Terms of Use

Last updated on: September 1, 2019


Use and Acceptance

These Terms of Use are applicable to any tools and/or services (“Services”) offered and/or provided by HedgeMark International, LLC, HedgeMark Advisors, LLC (“HMA”), HedgeMark Risk Analytics, LLC (“HMRA”), and HedgeMark Securities LLC (“HMS”) (referred to collectively as “we” or “us” or “HedgeMark”) through HedgeMark’s electronic access portal (“HM Portal”) accessed for certain risk reporting services provided by HMRA (“Reporting Services”). Any user of the HM Portal or Services are referred to herein as either “you” or “your.”

Services and use of the HM Portal are offered to you conditioned upon your acceptance without modification of these Terms of Use. Please read these Terms of Use carefully. If you do not agree to these Terms of Use, or do not have the legal right or authority to accept these Terms of Use, you may not use this HM Portal or any Services offered or provided through this HM Portal.

These Terms of Use are in addition to any other agreements between you and HedgeMark, including any agreements that govern your use of the Services available on the Site (“Services Agreement”). For the avoidance of doubt, the acceptance of these Terms of Use will not alter or amend or otherwise affect any Services Agreement whether such Services Agreement is executed prior to or after the acceptance of these Terms of Use.

Modification

We may revise these Terms of Use from time to time by posting a revised version on the HM Portal. You should check these Terms of Use each time you use this HM Portal or the Services for such revisions to ensure you agree to them. By using this HM Portal or the Services or engaging in any of the activities described in these Terms of Use after changes have been made to these Terms of Use, you are agreeing to accept and comply with those changes.

Limited Audience

This HM Portal and the information contained in it is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would subject us to any registration or license requirement within such jurisdiction or country. Your eligibility and qualifications for particular Services is subject to final determination by us and/or the applicable content provider.

Intellectual Property/ Authorized Use

The HM Portal and the Services contain copyrighted works, trademarks and other proprietary material owned by HedgeMark or third party providers. HedgeMark and our providers own all rights, title and interest in and to the HM Portal, all the content, data and materials thereon (excluding data owned by you and displayed on this HM Portal or in the Services), the look and feel, design and organization of the HM Portal, and the compilation of the content, data, and materials on the HM Portal, including all intellectual property and proprietary rights therein.

You may use the material available from this HM Portal and the Services for informational purposes only. You may print copies of pages from this HM Portal for your personal purposes, provided that each copy includes any copyright, trademark or service mark notice or attribution as they appear, on the pages copied. The availability of third party material on this HM Portal is not to be used as a substitute for a license or services agreement directly with the relevant third party provider. Except as stated above, you may not copy, reproduce, publish, post, transmit, display, store, sublicense, transfer or distribute material from this HM Portal or the Services without our express written permission or that of our third party providers, as applicable ("Permission"). You also may not:

  • modify, alter, revise, paraphrase, omit, or change any material on or from this HM Portal or the Services without Permission;
  • create derivative works, including a database of any kind, whether based in whole or in part upon the material on this HM Portal or the Services, or any portion thereof, without Permission;
  • distribute or publish any analysis or report generated through the HM Portal or include such analysis or report in any offering documents, marketing materials or other documents related to the Funds without the prior written consent of HedgeMark and the applicable fund sponsor;
  • modify, amend, reduce the size of or in any way obscure any warning, notice, liability limitation, or other license provision in material on or from this HM Portal or the Services;
  • link into or use for any public or commercial purpose materials on or obtained from this HM Portal or the Services without Permission;
  • spam or send unsolicited mailings to any individual or entity using the HM Portal and will not use the HM Portal or the information contained therein, including any intellectual property rights of HedgeMark or its third party providers therein, in unsolicited mailings or spam material;
  • not upload or send any information via the HM Portal that (a) infringes or otherwise violates any copyright, patent, trademark, trade secret or other proprietary right; (b) is unlawful, defamatory, libelous, slanderous, offensive, obscene, pornographic, exploitative of a minor, violent, hateful, threatening, abusive, misleading, deceptive, anti-religious or racially, ethnically or otherwise objectionable; (c) contains or embodies a virus, worm, Trojan Horse or other contaminating or destructive feature; or (d) otherwise violates any applicable treaty, law or regulation; (ii) not upload or send any commercial, promotional or solicitation information; and
  • use the HM Portal or the Services for any illegal purpose or in any manner inconsistent with these Terms of Use.

Nothing contained on this HM Portal or in the Services should be construed as granting, by implication, estoppel or otherwise, any license or right in and to our trademarks or copyrighted material.

