This Northeast Investors Trust Terms of Service (the “Agreement”) is entered into by and between Northeast Investors Trust, a Massachusetts business trust, (the “Trust”, “we”, “us” and “our”) and you, the person accepting this Agreement and registering for use of our proprietary investment and shareholder technology platform (as further defined below, the “Platform”) (“you”, and “your”), and governs your access to and use of the Software.
BY ACCEPTING THIS AGREEMENT, OR REGISTERING FOR or using THE PLATFORM, YOU CONFIRM THAT (1) YOU HAVE READ THIS AGREEMENT AND (2) YOU ACCEPT THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE PROVISIONS OF THIS AGREEMENT, THEN (I) WE ARE UNWILLING TO GRANT YOU ACCESS TO OR USE OF THE PLATFORM, (II) YOU MUST CLICK ON THE “I DO NOT AGREE” BUTTON BELOW; AND (III) YOU MAY NOT ACCESS OR USE THE PLATFORM. The effective date of this Agreement is the date on which you click the “I AGREE” button below. Please print this Agreement for your records.
We may change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending a notification by email, posting a notice on the Platform, or updating the “Last Updated” date above. Your continued use of the Platform will confirm your acceptance of the updated Agreement. We encourage you to frequently review the Agreement to ensure you understand them. If you do not agree to the updated Agreement, you must stop using the Platform.
“Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws, etc., are in effect as of the Effective Date or later come into effect during the term of this Agreement.
“Data” means all information and data input by you into the Platform, and all derivatives and transformations thereof.
“License Term” means the period of time during which the Trust grants you access to the Platform.
“Platform” means the Trust’s proprietary investment and shareholder technology application (including all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) and the content therein, including all databases (other than Data), all as may be updated by the Trust from time to time, and which may include third-party components.
2.1 Platform. Subject to your compliance with the terms of this Agreement, the Trust hereby grants to you a nonexclusive, limited, nontransferable right to access and use the Platform in object code only via the Trust’s internet hosted web site solely (i) for your own investment purposes, (ii) during the License Term; and (iii) in strict accordance with this Agreement.
2.2 Restrictions. You shall not use, or allow others to use, the Platform in any manner other than as expressly allowed in this Agreement, and you shall use the Platform in accordance with all Applicable Laws. You may not, directly or indirectly, nor authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Platform or its structural framework; (ii) modify or create derivative works of the Platform; (iii) attempt to gain unauthorized access to the Platform or its related systems or networks (including to access or use (or attempt to access or use) a third party’s account, or solicit another user’s login information); (iv) knowingly or intentionally transmit any software or materials to the Platform that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; or (v) use the Platform in whole or in part for any purpose except as expressly provided under this Agreement (including without limitation allowing any distribution or sublicense of the Platform or other access to the Platform by any person or entity or processing Data through the Platform on behalf of third parties. You shall (a) take all reasonable precautions to prevent unauthorized or improper access to and use of the Platform, (b) not interfere with or disrupt the integrity or performance of Platform, (c) not create Internet “links” to the Platform or “frame” or “mirror” any content therein; (d) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Platform; or (e) probe, scan or test the vulnerability of the Platform, nor breach the security or authentication measures on the Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform, such as a denial of service attack.
2.4 Transactions; Account Maintenance. The Platform permits you to perform certain financial transactions, and may permit you to change your account settings, such as by adding information regarding your bank accounts, changing your address, changing your payment and dividend options, and opening or closing accounts. To the extent transactions in the Trust shares are carried out for your account utilizing the Platform, you hereby authorize the Trust to effect any such transaction which it reasonably believes to have been transmitted on your behalf, and you acknowledge that the Trust shall have no liability to you or any third party with respect to any unauthorized transaction to the extent the Trust believes that the procedures provided by the Trust for the authorization of such transactions have been followed.
