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Kinetics Mutual Funds Shareholder Agreement for use
of On-line Services
I have read, understand and accept the terms and
conditions set forth below.
NOTE:
ACCESSING OR REQUESTING ACCOUNT INFORMATION OR TRANSACTIONS THROUGH THIS
SITE CONSTITUTES AND SHALL BE DEEMED TO BE AN ACCEPTANCE OF THE FOLLOWING
TERMS AND CONDITIONS, WHICH ARE A LEGAL AGREEMENT BETWEEN MYSELF AND
Kinetics Mutual Funds.
1. On-line Services. This Agreement
("Agreement") between me and Kinetics Mutual Funds(the "Funds") sets forth
the terms on which I am permitted to use the On-line Services. The words
"I", "my" and "me" in this Agreement mean each person who has an interest
in the Funds account which is accessible through the On-line Services and
any person authorized to have such access. On-line Services, for purposes
of this Agreement, includes the on-line services currently offered and
which may be offered in the future by the Funds for mutual fund
transactions and account inquiry, and any other on-line system made
available to the Funds shareholders by the Funds or its agents or service
providers. The On-line Services permit me to transmit electronically
requests to buy, redeem and exchange shares of the Funds. These services
are available for use with compatible personal, home, or small business
computers with modems which can connect to the Internet.
2.
Agreement Governs. I will use the On-line Services only on the terms set
forth in this Agreement.
3. Sole User. I will be the only
authorized user of the On-line Services under this Agreement and I will
not make the On-line Services available to anyone else. I will keep my
security code(s) and other security information (all such codes and
information, "security information") confidential. I will be solely
responsible for all requests for transactions and information (and the use
of the information) transmitted through the On-line Services using my
security information. The Funds are not obligated to inquire as to the
authority or accuracy of my instructions transmitted through the On-line
Services and will be entitled to act upon my instructions; and the Funds
will not be liable for any loss, expense or other liability arising out of
my instructions transmitted through the On-line Services. Telephone calls
to the Funds may be recorded, and I consent to that recording.
4.
Duty to Monitor Account. I understand that requests for transactions,
rather than orders, are transmitted through the On-line Services. I
understand that the on-line acknowledgments or other messages which appear
on my screen for transactions entered do not mean that transactions have
been received, accepted or rejected by the Funds. These acknowledgements
are only an indication that the transactional information entered by me
has either been transmitted to the Funds, or that it cannot be
transmitted. The Funds will not be deemed to have received or accepted any
transaction request I transmit through the On-line Services until the
Funds have provided me a written confirmation. All transaction requests
will be deemed to have been made in the form received by the Funds. I am
responsible for verifying the accuracy and receipt of all information
transmitted via the On-line Services and for immediately notifying the
Funds transfer agent of any errors or inaccuracies relating to information
transmitted via the On-line Services. I am responsible for monitoring my
account. I will immediately notify the Funds if:
- a request for a transaction
has been placed through the On-line Services and I have not received a
reference number reflecting the request;
- a request for a transaction
has been placed through the On-line Services and I have not received an
accurate written confirmation of the transaction within seven (7)
business days;
- I have received confirmation
of a transaction which I did not request or any other report conflicting
with information about my account;
- there is unauthorized use,
loss or theft of any of my security information;
- there is a discrepancy between
any transaction I requested and the information reflected in a
confirmation or account statement.
- If I do not notify the Funds
when any of the foregoing conditions occur, neither the Funds nor any of
its employees, agents, affiliates nor any third parties, will be liable
to me for the handling or loss of any transaction request. Any liability
for acts or omissions in providing the On-line Services to me will be
limited to an amount equal to the benefit which would have resulted from
the transaction during the seven (7) business days immediately following
the date my transaction request was transmitted via the On-line
Services.
5. Information from Outside Sources. The
Funds will not be responsible for the accuracy or completeness of any
information provided by outside sources through the On-line Services. My
transmissions through the On-line Services are at my sole risk. Nothing in
this Agreement may be interpreted as a solicitation or recommendation to
buy or sell securities.
6. Outside Services. My Internet service
provider may charge me for time spent on line. I will be responsible for
all expenses which I (or any person using my security information or
equipment) incur in connection with using the On-line Services. I agree
that the Funds are not responsible for notifying me of any upgrades or
enhancements to "browser" software.
7. Events Outside the Fund's
Control. Neither the Funds nor any third party providing the On-line
Services will be responsible for damages caused by failure of,
interference with or unauthorized access to communications lines or
computer systems, operator error or other occurrences beyond its control.
The Funds will not be liable for interception of information transmitted
via the Internet nor responsible for access to, or the speed or
availability of, the Internet or network services.
8. Account
Application and Prospectus. The terms of my Funds account application and
the applicable prospectus govern my account. Those terms are deemed to be
part of this Agreement. I understand that the Funds are available only to
U.S. investors, and shares of certain investment portfolios may not be
offered and sold in all states.
9. Confidentiality. The On-line
Services are the proprietary property of the Funds and/or third parties. I
will keep confidential and not re-disseminate the information or services
provided through the On-line Services.
10. Indemnification. I
indemnify and hold harmless the Funds from any and all claims, losses,
liability, costs and expenses (including but not limited to attorneys'
fees) arising from any violation of this Agreement or any third party's
rights including but not limited to copyright, proprietary and privacy
rights.