You agree to comply with all reasonable written requests made by HedgeMark or its third party providers in their efforts to protect their contractual, statutory and common law rights in the HM Portal and the Services. You agree to notify HedgeMark in writing by e-mail to HM-clientservice@bnymellon.com promptly upon becoming aware of any unauthorized access or use of the HM Portal or the Services by any individual or entity

Licenses

Pricing or other data related to securities and other assets, including but not limited to, security identifiers, valuations, bond ratings, classification data, and other data received from investment managers and others, may be the intellectual property of the persons providing such data to HedgeMark. Such persons may impose additional terms and conditions upon your use of any and all such data. By using this HM Portal, you agree to The Bank of New York Mellon Required Data Licensor Terms at http://www.bnymellon.com/assetservicing/vendoragreement.pdf or a successor site, as may be amended from time to time.

We may use various market indices, industry rankings, industry ratings or peer group comparisons on our HM Portal. Most of these measurements are trademarks, service marks or copyrights of the sponsoring companies, and are licensed for our use. However, these companies do not sponsor, endorse, sell or promote our investment strategies or products, and make no representation regarding the advisability of investing in our products or strategies. For additional information about these measurements, please contact us.

You hereby grant to HedgeMark a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, or recommendations.

HedgeMark in certain instances utilizes various software libraries to present data. In connection with that use, the following disclosures are made:

Copyright © 2011 John Resig, http://jquery.com/
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

DataTables Copyright © 2008-2011, Allan Jardine
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR RISK SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Links to Other Web Sites

This HM Portal may provide links to other websites that we think might be of interest to our users ("Linked Sites"). Links to Linked Sites are provided only as a convenience to users of this HM Portal. Please note that when you click on a Linked Site, you may be moving to another provider's website. These Linked Sites and their providers are not controlled by HedgeMark and HedgeMark is not responsible for the contents or the operation of any Linked Site. The inclusion of any Linked Site does not imply endorsement of the Linked Site or its provider by HedgeMark. We encourage you to read the terms of use and privacy statements of these Linked Sites as their policies may differ from ours.

Access Administration

To facilitate electronic access to Reporting Services provided through the HM Portal, you have provided HedgeMark, its agents and/or certain third parties, with certain information all of which you hereby represent and warrant is accurate, truthful, and current. You hereby agree to make certain that such information is complete and up-to-date at all times. You shall be solely responsible for maintaining the confidentiality of your user-id and password provided by HedgeMark. You acknowledge and agree that HedgeMark will have no duty or obligation to verify or confirm the actual identity of any person accessing HM Portal using your user-id and password or that the person who accessed HM Portal using such validly issued user-id and password is, in fact, an authorized user.

You shall immediately notify HedgeMark at HM-clientservice@bnymellon.com of any known or suspected unauthorized use(s) of your user-id, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password. You are fully responsible for securing all facilities, products and equipment that might allow access to the HM Portal and all usage and activity that occurs through the use of your user-id and password, whether or not such use is authorized by you. Further, you shall not share your login information with any third party and are solely responsible for any and all activity that takes place under your login information. HedgeMark reserves the right to revoke your user-id and password at any time for any reason without prior notice.

You shall not, and shall not permit any third party to, breach or attempt to breach any security measures used in connection with HM Portal. Any attempt to circumvent or penetrate any application, network or other security measures used by HedgeMark or its suppliers in connection with the HM Portal is strictly prohibited. HedgeMark monitors, reviews and records all activity on the HM Portal which records are the sole property of HedgeMark. Any information obtained by monitoring, reviewing, or recording is subject to review affiliates of HedgeMark and by appropriate governmental, regulatory and law enforcement organizations in connection with applicable law, including routine examinations of HedgeMark and the investigation or prosecution of possible criminal activity on the HM Portal.

Use of Reporting Services

Access to the HM Portal is provided subject to the following additional provisions.

There are limitations that are inherent in the Reporting Services, which include, but are not limited to the following:

  1. the Reporting Services will incorporate data obtained from third parties and such data (including any calculations that is based on such data) is provided on an “as is” basis;
  2. from time to time the Reporting Services will contain errors that may be based upon, among other things, human data entry, aggregation and decompilation of data, processing of data through third party calculation engines and other processes that can give rise to errors;
  3. the Reporting Services may be based on past performance or other metrics are not indicative of future results or other measurements;
  4. the Reporting Services may include or be based on unaudited and estimated results;
  5. risk-based analysis do not project or predict investment performance returns;
  6. estimated and simulated risk results are based on a number of working assumptions, and/or mathematical models that may not take into account all of the relevant risk factors or assign appropriate weight to any particular risk factor and will not take into account all contingencies which might affect the value of a position or portfolio; and
  7. models used by the Reporting Service may fail to accurately assess the impact of certain events. To the extent the Reporting Services includes, or the tools provided by HMRA may be used to generate, projections or other information regarding the likelihood of future outcomes, such results are hypothetical in nature are not intended to be an actual estimate of future results.

