Terms of Service
Updated October 29, 2020
The online services provided by Open Invest Co. (“OpenInvest”) will, among other things: Allow an open community of users to share information about investing (the “Content Services”), Provide tools to help you allocate your portfolio, Provide recommendations of brokers and securities (the “Recommendations”) Provide discretionary investment management services in the form of an automated asset manager (the “paid service”).
We refer to these services collectively as the “Services.” The Services are provided to you subject to these terms of service, as well as any other guidelines, rules and additional terms referenced herein, and all such guidelines, terms and rules are hereby incorporated herein by this reference (collectively, the “Terms of Service”).
By accessing the OpenInvest website located at www.openinvest.com, or any linked pages owned and operated by us (the “Sites”), or using the Services, whether on our Sites or on our partners’ websites through which we have hosted or otherwise made accessible the Services (the “Partner Sites”), you agree to be bound by these Terms of Service. These Terms of Service set out the legally binding terms with respect to your use of, and our provision of, the Services. Please read these Terms of Service carefully.
YOUR USE OF THE SITES OR SERVICES CONSTITUTES YOUR ACCEPTANCE OF ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE. IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF SERVICE, DO NOT USE THE SITES OR ANY SERVICE.
You must be 18 or older, or of the legal age in your jurisdiction to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to register as a user of the Sites or to use the Services. If you are under the age of 18 or the applicable legal age in your jurisdiction, you can use the Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to these Terms of Service. If you do not qualify, do not use the Services. Registration for the Sites is void where prohibited by applicable law and the right to access the Sites is revoked in such jurisdictions. You must be 13 or older to use the Sites, in compliance with the Children’s Online Privacy Protection Act (COPPA). By using the Sites or Services, you represent and warrant that you have the right, authority and capacity to enter into these Terms of Service and to abide by all of the terms and conditions set forth herein. The Sites are administered in the United States and intended for U.S. users; any use outside of the U.S. is at the user’s own risk and users are responsible for compliance with any local laws applicable to their use of the Sites or Services.
Changes to the Agreement or the Sites and Services
You agree and understand that these Terms of Service and the Sites and Services may be modified by us at any time without prior notice, and such modifications will be effective upon our posting of the new terms and/or upon implementation of the new changes in the Sites or Services. You agree to review the Terms of Service periodically so that you are aware of any modifications. YOUR CONTINUED USE OF THE SITES OR SERVICES AFTER ANY MODIFICATIONS INDICATES YOUR ACCEPTANCE OF THE MODIFIED TERMS OF SERVICE. Unless we expressly state otherwise, any new features, new services, enhancements or modifications to the Sites or Services implemented after your initial access thereto shall be subject to these Terms of Service.
Registration and Security
In order to use and/or access certain Services, you may be required to register with the Sites and to select a password and a user name which shall be associated with an email address which you own and use (“User ID”). You may also be asked to answer some questions about yourself. You agree that the information you provide to us upon registration and at all other times, including any questionnaire you may submit to us in connection with our Portfolio Services and information you provide to us through the Partner Sites, shall be true, accurate, current and complete, and that you will promptly update such information with any changes. Failure to do so shall constitute a breach of these Terms of Service, which may result in the immediate termination of your user account. You may not: (i) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than yourself without appropriate authorization. We reserve the right to refuse registration of, or cancel, a User ID in our sole discretion. You shall be responsible for maintaining the confidentiality of your password and are fully responsible for all activities that occur under your User ID and password. Any User ID and password provided to you for your access to the Services shall be for your personal use only. You agree to (a) immediately notify us of any unauthorized use of your User ID or password and (b) ensure that you log out of your account when you wish to de-authenticate from each session. If you violate any of these Terms of Service, we may, at our sole discretion, terminate your registration, remove or modify any content that you have contributed, or take any other action that we determine to be appropriate.
Use of the Site/Services by Members
Subject to the restrictions on use and posting set forth in these Terms of Service, you may use the Content Services to create, contribute, search, consume, and share information about investing, and encourage others to do the same; send content to people you know, whether or not they are existing users of the Content Services; invite people you know to join the Content Services; and download or copy the portions of the information, data, text, sound, photographs, graphics, video, messages and other materials available through the Content Services (“Content”), and other items displayed on OpenInvest, solely for your own personal, non-commercial use. The term “Content” does not include the Offers, Recommendations or information provided in connection with the Recommendations. Subject to the section captioned “Certain Third Party Content” below, you may not copy or distribute any portion of OpenInvest for any purpose not authorized above without the express written permission of OpenInvest.
