, information, products or services therein. This is a legal agreement between you and Questis. Pay Services (as defined in Section 7) may be subject to additional terms and conditions that will be provided to you when you subscribe to such Pay Services. Your use of such Pay Services will be subject to these Terms of Use and any additional terms to which you agree.

 

YOU UNDERSTAND THAT BY USING THE QUESTIS SOLUTION, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS OF USE IN THEIR ENTIRETY, YOU MAY NOT USE THE QUESTIS SOLUTION.

 

In accessing the Questis Solution, you agree that (1) the Questis Solution may publish to other users of the Questis Solution any content you agree to disclose on the Questis Solution, (2) you will not use the Questis Solution in any way to violate insider trading laws or other federal or state securities laws and regulations of the United States, any state or any other country, as applicable, relating to securities disclosure, securities trading, or investment advisory or brokerage services, (3) without limiting the general scope of the foregoing, you will not attempt to trade in a security in advance of posting information concerning that security, publish defamatory or misleading information concerning any security or issuer (or officer or employee thereof), manipulate the price or market for any security, or post information that you are obligated to keep confidential, and (4) you will not post any advertisement, solicitation or information that otherwise violates any applicable local, state, national or foreign law or regulation.

 

You understand that the Questis Solution and content thereon involve matters with respect to finance and investing, such as investment strategies, asset allocation, stock quotes and in particular the performance of certain ETFs (and their underlying holdings), indices, stocks, stock portfolios, and investors. The Questis Solution merely gathers, processes, and makes information available to you, including the recommendation of a possible investment plan. You acknowledge that: (1) Questis provides you with risk tolerance and investment plan recommendations based solely on profile data you provide, and unless you agree to subscribe to Pay Services (as defined below) and become a client of Questis, the Questis Solution is provided for informational purposes only and Questis does not review the information posted on the Questis Solution for reasonableness, strategic usefulness, or your individual investment management purposes, and Questis does not act in any type of financial advisory capacity for you; (2) the Questis Solution may include information it obtains from sources such as stock exchanges, other financial data providers and news sources, and Questis does not review, endorse or analyze all such third-party information; (3) Questis does not guarantee the accuracy, completeness, or timeliness of any information on the Questis Solution; (4) unless you agree to additional terms provided by Questis through the Questis Solution that provide otherwise, none of the information on the Questis Solution constitutes a solicitation or offer to buy or sell any security, or to provide financial advisory services or other advice regarding the future profitability or the suitability of any security or investment; and (5) the information provided on the Questis Solution is not intended for use by, or distribution to, any person or entity in any jurisdiction or country where such use or distribution would be contrary to law or regulation, and no information from the Questis Solution may be copied in any form, by any means, or redistributed, published, circulated or commercially exploited in any manner without Questis’s prior written consent except as provided below. Accordingly, the Questis Solution and Questis’s owners, sponsors, directors, officers, employees, successors, and assigns shall not, directly or indirectly, be liable, in any way, to you or any other person or entity for any: (a) inaccuracies or errors in or omissions from the Questis Solution or content thereon including, but not limited to, any information or analysis posted by any other user, prices of securities and financial data; (b) delays, errors, or interruptions in the transmission or delivery of the Questis Solution or content thereon; or (c) loss or damage arising from your use of the Questis Solution or content thereon or by any reason of nonperformance.

Questis reserves the right, in its sole discretion, at any time to modify, discontinue or terminate the Questis Solution, any portion thereof, or any content thereon without advance notice, or to modify these Terms of Use. All modified terms and conditions will be effective upon the date when the change takes effect, unless there is a material change, which will be effective when Questis provides notice to you, unless a longer notice period is required by applicable law. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Questis Solution, and if applicable, cancel your Account (defined below) as specified below. By continuing to access or use the Questis Solution after Questis makes any such revision, you agree to be bound by the revised Terms of Use. Each version of the Terms of Use will be identified at the top of the page by the effective date.

 

Certain types of content are made available through the Questis Solution. “User Information” as used in these Terms of Use means, collectively, the information and other content that users post, upload, submit, provide, approve of, or otherwise make available to the Questis Solution. User Information specifically includes personal information such as name, address, employer, likeness and email address, as well as any other information programmatically available to the Questis Solution. “Content” as used in these Terms of Use means, collectively, all content on or made available through the Questis Solution that is not User Information, including but not limited to text, data, reports, analyses, performance charts, investment portfolios, investment plans, recommendations, projections, any information identifying or describing asset managers or funds, and stock quotes. Questis reserves the right to remove and permanently delete any Content or User Information from the Questis Solution without notice.

