Terms & Conditions
WEBSITE ELECTRONIC SERVICES AGREEMENT
You agree with Arroyo Investment Group (“we”,”our”, “us,”
as the case may be) as follows:
Our Web Site (the “Site”) was designed to help our advisory clients view
information regarding accounts managed by our firm, and to use information,
content, messages, products, services, software and databases available through
the Site. The Site is available only to advisory clients (referred to as
“you”) who agree to the terms and conditions in this Agreement.
If you agree with the terms and conditions of this Agreement, select “I
Agree” below to acknowledge your consent and intention to be bound by these
terms and conditions. By selecting “I Agree,” completing the registration
process, obtaining a password, and/or using the Site, (i) you represent and
warrant that you have the authority to enter into this Agreement and create a
binding contractual obligation, (ii) you indicate that you understand and intend
this Agreement to be the legal equivalent of a signed, written contract, and
equally binding, and (iii) you represent and warrant that you will use the Site
in a manner consistent with applicable laws and regulations and in accordance
with the terms and conditions in this Agreement, as the same may be amended by
us, online or otherwise, from time to time.
If you do not agree with the terms and conditions in this Agreement, select
“Cancel,” and you will exit the Site. In that case you must promptly
return to us all materials in your possession that are associated with the
Site.
This Agreement applies to all information, content, messages, products,
services, software and databases available through the Site.
1. Electronic Services. We will provide you with
certain Web-based account services (the “Electronic Services”). In using the
Electronic Services, you shall at all times comply with our Acceptable Use
Policy (“AUP”) set forth below, as may be revised by us from time-to-time.
We will provide you with electronic notice, either by e-mail or Web posting, of
the revision. Your continued use of the Electronic Services shall
constitute your acceptance of the revision.
2. License Grant. Subject to the terms and conditions
of this Agreement, we grant you a limited, nontransferable, nonexclusive license
to access and use the Electronic Services.
3. Third Party Service Providers. We use third party
service providers, vendors, and licensors to assist (including Performance
Technologies, Inc.) in providing the Electronic Services (each, a “Third Party
Service Provider”). You hereby consent and authorize us to delegate the
authorizations you provide to us to our Third Party Service Provider(s) as we
deem necessary or desirable to provide the Electronic Services to you. You
agree that the terms and conditions of this Agreement, including any of the
other terms, conditions, warranty disclaimers and liability disclaimers
incorporated into this Agreement, inure to the benefit of such Third Party
Service Providers and such Third Party Service Providers are deemed to be third
party beneficiaries of this Agreement, including any other terms, conditions,
warranty disclaimers and liability disclaimers incorporated into this
Agreement. You also agree that all references to us within this Agreement
and any incorporated terms are also deemed to include, where applicable, our
agents, such as the Third Party Service Providers. Your use of certain
services provided by Third Party Service Providers (including, but not limited
to, account aggregation services provided by Yodlee.com, Inc.) will require your
agreement to certain additional terms and conditions provided by the applicable
Third Party Service Providers. These additional terms and conditions will
be made available to you when, and if, you access the third party services.
4. Financial Market Information; No Warranty: Financial
Information. Our Electronic Services make available certain financial
market data, quotes, news, research and opinions (including Research Reports, as
defined below) or other financial information (collectively “Information”) that
has been independently obtained by certain financial market information
services, financial publishers, various securities markets including stock
exchanges and their affiliates, investment bankers and other providers
(collectively the “Information Providers”) or has been obtained by us. We do not
guarantee or certify the accuracy, completeness, timeliness or correct
sequencing of the Information made available through us, the Information
Providers or any other third party transmitting the Information (the
“Information Transmitters”). All such Information is provided “as-is” and
“as-available.” You agree that neither we nor any of the Information
Providers or the Information Transmitters shall be liable in any way for the
accuracy, completeness, timeliness or correct sequencing of the Information, or
for any decision made or action taken by you relying upon the Information. You
further agree that neither we nor any of the Information Providers or the
Information Transmitters will be liable in any way for the interruption of any
data, Information or other aspect of the Electronic Services. You understand
that none of the Information (including Research Reports) available through the
Electronic Services constitutes a recommendation or solicitation that you should
purchase or sell any particular security or use the services of any Third-Party
Service Provider, including but not limited to Information Providers and
Information Transmitters.