We do not control the Content posted by third parties on OpenInvest (“Third Party Content”) and do not guarantee the accuracy, integrity or quality of such Third Party Content. You understand that by using the Content Services you may be exposed to Third Party Content that is false, misleading, fraudulent, offensive, indecent and/or objectionable. Under no circumstances will we be liable in any way for any Third Party Content, including any errors or omissions in any Third Party Content, or any loss or damage of any kind incurred as a result of your use of any Third Party Content. You are responsible for complying with all laws applicable to the Content you submit to OpenInvest.
YOUR USE OF THIRD PARTY CONTENT IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY CONTENT (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY CONTENT).
You should not, and you agree you will not, construe, treat or rely on Content as (i) advice from OpenInvest or its affiliates as to the value of securities, the selection of an investment adviser or the advisability of investing in, purchasing or selling securities or (ii) analyses or reports from OpenInvest or its affiliates concerning securities. Any Content posted by us on OpenInvest has been posted in order to generate community discussion of such Content. We make no representations, warranties or guarantees whatsoever as to the accuracy, integrity or quality of such Content and under no circumstances will OpenInvest be liable in any way for any Content posted by us, including any errors or omissions in any such Content, or any loss or damage of any kind incurred as a result of your use of any such Content. You agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the content, integrity, and accuracy of such Content.
We will notify you when we provide you with any investment advisory services. Except in these instances, you agree and acknowledge that we are neither your investment advisor nor your fiduciary. You should not rely solely on any Content when making investment decisions.
OpenInvest is an organic website that grows because of the Content contributed by its community. OpenInvest users are encouraged to contribute Content. When you contribute Content to the Sites, you agree to do so on the following terms:
- You are solely responsible for any Content and other material that you submit to, or publish or display on, the Sites or transmit to other users (“Contributed Content”).
- You may not submit any Contributed Content or material that infringes, misappropriates or violates the intellectual property, publicity, privacy or other rights of any party or that is subject to any restrictions, or imposes any obligations, on the use or further distribution thereof.
- You may not provide any Contributed Content that falsely expresses or implies that such Content or material is sponsored or endorsed by us.
- You may not provide any Contributed Content that is unlawful or that promotes or encourages illegal activity. You understand and agree that we may review and/or delete any Contributed Content that in our sole judgment violates these Terms of Service or which might be offensive, illegal, or that might violate the rights of, harm, or threaten the safety of other users of the Sites.
- You agree that you will only provide Contributed Content that you believe to be true, and you will not purposely provide any false or misleading information.
- By posting Contributed Content on the Sites, you agree to and hereby do grant, and you represent and warrant that you have the right to grant, us a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty- free, fully paid-up, transferable license, with the right to sublicense, to use, copy, publicly perform, digitally perform, publicly display and distribute such Contributed Content, and to sell, modify, create derivative works from and/or to incorporate such Contributed Content into other works in any form, medium or technology, whether now known or hereafter developed, in each case, without compensation to you. You agree to waive any moral rights that you may have to your Contributed Content. You represent and warrant that none of your Contributed Content is subject to a confidentiality obligation.
The following is a partial list of the kind of Content and communications that are illegal or prohibited on/through the Sites. We reserve the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Sites and terminating the membership of such violators or blocking your use of the Sites. You may not post Content that:
- is false or intentionally misleading;
- is patently offensive to users, such as Content or messages that promote racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person or includes personal information about another person, such as their address, email address or telephone number;
- involves the transmission of unsolicited mass mailing (i.e. “spamming”) or other forms of solicitation (including, but not limited to, advertising, promotional materials, chain letters and/or pyramid schemes);
- violates the intellectual property or other rights of any person (including rights arising under contractual or fiduciary obligations);
- promotes illegal activities or conduct that is abusive;
- violates any applicable law or regulation, including, without limitation, the rules and regulations of the U.S. Securities and Exchange Commission and/or the national or other securities exchanges (especially and including the rules against making false or misleading statements with the intent to manipulate the price of any security);
- offers to sell or buy any security (including as such terms are used in the Securities Act of 1933, as amended, the rules and regulations thereunder, and the other U.S. securities laws), including any shares or other interest in an investment company, a hedge fund, a private equity fund or any other collective investment vehicle (a “Fund”);
- refers, explicitly or implicitly, to any Fund that is (or the interests in which are) managed, advised, sponsored, underwritten, placed, offered or sold by you or your affiliate.
