Member and Participant Agreement

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Last Revised: July 19, 2021 (“Effective Date”)

Please read this License Agreement (“Agreement”) carefully as they govern your (“Licensee”) access to and use of Mutual Funds Dealers Association of Canada’s (“MFDA”, collectively with the Licensee is known as the “Parties” and each individually as a “Party”) CE Reporting and Tracking System (“System”).

The Licensee is either (i) a member of the MFDA (“Member”), including Participants employed by such Member (“Member’s Participant”) or (ii) a Participant not employed by a Member. A “Participant” refers to any approved person who is registered, during a cycle, as a dealing representative, chief compliance officer or ultimate designated person under Canadian securities legislation, or designated by the Licensee/Member as a branch manager or alternate branch manager, or alternate chief compliance officer under MFDA Rules.

  1. Acceptance of this Agreement. Each time Licensee accesses or uses the System, Licensee confirms its acceptance to be bound by this Agreement as then updated, and Licensee represents and warrants that it has the legal authority to agree to and accept this Agreement on behalf of Licensee and any person, including any natural person and any type of incorporated or unincorporated entity (“Person”), Licensee purports to represent. If Licensee does not agree with any or all of the provisions of this Agreement, does not have the authority to enter into this Agreement or is not authorized to agree to and accept this Agreement on behalf of the Person Licensee represents, Licensee is prohibited from accessing or using the System.
  2. Amendments to this Agreement.  MFDA may, at any time and for any reason in its sole discretion, change, suspend or terminate, temporarily or permanently this Agreement or the System, without any prior notice or liability to Licensee or any other person. When this occurs, MFDA will try, where reasonable and possible, to contact Licensee to let Licensee know about any significant changes by posting a revised Agreement on https://mfda.ca/continuing-education/participant-member-agreement/. By using the System after any revised Agreement has been posted or any changes to the System has been made, Licensee accepts to be bound by the revised Agreement so please check the date of the last revision, noted above, before using the System. If Licensee does not agree with the revised Agreement, please do not use the System. Licensee may not change this Agreement in any manner.
  3. License Grant.  Subject to and conditional on Licensee’s compliance with all terms and conditions of this Agreement, MFDA hereby grants to the Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to use, solely by the Licensee, the System during the Term of the Agreement.  For the purposes of the license and this Agreement, “use” means to load, transmit, access, use, and display the System and to otherwise do anything commercially reasonably necessary to use the System solely for the following purpose, including to administer and comply with requirements of the MFDA’s Continuing Education Program or other uses as otherwise approved by MFDA:
    1. In the case of the Licensee, to (i) maintain their Member’s Participants’ continuing education record in the System pursuant to MFDA’s rules and policies and (ii) maintain a list of continuing education activity that the Licensee offers to their Member’s Participants in the System, and
    2. In the case of a Participant not employed by a Member, to (i) track its compliance with the continuing education requirements; and if applicable (ii) report completed continuing education activity and make changes to its personal information in the System,

    (collectively, (a) and (b) are known as the “Purpose”).

  4. Use Restrictions. Where the Licensee is a Member, it is responsible and liable for its Member’s Participants, and the Licensee shall make sure that its Member’s Participants adhere to all the terms of this Agreement. The Licensee in all instances agrees not to, and not to assist or facilitate any third party (including for a Member, the Member’s Participant) to do the following:
    1. use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, translate, decompile, create any derivative work(s) of, disassemble, mirror, frame, license, sublicense, or commercially exploit the System or any parts therein in any manner not expressly permitted by this Agreement; 
    2. decode, decrypt or reverse engineer or otherwise attempt to create a human readable version of the System or modify any portion of the System, nor merge or embed the System or any part of it into another computer program nor facilitate such misuse by others;
    3. automate any interaction with the System unless the implementation of such automation has been certified by MFDA for use with the System;
    4. provide any other person, including subcontractor or affiliate with access to or use of the System unauthorized by MFDA; and
    5. use the System in violation of any law, regulation or rule, including for clarity, the MFDA rules and policies.

    Licensee is responsible and liable for all uses of the System through access provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the use of System (including for Members, its Member’s Participants) or by other person to whom Licensee (and for Members, its Member’s Participants) may provide access to or use of the System, whether such access or use is permitted by or in violation of this Agreement.