 

The Questis Solution is intended solely for persons who are 21 or older. Any access to or use of the Questis Solution by anyone under 21 is unauthorized, unlicensed, and in violation of these Terms of Use. By accessing or using the Questis Solution, you represent and warrant that you are 21 or older.

 

In order to access certain features of the Questis Solution, you must register to create an account (“Account”). When you register, you may be asked to choose a user name and password, which you may use to access your Account and portfolio information in the Questis Solution. Questis has physical, electronic and procedural safeguards that comply with federal standards to guard users’ non-public personal information (see Privacy Policy). You are responsible for safeguarding your passwords and you agree not to disclose your passwords to any third party. You agree that you shall be solely responsible for any activities or actions under your Account, whether or not you have authorized such activities or actions. You shall immediately notify Questis of any unauthorized use of your Account. You agree that the information that you provide to us on registration and at all other times, and the information you provided to any website through which you access the Questis Solution or parts thereof, will be true, accurate, current, and complete. Questis reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete.

 

We may terminate or suspend your access to the Questis Solution or any portion thereof and remove any material (including User Information) from the Questis Solution, in our sole discretion, at any time for any reason without notice to you. Further, if we believe, in our sole discretion, that a violation of these Terms of Use has occurred, we may take any other corrective action we deem appropriate. We reserve the right to investigate suspected violations of these Terms of Use, including without limitation any violation arising from any User Information. We may seek to gather information from a user who is suspected of violating these Terms of Use (or from any other user) and you agree to provide us with such information. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting, publishing, or otherwise making available any User Information, emails, or other materials that are believed to violate these Terms of Use. You may request termination of your Account at any time and for any reason by sending an email to info@myquestis.com. Any suspension, termination, or cancellation shall not affect your obligations to Questis under these Terms of Use (including but not limited to ownership, indemnification, and limitation of liability), which by their sense and context are intended to survive such suspension, termination, or cancellation.

 

The Questis Solution or content thereon may provide links to third- party websites or resources. You acknowledge and agree that Questis is not responsible or liable for the availability or accuracy of such websites or resources or the content, products, or services on or available from such websites or resources. You further acknowledge that Questis does not endorse such websites or resources or the content, products, or services on or available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

 

(a) Free Services and Pay Services. As a user you may access and use certain services that Questis provides to you free of charge (“Free Services”), and other services may be subject to fees and additional terms (“Pay Services”). Whether a service is a Free Service or a Pay Service is within the sole discretion of Questis, and Questis can re-classify a Free Service as a Pay Service and vice versa at any time in its sole discretion. Questis grants you a license to access and use the Free Services; provided that: (i) your use of the Free Services is solely for your personal use; (ii) you will not alter or modify any part of the Questis Solution; and (iii) you will otherwise comply with these Terms of Use. Your use of the Pay Services will be subject to your agreement and compliance with these Terms of Use and any additional terms and conditions you agree to when you subscribe to the applicable Pay Service (including but not limited to payment of fees). (b) Using and Sharing Information. Questis offers the Questis Solution as a forum to encourage the open exchange and use of financial information. Subject to the restrictions provided elsewhere in these Terms of Use, we encourage you to use and share the financial and investment information provided through the Questis Solution to collaborate with and engage other individuals provided that: (i) any such distribution is accompanied by a prominent link back to the Site, is accompanied by a clearly visible attribution that prominently identifies Questis as the source of such Content or User Information, and retains any copyright, trademark, service mark or other proprietary rights notices provided with such Content or User Information; (ii) notwithstanding anything to the contrary herein, you are prohibited from using, displaying, distributing, transmitting, or otherwise sharing the personal information of any user(s) (including but not limited to usernames and contact information) and Questis’s trademarks, service marks, and logos (except to provide attribution consistent with this paragraph); (iii) without limiting the obligations in the preceding clause (i), “Questis Plan” must be used for any title or label you use to identify the investment information of any individual investment plan, projected performance chart or portfolio that you display, distribute, or otherwise transmit; and you must provide a link back to those items on the Site; (iv) you may not use robots, crawlers, or spiders to collect or distribute the Content or User Information; and (v) collection, use, or distribution must not interfere with or disrupt the Questis Solution, content provided thereon, or the technical delivery systems of Questis’s providers, in any way. (c) Ownership and Restrictions. Questis and its licensors own all right, title, and interest, including all worldwide intellectual property rights in the Questis Solution, Content, and the trademarks, service marks, and logos contained therein. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Questis Solution, Content, User Information or related products or services. (d) User Information. (i) License Grant. Questis does not claim ownership rights in your User Information. However, by uploading, submitting, emailing, posting, publishing, providing, approving, sharing or otherwise making available any User Information to Questis or within the Questis Solution, you hereby grant Questis a nonexclusive, worldwide, royalty-free, sublicensable, perpetual, and irrevocable right and license to use, store, reproduce, modify, adapt, and prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, and otherwise exploit such User Information in any form, medium, or technology now known or later developed, including without limitation on the Site (including areas of the Site different from the area of the Site to which you provided the User Information), and on third-party websites through which you access the Questis Solution or parts thereof. In addition, you warrant that all moral rights in any User Information have been waived, and you do hereby waive any such moral rights. You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to grant the foregoing licenses to Questis. Questis shall own all right, title and interest in and to all derivative works and compilations of User Information that are created by Questis, including all worldwide intellectual property rights therein. You agree to execute and deliver such documents and provide all assistance reasonably requested by Questis to give to Questis the full benefit of the rights granted to Questis by you. (ii) Limitations. You acknowledge and agree that Questis may, at its option, establish limits concerning User Information, including without limitation the maximum number of days that User Information will remain on Questis Solution, the maximum size of any files that may be stored on or uploaded to the Questis Solution, and the maximum disk space that will be allotted to you for the storage of User Information. Questis shall have no responsibility or liability and you are solely responsible for creating back-ups of your User Information. (iii) Disclaimer. Questis has no ability to control the User Information that is uploaded, posted, transmitted, provided, or otherwise made available using the Questis Solution and does not have any obligation to monitor such User Information for any purpose. Questis does not endorse any User Information or any opinion, recommendation, or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Questis with respect thereto.

