In consideration of Primary Insight, LLC (including its affiliated companies, collectively, “Primary Insight,” “we,” “us” or “our”) providing you access to our Internet web site (“Site”) and the information, documents, research reports, data, features, functionalities and other materials on our Internet web site, as well as the ability to set up meetings and conduct other transactions through our Site (collectively, and as such may be revised from time to time by us, the “Content”), you (which term, as used herein, includes you personally and the company or other organization on whose behalf we grant you access to the Site) hereby agree to the following terms and conditions (this “Agreement”). This Agreement is in addition to, and does not nullify, any other agreement between you and us governing the conduct of your relationship with us (collectively, “Customer Agreement”) or any other applicable terms and conditions found on the Site. You agree to comply with all rules or restrictions that are posted on the Site.
1) NO INVESTMENT ADVICE, COMPLIANCE WITH LAW.
2) NO OBLIGATION TO KEEP INFORMATION CURRENT.
The Content reflects the respective authors’ analyses as of the Content’s initial publication date. We are not under any obligation to update such Content to reflect circumstances that may occur after its initial publication date. We may not update any Content to take into account material changes or new information.
4) USER CODES.
5) CONSENT TO RECORDING/MONITORING.
You consent to our recording, retention and use of all information and data that you input or otherwise communicate during your access to and/or use of the Site or through any e-mail to or from us and any other electronic communication means and the transmittal of the same to our affiliates, subsidiaries, branches and third parties for processing, database maintenance, record keeping or any other use in accordance with our practices, policies and procedures. In addition, we may disclose such information to the extent that we determine in good faith to be required by any applicable laws, rules or regulations or order or in enforcement of our rights or the defense of claims. We expressly reserve the right to monitor any and all use of the Site.
6) ELECTRONIC DOCUMENTS.
We may, in our sole discretion, seek your consent to the terms and conditions of this Agreement and certain other agreements on the Site by means of an electronic signature by requesting you to affirmatively “click” on boxes containing the words “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature.
7) USE OF E-MAIL/AND OTHER ELECTRONIC MESSAGES.
You acknowledge that we strongly recommend against any use of any form of electronic mail, electronic chat or instant messenger communication, whether transmitted through the Internet, a proprietary network, a computer, a pager or another wireless device or otherwise (but not including voice communication) (collectively, “Electronic Messages”) to communicate any time sensitive or confidential information. Electronic Messages are not secure and may not be confidential. Even though one of our representatives may have communicated with you through Electronic Messages recently, such representative may not timely see any message sent through Electronic Messages. If you choose to use Electronic Messages for sending time sensitive or confidential communications, you agree that Primary Insight is not responsible for any acts or omissions caused by delays, delivery failures, or security breaches of those Electronic Messages.
8) PROPERTY RIGHTS IN INFORMATION AND SITE.
In the event you use the Site or the links included on the Site to gain access to a World Wide Web site or an Internet location or a source of information of any company, organization or person other than Primary Insight, or to any other Internet location, you acknowledge that such other sites or locations are not under our control and agree that we will not be responsible for any information or other links found at any such World Wide Web site or Internet location or source of information, or for your use of such information. We provide such links only as a convenience to you, and have not tested any software or verified any information found at such sites. The fact that we have provided a link to another site does not signify our endorsement of the site or its contents. There are inherent risks in the use of any software or information found on the Internet, and you acknowledge that you understand these risks before making any access to and/or use of the Site.
10) DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
THE SITE, ITS RELATED FUNCTIONALITIES AND CONTENT, AND ANY SOFTWARE OFFERED TO YOU THROUGH PRIMARY INSIGHT OR A THIRD PARTY WEB SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. PRIMARY INSIGHT AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS, DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS AND ERROR-FREE UNINTERRUPTED SERVICES.
AS TO THE OPERATION OF THE SITE, PRIMARY INSIGHT AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS MAKE NO WARRANTY THAT (i) THE OPERATION OF THE SITE WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE SITE WILL BE UNINTERRUPTED, (iii) THE RESULTS THAT YOU MAY OBTAIN FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, OR (iv) DEFECTS WILL BE CORRECTED. YOU (AND NOT PRIMARY INSIGHT) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER EQUIPMENT AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR OTHER PROBLEMS YOU MAY HAVE AS A RESULT OF VISITING THE SITE.
TO THE EXTENT THAT THE LAW DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, ALL CONTENT ACCESSIBLE ON THE SITE, OR ANY OTHER LOCATION TO WHICH WE LINK, AND ALL OPERATIONS ON THE SITE ARE WARRANTED ONLY TO THE MINIMUM AMOUNT LEGALLY REQUIRED.
IN USING THE SITE, YOU SPECIFICALLY AGREE THAT YOU WILL NOT HOLD PRIMARY INSIGHT OR OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS LIABLE TO YOU OR ANY PARTY FOR ANY DAMAGES OR INJURY OR LOSS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR ITS CONTENT (OR ANY OTHER LINKED SITE OR LOCATION), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF INFORMATION AVAILABLE ON THE SITE (OR ANY OTHER LINKED SITE OR LOCATION). PRIMARY INSIGHT AND OUR DIRECTORS, OFFICERS, EMPLOYEES, CONTROL PERSONS, VENDORS, LICENSORS AND AGENTS, AS WELL AS ANY THIRD PARTY PROVIDERS WILL NOT BE LIABLE EVEN IF ADVISED ON THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES INCLUDE BUT ARE NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS OR OTHER HARMFUL COMPONENT.
