Provider Terms of Use
Effective July 23, 2020
Welcome and thank you for visiting the website found at www.cmkproperties.com (this “Site”), a website operated by CMK Properties, LLC (“Provider”). By accessing or using this Site, you as the user (“you”) agree to be bound by the following terms and conditions (these “Terms”). Please read these Terms carefully before using this Site. These Terms are a legally binding agreement between you and Provider regarding your access and use of the Site.
BY ACCESSING OR USING THIS SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THESE TERMS, INCLUDING THEIR DISCLAIMERS AND LIMITATIONS OF LIABILITY. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MAY NOT USE THIS SITE.
1. Use of this Site.
a. License. On the condition that you comply with all of your obligations under these Terms, Provider grants you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access this Site with a generally available web browser to view information and use this Site for your own personal, non-commercial use. Any other use of this Site is strictly prohibited and a violation of these Terms. Provider and its licensors reserve all rights not expressly granted in these Terms, including, without limitation, rights of title, ownership, intellectual property and all other rights and interests in this Site and all related items.
b. Revision of these Terms. Provider may revise these Terms at any time with or without additional notice to you. Such revised Terms will be effective when posted on this Site. You should revisit these Terms on a regular basis, as revised versions will be binding upon you. You understand and agree that your continued access to or use of this Site after the effective date of changes to these Terms indicates your acceptance of such revisions.
c. Cessation of Service. Provider reserves the right to modify, terminate and suspend the operation of this Site or any portion of it, as well as the provision of any or all products or services via this Site, without notice or liability, at any time and for any or no reason in its sole and absolute discretion.
d. Risks Inherent in Electronic Mail. You understand that communications distributed by this Site may be distributed by electronic mail, which is by its nature insecure and unreliable. Electronic mail is subject to interception, misdirection and loss. In addition, an electronic mail message may be forwarded by its intended recipient to other unintended recipients. Any recipient of an electronic message sent by this Site may access the hyper-links to files contained on this Site, as this Site does not authenticate or validate the identity or authority of any person following a hyper-link contained in any such message.
e. General Restrictions. You shall not use the Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the privacy or confidentiality rights of a third party. You shall not use the Site to store or transmit viruses, Trojan horses, worms, or other malicious code. You shall not interfere with or disrupt the integrity or performance of the Site, or other content contained within the Site. You shall not attempt to gain unauthorized access to any portion of the Site its related systems or networks, or to data stored therein. You shall not permit direct or indirect access to or use of the Site in a way that circumvents a contractual usage limit. You shall not frame or mirror any part of the Site. You shall not build a product or service competitive with the Site. You shall not reverse engineer, decompile, or disassemble the Site or otherwise attempt to derive the source code from the Site (to the extent such restriction is permitted by law). You shall not use the Site in violation of any law, regulation, or rule.
f. No Disruption. You shall not (i) use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other user’s use of the Site, (ii) use, cause, or launch any robot, spider, program, script, or other automatic device, process, or means to access the Site for any purpose, including scraping, indexing, surveying, data mining, monitoring or copying any of the material available through the Site, (iii) use any manual process to monitor or copy any of the material available through the Site, (iv) use any device, software, or routine that interferes with the proper working of the Site, (v) introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful, (vi) attempt to gain unauthorized access to, interfere with, damage, impair, or disrupt any parts of the Site, the server on which transmissions through the Site are stored, or any server, computer, database, system, or network connected to the Site, (vii) attack the Site via a denial-of-service attack or a distributed denial-of-service attack, (viii) otherwise attempt to burden or hinder the operation of the Site, interfere with the proper working of the Site, or the use and enjoyment of them by others as determined by Provider in its sole discretion.