11. Personal Financial Information. Use of the On-line
Services may involve the transmission from or to me of personal financial
information (such as the amount and price of securities that I buy or
sell). I consent to the transmission of that information through the
On-line Services at all times that I use the On-line Services.
12.
Severability. If any provision of this Agreement is held invalid or
unenforceable by a court, regulatory agency or body, such invalidity or
unenforceability shall attach only to that provision. The validity of the
remaining provisions will not be affected.
13. Discontinuance of
On-line Services. The Funds may discontinue or modify the terms of the
On-line Services in whole or in part at any time or from time to
time.
14. On-line Services Software License. My use of any On-line
Services software is subject to the terms of the following Funds License
("License"). I agree to be bound by the terms of this License, including
without limitation the prohibitions on distribution and copying, the
exclusion of all representations and warranties, and the limitation of
remedies to the replacement of defective disks.
Grant of License.
This License permits me to access the Funds On-line Services software
("Application") from each computer in my household, and a single computer
at my workplace, in the United States. This License is subject to my
compliance with the terms of this Agreement and the Funds security
procedures established for Application users. This Agreement is my proof
of license to exercise the rights granted herein and must be retained by
me. I may not rent, lease or transfer my rights to access the
Application.
Copyright. The Application is owned by the Funds or its
suppliers and is protected by United States copyright laws and
international treaty provisions. Therefore, I must treat the Application
like any other copyrighted material (e.g., a book or musical recording)
except that I may either (a) copy or download information solely for
backup or archival purposes, or (b) transfer the information to a single
hard disk provided I keep the original solely for backup or archival
purposes. I may not distribute the on-line contents in any way, without
explicit written notice from the Funds.
U.S. Government Restricted
Rights. The Application and on-line documentation are provided with
RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of the
Rights in Technical Data and Computer Software clause of DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of Commercial Computer
Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
Manufacturer is First Data Corporation.
Export Controls. The
Application and any underlying technology may not be accessed or exported
outside the United States or to any foreign entity or "Foreign Person" as
defined by the U.S. government regulations, including without limitation,
anyone who is not a citizen, national or lawful permanent resident of the
United States. By downloading data or using the Application, I am agreeing
to the foregoing and I am warranting that I am not a "Foreign Person" or
under the control of a "Foreign Person."
15. No Warranty. I expressly agree that the
use and storage of any information through use of the On-line Services is
at my sole risk and responsibility. NEITHER THE FUNDS NOR ANY THIRD PARTY
(INCLUDING, WITHOUT LIMITATION, ANY U.S. BANK), MAKES ANY REPRESENTATIONS
OR WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, ACCURACY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE ON-LINE SERVICES, THE APPLICATION, ANY
ACCOMPANYING ON-LINE MATERIALS, OR ANY INFORMATION PROGRAMS OR PRODUCTS
OBTAINED FROM, THROUGH, OR IN CONNECTION WITH THE ANY OF THE FOREGOING. IN
NO EVENT WILL THE FUND OR ANY THIRD PARTY BE LIABLE FOR, INCLUDING,
WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, COVER,
LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, SPECIAL
DAMAGES OR OTHER PECUNIARY LOSS ARISING OUT OF OR RESULTING FROM ANY
DEFECT IN, INABILITY TO ACCESS, OR USE OF THE ON-LINE SERVICES OR THE
APPLICATION EVEN IF THE FUNDS OR ANY THIRD PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. Because some states do not allow the
exclusion or limitation of warranties or of liability for consequential or
incidental damages, the above limitation may not apply to me. No oral
advice or written information given by the Funds or any of their employees
or agents will create a warranty, and I will not rely on any such
information or advice. The Funds does not warrant that the On-line
Services are uninterrupted or error free or that the Website or server
making it available is free of viruses or other harmful components. I
understand that an undetected or unrepaired virus may corrupt and destroy
my programs, files and hardware, and that the virus may be unintentionally
transmitted to other computers.
16. Assignment. I may not assign
this Agreement or any rights or obligations hereunder without the consent
of the Funds. The Funds may assign this Agreement or any of their rights
or obligations under this Agreement without notice to me.
17.
Notices. All notices to the Funds under this Agreement will be directed
to:
Kinetics Mutual Funds
615 E. Michigan Street
Milwaukee,
WI 53201
Attention: On-line Services Inquiry
18. Termination;
Amendment; No Waiver. The Funds may terminate this Agreement or amend it
in whole or in part by notice to me. This Agreement may not be amended in
any other manner. The failure or delay of the Funds to enforce any
provision of this Agreement will not be construed as a waiver of such
provision. I may terminate this Agreement by notifying the Funds in
writing. This Agreement will also terminate if I fail to comply with any
condition of this Agreement, and I agree that upon such termination I
shall halt access to the On-Line Services, the Application and all on-line
documentation.
19. Governing Law. This Agreement is governed by the
laws of the State of Wisconsin except for conflict of law provisions.
Captions in this Agreement are included for convenience of reference only
and do not effect the construction or effect of the provisions of this
Agreement. The application of the United Nations Convention of Contracts
for the International Sale of Goods is expressly excluded.
20. No
Bank Guarantee. I understand that shares of the Funds are not bank
deposits or obligations of, or guaranteed, endorsed or otherwise supported
by any U.S. Bank or affiliate, and are not federally insured or guaranteed
by the U.S. government, Federal Deposit Insurance Corporation, Federal
Reserve Board, or any other governmental agency.
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