- is threatening, obscene, defamatory or libelous;
- is pornographic or sexually explicit in nature; and/or
- seeks or recommends providers of material that exploits people under the age of 18 in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18.
OpenInvest also provides discretionary investment management through the paid service. The paid service includes the following features:
- Automated portfolio creation based on your selected investment objectives
- Managed automatic rebalancing of your portfolio
- Periodic account review
- For a full description of the paid program, its methodology and applicable fees see our ADV.
OpenInvest does not provide tax advice. When you enroll in the paid service, you agree that we will allocate your assets to your selected investment objective(s). In determining the appropriate portfolio options to make available to you, we take into consideration your risk tolerance and cause selections based on the information that you, the user, has provided to us. The paid service’s investment objectives are based solely on the information that you disclose to us and portfolio objectives prepared through the Content Services. We do not verify that the information that you provide to us is accurate. Please note that rebalancing transactions and initial purchases to align your account with your selected investment objectives may result in fees. For example, there may be additional transaction fees, redemption fees, loads, capital gains and other fees associated with the rebalanced portfolio. You may want to consult a tax professional to review the proposed portfolio(s) selected for the paid service.
Restrictions on Rights to Use
You agree that, subject to the section captioned “Certain Third Party Content” below, without our express written consent, you shall not (and you agree not to allow any third party to):
- modify, adapt, translate or reverse engineer any portion of the Sites;
- remove any copyright, trademark or other proprietary rights notices contained in or on the Sites or in or on any Contributed Content or other material obtained via the Services;
- except for tools provided through the Sites, use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve or index any portion of the Sites;
- access, retrieve or index any portion of the Sites for purposes of constructing or populating a searchable database of information;
- collect or store personal data or any other information about other users or members of the Sites (including usernames and/or email addresses) in connection with the prohibited activities described in this section, or for any other purpose other than for your own personal, non-commercial use;
- reformat, frame or place pop-up windows over any portion of a Site, or otherwise affect the way that any Site is displayed;
- create user accounts by automated means or under false or fraudulent pretenses;
- impersonate any person or entity, including, but not limited to, any employee or officer of OpenInvest, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- create or transmit unwanted electronic communications such as “spam” to other users or members of the Services or otherwise interfere with other users’ or members’ enjoyment of the Services;
- transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature;
- forge headers or manipulate identifiers or other data in order to disguise the origin of any Content transmitted through the Sites or to manipulate your presence on the Sites;
- use the Sites or Services to violate the security of any computer network, crack passwords or security encryption codes, or transfer or store illegal material, including material deemed threatening or obscene;
- copy or store any Content offered on OpenInvest for other than your own personal use;
- use any device, software or routine that interferes with the proper working of the Sites or Services or otherwise attempt to interfere with the proper working of the Sites or Services;
- take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Sites or Services, use of the Services, or access to the Services;
- solicit any user for any investment or other commercial or promotional transaction; or
- use the Sites or Services, intentionally or unintentionally, to violate any applicable local, state, national or international law.
Unauthorized access to the Sites or Services is a breach of these Terms of Service and a violation of law. You agree not to access the Sites or Services by any means other than through the interfaces that we or our partners provide to you for accessing the Sites and Services. We may at any time, without prior notice and in our sole discretion, remove any post, terminate the membership of, or take any other appropriate action against any person who violates the Terms of Service. Illegal or unauthorized uses of the Sites or Services will be investigated and subject to appropriate legal action, including, without limitation, civil, criminal and/or injunctive redress.
Account Information from Third Party Sites
In order to use and/or access certain Services, you may be required to direct OpenInvest to retrieve your own information maintained online by third party financial institutions with which you have customer relationships, maintain accounts or engage in financial transactions (“Account Information”). We will then connect directly with your online financial service providers to access this Account Information. Subject to our privacy procedures as described in these Terms of Service, OpenInvest may also work with one or more third party financial service technology providers to access and retrieve your Account Information.