3. Term and Termination. The term of this Agreement will commence on the Effective Date and shall expire upon expiration or termination of the License Term unless terminated earlier as provided herein. If you materially breach any term or condition of this Agreement, and if such breach has not been cured within thirty (30) days after its receipt of notice of such breach, the Trust may immediately terminate this Agreement; provided, however, the Trust may terminate this Agreement immediately upon your breach of Section 2. If this Agreement expires or is terminated, the Trust will make available to you, at your request and expense, an electronic file of the Data within thirty (30) days of termination. Upon termination of this Agreement, your right to access or use Data and the Platform shall immediately cease and except as otherwise provided herein, the Trust will have no obligation to maintain or forward any Data. Sections 3, 4, 5, 6, 7, 8and 9will survive expiration or termination of this Agreement.
4.1 Reservation of Rights. All rights not expressly granted to you herein are expressly reserved by the Trust. As between the parties, the Platform is and will remain exclusive property of the Trust, and the Trust will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in the Platform, and all derivative works thereof, and you will have no right, title, or interest in or to the same except as expressly granted in Section 2.1. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of the Trust’s or its licensors’ existing or future rights in or to the Platform except as expressly granted in Section 2.1. The Trust trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by the Trust and shall inure solely to the benefit of the Trust.
4.2 Feedback. You may provide the Trust with feedback or comments related to the Trust products or services, and you hereby grant the Trust and its designees and assigns a fully paid up, royalty-free, perpetual, irrevocable, transferable, unlimited license to copy, modify, create derivative works of, publicly display, disclose, distribute, license, sublicense, incorporate, and otherwise use such feedback and comments, including all derivative works thereto, for any and all purposes, commercial or otherwise, with no obligation of any kind to you.
4.3 Violations of Law. The Trust may immediately suspend provision of the Platform at any time, without notice to you and without liability, if the Trust suspects or receives notice that the Platform or the use thereof actually or allegedly infringes or violates a third party rights or violates any Applicable Laws. The Trust may suspend your access to and use of the Platform in order to comply with Applicable Laws, or upon having reason to believe that any improper activity or potential damage to the Trust products or services or other shareholders is associated with your use of or access to the Trust Platform.
4.4 Your Data. As between the parties, you have and shall retain sole and exclusive title and ownership of all Data. You grant to the Trust a limited and nonexclusive license to use, copy, modify, distribute and display Data solely for purposes of providing the Platform to you in accordance with this Agreement and as otherwise expressly authorized by this Agreement.
4.5 Platform Specifications and Requirements. As between the parties, you are responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Platform, and for paying all associated third-party access charges. The Trust may make upgrades and improvements to the Platform available to you from time to time. The Trust may modify or delete any features of the Platform from time to time. The Trust may modify the Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or demands or requirements of third party service providers.
5.1 Confidential Information. Each party acknowledges and understands that, except as set forth in Section 5.2, any and all technical, trade secret, business investment information, including, without limitation, financial information, or shareholder information, which is disclosed to the other or is otherwise obtained by the other, its affiliates, employees, representatives or other agents during the term of this Agreement (the “Confidential Information“) is confidential and proprietary, constitutes trade secrets of the owner, and is of great value and importance to the success of the owner’s business. The Platform constitutes the Trust’s Confidential Information.
5.2 Exceptions. The parties shall have no obligation hereunder with respect to any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information; or (iv) independently developed by the receiving party without use of the disclosing party’s Confidential Information, as evidenced by the receiving party’s records kept in the ordinary course of its business. A disclosure of Confidential Information shall not be a violation of this provision if it is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the disclosing party provides prompt notice of any such subpoena, order, etc. to the other party so that such party will have the opportunity to obtain a protective order.
5.3 Obligations. Both parties shall maintain as confidential and shall not disclose (except for those employees, attorneys, accountants and other advisors, agents or authorized users of the recipient and its affiliates on a need-to-know basis and who have in turn been advised of the confidentiality obligation hereunder), copy, or use for purposes other than in connection with use of the Platform as authorized hereunder, the other party’s Confidential Information. Each party agrees to protect the other party’s Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Each party shall be liable under this Agreement to the other for any use or disclosure in violation of this Agreement by its employees, attorneys, accountants, or other advisors, agents or authorized users.