11) YOUR REPRESENTATIONS AND WARRANTIES.
You hereby represent and warrant that:
You hereby indemnify and hold harmless Primary Insight and our directors, officers, employees, control persons, vendors, licensors and agents, from and against any and all claims, actions, proceedings, obligations, penalties, losses, liabilities, damages, costs and expenses (including reasonable legal and other professional fees and costs) directly or indirectly arising out of or related to (i) your breach of any agreements, representations and warranties contained in this Agreement, (ii) your access to and/or use of the Site and/or its Content, (iii) your access to and/or use of the Site and/or its Content in violation of any of our rights or the rights of any third party, including copyright, patent, trade secret, trademark, or other intellectual property rights and publicity and privacy rights, (iv) your access to and/or use of the Site and/or its Content in violation of any applicable law, rule or regulation, or (v) your failure to maintain the security and confidentiality of your User Codes in accordance with this Agreement.
13) LOCATION; GOVERNING LAW.
The Site is published in the United States. You agree that any access to or use of the Site or its Content will be deemed to be entirely at our facility in New York City, under and subject to applicable New York State and United States Federal law, rules and regulations, to the same extent as if you were to physically come to our offices in New York and, without assistance or solicitation, copy material contained in our library. This Agreement and all the terms herein will be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of conflicts of law. If for any reason the arbitration provisions described below do not apply or are waived, then any such controversy will be submitted exclusively to Federal or state courts in the County of New York, New York. You consent to personal jurisdiction in any applicable court for purposes of any such litigation. Any right to trial by jury with respect to any claim or action is hereby waived by all parties to this Agreement.
We may, at any time and for any reason, with or without prior notice to you (a) modify or discontinue, in whole or in part, any portion of the Site and/or your access to the Site, and (b) modify this Agreement at any time upon written notice or posting to the Site. Your access to and use of the Site is subject to compliance with all terms and conditions set forth in this Agreement and your Customer Agreement. This Agreement (as may be revised from time to time as described herein), however, is irrevocable and will survive the termination of your Customer Agreement, your access to, and use of, the Site. You agree that if you use the Site and/or its Contents after such notification of changes in the Agreement, you will be bound by all such changes.
15) FORCE MAJEURE.
Primary Insight and our directors, officers, employees, control persons, vendors, licensors and agents are not liable for losses caused directly or indirectly by our non-performance as a result of events beyond our control including natural disasters, acts of God, war, terrorism actions or decrees of governmental bodies, exchange or market rulings, failure of communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of our obligations with respect to the effected elements under this Agreement will be suspended for the duration of such Force Majeure Event.
YOU AGREE THAT ALL CLAIMS OR CONTROVERSIES, WHETHER SUCH CLAIMS OR CONTROVERSIES AROSE PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, BETWEEN YOU AND US AND/OR ANY OF OUR PRESENT OR FORMER OFFICERS, DIRECTORS, OR EMPLOYEES CONCERNING OR ARISING FROM (i) THE SITE, ITS RELATED FUNCTIONALITIES, OR THE CONTENT, OR (ii) THE CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL BE DETERMINED BY ARBITRATION BEFORE, AND ONLY BEFORE, AN ARBITRATION PANEL OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN NEW YORK COUNTY, NEW YORK.
PRIMARY INSIGHT AND YOU ARE GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED. JUDGMENT UPON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT, STATE, FEDERAL OR FOREIGN, HAVING JURISDICTION. ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY’S ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED. THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT PROCEEDINGS. THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD. THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION MAY IMPOSE TIME LIMITS FOR BRINGING A CLAIM IN ARBITRATION. IN SOME CASES, A CLAIM THAT IS INELIGIBLE FOR ARBITRATION MAY BE BROUGHT IN COURT. THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS AGREEMENT. NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR 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: (i) THE CLASS CERTIFICATION IS DENIED; (ii) THE CLASS IS DECERTIFIED; OR (iii) 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. By electronically indicating your agreement to this Agreement or accessing the Site or using any of the Site’s Content after you have had an opportunity to review this Agreement, you acknowledge and agree: (i) that you, as well as your representatives (including your heirs, executors, administrators, assigns and attorneys-in-fact) intend to form a legally binding contract between you (and your representatives) and Primary Insight; (ii) that you have read and agree to the terms and conditions of this Agreement; (iii) that you agree and intend that this Agreement, your Customer Agreement, and other agreements, terms, conditions, rules and procedures governing your accounts with us (as applicable) to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to this Agreement, you acknowledge that you have received a copy of this Agreement by your viewing a web page containing a hyperlink to the web page where this Agreement is displayed or otherwise; (v) that in the case of a joint or similar type account, this Agreement constitutes the agreement of, and is binding upon, all parties to the account and that we may act upon the electronic instructions of any holder of a joint account in sending confirmations, notices or other communications to, or otherwise dealing with, any joint account holder; and (vi) that if you are executing this Agreement on behalf of others, you hereby certify that you are an authorized representative, duly authorized by all required corporate action to act on behalf of such others.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE BY ELECTRONICALLY INDICATING YOUR AGREEMENT TO THIS AGREEMENT OR ACCESSING THE SITE OR USING ANY OF THE SITE’S CONTENT AFTER YOU HAVE HAD AN OPPORTUNITY TO REVIEW THIS AGREEMENT, YOU AGREE TO THE TERMS OF SUCH ARBITRATION CLAUSE.