Last revised: December 17, 2021
THE TERMS SET FORTH THE LEGALLY BINDING TERMS THAT GOVERN YOUR USE OF THE SITE. BY ACCESSING OR USING THE SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST EIGHTEEN (18) YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITE.
Certain features of the Site may be subject to additional guidelines, terms or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into the Terms.
1. APPLICATION OF LAW
The Terms, including all disclaimers in Section 9 hereof, and your use of the Site, are governed by and construed in accordance with the internal laws of the State of California, excluding that body of laws known as choice of law or conflict of laws. PLEASE READ THIS AGREEMENT CAREFULLY. IT IS PART OF YOUR CONTRACT WITH US AND AFFECTS YOUR RIGHTS. Subject to the provisions of this Section, all disputes, controversies or claims arising out of or relating to this agreement will be resolved through mandatory binding arbitration, before J.A.M.S./ENDISPUTE or its successor (“JAMS”), pursuant to the United States Arbitration Act, 9 U.S.C. Section 1, et seq. (the “Act”) and the terms and conditions of this agreement. The arbitration will be conducted in accordance with the provisions of J.A.M.S.’s Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration (the “JAMS Rules”), subject to the provisions of this Section. The terms set forth in this agreement will control in the event of any inconsistency between such terms and the JAMS Rules. The parties will cooperate with JAMS and with each other in promptly selecting a single arbitrator from JAMS’s panel of neutrals. If the parties fail to so select an arbitrator within thirty (30) days following the date of either party’s notice of demand to conduct arbitration, then JAMS will appoint an arbitrator in accordance with the JAMS Rules. The award of the arbitrator will be in writing and will set forth findings of fact and conclusions of law. Judgment on the arbitrator’s award will be final and binding upon the parties and may be entered in any court having jurisdiction thereof. If for any reason JAMS or its successor no longer is in business, then the arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitrator’s fees will be shared equally by the parties and each party will bear its own costs and attorneys’ fees. All papers, documents or evidence, whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential information of both parties. The arbitrator chosen in accordance with these provisions will not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or the provisions of this agreement. Notwithstanding the foregoing, nothing in this Section shall prevent either party from applying for and obtaining from a court a temporary restraining order and/or other injunctive relief. Any and all disputes against or otherwise involving PCM regarding the content presented on the Site must be resolved through arbitration as set forth in this Section.
2. SITE CONTENT; THIRD PARTY CONTENT AND RESEARCH
The content and information printed on the Site, including, without limitation, page headers, text, software, photos, audio and video clips, graphics, illustrations, images, drawings, service listings, descriptions, pricing information, logos, music and sound and the materials available on the Site for download (all, collectively, the “Site Content”), are for informational, personal and non-commercial purposes only. Do not use any of the Site Content as a basis for making any investment decisions. All investment decisions should be made with the direct advice and counseling of a properly credentialed investment advisor.
The Site Content includes news, information, commentary, research reports and data concerning the financial markets, securities and other subjects. Some of this content is supplied by other third parties that are not affiliated with PCM.
3. RESTRICTIONS ON USE
Unless otherwise specified, Site Content may not be copied, modified, reproduced, broadcasted, paraphrased or distributed in any way. All such content and information is subject to trademark, service mark, trade dress, copyright and/or other intellectual property rights and licenses held by PCM and/or other third parties. All Site Content is to be used by you for private, non-commercial use only. You may not remove the name or logo of PCM or other third party from any of the materials, unless written permission is granted by PCM or such third party, respectively. You will also not restrict any other user from using or enjoying the Site or take any action to harm or disrupt the operations of this Site or to intercept any system, data or personal information from the Site or to circumvent the security systems of this Site.
4. FORWARD-LOOKING INFORMATION
The Site or any downloadable materials may contain some forward-looking statements. Certain words, including, without limitation, the words “believe,” “anticipate,” “expect,” “will” or similar words can be used to identify these statements. Users of the Site should beware that PCM is not obliged to update or revise these forward-looking statements and, thus, should not rely on the accuracy or validity of these statements. Such information should not be relied upon for the purpose of making any investment decision without the direct guidance of a properly credentialed investment advisor.
5. NO INVESTMENT ADVICE
PCM does not provide any investment advice on the Site. Materials and information published or available via the Site are for non-commercial, general informational purposes only. Seek and receive investment advice only as provided in a direct manner from a properly credentialed investment advisor.
6. USAGE OF THE SITE
You agree not to use the Site in any manner: (a) to violate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual or is otherwise objectionable; (c) that is harmful to minors in any way; (d) to impersonate or attempt to impersonate any person or any entity or gives the impression that it emanates from or is endorsed by us or any other person or entity, if this is not the case; (e) that is in violation of any applicable local, state, national or international law or regulation or any obligations or restrictions imposed by any third party or (f) to advocate, encourage or assist any third party in doing any of the above.