5. Research Reports. The Electronic
Services make available analyst research and opinions (“Research Reports”) that
may be prepared by an Information Provider or by various third party investment
bankers or other entities providing analysis, research and opinions (“Third
Party Research Providers”). We do not endorse or approve Research Reports
prepared by Third Party Research Providers and only make such Research Reports
available to you as a service and convenience. We and our Third Party
Research Providers do not (1) guarantee the accuracy, timeliness, completeness
or correct sequencing of the Research Reports, or (2) warrant any results from
your use of the Research Reports. The Research Reports have been prepared as of
the date indicated and may become unreliable for various reasons including, for
example, changes in market or economic circumstances. All such Research
Reports are provided on an “as-is” and “as-available” basis. We and each
of our Research Providers is not obligated to update any information or opinions
contained in any Research Report or to continue to offer Information or Research
Reports regarding any company or security. You acknowledge that recommendations
in the Research Reports to buy, sell, hold, or otherwise consider particular
securities are not, and should not be construed as, recommendations or advice to
you designed to meet your particular objectives or financial situation. From
time to time, we and our Research Providers may be unable to provide Research
Reports with respect to certain companies with which we and/or our Research
Providers, or their respective affiliates have certain business
relationships.
6. Alerts. We may, from time to
time, send email notices about investment markets or particular securities that
we believe will be of interest to you (“Alerts”). Alerts are subject to
certain limitations and requirements that are described here and that may be
described at the time you subscribe, or we subscribe for you, to a particular
Alert. Your subscription or use of any Alert will serve as an acknowledgement
that you have read and understood the applicable limitations and conditions. The
information in Alerts may be prepared and delivered by Information Providers.
The information may be delayed. Neither we nor any Information Provider
guarantee the accuracy, completeness, or timeliness of information available
through Alerts. Reliability of your receipt of Alerts and their timeliness will
also depend on factors outside of our control, including Internet, E-mail, and
pager service availability and transmission capabilities. Alerts are not
investment recommendations or advice. Any investment decision you make on the
basis of Alerts is your sole responsibility. Alerts are sent through unencrypted
e-mail, and neither we nor any Information Provider is liable for any
unauthorized use or interception. If you subscribe to Alerts, you acknowledge
that you have read and understood this notification.
7. Beta Services. We may designate certain new
functionality or services to be made available in connection with the Electronic
Services as “Beta Services.” Such Beta Services will not be ready for use in a
production environment. Because they will be at an early stage of
development, operation and use of the Beta Services may be unpredictable and
lead to erroneous results. You acknowledge and agree that: (i) the Beta
Services will be experimental and will not have been fully tested; (ii) the Beta
Services may not meet your requirements; (iii) the use or operation of the Beta
Services may not be uninterrupted or error free; (iv) your use of the Beta
Services will be for purposes of evaluating and testing the new functionality
and services and providing feedback to us; and (v) you shall inform your
employees, staff members, and other users regarding the nature of the Beta
Services. Your use of the Beta Services shall be subject to all of the
terms and conditions set forth herein relating to the Electronic Services.
You shall promptly report any errors, defects, or other deficiencies in the Beta
Services to us. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL
BETA SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY
KIND. You hereby waive any and all claims, now known or later discovered, that
you may have against us and our suppliers/licensors arising out of your use of
the Beta Services.
8. Disclaimer of Warranties. THE ELECTRONIC SERVICES ARE
PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF
ANY KIND. WE DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND
TITLE/NON-INFRINGEMENT. USE OF THE ELECTRONIC SERVICES IS AT YOUR SOLE
RISK. WE DO NOT WARRANT THAT THE ELECTRONIC SERVICES WILL MEET YOUR
REQUIREMENTS, OR THAT THE ELECTRONIC SERVICES ARE COMPATIBLE WITH ANY PARTICULAR
HARDWARE OR SOFTWARE PLATFORM, OR THAT THE OPERATION OF THE ELECTRONIC SERVICES
WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE ELECTRONIC SERVICES
WILL BE CORRECTED. FURTHERMORE, WE DO NOT WARRANT OR MAKE ANY
REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF ELECTRONIC
SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY,
SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR
OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR
AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF OUR OBLIGATIONS HEREUNDER.
THE ELECTRONIC SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER
THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT OPERATE OR CONTROL
THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE
DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (e.g., HACKERS) MAY ATTEMPT TO
OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS.
WE SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.
9. Agreement Not To Contact Analyst. You agree not to
contact any individual or analyst who is an author of, or who is named on, any
Research Report, or any representative of any Information or Research
Provider.
10. Arbitration. You should know the following with
respect to arbitration agreements:
(a) Arbitration is final and binding on the parties.