g. No Abuse. You shall not use the Site to: (i) promote or engage in any illegal or unauthorized use or any way that violates applicable federal, state, local, or international law or regulations (including without limitation, any laws regarding the export or re-export of data or software to and from the US or other countries); (ii) impersonate any person or entity; (iii) stalk or harass any other person; (iv) harm or exploit minors in any way, including by requesting personal information from them or displaying inappropriate content; (v) falsely state or misrepresent your affiliation with another person or entity or to impersonate or attempt to impersonate Provider, a Provider employee, another user, or any other person or entity, whether by using that person’s email address, screen name, or other indicia associated with the foregoing or otherwise or that misleadingly give the impression that they emanate from or are endorsed by Provider or any other person or entity if that is not the case; (vi) provide any false or misleading data or materials likely to deceive others; (vii) infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person; (viii) access or use the account of another user; (ix) distribute or procure the sending of unsolicited or unauthorized advertising, surveys, contests, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or other messages for any commercial purposes; (x) distribute computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (xi) “hack” or access without permission Provider’s proprietary or confidential records or those of any other third party; (xii) transmit, upload, post or promote any libelous, abusive, offensive, harassing, violent, inflammatory, threatening, defamatory, obscene, indecent, sexually explicit, pornographic, or otherwise objectionable materials (as determined by Provider in its sole discretion), materials that promote discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, age, or other materials that could give rise to any civil or criminal liability under U.S. or international law; (xiii) promote any illegal activity or advocate, promote, or assist any unlawful act; (xiv) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person; or (xv) deploy or use bots, robots, web crawlers, or other similar electronics or computer code to scrub, copy, or capture data.
2. Your Account.
a. Account Creation. In order to access restricted portions of this Site, you may be required to create an account on this Site and provide your contact information. Provider reserves the right to refuse or reject any request to create an account for you for any or no reason at Provider’s sole discretion. You represent and warrant that all information you provide to Provider when establishing an Account is true, current, complete, and correct. You consent to all of Provider’s use of such information consistent with Provider’s Privacy Policy https://cmkproperties.com/privacy-policy/. If you choose or receive a user name, password, or other information as part of Provider’s security procedures, you must treat such information as confidential and must not disclose it to anyone else. You acknowledge that your account is personal and you agree not to provide any other person with access to your account or to the Site or parts of it using your credentials. You shall notify Provider right away if you discover or suspect any unauthorized access to or use of your account. You shall protect the confidentiality of your credentials and use caution when accessing your account from a public or shared computer. You acknowledge that Provider may disable any user name, password or other credentials at any time in Provider’s sole discretion for any reason or no reason, including if Provider believes you have violated these Terms.
b. Responsibility. You are solely responsible for your account, your contact information and other information made available through your Account or otherwise via this Site. You are solely responsible for making all arrangements necessary (including paying any rates and fees necessary) to have access to the internet, data networks, devices, compatible software and hardware, and other goods and services to the extent necessary to access and use the Site. You acknowledge that your access to and use of the Site may experience delays or errors due to reliance on the Internet and electronic communications systems You are responsible for ensuring that others who access and use the Site through your Internet connection comply with these Terms. You assume all risks associated with your Information, including reliance on its quality, accuracy or reliability by any other person or entity. You acknowledge and agree that Provider may, directly or indirectly, collect and store information regarding your use of the Site, whether via security measures included in the Site or otherwise, and you agree that Provider may use such information for any purpose related to use of the Site. You shall not grant third parties access to the Site and acknowledge and agree that Provider is not liable for any errors or omissions or data integrity with respect to the Site, including if you breach these Terms and grant a third party access to the Site.
c. Termination.
i. By you. You may terminate your account at any time by electronic mailing Provider at [email protected].
ii. By Provider. If Provider has reason to suspect that you have breached these Terms, or that any of the information you provided to Provider is not authorized, correct, current and complete, Provider may, in addition to taking or reserving any other remedies against you, terminate your account. Provider reserves the right to erase any or all of your Information from this Site, as well as to terminate your Account without notice or liability, at any time and for any or no reason in its sole and absolute discretion. Without limiting the foregoing, Provider may suspend or terminate the permission granted in these Terms for any reason, including without limitation for uncured or uncurable breach. Immediately upon termination for any reason, you shall immediately discontinue all use of the Site and return or destroy any copies of the foregoing in your possession, custody, or control. Any suspension, termination or cancellation of your account or your use of the Site shall not affect provisions of these Terms, such as indemnification and limitations of liability, that are by their nature intended to survive such suspension, termination or cancellation.
d. Prohibited Uses. You agree that:
i. you will not violate these Terms or any of Provider’s or its licensors’ rights or use this Site to violate the rights of any third party such as copyright or trademark rights;
ii. you will use your true legal name and true electronic mail address, and only provide accurate and complete information on this Site;
iii. you will provide at your cost all equipment, software, mobile access and Internet access necessary for you to use this Site.