To provide Reporting Services, HMRA collects data by (i) accessing unrestricted information from the custody and accounting records of its affiliates, (ii) working with relevant fund sponsors and fund administrators, and (iii) other sources as may be agreed upon from time to time by HMRA and fund sponsors. HMRA shall have the right to use any data provided by you, or on your behalf, for the purpose of providing the Reporting Services.

HMRA will work with you to reach agreement on the use of appropriate and available benchmarks and mapping techniques. HMRA will collect, aggregate, and normalize data to facilitate consistent views of the data across asset classes. You acknowledge that the provision, accuracy, completeness, performance, timeliness and utility of the Reporting Services is contingent upon the complete data being made available to HMRA in the correct file format, of sufficient quality and in a timely manner.

Neither HMRA nor any of its service providers, by virtue of these Terms of Use or as a result of providing the Reporting Services, assumes any legal or regulatory reporting obligations or fiduciary responsibilities on your behalf under any law, representation, agreement or otherwise. Nothing in these Terms of Use is intended to, or will be taken to, operate so that you or any other person is relieved of any such obligations.

Termination

We reserve the right to prohibit access to anyone whom we determine is violating these Terms of Use, restricting or inhibiting any other user from using or enjoying the HM Portal or Services, or whose conduct we reasonably determine may constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. You agree that HedgeMark shall not be liable to you or any third party for any termination of your access to or use of this HM Portal.

Disclaimers

The information provided on this HM Portal or in any Service is not financial, tax or legal advice and HedgeMark does not give advice or offer any opinion with respect to the suitability of any security. All information available on or through this HM Portal is provided for information purposes only, and no reference to any specific security constitutes a recommendation, solicitation or offer to buy, sell, or hold that security or any other security nor should it be used in connection with any sale, offer for sale or solicitation of an offer to buy securities or any other instrument. Such information does not attempt or claim to be a complete description of the securities, markets, or developments referred to on this HM Portal. You acknowledge and agree that your decision to use the Services available on or though this HM Portal or to take any action or refrain from taking any action as a result of your use of this HM Portal will be your decision alone, based solely on your own evaluation of your financial circumstances, your investment objectives and the nature, potential value and suitability of the transactions you make. You should consult an appropriate professional for specific advice tailored to your situation. WE SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY OR LOSS ARISING OUT OF ANY ACTION TAKEN IN RELIANCE ON THIS INFORMATION, INCLUDING MARKET VALUE LOSS ON THE SALE OR PURCHASE OF SECURITIES OR OTHER INSTRUMENTS OR OBLIGATIONS.

YOU UNDERSTAND AND AGREE THAT THIS HM PORTAL AND THE MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THIS HM PORTAL ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, HEDGEMARK AND ANY THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES REGARDING SECURITY, CURRENCY, CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY, WITH RESPECT TO (i) THE HM PORTAL; (ii) ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE HM PORTAL; (iii) USE OF THE HM PORTAL, MATERIALS, PRODUCTS, OR SERVICES; AND (iv) THE RESULTS OF THE USE OF THE HM PORTAL, MATERIALS, PRODUCTS OR SERVICES. FURTHER, HEDGEMARK AND ANY THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY DELAYS OR ERRORS IN THE TRANSMISSION OR DELIVERY OF ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE THROUGH THIS HM PORTAL.

Any statements and opinions expressed are as of the date of publication, are subject to change as economic and market conditions dictate, and are those of the author(s) and do not necessarily represent the views of HedgeMark. Some content on this HM Portal may be provided by third party providers, which we consider to be reliable but have not independently verified. We do not guarantee that it is accurate or complete.