  5. Proprietary Rights.
    1. This Agreement provides only a limited license to use the System for the Purpose, and the Licensee (including Member’s Participant) are permitted to use the System only as expressly authorized.  This Agreement does not transfer ownership or intellectual property interest or title in and to the System to the Licensee or the Member’s Participants. The Licensee expressly acknowledges and agrees that, as between MFDA and the Licensee, MFDA and its licensors own all proprietary rights, including patent, copyright, trade secret, design rights, trademark and other proprietary rights (both registered and unregistered) and other intellectual property rights (including moral rights) in and to the System (including the iMIS database) and any corrections, enhancements, updates or other modifications, whether made by MFDA or its licensors.  MFDA expressly acknowledges and agrees that, as between MFDA and the Licensee, the Licensee owns all the information that it (and in the case of a Member, its Member’s Participants) placed or has placed in the System. The Licensee also recognizes the rights of the owners of third party software, and shall protect the confidentiality and proprietary rights of such software as the Licensee is required to protect the confidentiality and proprietary rights of the System.
    2. MFDA™, Mutual Fund Dealers Association of Canada and the MFDA design are trademarks owned or licensed by the MFDA. Other names and logos appearing on or in connection with the System may be registered or unregistered trademarks, official marks, service marks, trade names and logos of their respective owners. Any use of the trademarks, official marks, service marks, trade names or logos displayed on or in connection with the System is strictly prohibited, and nothing appearing on or in connection with the System will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of those marks.
  6. Disclaimer.
    1. THE SYSTEM IS PROVIDED TO LICENSEE ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MFDA, FOR ITSELF, ITS LICENSORS AND ITS AGENTS, SPECIFICALLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEE OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN RELATION TO THE SYSTEM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, UNINTERRUPTED USE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. WITHOUT LIMITATION TO THE FOREGOING, MFDA DOES NOT PROVIDE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE THAT (I) THE SYSTEM WILL MEET THE USERS’ REQUIREMENTS, (II) THE OPERATION OF THE SYSTEM WILL BE ERROR FREE OR UNINTERRUPTED, (III) DEFECTS IN THE SYSTEM WILL BE CORRECTED. UNDER NO CIRCUMSTANCES WILL MFDA OR ANY OF ITS LICENSORS OR SUPPLIERS BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR LIABILITY ARISING OUT OF THE CONTENT, INCLUDING ANY MISTAKES CONTAINED IN THE CONTENT OR THE USE OR TRANSMISSION OF THE CONTENT. ALL OBLIGATIONS ON MFDA, AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES BY MFDA, WRITTEN OR ORAL, EXPRESS OR IMPLIED (BY LAW OR OTHERWISE), THAT ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
    2. Without limiting the generality of Section 6(a), MFDA is not responsible for any problems in the use of the System, including corruption of Licensee’s (including the Member’s Participants) database and including those: (a) caused by changes in the operating characteristics of computer hardware or operating systems that are made after the release of the System; (b) in the interaction of the System with software that is not supported or no longer supported by its manufacturer; (c) caused by Licensee (including the Member’s Participants) use of software not supplied by MFDA; (d) delays or unavailability of the Internet or any sites on it; or (e) websites, links or front ends that Licensee (or the Member’s Participants) has added.
    3. Although MFDA does not routinely screen or monitor content posted to the System, MFDA reserves the right to remove content which violates this Agreement or other relevant policies, but is under no obligation to do so.
  7. Licensee’s Warranties and Representations. Licensee warrants, represents and covenants to MFDA that:
    1. Licensee will be solely responsible for all content, data, text, messages and other material provided to the System by Licensee (including for Members, its Member’s Participants) (the “Content”), and for the integrity and quality of such Content. Licensee hereby grants to MFDA an irrevocable, royalty-free right and license to use for the purposes specified in this Agreement, all Content and other materials and data provided by Licensee (including for Members, its Member’s Participants) to MFDA in connection with this Agreement.
    2. Licensee will comply, and in the case of Members, its Member’s Participants to comply, with all applicable foreign, federal, provincial, state and local laws in the use of the System.
    3. Licensee will not send, and for Members, will not permit its Member’s Participants to send, any Content that Licensee or such Member’s Participants knows, or has reason to know, infringes another’s rights in intellectual property, is invasive of another’s right to privacy, or violates any privacy laws, privacy policies of Licensee or any other third parties.
    4. Licensee will not, and for Members, will not permit its Member’s Participants, to (i) engage in or facilitate any unethical, deceptive or misleading practices in connection with the use of the System, (ii) use the System in connection with any junk email, junk phone messages, spamming or any unsolicited messages (commercial or otherwise); or (iii) provide, or knowingly allow any third parties to provide, content or other material to be transmitted in connection with or through the System which: is defamatory, obscene, pornographic or harmful to minors; promotes violence, discrimination, or illegal activities; or contains viruses, worms, cancelbots or any other harmful code or computer programs designed to disrupt the functionality of any computer software or hardware or telecommunications equipment.
    5. Licensee will maintain, and for Members, will require its Member’s Participants to maintain, all security regarding their account ID, password, and connectivity with the System. Licensee is responsible for all Content sent using the stolen account information. Licensee is required to (and for Members, require its Member’s Participants to) to immediately change their account IDs or passwords to prevent continued malicious use of the accounts.
    6. Licensee has full power and authority to execute and deliver the Agreement and the Agreement has been duly executed and delivered by us and constitutes a legal, valid and binding obligation of Licensee enforceable against us in accordance with its terms, subject to applicable bankruptcy, insolvency and other laws of general application limiting the enforceability of creditors’ rights and to the fact that specific performance and injunction are equitable remedies available only in the discretion of the court; and