 

You agree you will not do any of the following while using or accessing the Questis Solution or any content thereon: (a) Circumvent, disable, or otherwise interfere with security-related features of the Questis Solution or features that prevent or restrict use or copying of any Content or User Information; (b) Upload, email, transmit, provide, or otherwise make available (i) any User Information which you do not have the lawful right to use, copy, transmit, display, or make available (including any User Information that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Information); or (ii) any User Information that infringes the intellectual property rights of, or violates the privacy rights of, any third-party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity); (c) Use any meta tags or other hidden text or metadata utilizing a Questis name, trademark, URL or product name; (d) Upload, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (e) Forge any TCP/IP packet header or any part of the header information in any posting, or in any way use the Questis Solution to send altered, deceptive, or false source- identifying information; (f) Upload, email, transmit, provide, or otherwise make available, via the Questis Solution, any User Information that is unlawful, obscene, harmful, threatening, harassing, defamatory, or hateful, or that contain objects or symbols of hate, invade the privacy of any third-party, contain nudity, are deceptive, threatening, abusive, inciting of unlawful action, or are otherwise objectionable in the sole discretion of Questis; (g) Upload, email, transmit, provide, or otherwise make available any User Information that contains software viruses or any other computer code, files, or programs designed to (i) interrupt, destroy, or limit the functionality of any computer software; or (ii) interfere with the access of any user, host or network, including without limitation overloading, flooding, spamming, mail-bombing, or sending a virus to the Questis Solution; (h) Upload, email, transmit, provide, or otherwise make available any User Information that includes code that is hidden or otherwise surreptitiously contained within the User Information; (i) Interfere with or disrupt (or attempt to interfere with or disrupt) any web page available at the Questis Solution, servers, or networks connected to the Questis Solution, or the technical delivery systems of Questis’s providers, or disobey any requirements, procedures, policies, or regulations of networks connected to the Questis Solution; (j) Attempt to probe, scan, or test the vulnerability of any Questis system or network or breach or impair or circumvent any security or authentication measures protecting the Questis Solution; (k) Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Questis Solution; (l) Attempt to access, search, or meta-search the Questis Solution or content thereon with any engine, software, tool, agent, device, or mechanism other than software and/or search agents provided by Questis or other generally available third- party web browsers, including without limitation any software that sends queries to the Questis Solution to determine how a website or web page ranks; (m) Violate the terms of service or any other rule or agreement applicable to you or Questis through the Questis Solution’s inclusion in, reference to, or relationship with any third party or third-party site or service, or your use of any such third-party site or service; (n) Collect or store personal data about other users without their express permission; (o) Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering, or commit fraud; (p) Solicit any user for any investment or other commercial or promotional transaction; (q) Violate any applicable law, regulation, or ordinance; (r) Use, launch, or permit to be used any automated system, including without limitation “robots,” “crawlers,” or “spiders”; or (s) Use the Questis Solution or content thereon in any manner not permitted by these Terms of Use.

 

No Unauthorized Use If you become aware of misuse of the Questis Solution or content thereon by any person, please contact Questis to report any abuse. Questis has adopted and implemented a policy that provides for the termination of Accounts of users who infringe the rights of copyright holders. Please see the Questis Copyright and Intellectual Property Policy for further information.