In addition, you agree not to: (a) upload, transmit or distribute to or through the Site any computer viruses, worms or any software intended to damage or alter a computer system or data; (b) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) use the Site to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (d) interfere with, disrupt or create an undue burden on servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (f) harass or interfere with any other user’s use and enjoyment of the Site; (g) use software or automated agents or scripts to produce multiple accounts on the Site or to generate automated searches, requests or queries to (or to strip, scrape or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file) or (h) advocate, encourage or assist any third party in doing any of the above.
We reserve the right (but have no obligation) to investigate and/or take appropriate action against you in our sole discretion if you violate this Section or any other provision of the Terms or otherwise create liability for us or any other person. Such action may include terminating your rights to use the Site in accordance with Section 15 hereof and/or reporting you to law enforcement authorities.
If you provide us with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to us all rights in such Feedback, including all copyright and other intellectual property rights therein, and agree that we shall have the right to use and fully exploit such Feedback and related information in any manner we deem appropriate. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.
7. TRADEMARKS, COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY
PCM’s trademarks, trade dress, logos, service marks, slogans, copyrights and other identifiers and intellectual property are the sole property of PCM. Trademarks and related intellectual property items are protected by U.S. and foreign trademark laws and statutes. Furthermore, the Site Content contains copyrighted and copyrightable material. As such, the Site is protected by copyright, pursuant to U.S. copyright laws, international conventions and other copyright laws. Neither the Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Sections 2, 3 and 5 through 7 hereof. We and our suppliers reserve all rights not granted in the Terms. There are no implied licenses granted under the Terms.
You may not license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Site, whether in whole or in part, or any Site Content. In addition to the other restrictions on use set forth elsewhere in the Terms, you may not modify, publish, adapt, transmit, participate in the transfer or sale, exhibit, distribute, display, reverse engineer, decompile, disassemble, perform, reproduce, create derivative works from or in any way exploit any of the Site Content or any part of the Site, in whole or in part. Downloading, copying, reproducing, distributing, republishing, displaying, posting or transmitting in any form or by any means any of the Site Content or any part of the Site is expressly prohibited except as expressly provided herein. You may not download or copy any of the services listings, descriptions or prices except as otherwise permitted herein; nor may you frame or utilize framing techniques to enclose any trademark, logo or copyrightable or copyrighted material from the Site or use any meta tags or any other hidden text utilizing our names or trademarks, without our express written consent. Permission is granted to download, print and store selected portions of the Site Content, provided you (a) only use these copies of the Site Content for your own personal, non-commercial use, solely for the limited purposes allowed hereunder and for no other purpose whatsoever, (b) do not copy or post the Site Content on any network computer or broadcast or otherwise publish the Site Content in print, electronic or any other media or format, (c) do not use the Site Content for presentations, correspondence or any other communications which are not directly related to your personal, non-commercial use and (d) do not modify or alter the Site Content in any way or delete or change any copyright or trademark notice. No right, title or interest in any downloaded materials is transferred to you as a result of any such downloading. PCM reserves complete title and full intellectual property rights in its Site Content. You may not access the Site in order to build a similar or competitive website or service. Any other use of materials on the Site, including reproduction for purposes other than those noted above, modification, distribution or republication, without prior written permission of PCM’s Marketing Team, is strictly prohibited.
Unless otherwise indicated, any future release, update or other addition to functionality of the Site shall be subject to the Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site, including the Site Content) must be retained on all copies thereof.
You shall be solely responsible and liable for any and all damages resulting from any infringement of the trademarks, Site Content or any other proprietary rights of PCM or other third parties and for any other harm resulting from any uploading, posting or submission of the Site Content to another website. PCM and its suppliers reserve all available rights and remedies at law and in equity.
8. THIRD PARTY LINKS
The Site may contain links to third party websites (collectively, “Third Party Links”).Such Third Party Links are not under our control and we are not responsible for any Third Party Links. We provide access to Third Party Links only as a convenience to you and do not review, approve, monitor, endorse, warrant or make any representations with respect to Third Party Links. You use all Third Party Links at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Links.
9. DISCLAIMERS; LIMITATION OF LIABILITY
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. AS SUCH, YOUR USE OF THE SITE IS AT YOUR SOLE RISK. ALTHOUGH PCM TRIES TO PROVIDE TIMELY AND ACCURATE INFORMATION ON THE SITE, THE SITE CONTENT MAY HAVE INACCURACIES OR TYPOGRAPHICAL ERRORS FOR WHICH PCM IS NOT AND SHALL NOT BE HELD LIABLE.
