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Investment Manager Portal Terms and Conditions of Use |
Updated: November 6, 2023
These terms and conditions apply to the use of the Investment Manager Portal by investment advisers and their authorized users as part of providing discretionary and/or non-discretionary investment advisory services through the following investment advisory programs and services: (1) the Merrill Lynch Investment Advisory Program; (2) the Select Portfolio Solutions investment service offered by Bank of America, N.A.; (3) the Merrill Lynch Strategic Portfolio Advisor Service; and (4) the Merrill Lynch Managed Account Service.
By logging into or using the Investment Manager Portal (the "IM Portal"), you agree that you are subject to these Terms and Conditions of Use ("Terms of Use"). As used herein, the terms "you" and your refer to each authorized user of the IM Portal, including investment advisers and those employees and persons who are authorized by investment advisers to use the IM Portal on their behalf, and, as the context applies, include such user’s employer (collectively with the investment adviser, the "Firm"). Unless otherwise provided, each defined term used within the IM Portal shall have the meaning ascribed in these Terms of Use. References to the "Company" are references collectively to any company that is a wholly owned by Bank of America Corporation that has authorized you to access to the IM Portal in accordance with the Existing Agreements (as defined below).
BY USING THE IM PORTAL, YOU HEREBY REPRESENT AND WARRANT THAT YOU ACCEPT THESE TERMS OF USE AND ARE AUTHORIZED TO ACCEPT THESE TERMS OF USE ON BEHALF OF YOUR FIRM. PLEASE READ THESE TERMS OF USE CAREFULLY.
These Terms of Use may be amended by the Company at any time in its sole discretion. During each use of the IM Portal, you are responsible for being familiar with, and are bound by, the then current version of these Terms of Use. The Company reserves the right to terminate your access to the IM Portal at any time, in whole or in part, in its sole discretion.
Other Agreements with the Company
These Terms of Use supplement, but do not supersede, the provisions of any applicable existing agreements between you and the Company, including amendments and addendums, handbooks, user guides, or documentations provided by the Company (collectively, "Existing Agreements"), all of which otherwise remain in effect. In the event of conflict between these Terms of Use and the terms and conditions of such Existing Agreements, the Existing Agreements prevail.
Access to the IM Portal
You may access the IM Portal only with a username and password or other access methods authorized by the Company ("Security Credential"). You are responsible for ensuring that your Security Credential is known to, secured by, and used only by you. You agree to abide by any security requirements the Company deems necessary and appropriate.
If you suspect that your Security Credential has been compromised in any way, please contact the Company immediately including any designated representative indicated in Existing Agreements provided by or as instructed by the Company. The Company shall not be liable for any damages, expense, loss, liability or cost (including costs of investigation and legal fees) of any kind ("Damages") arising from any use, authorized or otherwise, of your Security Credential.
Services Available on the IM Portal
The IM Portal is an investment advisory information retrieval and management service application that facilitates the provision of discretionary and non-discretionary investment advisory services for client accounts by investment advisers. No orders will be executed through the use of the IM Portal and Merrill Lynch, Pierce, Fenner & Smith Incorporated will not be providing brokerage or execution services through the IM Portal. Any execution of a securities transaction will occur outside of the IM Portal.
You are responsible for any and all forms of interaction, including but not limited to, instructions, offers or information entered, information viewed, and other actions of any kind, done through the IM Portal using your Security Credential ("Interaction"). Such Interactions shall be conclusive, final and binding on your part. Interactions shall be subject to applicable federal, state, national and local laws and regulations, rules, or requirements of self-regulatory agencies or authorities to which an Interaction may relate ("Applicable Law").
Any Interaction you enter through the IM Portal shall be binding upon the submission of the Interaction. Once you submit an Interaction, you cannot modify or cancel the Interaction. The IM Portal will be updated to reflect updated information or the status of Interactions that you have submitted.
You will use the IM Portal and enter into Interactions only as authorized by your Firm, if applicable. You represent and warrant to the Company that you have full authority to do so. The Company is entitled to rely upon the assumption that all Interactions using your Security Credential will originate from the country (including state, province, or other jurisdiction) that the Company has associated with you or your Firm on its records.
You and your Firm represent and warrant that each Interaction is and will be: (a) appropriate in view of your Firm's sophistication, security controls and financial status; (b) in compliance with all Applicable Law and your Existing Agreements; and (c) conducted in accordance with the Firm's applicable governance requirements, and all applicable internal policies or procedures.
You and your Firm agree to immediately notify the Company, and to designate one or more persons to be responsible for immediately notifying the Company, if the access granted or available to a user from your Firm is not appropriate or authorized or if there is any change to a user’s right to access the IM Portal or portions thereof. No modification or termination of the user’s access to the IM Portal shall invalidate, retract or supersede any Interaction by such user entered into before such modification or termination becomes effective.