For users that are also non-paid service users, we make no effort to review the Account Information for any purpose, including but not limited to accuracy, legality or non-infringement. See below for full detail on how your Account Information will be utilized through the paid service. We are not responsible for the products and services offered by or on third-party sites, including the sites of other Advisers that may be mentioned. We cannot always foresee or anticipate technical or other difficulties, which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. We cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, Account Information may be stale as of the time viewed, which reflects the fact that time may have passed between the time the information is downloaded from the third party financial institution and the time such information is viewed by you. Such information may be more up-to-date when obtained directly from the relevant sites. You can refresh your Account Information through the Portfolio Services in the manner prescribed in the associated instructions.
By submitting information, data, passwords, usernames, PINs, other login information, materials and other content through the Sites, you are licensing that content to us solely for the purpose of providing services. We may use and store the content. By submitting this content to us, you represent that you are entitled to submit it to us for use for this purpose, without any obligation by us to pay any fees or other limitations.
We will use information that you provide us, including usernames and passwords, to log into the third party site that maintains your Account Information. You hereby authorize and permit us to use and store such information to accomplish the foregoing and to configure the services so that they are compatible with the third party sites that maintain your Account Information. You grant OpenInvest a limited power of attorney, and appoint OpenInvest as your attorney-in-fact and agent, to access third party sites and retrieve and use your information with the full power and authority to do and perform each thing necessary as you could do in person, but solely in connection with providing the Account Information to you as part of the Services.
YOU ACKNOWLEDGE AND AGREE THAT WHEN WE ARE ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, WE ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY.
Notwithstanding anything in this Terms of Service to the contrary, we shall have no authority to take or have possession of any assets in the accounts maintained by such third parties or to direct delivery of any securities or payment of any funds held in such account to itself or to direct any disposition of such securities or funds. You agree that third party account providers shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you. While our services may be sponsored or endorsed by the third parties with whom your Account Information is held from time to time, you should not assume that the Portfolio Services are sponsored or endorsed by any third parties with whom your Account Information is held.
We may provide automatic alerts and voluntary account-related alerts from time to time. Automatic alerts may be sent to you following certain events of interest, such as changes made online to your OpenInvest or Partner Site account (e.g., a change in your password) or events or movements in your portfolio.
Voluntary account alerts may be turned on by default as part of the Services. They may then be customized, deactivated or reactivated by you. We may add new alerts from time to time, or cease to provide certain alerts at any time in our sole discretion. Electronic alerts for a given account will be sent to the email address you have provided as your primary email address for that account. If your email address or your mobile device’s email address changes, you are responsible for informing us of that change. Changes to your email address or mobile number will apply to all of your alerts. Because alerts are not encrypted, we will never include your password. However, alerts may include your User ID and some information about your accounts. Anyone with access to your email will be able to view the content of these alerts. At any time you may disable future voluntary alerts.
You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. We use reasonable best efforts to provide alerts in a timely manner with accurate information. However, except as otherwise provided herein, we neither guarantee the delivery nor the accuracy of the content of any alert. Furthermore, except as otherwise provided herein, you also agree that we shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
THESE TERMS OF SERVICE DO NOT WAIVE OR LIMIT YOUR RIGHTS UNDER ANY FEDERAL OR STATE SECURITIES LAW.
Interstate and International Nature of Communications
You acknowledge that in contributing Content or using the Services to send electronic communications, you will be causing communications to be sent through our computer networks, portions of which are located in various states and localities in the United States and portions of which may be located abroad. As a result, and also as a result of OpenInvest’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that the contribution of Content and use of the Services results in interstate data transmissions.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
Copyright Dispute Policy
We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (available here). The address of OpenInvest’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is provided at the bottom of this section.
It is our policy to (i) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, Content providers, members or users; and (ii) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements
If you believe that material or Content residing on or accessible through the Sites infringes your copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below (“Proper Bona Fide Infringement Notification”):
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that was allegedly infringed;
- Identification of the works or materials being infringed;
- Identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and that the notifying party is authorized to make the complaint on behalf of the copyright owner.
Please note that if you choose to send a Proper Bona Fide Infringement Notification to the Designated Agent via email, all required information must be provided in the body of the email as we will not accept or open attachments.