iv. you will copy information from this Site only as necessary for your personal, non-commercial use to view, save, print, fax or e-mail such information;
v. you will not otherwise reproduce, modify, distribute, display or provide access to this Site or its content;
vi. you will not create derivative works from, decompile, disassemble or reverse engineer any portion of this Site;
vii. you will not upload to or distribute through this Site any binary code, macros or other executable code, or any file that contains any viruses, Trojan horses or other components designed to commandeer, limit or harm the functionality of a computer;
viii. you will not record, process or mine information about other users, or access, retrieve or index any portion of this Site;
ix. you will not remove or modify any copyright or other intellectual property notices that appear on this Site;
x. you will not access or use this Site in any manner that could damage, disable, overburden, place an unreasonable load on, interfere or attempt to interfere with the proper working of, or impair, this Site, its computer systems, network or the account of any other user;
xi. you will not attempt to gain unauthorized access to any parts of this Site or any user accounts, or any of this Site’s computer systems or networks;
xii. you will not use this Site in any way that is unlawful, harms Provider’s business, Provider’s service providers, licensors, representatives or any other user, or breaches any policy or notice on this Site;
xiii. you will not impersonate another person or misrepresent your affiliation with another person or entity, such as by using another person’s user name, password or other account information or another person’s name, likeness, image or photograph;
xiv. you will not charge any person for access to any portion of this Site or any information on this Site;
xv. you will not access this Site through automated queries (such as by screen or database scraping, spiders, robots, crawlers or any other automated activity with the purpose of obtaining information from this Site) without Provider’s prior express written permission;
xvi. you will not engage in “framing” or “mirroring,” or otherwise simulate the appearance or functionality of this Site; and
xvii. you will not assist, encourage or enable others to do any of the preceding prohibited activities.
e. Provider’s Right to Use Your Information. As between you and Provider, your contact information, data and other information made available through your account or that you otherwise make available from time to time on the Site is owned by you. You hereby irrevocably grant Provider a worldwide, perpetual, non-exclusive, royalty-free, fully paid-up, assignable, sublicensable, transferable rights to use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of information you provide to Provider, through your account or otherwise, or that you otherwise make available from time to time on the Site in connection with the Site and the services provided to you by the Site.
3. Representations and Warranties. You represent and warrant that:
a. you are 18 years or older and you have all requisite legal power and authority to agree to be bound by these Terms without consent from any third party and you have the right, power, and authority to enter into and bind the organization you represent to these Terms;
b. the execution, delivery, entering into, and performance of your obligations under these Terms will not violate any law or order to which you are subject or conflict with, or result in a default under any other agreement, including confidentiality agreements between you and third parties;
c. you will use the Site and services provided by the Site for lawful purposes only and subject to these Terms and your use will comply with all applicable laws, regulations, rules, ordinances and court orders;
d. you are responsible for all use of the Site and services provided by the Site by persons accessing the Site and such services through your account;
e. you agree that Provider will not be liable for any losses incurred as a result of a third party’s use of the Site and services provided by the Site associated with your account, regardless of whether such use is with or without your knowledge and consent;
f. you will not use the Site and services provided by the Site in any manner that could damage, disable, overburden or impair the Site, or interfere with use of the Site or services by others;
g. you have not falsely identified yourself or provided any false information to gain access to the Site or any portion of it; all information you submit to the Site or Provider by you is true, accurate, complete, and correct and will contain no untrue statement or omission of material fact or data; and you will answer all questions in the investor questionnaire completely and truthfully and abide by all requirements contained within the documents as mandated by the U.S. Securities and Exchange Commission;
h. you understand that, except at expressly stated in these Terms, these Terms do not grant you any license to use, reproduce, distribute, display or provide access to any portion of this Site on third-party websites, or otherwise;
i. you will not attempt to gain unauthorized access to the Site or services provided by the Site, other accounts, computer systems, or networks under the control or responsibility of Provider through hacking, cracking, password mining, or any other unauthorized means;
j. you agree to immediately notify Provider of any unauthorized use of your account of which you become aware;
k. you are solely responsible for maintaining the confidentiality of your account names and password(s);
l. you are not a competitor of Provider or its licensors and are not using the Site or services provided by the Site for reasons that are in competition with Provider or its licensors;
m. if you use this Site in your capacity as an employee, owner or otherwise as an agent of another person or entity, you agree on behalf of yourself and such person or entity, jointly and severally, to be bound by these Terms;
n. you will not impersonate another person or misrepresent your affiliation with another person or entity, including using another person’s username, password or other account information or another person’s name, likeness, image or photograph; and
o. your consent to be bound to any consents, notices, disclosures or other records or documents to be entered into between you and Provider, whether by typing your name, checking a box, pressing a button, clicking through a link, or demonstrating other intent to be bound, shall create a legal, valid and binding contract enforceable against you in accordance with its terms.