 

Questis has provided rules to guide and limit your use of the Questis Solution and content thereon, which it may update and modify from time to time. Currently such rules are set forth in our FAQ. You agree not to take any steps designed to gain any improper advantage in using the Questis Solution or content thereon, including, but not limited to, delaying the reporting of trades or other transactions to have the benefit of hindsight, making use of material, non-public information, exploiting errors in the Questis Solution or content thereon, or any other deceptive or unlawful practice. Questis reserves the right to monitor your usage of the Questis Solution and content thereon and to investigate suspicious activity. Questis may take any action it deems in its sole discretion necessary, including but not limited to terminating the Account of any user that Questis determines has acted unethically or illegally or otherwise has violated these Terms of Use.

 

Your use of the Questis Solution, Content and User Information is at your sole discretion and risk. The Questis Solution, Content and User Information, and all materials, information, products and services included therein, are provided on an AS IS and AS AVAILABLE basis without warranties of any kind from Questis. QUESTIS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE QUESTIS SOLUTION, CONTENT AND/OR USER INFORMATION, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. QUESTIS DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED,: (I) REGARDING THE AVAILABILITY, SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE QUESTIS SOLUTION, CONTENT AND/OR USER INFORMATION; OR (II) THAT THE QUESTIS SOLUTION WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE QUESTIS SOLUTION INCLUDING BUT NOT LIMITED TO INFORMATION OBTAINED FROM BULLETIN BOARDS, MESSAGE BOARDS, CHAT SERVICES OR OTHER ONLINE CONFERENCING. No advice or information, whether oral or written, obtained by you from Questis, shall create any warranty not expressly stated in this Agreement. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.

 

IN NO EVENT SHALL QUESTIS OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE QUESTIS SOLUTION, CONTENT AND/OR USER INFORMATION, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE INFORMATION PROVIDED AS PART OF OR THROUGH THE QUESTIS SOLUTION OR FOR ANY INVESTMENT DECISIONS MADE ON THE BASIS OF SUCH INFORMATION, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT QUESTIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL QUESTIS’S CUMULATIVE LIABILITY TO YOU EXCEED U.S. $100.

 

You agree to defend and indemnify Questis and its officers, directors, employees, and agents and to hold them harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Questis Solution, Content or User Information; (ii) your violation of any of these Terms of Use; (iii) your violation of any third-party right, including without limitation any intellectual property right, property, or privacy right; (iv) any claim that your User Information caused damage to a third-party; or (v) any claim related to your distribution of any Content or User Information.

 

  1. Modification of the Site or Terms of Use

  2. Content

  3. Eligibility

  4. Account Registration

  5. Termination; Cancellation

  6. Third-Party Links

  7. Access, Intellectual Property Rights and Ownership

  8. Restrictions

  9. Copyrighted Materials

  10. Questis Rules

  11. Disclaimer of Warranties

  12. Limitation of Liability

  13. Indemnification

  14. General

  15. In the event that any provision in these Terms of Use is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of a party to enforce any right or provision of these Terms of Use will not be deemed a waiver of such right or provision. You may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Questis, and any prohibited assignment will be null and void. Questis may assign this Agreement or any rights hereunder without your consent. The relationship of the parties under these Terms of Use is that of independent contractors, and these Terms of Use will not be construed to imply that either party is the agent, employee, or joint venturer of the other. These Terms of Use shall be governed by and interpreted in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under these Terms of Use will be brought exclusively in courts located in San Francisco, California, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. You agree that these Terms of Use and the rules, restrictions, and policies contained herein, and Questis’s enforcement thereof, are not intended to confer and do not confer any rights or remedies on any person other than you and Questis. These Terms of Use together with the rules and policies of Questis constitute the entire agreement between Questis and you with respect to the subject matter hereof. Any notice or other communication to be given hereunder will be in writing and given by (a) Questis via email (in each case to the address that you provide), (b) a posting on the Site, or (c) you via email to info@myquestis.com. or to such other addresses as Questis may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.

 

Your feedback is welcome and encouraged. You may submit feedback by emailing us at info@myquestis.com.You agree, however, that (i) by submitting unsolicited ideas to Questis or any of its employees or representatives, by any medium, including but not limited to email, written, or oral communication, you automatically forfeit your right to any intellectual property rights in such ideas; and (ii) such unsolicited ideas automatically become the property of Questis. You hereby assign and agree to assign all rights, title, and interest you have in such feedback and ideas to Questis together with all intellectual property rights therein. In addition, you warrant that all moral rights in any feedback have been waived, and you do hereby waive any such moral rights.

 

If you have questions about these Terms of Use or about the Questis Solution or content thereon, please contact Questis at info@myquestis.com.

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