Upon Receipt of a Bona Fide Infringement Notification
Once Proper Bona Fide Infringement Notification is received by the Designated Agent, it is our policy:
- to remove or disable access to the infringing material;
- to notify the Content provider, member or user that it has removed or disabled access to the material; and
- that for repeat offenders, we will also terminate such Content provider’s, member’s or user’s access to the Sites.
Procedure to Supply a Counter-Notice to the Designated Agent
If the Content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the Content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the Content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the Content provider, member or user;
- Identification of the material that has been removed or to which access to has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the Content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- The Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the Content provider’s, member’s or user’s address is located, or if the Content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which we are located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter- notice, in our discretion.
Address for Designated Agent
Please contact our Designated Agent to Receive Notification of Claimed Infringement at the following address:
Copyright Agent, Open Invest Co.
c/o Leigh Kloss
One Market Street, 36th Floor
San Francisco, CA 94105
Our Proprietary Rights
The Sites (including, but not limited to, text, photographs, graphics, video and audio Content, but excluding any Content that is subject to the section captioned “Certain Third Party Content” below) are protected by copyright as collective works or compilations under the copyright laws of the United States and other countries. All individual articles, Content and other elements comprising the Sites and Portfolio Tracker are also copyrighted works. Except for the Content submitted by members or users, the Sites and all aspects thereof, including all copyrights, trademarks, and other intellectual property or proprietary rights therein, are owned by OpenInvest or its licensors. You acknowledge that the Sites and any underlying technology or software used in connection with the Sites or Portfolio Tracker contain our proprietary information. You may not modify, reproduce, distribute, create derivative works of, publicly display or in any way exploit, any of the content, software, and/or materials available on the Sites, in whole or in part, except as expressly provided in our policies and procedures made available via the Sites. Except as expressly and unambiguously provided herein, neither we nor our suppliers grant you any express or implied rights, and all rights in the Sites not expressly granted by us to you are retained by us.
Trade names, trademarks and service marks of OpenInvest include, without limitation, the name “Open Invest Co.”, “OpenInvest”, and all associated logos. All trademarks and services marks on the Sites that are not owned by us are the property of their respective owners. Nothing contained on the Sites should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Registered Investment Adviser
The rules and regulations applicable to registered investment advisors under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) may require us to make certain requests of you in connection with certain types of Recommendations. In particular, we may need to provide you with additional information, ask that you acknowledge that such additional information was provided and, if required, obtain additional information from you. OpenInvest may also be subject to the regulations of state securities authorities.
Electronic delivery of Form ADV
You acknowledge and consent to electronic delivery of any brochure that we are required to deliver to you under the Advisers Act, including the information in Part 2 of our Form ADV, which is available here.
Disclaimers and Limitations of Liability
THE THIRD-PARTY BROKERS AND THIRD-PARTY ADVISORS ARE NOT EMPLOYEES OR AGENTS OF OPENINVEST OR ITS AFFILIATES. WE ARE NOT LIABLE FOR AND WILL NOT JUDGE THE SUITABILITY OF ANY ACTIONS OF THE THIRD-PARTY BROKERS AND THIRD-PARTY ADVISORS, INCLUDING ANY TRADING OR INVESTMENT RECOMMENDATION OR DECISION. OPENINVEST TREATS CONTENT SUBMITTED BY SUCH USERS IN THE SAME MANNER THAT IT TREATS CONTENT SUBMITTED BY THE GENERAL PUBLIC.
THERE ARE SIGNIFICANT RISKS ASSOCIATED WITH INVESTING WITH A THIRD-PARTY ADVISOR OR INVESTING IN THE RECOMMENDED SECURITIES, INCLUDING, BUT NOT LIMITED TO, THE RISK THAT YOUR PORTFOLIO COULD SUFFER SUBSTANTIAL DIMINUTION IN VALUE. WE DO NOT AND CANNOT GUARANTEE THE FUTURE PERFORMANCE OF YOUR PORTFOLIO OR THE RECOMMENDED SECURITIES. IF YOU CHOOSE TO INVEST IN THE RECOMMENDED SECURITIES, YOU ACKNOWLEDGE THAT YOU ARE ABLE TO BEAR THE RISKS OF INVESTING IN THE RECOMMENDED SECURITIES, AS APPLICABLE, AND THAT OPENINVEST AND ITS AFFILIATES SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, TO YOU OR ANY OTHER ENTITY FOR LOSSES RESULTING FROM THE ACTIONS OR RECOMMENDATIONS OF ANY THIRD-PARTY ADVISORS OR YOUR INVESTMENT IN THE RECOMMENDED SECURITIES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING IN THESE TERMS OF SERVICE SHALL BE INTERPRETED TO WAIVE OR LIMIT YOUR RIGHTS UNDER ANY FEDERAL OR STATE SECURITIES LAW.