4. Intellectual Property.
a. Content of this Site. Provider and/or its licensors own all of the content that is made available in connection with this Site (the “Site Content”), including without limitation visual interfaces, interactive features, graphics, text, images, programs, products, designs, databases and their data, information provided by Provider, trademarks and service marks, computer code, products, software and all other elements and components of this Site, including all worldwide copyrights, trademarks, patents, trade secrets, and other intellectual property and proprietary rights arising out of or embodied by the Site or the Site Content and which are protected by U.S. and international intellectual property laws. All trademarks, service marks, logos, and other indicators of source are marks proprietary to Provider or its licensors unless otherwise noted. Nothing in these Terms authorizes you to make any use of any of Provider’s marks. You may review the Site and Site content only for your own edification and personal, non-commercial use.
b. Restrictions. You may not copy, modify, reproduce, distribute, publish, display, perform, repost, retransmit, sell, rent, lease, create derivative works or adaptations of, or in any way exploit or use any of the Site or Site Content in whole or in part, except as expressly authorized by Provider in these Terms. Except as expressly and unambiguously provided by these Terms, neither Provider nor any of its licensors grant you any express or implied rights, and all rights in and to this Site and the Site Content are retained by their holders. Except as otherwise provided in these Terms, Provider expressly reserves all rights. You shall not delete, remove, alter, or obscure any intellectual property or other notices that appear on the Site or the Site Content (whether online or in downloaded, printed, or other format).
5. Privacy. Any information Provider collects about you during your visit to the Site is subject to Provider’s Privacy Policy, which is incorporated into this these Terms by this reference and is accessible here https://cmkproperties.com/privacy-policy/ . By accessing or using the Site or otherwise agreeing to these Terms, you acknowledge and consent to all actions Provider takes with respect to your personal information and data that comply with the Privacy Policy, as it may be amended from time to time.
6. Indemnification. You agree to indemnify, defend and hold Provider, as well as Provider’s parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, including the shareholders, officers, directors, employees, agents and representatives of each of them (collectively, the “Provider Parties”) harmless from any and all claims, causes of action, judgments, settlements, liability, damages, deficiencies, fines, penalties, losses, expenses, and costs (including, but not limited to, reasonable attorneys’ fees and disbursements of counsel) arising out of or relating to:
a. your access to or use of this Site;
b. your actual or alleged violation of these Terms, including without limitation your breach of any representation or warranty;
c. your infringement, or the infringement of any third party rights using your Account, of any intellectual property or other right of any person or entity; or
d. the nature and content of all materials, agreements, works, data, statements and other visual, graphical, written or audible communications of any nature submitted by you or otherwise processed through your Account.
Provider reserves the right to, but is not obligated to, assume the exclusive defense and control of any matter for which you are required to indemnify the Provider Parties, and you agree to cooperate with Provider’s defense of such claims. You agree not to settle any such matter without Provider’s prior written consent. Provider will use reasonable efforts to notify you of any such claim, action or proceeding when Provider becomes aware of it. Each of the Provider Parties is an express third party beneficiary of this indemnification provision, with full rights to enforce its terms.
7. Third Party Websites. This Site includes links to third-party websites and services, including through a portal found on a subdomain of this Site. Such links are provided for your convenience only. Provider does not control the content of those third party websites, services, or resources, does not endorse them, and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any third party websites or resources linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites, services, and resources.
8. Limitations of Liability.
a. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS SITE IS PROVIDED “AS IS,” AND PROVIDER: (i) MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (ii) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY, ACCURACY, TIMELINESS, RELIABILITY, SUITABILITY, USABILITY, COMPLETENESS, SECURITY, AVAILABILITY, AND TITLE; (iii) DOES NOT WARRANT THAT THIS SITE IS OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, THAT ANY DEFECTS WILL BE CORRECTED, OR BE TIMELY OR SECURE; AND (iv) DOES NOT WARRANT THAT THE SITE WILL OPERATE WITH ANY PARTICULAR HARDWARE, SOFTWARE, SYSTEM, OR DATA. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THIS SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF PROVIDER TO ANY THIRD PARTY. USE OF THIS SITE IS AT YOUR SOLE RISK. PROVIDER MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THIS SITE. PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY VIRUSES OR OTHER FORMS OF CONTAMINATION OR DESTRUCTIVE FEATURES THAT CAN AFFECT YOUR COMPUTER EQUIPMENT, SOFTWARE, DATA, OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SITE. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you. In such event, such warranties are limited to the minimum warranty period allowed by the applicable law. Without limiting the generality of the foregoing, Provider does not make any warranty of any kind with respect to freedom from patent, trademark, or copyright infringement, or theft of trade secrets and Provider does not assume any liability hereunder for any infringement of any patent, trademark, or copyright arising from the use of the Site or rights granted or provided by Provider hereunder.