PCM (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY OR NON-INFRINGEMENT. PCM (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
PCM reserves the right, at any time, to modify, suspend or discontinue the Site (in whole or in part) with or without prior notice to you. You agree that PCM will not be liable to you or to any third party for any modification, suspension or discontinuation of the Site or any part thereof.
You acknowledge and agree that PCM will have no obligation to provide you with any support or maintenance in connection with the Site.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PCM (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
PCM makes no guarantee regarding the accuracy and reliability of any opinion made through the Site, as well as the accuracy and reliability of any content (including the Site Content), tools or services provided by linked websites.
No content provided on the Site (including the Site Content) will create an oral or written warranty, whether obtained from PCM or a third party, which is not specifically stated in the Terms.
You agree to indemnify, defend and hold harmless PCM and its officers, managers, members, employees, contractors, agents, licensors, service providers, subcontractors and suppliers from and against any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and court costs, arising or resulting from (a) your use of the Site, (b) your violation of the Terms or (c) your violation of applicable laws or regulations. If you cause a technical disruption of the Site or the systems transmitting the Site to you or others, you agree to be responsible for any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and court costs, arising or resulting from that disruption. PCM reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with PCM in the defense of such matter. You agree not to settle any matter without PCM’s prior written consent. PCM will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You hereby release and forever discharge PCM (and its officers, employees, agents, successors and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
12. FORCE MAJEURE
PCM shall not be liable for any delay or failure in performance due to force majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, pandemics, public health crises, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware, inability to obtain raw materials, supplies or power or equipment needed or any other cause beyond PCM’s control. We are not responsible for server downtime under any circumstances.
13. NOTIFICATION OF CLAIMED INFRINGEMENT
If you believe that any content on the Site infringes upon your copyright, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing our Designated Agent as set forth below with the following information in writing under 17 U.S.C. 512(c)(3):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works on the Site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(d) Information reasonably sufficient to permit us to contact you, such as an address, telephone number and, if applicable, email address;
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
By postal mail:
Pence Capital Management, LLC
5000 Birch Street
West Tower, Suite 8000-817
Newport Beach, California 92660
By email: email@example.com
By telephone: +1 (855) 939-5200.
The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport or transfer, directly or indirectly, any U.S. technical data acquired from us, or any services utilizing such data, in violation of the export laws or regulations of the United States of America.
Subject to this Section, the Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site at any time for any reason at our sole discretion, including for any use of the Site in violation of the Terms. Upon termination of your rights under the Terms, your right to access and use the Site will terminate immediately. You understand that any such termination may involve deletion of your information from our live databases. We will not have any liability whatsoever to you for any termination of your rights under the Terms. Even after your rights under the Terms are terminated, the following provisions of the Terms will remain in effect: Sections 1 through 20 hereof.
16. CHANGES TO THE TERMS
PCM reserves the right to alter, add or delete any part of the Site and the Terms at any time without prior notification. Users will be bound by the new Terms effective upon publication of the modified version of the Terms on the Site. We therefore advise you to review the Terms each time you use any tool or service on the Site. If you disagree with the modified version of the Terms, you must immediately discontinue your usage of any tool or service published on the Site. Your continued use of the Site after we have published a modified version of the Terms on the Site is your express indication that you accept each and every term and condition of the modified version of the Terms and that you agree to be bound by such Terms.
17. EMAIL COMMUNICATIONS
The communications between you and us use electronic means, whether you use the Site or send emails to us or whether we post notices on the Site or communicate with you via email. For contractual purposes, you (a) consent to receive communications from us in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
When you contact us with an inquiry online via pencecapital.com/contact, we collect your name and email address and use such email address to reply to your inquiry. When you subscribe to our newsletters and blogs, we also collect your name and email address, as well as other personal information. We also use the email address you provide us so that we can send you email communications about various matters, including sending you our published content and third party content and information about new services and notifications and updates about existing services.
By enrolling in any of our online services, you agree that we can send you such email communications. You can unsubscribe from one or more of our email communications at any time by clicking the unsubscribe link at the bottom of any email communication that you receive from us.
18. ENTIRE TERMS
The Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. The Section titles in the Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to us is that of an independent contractor and neither party is an agent or partner of the other. The Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent and any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void. We may freely assign the Terms. The terms and conditions set forth in the Terms shall be binding upon assignees.
19. COPYRIGHT/TRADEMARK INFORMATION
Copyright © 2021 Pence Capital Management, LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are the property of PCM or other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
20. INFORMATION OR COMPLAINTS
(a) If you have a question or complaint regarding the Site, please feel free to contact us by email at firstname.lastname@example.org or by postal mail at Pence Capital Management, LLC, 5000 Birch Street, West Tower, Suite 8000-817, Newport Beach, California 92660.
(b) California residents may reach the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, by telephone at (800) 952-5210 or as otherwise set forth at https://www.dca.ca.gov/about_us/contactus.shtml (or a successful URL).