OPENINVEST AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THE ACCURACY OF ANY ESTIMATION OF FEES, DESCRIPTION OF INVESTMENT STRATEGIES, THIRD PARTY DATA ABOUT MUTUAL FUNDS OR ETFS, OR OTHER INFORMATION PROVIDED IN CONNECTION WITH ANY RECOMMENDATION. OPENINVEST AND ITS AFFILIATES SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, TO YOU OR ANY OTHER ENTITY FOR ANY INACCURACIES IN OR OMISSIONS FROM SUCH INFORMATION.
PERFORMANCE GRAPHS AND OTHER HISTORICAL INFORMATION ARE NOT A GUARANTEE OF FUTURE PERFORMANCE, AND THE FUTURE PERFORMANCE OF A PORTFOLIO/ALLOCATION OR RECOMMENDED SECURITY MAY DIFFER MATERIALLY FROM ITS PAST PERFORMANCE.
ANY SERVICES RELATING TO TAX PLANNING OR TAX-LOSS HARVESTING ARE NOT INTENDED TO BE THE PRIMARY OR SOLE BASIS FOR YOUR TAX-PLANNING DECISIONS. YOUR CIRCUMSTANCES ARE UNIQUE; THEREFORE YOU SHOULD CONSULT A TAX ADVISOR FOR PERSONAL ADVICE. WE DO NOT PROVIDE TAX ADVICE.
These Terms of Service, as amended from time to time, will remain in full force and effect while you use the Services or use any Content that you have obtained from OpenInvest. We may terminate these Terms of Service for any reason, at any time. Any provisions in these Terms of Service that by their nature or as specified hereunder are intended to continue beyond termination or expiration of these Terms of Service, including, without limitation and for the avoidance of doubt, the sections captioned “Our Proprietary Rights,” “Privacy,” “Recommendations,” “Term,” “Disclaimer,” “Limitation on Liability,” “Indemnity,” “Certain Third Party Content” and “Miscellaneous,” shall survive any termination or expiration of these Terms of Service.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) THE SITES AND SERVICES ARE PROVIDED BY US ON AN “AS IS, ” “WHERE IS,” AND “WHERE AVAILABLE” BASIS, AND WE AND OUR LICENSORS AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, AS TO THE OPERATION OF THE SITES AND SERVICES OR SOFTWARE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON, OR IN ASSOCIATION WITH, THE SITES AND SERVICES; (B) WE AND OUR LICENSORS AND AFFILIATES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITES AND THE SERVICES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (C) WE AND OUR LICENSORS AND AFFILIATES FURTHER DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE SITES OR DISPLAYED THROUGH THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR LICENSORS AND AFFILIATES MAKE NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR THE CONDUCT OF ANY THIRD PARTY USER OF THE SITES OR SERVICES. WE DO NOT WARRANT OR COVENANT THAT THE SITES AND SERVICES WILL BE AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, WILL BE SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES AND SERVICES ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY MATERIAL OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES OR SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM US OR THROUGH OR FROM THE SITES OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
NEITHER WE NOR THE SITES OR SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX, OR, EXCEPT AS WE MAY OTHERWISE NOTIFY YOU IN CONNECTION WITH THE RECOMMENDATIONS, FINANCIAL ADVICE. WE ARE NOT A REGISTERED BROKER-DEALER OR TAX ADVISOR. Unless we specify otherwise, any advice we provide to you is based solely on the information provided by you, and may not take into account information that may be available in the context of a more detailed examination of your personal financial situation. Accordingly, before making any final decisions or implementing any financial strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who are fully aware of your individual circumstances. We will not check the accuracy of the information you provide to us. It is your responsibility to keep the information you provide to us up to date. In most cases, we will not ask you to provide additional information or ask you to update your existing information.