You and your Firm are responsible for keeping any and all records separate and independent of the IM Portal that you may wish to retain or are required to retain for recordkeeping purposes in compliance with any Applicable Law, including the Investment Advisers Act of 1940, the Existing Agreements, your obligations with any third parties, or for any other purpose. The Company retains its own records for its own purposes relating to the IM Portal and you may not rely on records kept by the Company to comply with your recordkeeping obligations.
Intellectual Property
The IM Portal and all content therein (the "Materials") are protected by intellectual property rights—including copyright, trade dress, patent, trade secret and trademark laws of the United States, other jurisdictions, and international conventions, and all other Applicable Laws. All Materials are the property of the Company or affiliated companies and/or third-party licensors. You shall not acquire any right, title or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth herein. You hereby agree to abide by all Applicable Laws, including intellectual property laws.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
THE IM PORTAL IS PROVIDED ON AN "AS IS WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. SUBJECT TO APPLICABLE LAWS, THE COMPANY AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF VALIDITY, TIMELINESS, ACCURACY, COMPLETENESS OR CONTINUED AVAILABILITY OF THE IM PORTAL OR ANY INFORMATION MADE AVAILABLE ON OR THROUGH THE IM PORTAL, OR NON-INFRINGEMENT. NEITHER THE COMPANY, NOR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, OR EMPLOYEES, NOR ANY THIRD-PARTY VENDOR OR PROVIDER WILL BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSS OR DAMAGE OF ANY KIND THAT YOU INCUR IN THE EVENT OF ANY FAILURE OR INTERRUPTION OF THIS IM PORTAL, OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN MAKING THIS IM PORTAL OR THE INFORMATION CONTAINED THEREIN AVAILABLE TO YOU, OR FROM ANY OTHER CAUSE (INCLUDING INTERCEPTION BY THIRD PARTIES) RELATING TO YOUR ACCESS TO, INABILITY TO ACCESS, OR USE OF THE IM PORTAL OR INFORMATION AND MATERIALS THEREIN, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF THE COMPANY, ITS AFFILIATES, OR ANY THIRD PARTY PROVIDING SOFTWARE, DATA, SERVICES OR SUPPORT. IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR ANY THIRD PARTY PROVIDING DATA OR SERVICES IN CONNECTION WITH THE IM PORTAL BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF THE COMPANY, ITS AFFILIATES, OR ANY SUCH THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DECISION, ACTION OR INACTION MADE OR TAKEN BY YOU IN RELIANCE ON ANY INFORMATION ON THE IM PORTAL.
You agree to indemnify and hold harmless the Company, its affiliates and their respective directors, members, partners, managers, officers, employees and agents from and against any Damages that may be asserted against any of them or that any of them may incur, in whole or in part, by reason of (i) any of your Interactions; (ii) your use of the IM Portal other than as expressly authorized; (iii) your use of the IM Portal in violation of any Applicable Law; or (iv) acts or omissions, or the acts or omissions of your affiliates, directors, members, partners, managers, officers, employees or agents, which constitute gross negligence, willful misconduct, bad faith or reckless disregard of duty. The obligations under this paragraph shall be in addition to, and not a limitation of, any and all obligations arising under any Applicable Law and any and all Existing Agreements you may have with the Company.
Privacy
For information about how we treat your data, see our Privacy links that can be found on this IM Portal
Arbitration of Controversies relating to Use of the IM Portal
These Terms of Use contain a predispute arbitration clause. You and the Company (each a "Party", collectively "Parties") agree as follows:
• All Parties agree that each Party is giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.
• Arbitration awards are generally final and binding; a Party’s ability to have a court reverse or modify an arbitration award is very limited.
• The ability of the Parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings.
• The arbitrators do not have to explain the reason(s) for their award unless, in an eligible case, a joint request for an explained decision has been submitted by all Parties to the panel at least 20 days prior to the first scheduled hearing date.
• The panel of arbitrators may include a minority of arbitrators who were or are affiliated with the securities industry.
• The rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court.
• The rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into these Terms of Use.
The Parties agree that any controversy between the Parties that may arise out of or relate to these Terms of Use shall be determined by arbitration. Judgment upon the award of the arbitrators may be enforced in any court, state or federal, having jurisdiction and you and your Firm hereby submit to the jurisdiction of any such court for the purpose of such arbitration and the entering of such judgment.
No person shall bring a putative or certified class action to arbitration, nor seek to enforce any predispute arbitration agreement against any person who has initiated in court a putative class action or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until:
• the class certification is denied; or
• the class is decertified; or
• the customer is excluded from the class by the court.
Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under these Terms of Use except to the extent stated herein.
eCommunications Disclosure
As part of our relationship with you and your Firm, you consent to receive program or service information electronically relating to your use of the IM Portal, including by posting information on the IM Portal. Additionally, your consent will apply to subsequent disclosures and information that we are required or otherwise choose to provide from time to time. These include (without limitation) change-in-terms notices, Interaction information and updates, authentication communications and other communications in connection with your use of the IM Portal and (collectively, "eCommunications").
Governing Law
The laws of the State of New York, excluding its conflicts of law rules, govern the use of the IM Portal. Your use of the IM Portal may also be subject to other local, state, national or international laws.