(b) The parties are waiving their right to seek remedies in court, including
the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different
from court proceedings.
(d) The arbitrators’ award is not required to include factual findings or
legal reasoning and any party’s right to appeal or to seek modification of
rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of arbitrators
who were or are affiliated with the securities industry.
You hereby agree to settle by arbitration any controversy between you and us,
or our affiliates, or our or their respective officers, directors, employees or
agents, including, but not limited to, any Third Party Service Providers, which
controversy arises out of this Agreement between you and us or any Third Party
Service Providers or which relates to this Agreement, the Electronic Services,
and any content or information provided thereon. Such arbitration will be
conducted by, and according to the arbitration rules then in effect of, the
National Association of Securities Dealers, the American Arbitration Association
or Judicial Arbitration and Mediation Services (JAMS).
Any arbitration conducted pursuant to this Section will take place in San
Francisco, California. Arbitration shall be initiated by filing a
statement of claim with one of the organizations specified above. Any
award the arbitrator makes will be final, and judgment on it may be entered in
any court having jurisdiction. This arbitration agreement shall be enforced and
interpreted exclusively in accordance with applicable federal law, including the
Federal Arbitration Act. Any costs, fees or taxes involved in enforcing the
award shall be fully assessed against and paid by the party resisting
enforcement of said award. 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 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:
(a) the class certification is denied;
(b) the class is decertified; or
(c) 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 this Agreement except to the extent stated
herein.
11. Securities Professionals May Not Use Research Reports In Their
Business. If you are a securities broker, dealer or investment banker,
by requesting or receiving any Research Reports, you agree not to use any such
Research Reports for any purpose related to your business.
12. Limitations of Liability: Limitation of
Damages. WE, THE THIRD PARTY SERVICE PROVIDERS, THE INFORMATION
PROVIDERS, INFORMATION TRANSMITTERS, THIRD PARTY RESEARCH PROVIDERS, AND ANY
OTHER PERSON INVOLVED IN TRANSMITTING INFORMATION WILL NOT BE LIABLE UNDER ANY
CIRCUMSTANCES FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES
EVEN IF YOU ADVISE THEM OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES, BUT
IS NOT LIMITED TO, CLAIMS FOR LOST PROFITS, TRADING LOSSES AND DAMAGES THAT MAY
RESULT FROM THE USE, INCONVENIENCE, DELAY OR LOSS OF USE OF THE INFORMATION OR
FOR OMISSIONS OR INACCURACIES IN THE INFORMATION. AS A CONDITION TO ACCESSING OR
RECEIVING THE INFORMATION OR USING THE ELECTRONIC SERVICES, YOU EXPRESSLY AGREE
TO WAIVE ANY CLAIM YOU MAY HAVE AGAINST US, ANY INFORMATION PROVIDER, RESEARCH
PROVIDER, THIRD PARTY SERVICE PROVIDER, OR ANY OTHER PERSONS INVOLVED IN
TRANSMITTING ANY INFORMATION WE MAKE AVAILABLE TO YOU OR IN PROVIDING THE
ELECTRONIC SERVICES.
BY ACCESSING OR RECEIVING INFORMATION OR USING THE ELECTRONIC SERVICES, YOU
AGREE THAT OUR LIABILITY AND THE LIABILITY OF THE THIRD PARTY SERVICE PROVIDERS,
THE INFORMATION PROVIDERS, THE THIRD PARTY RESEARCH PROVIDERS, OR ANY OTHER
PERSONS INVOLVED IN TRANSMITTING INFORMATION OR PROVIDING THE ELECTRONIC
SERVICES ARISING OUT OF ANY CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN
ANY WAY CONNECTED WITH THE ELECTRONIC SERVICES OR INFORMATION WILL NOT EXCEED
THE AMOUNT YOU ORIGINALLY PAID FOR THE ELECTRONIC SERVICES RELATED TO YOUR
CLAIM.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTIES
LAST, THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE
EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THAT THESE DISCLAIMERS AND
LIMITATIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL
RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO
JURISDICTION.
13. No Liability for Events Outside of Entities’ Direct
Control. We, the Information Providers, Information Transmitters,
Third Party Research Providers, Third Party Service Providers, and any other
person involved in transmitting Information will not be liable for any loss that
results from a cause over which that entity does not have direct control. Such
causes include, but are not limited to, (1) the failure of electronic or
mechanical equipment or communication lines; (2) telephone or other interconnect
problems; (3) bugs, errors, configuration problems or the incompatibility of
computer hardware or software; (4) the failure or unavailability of Internet
access; (5) problems with Internet service providers or other equipment or
services relating to your computer or network; (6) problems with intermediate
computer or communications networks or facilities; (7) problems with data
transmission facilities or your telephone, cable or wireless service; or (8)
unauthorized access, theft, operator errors, severe weather, earthquakes, other
natural disasters or labor disputes. We are also not responsible for any damage
to your computer, software, modem, telephone, wireless device or other property
resulting in any way from your use of the Electronic Services.