WHETHER OR NOT EXPRESSLY STATED, ALL DISCLAIMERS IN THESE TERMS AND CONDITIONS ARE MADE ON BEHALF OF OPENINVEST, ITS AFFILIATES, AND ITS AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
Limitation on Liability
NEITHER WE NOR OUR AFFILIATES SHALL BE LIABLE FOR DAMAGES ARISING FROM THE PROVISION OR USE OF THE SITES OR SERVICES, INCLUDING THE RECOMMENDATIONS, EXCEPT FOR DAMAGES RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
FOR THE AVOIDANCE OF DOUBT, NOTHING IN THESE TERMS OF SERVICE SHALL CONSTITUTE A WAIVER OR LIMITATION OF YOUR RIGHTS UNDER ANY FEDERAL OR STATE SECURITIES LAWS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) WE SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM OUR OBLIGATIONS HEREUNDER WHERE SUCH FAILURE RESULTS FROM ANY CAUSE BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION (INCLUDING “LINE- NOISE” INTERFERENCE); AND (B) WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR OUR SUPPLIERS WILL BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE 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 CONTENT OR SERVICES 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 CONTENT OR SERVICES; OR (C) LOSS OR DAMAGE ARISING FROM YOUR USE OF THE CONTENT OR SERVICES THEREON.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OPENIVEST’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE FEES RECEIVED BY OPENINVEST IN RESPECT OF YOUR ACCOUNT IN THE SIX (6) MONTHS PRIOR TO THE ACTION OR EVENT GIVING RISE TO LIABILITY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You agree to indemnify and hold OpenInvest, its parents, subsidiaries, affiliates, officers, directors, shareholders, predecessors, successors in interest, agents and employees, harmless, including costs and attorneys’ fees, from any demand, loss, liability, claim, cause of action, judgment or demand made by any third party due to or arising out of (i) your access to the Sites, (ii) your use of the Services, (iii) your submission of Contributed Content, (iv) the violation of these Terms of Service by you, (v) your violation of law in your use of the Services or in your dealings with other users of the Services including the Securities Act of 1933, Securities Exchange Act of 1934, the Investment Advisers Act of 1940 and the Investment Company Act of 1940, each as amended, or (vi) the infringement by you, or any third party using your account or User ID or password, of any intellectual property or other right of any person or entity.
Certain Third Party Content
Any Content on OpenInvest that is subject to the GNU General Public License, the GNU Free Documentation License or any similar type of “open” licensing regime (“Open Content”) is expressly excluded from the ownership rights claimed by OpenInvest under these Terms of Service (including from OpenInvest’s ownership rights in the compilation copyrights in the Sites). The use and distribution of any Open Content on the Site labeled by OpenInvest as subject to open license terms is subject to those terms, and not to the restrictions in these Terms of Service.
Removing your account for the Services
This Agreement will continue to apply until terminated by either you or us as set out below. If you want to terminate your legal agreement with us, you may do so by closing your account for the Services.
To close and delete any account with us, please email us at email@example.com. If you are using our services through an account maintained by a Partner Site, please consult the terms of service for the partner site for removal instructions.
If there is any dispute about or involving the Sites or Services, you agree that the dispute will be governed by the laws of the State of California, without regard to its conflict of law provisions.
YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. Notwithstanding anything to the contrary in this Section or any other provision of this Agreement or in the JAMS’ Arbitration Rules and Procedures, disputes regarding the enforceability, revocability or validity of the foregoing class action waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action, and (2) there is a final judicial determination that all or part of such class action waiver is unenforceable, then the class, collective, and/or representative action, to that extent, must be litigated in a civil court of competent jurisdiction, but the portion of such class action waiver that is enforceable shall be enforced in arbitration.
No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind us in any respect whatsoever. We may provide you with notices, including those regarding changes to the Terms of Service by email, regular mail or postings on the Sites or Partner Sites. These Terms of Service and all terms, guidelines and rules referenced herein contain the entire agreement between you and us regarding the use of the Sites and Services. Our failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
We will explicitly notify you each time we provide you with any investment advisory services. We will not assign any advisory responsibilities under the Advisers Act without your consent. These Terms of Service are not assignable, transferable or sublicensable by you except with our prior written consent. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. These Terms of Service include OpenInvest’s acceptable use policy for Contributed Content, OpenInvest’s Disclaimer and any notices regarding the Sites.
In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the Sites compatible with the iOS operating system (“App”) of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to OpenInvest at firstname.lastname@example.org. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, OpenInvest’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.