    7. There are no claims, actions, suits, proceedings, judgments, rulings, grievances or orders outstanding or, threatened against or affecting the Licensee or any of its assets by or before any court, tribunal, board or other governmental authority that would, if adversely determined, have a material adverse effect on Licensee or its ability to perform its obligations and responsibilities under this Agreement.
  8. Termination.
    1. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
    2. If Licensee (including for Members, its Member’s Participants) breaches any provision of this Agreement, or is no longer using the System for the purposes permitted in this Agreement, Licensee (including for Members, its Member’s Participants) may no longer use the System. If this Agreement or Licensee’s permission to use the System is terminated by Licensee or MFDA for any reason, then this Agreement will continue to apply and be binding upon Licensee in respect of Licensee’s prior use of the System.
    3. The information and material on the System, and the System may be changed, withdrawn or terminated at any time in MFDA’s sole discretion without notice. MFDA will not be liable if for any reason all or any part of the System is restricted to users or unavailable at any time or for any period.
    4. Licensee’s failure to comply with any provision set out in this Agreement could result in the termination of the System which would impact all MFDA users. Thus, MFDA may immediately suspend or terminate the provision of the System to Licensee in the event that Licensee breaches, or where MFDA believes that Licensee has breached, any provision set out in this Agreement, or if in MFDA’s reasonable determination, suspension or termination of the Agreement is reasonably necessary to avoid liability or termination of a contract with its licensors.
    5. Upon the expiration or termination of this Agreement, the license granted hereunder shall also terminate and the Licensee shall cease using and destroy or return to MFDA all copies of the System, materials, and other properties of MFDA or its licensors in the possession of Licensee.
    6. All provisions of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement shall survive such expiration or termination.
  9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MFDA OR ITS LICENSORS BE LIABLE TO LICENSEE INCLUDING THE MEMBER’S PARTICIPANTS OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SYSTEM, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM FAILURE, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, LOSS OF USE, LOSS OF REVENUES AND LOSS OF PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF MFDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE AGGREGATE LIABILITY OF MFDA AND ITS LICENSORS IN CONNECTION WITH ANY CLAIM FOR DAMAGES REGARDING THIS AGREEMENT OR ITS SUBJECT MATTER, FROM ANY CAUSE WHATSOEVER, AT LAW OR BY STATUTE, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY LICENSEE HEREUNDER TO MFDA FOR THE SYSTEM DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
  10. Indemnity.  Licensee shall defend, indemnify, and hold harmless (including without limitation reasonable lawyers’ fees), MFDA and its affiliates, officers, directors, employees licensors, suppliers and agents from and against any and all damages, claims, fines, suits, proceedings, costs, liability, and expenses (including court costs and reasonable lawyer’ fees and expenses), incurred in relation to (a) any breach by Licensee of the representations, warranties and obligations under this Agreement; (b) the negligence or willful misconduct of Licensee, its employees, agents or Member’s Participants in connection with the System; (c) a third party claim that the Content infringes a third party’s intellectual property rights and (d) the Licensee’s (and for Member’s, its Member’s Participants’) use of the System. MFDA reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee hereunder, and Licensee shall cooperate as fully as reasonably required by MFDA.
  11. Privacy. The MFDA collects, uses and discloses Personal Information in accordance with the MFDA Privacy Policy, which is available by clicking here.
  12. Force Majeure. Neither Party (except with respect to Licensee’s payment obligations) will be deemed in default or breach of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or an act that is beyond the reasonable control of either Party, provided that such Party gives the other Party written notice thereof promptly.
  13. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement without MFDA’s prior written consent. No delegation or transfer will relieve Licensee of any of its obligations or performance under this Agreement. MFDA may assign or transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Licensee’s consent. This Agreement is binding upon and enures to the benefit of the Parties hereto and their respective permitted successors and assigns.
  14. Miscellaneous.  The Parties hereto acknowledge and represent that they have been afforded the opportunity to obtain independent legal advice and that they have done so or have knowingly waived this right and are executing this Agreement freely, voluntarily and without duress. This written Agreement is the complete and exclusive statement of the agreement between the Parties about the System. This Agreement supersedes any previous communication or agreement and can only be modified by another agreement signed by the Parties. It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.  If any provision of this Agreement is held by a court to be invalid, illegal, or unenforceable, the remainder of this Agreement shall remain in full force and effect.  Any failure to enforce a provision of this Agreement shall not constitute a waiver of that provision or of any other provision.  The laws of the Province of Ontario govern this Agreement and Licensee consents to the exclusive jurisdiction of the federal and local courts in the City of Toronto in any action arising from or related to this Agreement. The System is for general informational purposes only, and is not, and should not be construed or interpreted as, or substituted for, professional advice or recommendations (including medical, legal, financial, investment or other professional advice). It is Licensee’s responsibility to obtain appropriate advice suitable to the particular circumstances from a qualified professional before acting or omitting to act based on any information obtained on or through the System.
  15. Contact MFDA. For any questions or comments regarding this Agreement or the System, please contact MFDA by email at [email protected].