EXCEPT AS PROVIDED BY LAW, NEITHER HEDGEMARK NOR ANY THIRD PARTY HAS ANY RESPONSIBILITY TO MAINTAIN THE MATERIALS, PRODUCTS OR SERVICES OFFERED ON THE HM PORTAL OR TO SUPPLY CORRECTIONS OR UPDATES TO THE SAME.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTIES LAST OR THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES; IN SUCH EVENT, SUCH DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

Limitation of Liability

BY ACCESSING THIS HM PORTAL OR RECEIVING ANY SERVICES, YOU AGREE TO WAIVE ALL CLAIMS AGAINST US AND ALL THIRD PARTY PROVIDERS REGARDING THIS HM PORTAL AND YOUR USE THEREOF. YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL WE OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THIS HM PORTAL OR ITS SERVICES BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, TRADING LOSSES, GOOD WILL, BUSINESS INTERRUPTION, SAVINGS OR DATA, EQUIPMENT OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT RESULT FROM (1) THE RELIANCE ON, USE OF OR INABILITY TO USE THIS HM PORTAL; (2) THE CONSEQUENCES OF ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU OR BY ANYONE TO WHOM YOU COMMUNICATE INFORMATION DERIVED FROM THIS HM PORTAL OR SERVICES, OR FOR ANY ERRORS BY YOU IN COMMUNICATING SUCH INFORMATION; (3) THE COST OF SUBSTITUTE SERVICES; (4) FORCE MAJEURE AND ANY SIMILAR EVENTS THAT ARE BEYOND OUR REASONABLE CONTROL; OR (5) ANY OTHER MATTER RELATING TO THE DISTRIBUTION OF SERVICES THROUGH THIS HM PORTAL. WE SHALL NOT BE LIABLE FOR DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING FROM ANY USE OF THIS HM PORTAL OR SERVICES OBTAINED THROUGH THIS HM PORTAL. WE CANNOT AND WILL NOT ASSUME ANY LIABILITY FOR UNAUTHORIZED OR FRAUDULENT USE OF THIS HM PORTAL.

OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE OR CLAIM RELATED TO THESE TERMS OF USE OR THE HM PORTAL IS YOUR CESSATION OF THE USE OF THIS HM PORTAL AND OF ACCESS TO SERVICES PROVIDED THROUGH THIS HM PORTAL.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnification

You agree to indemnify, defend and hold harmless HedgeMark and its third party providers, and each of its and their officers, directors, employees, and agents, from and against all claims, demands, liabilities, damages, losses or expenses, including reasonable attorneys' fees, relating to any information you submit, post to or transmit through this HM Portal, your use of the HM Portal, your connection to the HM Portal, your violation of these Terms of Use or any harm you cause another user of the HM Portal.

Privacy and Security

HedgeMark respects our customers' privacy. For more information please read our Privacy Policy by clicking the link at the bottom of this screen. You acknowledge that you have read HedgeMark’s Privacy Policy and consent to processing of your personal information in accordance with same.

We utilize reasonable security technologies to protect sensitive information. However, the security of this information depends in part on the security of the computer you use to communicate with us and the security provided by your internet access services provider. We are not responsible for the security of your internet access services provider; you should review the security and privacy policies of your internet access services provider carefully. Information that you access via this HM Portal may be stored on your computer during your session for your convenience. If others have access to your computer they may be able to access this information. We are not responsible for the security or privacy of information communicated to or from such a computer. Finally, you should keep any correspondence you receive relating to this HM Portal or the Services confidential and in a safe place.

Severability

If any provision of these Terms of Use is deemed illegal or unenforceable, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of the remaining provisions.

Entire Agreement; Jurisdiction and Choice of Law

These Terms of Use constitute your entire agreement with us regarding this HM Portal and any Services, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written between you and us with respect to the HM Portal or the Services.

These Terms of Use are governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You expressly and irrevocably agree that exclusive jurisdiction and venue for any claim or dispute with us, our employees, contractors, officers, directors, and content providers or relating in any way to your use of this HM Portal or Services resides in the state or federal courts in the borough of Manhattan, New York, New York and you further irrevocably agree and expressly and irrevocably consent to the exercise of personal jurisdiction in those courts over any action brought under these Terms of Use. WE AND YOU HEREBY WAIVE THE RIGHT OF TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THE HM PORTAL, SERVICES OR THESE TERMS OF USE.

These Terms of Use constitute your entire agreement with us regarding this Site and any Services, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written between you and us with respect to the Site or Services.

Contact

If you have any questions relating to these Terms of Use, the HM Portal , the Services, or HedgeMark, please contact: HM-clientservice@bnymellon.com.

Patent Notice

BNY Mellon is licensed under US Patents 5,940,510; 5,949,880; 6,105,013; and 6,237,095. Certain subsidiaries of BNY Mellon are licensed by DataTreasury Corporation under US Patents 5,910,988 and 6,032,137.

© 2019 HedgeMark International, LLC.