b. No Consequential Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL PROVIDER OR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUES, OR PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, REGARDLESS OF FORM OF THE ACTION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), EQUITY, BREACH OF CONTRACT OR OTHERWISE (AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE). IN NO EVENT WILL ANY OF THE OFFICERS, TRUSTEES, DIRECTORS, PARTNERS, EMPLOYEES, CONSULTANTS, BENEFICIARIES, JOINT VENTURERS, MEMBERS, STOCKHOLDERS OR OTHER PRINCIPALS OR REPRESENTATIVES OF PROVIDER, EVER BE PERSONALLY LIABLE TO YOU UNDER, ARISING OUT OF, OR RELATED TO THESE TERMS (INCLUDING FOR DIRECT OR CONSEQUENTIAL DAMAGES), AND YOU HEREBY WAIVE THE RIGHT TO RECOVER DAMAGES FROM ANY SUCH PERSONS.
c. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER’S MAXIMUM AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, THE SITE, AND/OR YOUR USE OF THE SITE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY. If applicable law limits the application of the above limitation of liability, Provider’s liability will be limited to the maximum extent permitted by law.
9. Export Laws. You acknowledge that technology utilized by this Site and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Provider makes available through the Site (collectively “Excluded Data”), may be subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”). You represent and warrant that: (i) you are not located in, under the control of, or a national or resident of an embargoed country or prohibited end user under Export Laws; and (ii) you will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by export laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction it operates or does business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Site and Services. You shall advise Provider at [email protected] in the event the Excluded Data requires Provider to obtain additional licenses, permits and/or approvals from any government in the jurisdiction where you intend to use the Site or Services. Upon being advised of such a requirement, Provider may at its sole discretion: (a) terminate your Account; (b) obtain such licenses, permits, and/or approvals as may be required; or (c) modify these Terms such that additional licenses, permits, and/or approvals are no longer required to be obtained by Provider.
10. Confidentiality. You acknowledge and agree that through restricted areas of the Site, you may receive offering materials, financial models, research, trade secrets, information about affiliated investment funds, information about Provider and its affiliates, and other material that is highly confidential and proprietary to Provider and/or third parties who have entrusted information to Provider (“Confidential Information”). Confidential Information does not include information that you can show was available to the general public through no fault of yours or any third party owing a duty of confidentiality to Provider at the time it was disclosed to you. Provider provides the Confidential Information solely for your personal, non-commercial use. The Confidential Information is highly confidential. You acknowledge and agree that such the Confidential Information is proprietary and confidential, that Provider derives independent economic value from such Confidential Information not being generally known, and Provider exerts reasonable efforts to maintain the confidentiality of the Confidential Information. You may only use the Confidential Information to evaluate or monitor your investments in funds. You must protect the Confidential Information against unauthorized access, disclosure, or use using measures at least as protective as those you use for your own similar information, but in no event less than commercially reasonable measures. You agree not to share the Confidential Information with third parties and not to use it for any purpose other than your own personal, non-commercial use that fits within the expressed permitted purpose above and that in no way competes with or is detrimental to the interests of Provider. Without limiting the foregoing, you agree not to use the Confidential Information to compete against Provider or in any way detrimental to Provider. You shall not disclose the Confidential Information to any third party and you shall not copy, print, or otherwise reproduce the Confidential Information in any manner except to share the Confidential Information with employees within your organization who need to know the Confidential Information to advise you and who are bound by written agreements obligating them to preserve the confidentiality of the Confidential Information using terms at least as protective as those set forth in these Terms. You are responsible for the acts and omissions of such individuals with respect to the Confidential Information. At any time upon Provider’s request, you agree to return to Provider, or, at Provider’s option, to destroy the Confidential Information in your possession or control. To the extent this provision conflicts with any confidentiality agreement or confidentiality provisions contained within a written agreement you have with Provider, you agree that the provisions more protective of Provider apply. You hereby agree that the Confidential Information includes trade secrets and that the unauthorized access, disclosure, or use of any Confidential Information will cause substantial and irreparable competitive harm, as well as financial and strategic damage to Provider.