14. Use of Proprietary Information. The Information and
other content provided in connection with the Electronic Services are our
property or the property of the Information or Third Party Research Providers or
their licensers, or the Third Party Service Providers, and are protected by
applicable copyright law. You agree not to reproduce, retransmit, disseminate,
sell, distribute, publish, broadcast, circulate or commercially exploit the
Information and other content in any manner without our express written consent
or the Information or Third Party Research Providers, the Third Party Service
Providers, or any other person with the authority to give such consent. You
agree that you will not use the Information and other content for any unlawful
purpose. You further agree to comply with all our reasonable written requests
intended to protect the Information and Third Party Research Providers’, the
Third Party Service Providers’, and our respective rights in the Information and
Electronic Services. You will not remove any proprietary notices (e.g.,
copyright and trademark notices) from any Information or other content provided
in connection with the Electronic Services.
15. Access, Passwords, and Security. You will be
responsible for the confidentiality and use of your access number(s),
password(s) and account number(s). You agree not to hold us or Third Party
Service Providers liable for any damages of any kind resulting from your
decision to disclose your access number(s), password(s), or account number(s) to
any third party, including but not limited to entities that aggregate account
information or Web site content, or persons who are or claim to be acting as
your agent, proxy, or investment manager. You will be responsible for all
activities through and under your access number(s), password(s) and account
number(s), and any instructions (to the extent applicable) received by us will
be deemed to have been received from you. By using the Electronic Services, you
agree to take all steps necessary to prevent unauthorized access to your
account. You agree immediately to notify us if you become aware of:
any loss or theft of your access number(s), password(s) and/or account
number(s); or Any unauthorized use of any of your access number(s), password(s)
and/or account number(s), or of the Electronic Services or any Information.
16. Data Transmission. You acknowledge that data,
including e-mail, electronic communications and personal financial data, may be
accessed by unauthorized third parties when communicated between you and us,
Information Providers or Information Transmitters, using the Internet, other
network communications facilities, telephone or any other electronic means. You
agree to use software produced by third parties, including, but not limited to,
“browser” software that supports a data security protocol compatible with the
protocol used by us. Until we notify you otherwise, you agree to use software
that supports the Secure Socket Layer (SSL) protocol or other protocols accepted
by us and follow our log-on procedures for Electronic Services that support such
protocols. You acknowledge that we are not responsible for notifying you of any
upgrades, fixes or enhancements to any such software or for any compromise of
data transmitted across computer networks or telecommunications facilities,
including, but not limited to, the Internet.
17. Indemnification. You agree to defend, indemnify
and hold us, the Third Party Service Providers, the Information Providers and
the Information Transmitters harmless from and against any and all claims,
losses, liability costs and expenses (including but not limited to attorneys’
fees) arising from your violation of this Agreement, state or federal securities
laws or regulations, or any third party’s rights, including but not limited to
infringement of any copyright, violation of any proprietary right and invasion
of any privacy rights. This obligation will survive the termination of this
Agreement.
18. Our Ability to Terminate Electronic Services. We
reserve the right to terminate your access to the Electronic Services or any
portion of them (including without limitation, the Information (including
Research Reports)) in its sole discretion, without notice and without
limitation, for any reason whatsoever. We may terminate your access to its
Electronic Services for reasons including, but not limited to, the unauthorized
use of your account access information, breach of this Agreement, discontinuance
of our access to any Information or any other data from any Information Provider
or Research Provider or termination of one or more agreements between us and
Information Providers, Third Party Service Providers, Third Party Research
Providers or Information Transmitters. We and the Third Party Service
Providers, the Information Providers, the Third Party Research Providers and the
Information Transmitters shall have no liability to you for terminating your
access to the Electronic Services; provided, however, that if our termination is
without cause, we will refund the pro rata portion of any fee you may have paid
for the portion of the Information and/or Electronic Services not furnished to
you as of the date of termination. If this Agreement is terminated, you will
cease using the Electronic Services and all products, services, Information and
content obtained through the Electronic Services.