6. Your Warranties; Disclaimers.
6.1 Your Warranties. You represent, warrant and covenant that (i) you will comply with all Applicable Laws with respect to your access and use of the Platform; and (ii) you has received all third party consents and certifications necessary for the transmission of Data to and from the Platform. The Trust is not responsible for ensuring that the Platform, or any portion thereof, meets your criteria for legal, regulatory, or tax compliance.
6.2 Disclaimers. THE TRUST EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM AND ANY INFORMATION, MATERIALS AND SERVICES PROVIDED OR MADE AVAILABLE IN CONNECTION THEREWITH, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE TRUST DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ANY ASSOCIATED INFORMATION OR SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT DEFECTS OR ERRORS WILL BE OR ARE CAPABLE OF CORRECTION. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND THE TRUST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. You acknowledge that the Trust is not responsible for the integrity of data and information, including without limitation, Data, including completeness, accuracy, validity, authorization for use and integrity over time, and the Trust shall not be responsible for any loss, damage or liability arising out of the Data, including any mistakes contained in the Data or the use or transmission of the Data.
6.3 Third Party Data. The Platform may allow access to data, information, or services disseminated by outside data sources and you acknowledge that the Trust and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of such third party data information, or services and make no warranty concerning such information. YOU USE SUCH THIRD PARTY DATA, INFORMATION, OR SERVICES AT ITS OWN RISK.
6.4 Limited Scope. You acknowledge that the Platform is not intended to provide legal, tax or investment advice. You are solely responsible for determining whether any investment is appropriate for you based on your personal investment objectives, financial circumstances and risk tolerance. You should consult your legal or tax professional regarding your specific situation.
7. Indemnification. You will, if instructed by the Trust, defend, and in any event indemnify, and hold harmless the Trust and its Affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all third party claims arising out of or incurred as a result of: (i) any breach of this Agreement by you; (ii) your use of the Platform or any component thereof; and/or (iii) Data; provided, however, that you shall not be obligated to indemnify the Trust entities to the extent the claim is caused by the Trust’s negligence, misconduct, and/or violation of Applicable Laws. If the Trust instructs you to defend such claim, you shall pay any judgment entered or settlement against the Trust thereon,
8. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRUST WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, AND ANY SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF THE TRUST IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE TRUST’S TOTAL CUMULATIVE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
9. General. The Agreement and all rights and obligations hereunder are not assignable or transferable by you without the prior written consent of the Trust, and any attempt to do so shall be void. Except with respect to the obligation of payment, neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement. No action, regardless of form, arising out of this Agreement may be brought by you more than one year after the cause of action has been or reasonably should have been discovered. This Agreement is deemed to be made under and shall be interpreted in accordance with the laws of Massachusetts, USA, excluding conflict of laws provisions. The parties hereby submit to the jurisdiction and venue of the state and federal courts within Boston, Massachusetts for purposes of all legal proceedings arising out of or relating to this Agreement. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The parties hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement. In the event of a material dispute between the parties, both parties first shall make reasonable best efforts to remedy the dispute without outside intervention. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement or the transactions contemplated hereby. You agree that we may send to you in electronic form any notices, disclosures, reports, documents, communications or other records regarding your use of the Platform (collectively, “Notices”). We may send you electronic Notices (1) to the e-mail address that you provided to us during the registration process, or (2) by posting on the Platform website. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by contacting us at Northeast Investors Trust, 125 High Street, Suite 1802, Boston, MA 02110. Notices to the Trust must be sent in writing via prepaid certified mail or commercial courier to the foregoing address, and sent to the attention of its Chief Executive Officer. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by any party to this Agreement to exercise any right or remedy shall not be construed to be a waiver of such right or remedy or any other right or remedy. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior discussions, understandings and agreements with respect to its subject matter.