11. No Reliance. Provider makes information available on or through the Site solely for general informational purposes. Without limiting the foregoing, Provider does not provide investment or other advice, recommend the purchase or sale of securities, or otherwise provide information intended for use in making investment decisions on the Site. Provider does not provide investment, legal, accounting, tax, or other professional advice in connection with any offer or sale of securities. Provider does not warrant the accuracy, currency, completeness, or usefulness of the information provided. You rely on such information strictly at your own risk. Any information on the Site about transactions does not necessarily reflect overall performance and past performance is not indicative of future results. Provider does not represent that any particular investment will lead to profits or losses akin to past profits or losses or that significant losses will be avoided. Certain information on the Site contains forward-looking statements. Forward-looking statements give you the opportunity to understand the Provider’s believes and opinions regarding the future so that you may use such beliefs and opinions as but one factor in evaluating an investment opportunity. Forward-looking statements do not guarantee future performance and may involve risks and uncertainties that could cause actual performance and results to deviate materially from projections expressed or implied in forward-looking statements. Do not place undue reliance on forward-looking statements. Information posted on the Site may be incomplete or out of date and Provider has no obligation to update such information. Provider disclaims all liability and responsibility arising from any reliance you or others place on the information found on the Site. Without limiting the foregoing, you are responsible and liable for all acts and omissions with respect to your use of the Site, whether permitted by or in violation of these Terms.
12. Miscellaneous.
a. Governing Law. These Terms shall be governed by the laws of the State of Tennessee without regard to its conflicts of laws principles. You agree to the exclusive jurisdiction of the federal and state courts sitting in Davidson County, Tennessee for the resolution of any disputes arising out of these Terms, your use of the Site, or the relationship between the parties.
b. No Assignment. These Terms, and any rights or obligations under these Terms, are not assignable, transferable or sublicensable by you except with Provider’s prior written consent, but may be assigned or transferred by Provider without restriction. Any attempted assignment by you shall violate these Terms and be void.
c. Relationship. Nothing in these Terms or your use of the Site shall create any partnership, joint venture, employment, or agency relationship between you and Provider.
d. Beneficiaries. Nothing in these Terms is intended to, nor will be deemed to, confer rights or remedies upon any third party.
e. Amendments; Waivers. Provider may modify these Terms as provided in Section 1(b) (Revision of these Terms). These Terms may not be modified, amended, terminated or waived, in whole or in part, by you except by a written instrument signed by Provider. Except as expressly set forth herein, any failure of a party to take action in response to any breach of these Terms by the other party shall not constitute a waiver of such breach or of performance required by the other party; and no waiver of any provision of these Terms shall constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided therein.
f. Force Majeure. Provider shall not be liable for, or be considered to be in breach of or default under these Terms on account of any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Provider’s reasonable control, so long as Provider uses all commercially reasonable efforts to avoid or remove such causes of non-performance or delay.
g. Notices. To send notices to Provider, or if you have any questions regarding these Terms, please contact Provider at [email protected]. Provider may provide you with notices, including notices of changes to these Terms, by electronic mail, regular mail or communications through this Site.
h. Entire Agreement. These Terms contain the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties concerning the subject matter hereof except as otherwise provided in this paragraph. Additional terms and conditions may also apply to specific portions, services, or features of the Site. All such additional terms and conditions are hereby incorporated by this reference into these Terms and you agree to comply with them. These Terms do not supersede any existing written agreements between you and Provider that do not pertain to your access and use of the Site. You may from time to time enter into binding legal agreements relating to certain services available through the Site, which may have terms that are different from those of these Terms. In the event of any inconsistency, the terms of such other agreement shall control with respect to such services.
i. Severability. If any provision of these Terms is deemed to be invalid or unenforceable, the remaining provisions of these Terms shall be valid and binding and of like effect as though such provision were not included.
j. Remedies. Except as otherwise expressly stated in these Terms, all remedies are cumulative and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other. You acknowledge and agree that the terms and restrictions in these Terms protecting Provider’s Confidential Information and intellectual property rights are reasonably and necessary to protect Provider’s business interests. You acknowledge that a violation of any such terms would cause Provider irreparable harm. Therefore, you acknowledge and agreement that in the event of any actual or anticipated breach of any such provisions of these Terms, Provider is entitled to specific performance, injunctive relief, or both, in addition to all other legal and equitable remedies available to it at law or in equity.