19. General.
19.1 Force Majeure. Neither party shall be liable for any
failure or delay in performance under this Agreement which is due to any event
beyond the reasonable control of such party, including without limitation, fire,
explosion, unavailability of utilities or raw materials, Internet delays and
failures, telecommunications failures, unavailability of components, labor
difficulties, war, riot, act of God, export control regulation, laws, judgments
or government instructions.
19.2 Entire Agreement. This Agreement sets forth the entire agreement
between the parties with regard to the subject matter hereof. No other
agreements, representations, or warranties have been made by either party to the
other with respect to the subject matter of this Agreement, except as referenced
herein. This Agreement may be amended only by a written agreement signed by both
parties.
19.3 Governing Law and Limitation of Actions. This Agreement
shall be construed according to, and the rights of the parties shall be governed
by, the law of the State of California, without reference to its conflict of
laws rules. No action, regardless of form, arising out of this Agreement, may be
brought by either party more than one (1) year after the cause of action has
arisen.
19.4 Relationship of the Parties. The parties agree that we
shall perform our duties under this Agreement as an independent
contractor. Nothing contained herein shall be deemed to establish a
partnership, joint venture, association, or employment relationship between the
parties. Personnel employed or retained by us who perform duties related
to this Agreement shall remain under our supervision, management, and
control.
19.5 Severability. If any of the provisions of this Agreement
are found or deemed by a court to be invalid or unenforceable, they shall be
severable from the remainder of this Agreement and shall not cause the
invalidity or unenforceability of the remainder of this Agreement.
19.6 Waiver. Neither party shall by mere lapse of time without
giving notice or taking other action hereunder be deemed to have waived any
breach by the other party of any of the provisions of this Agreement.
Further, the waiver by either party of a particular breach of this Agreement by
the other party shall not be construed as, or constitute, a continuing waiver of
such breach, or of other breaches of the same or other provisions of this
Agreement.
19.7 Survival. The following provisions shall survive termination or
expiration of this Agreement: Sections 3 (Third Party Service Providers),
4 (Financial Market Information; No Warranty: Financial Information), 5
(Research Reports), 8 (Disclaimer of Warranties), 10 (Arbitration), 11
(Securities Professionals May Not Use Research Reports In Their Business), 12
(Limitations of Liability: Limitation of Damages), 13 (No Liability for
Events Outside of Entities’ Direct Control), 14 (Use of Proprietary
Information), 15 (Access, Passwords, and Security), 17 (Indemnification), and 19
(General).
Acceptable Use Policy
1. General. For purposes of this Acceptable Use Policy
(the “Policy”), “Users” means any user of our Web-based services
(“Services”). As specified below, illegal usage, abusive usage,
unacceptable usage, and use of the Services to interfere with other Users’
enjoyment of the Services is unacceptable. From time-to-time, we may
update and/or revise this Policy. Any such updates and/or revisions shall
be posted online. Continued use of the Services by Users shall indicate
their acceptance of the updates and/or revisions.
2. Prohibited Uses. Prohibited uses of the Services
include the following:
(a) posting or transmitting unlawful materials, e-mail or information;
(b) posting or transmitting harassing, threatening or abusive materials,
e-mail or information;
(c) posting or transmitting defamatory, libelous, slanderous or scandalous
materials, e-mail or information;
(d) posting or transmitting obscene, pornographic, profane or otherwise
objectionable information of any kind;
(e) posting or transmitting materials, e-mail or information that would
constitute an infringement upon the patents, copyrights, trademarks, trade
secrets or other intellectual property rights of others;
(f) posting or transmitting materials constituting or encouraging conduct
that would constitute a criminal offence, give rise to civil liability, or
otherwise violate any local, state, national or international law, including
without limitation, the U.S. export control laws and regulations;
(g) posting or transmitting materials that would give rise to liability under
the Computer Fraud and Abuse Act;
(h) attempting to “hack” root or user logins on another system, machine, or
network;
(i) using the Services in such a way as to impair or otherwise interfere with
another User’s use of the services;
(j) including any inappropriate third party advertising; and
(k) using the Services to commit fraud or engage in other misleading or
deceptive activities.
3. Remedies. Violation of this Policy may result in
civil or criminal liability, and we may, in addition to any other remedy that we
may have at law or in equity, terminate permission for the User to use the
Services or immediately remove the offending material. In addition, we may
investigate incidents that are contrary to this Policy and cooperate with law
enforcement organizations, and provide requested information to third parties
who have provided notice to us stating that they have been harmed by a User’s
failure to abide by this Policy.