TERMS OF USE

Acceptance of the Terms of Use

Thank you for visiting the www.capacuity.com website (our “Website”).  These terms of use must be agreed by you, whether a person, entity, or agent for another, and either as a guest or a registered user (“you” or “your”).  Your agreement creates a legally binding contract between You and CapAcuity, LLC, a Florida limited liability company (“Company”, “we” or “us”).  The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to and use of the Website, including any content, functionality and services offered on or through it.

This Website is offered and available to users who are eighteen (18) years of age or older, and legally capable of entering into a legally binding contract with the Company.  The owner of the Website is based in the state of Florida in the United States.  We make no claims that the Website or any of its content is accessible or appropriate outside of the United States.  Access to the Website may not be legal by certain persons or in certain countries.  If you access the Website from outside the United States, you are responsible for compliance with local laws.

Please read the Terms of Use carefully before you start to use the Website.  By using the Website or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use, as well as our Privacy Policy, which is incorporated herein by reference.  If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Website.

We may from time to time make available mobile applications (“Apps”) to provide user access using wireless and mobile devices. These Terms apply to your access to and use of Apps in the same manner and on the same terms as they apply to your access to and use of the Website.

Periodic Updates and Access

We may revise and update these Terms of Use from time to time in our sole discretion.  All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter.  Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page each time you access this Website so you are aware of any changes, as they are binding on you.  We may update the content on the Website from time to time, but its content is not necessarily complete or up-to-date.  Any of the material on the Website may be out of date at any given time, before it is updated.  We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion with or without notice.  We will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period.  From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

Account Security

You are responsible for making all arrangements necessary to access the Website, and ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.  If you are a corporation, this includes your employees, independent contractors, or anyone else working on your behalf.  To access the Website or the resources it offers, you may be asked to provide certain registration details or other information.  It is a condition of your use of the Website that all the information you provide on the Website is accurate, current and complete.  You agree all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you select or receive a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity.  You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information.  You agree to notify us immediately of any unauthorized access to, or use of, your user name or password or any other breach of security. You also agree to ensure that you log out from your account at the end of each session.  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

No Solicitation or Advice

None of the information contained in the publicly available portions of the Website constitutes a recommendation, solicitation or offer to buy or sell any investments or other assets or provide any investment advice or service. The information contained in the Website has been prepared without reference to any particular user’s investment requirements or financial situation. The information and services provided on the Website are not provided to, and may not be used by, any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where the Company is not authorized to provide such information or services.  Some products and services described on the Website may not be available in all jurisdictions or to all clients.

The Website is provided for informational purposes only. The Website may include information related to investment approaches, investment performance and the purchase or sale of investment products, such as mutual funds. You are responsible for evaluating the risks and determining the appropriateness of any such investment product before making any decisions regarding such investment product. Neither the Company nor its providers will have any liability for any damages arising from any decision you make using the Website. Neither the Company nor its providers is recommending, endorsing or promoting the purchase or sale of any investment product by providing information via this Website related to investment approaches, investment performance and investment products,

No Fiduciary Status

This Website is intended to provide general information only and is not intended to constitute and should not be considered as legal, investment, accounting or other professional advice. If legal, investment, accounting or other professional advice or assistance is needed, the services of competent, independent legal counsel, accountant or other professional should be sought. You acknowledge and agree that, except as may otherwise be the subject of a separate agreement or as required by applicable law, by making the Website and its functionalities available to you, the Company is not acting as a “fiduciary,” within the meaning of the Employee Retirement Income Security Act of 1974, as amended.

Past Performance

Past performance is no guarantee of future results. The market for investments is subject to fluctuation, such that, upon sale an investor may lose a portion of their original investment. Prior to additional investments in funds, please obtain a copy of the prospectus. Read it carefully to make sure that the fund is appropriate for your specific investment objectives.

Unauthorized Use

You may use the Website only for lawful purposes and in accordance with these Terms of Use.  The Website contains confidential information (“Confidential Information”), much of which pertains to non-qualified deferred compensation plans.  Confidential Information includes all technical and non-technical data.  You agree that all Confidential Information will be kept in confidence and that you will only use the Confidential Information for the purposes for which it was disclosed.  To the extent applicable, you will not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the disclosing party.  These restrictions will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure without breach of this agreement; (iii) was lawfully received from a third party without such restrictions; (iv) was known to you without such restrictions prior to your access to it via our Website; (v) was independently developed by you without breach of this agreement; (vi) was generally made available to third parties by the Company without such restriction; or (vii) is required by applicable law.

You agree that you are responsible for your own conduct while using the Website and for any consequences thereof. You agree to use the Website only for purposes that are legal, proper and in accordance with this Agreement, our Privacy Policy, and any applicable law, rules or regulations (including without limitation the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, any applicable state “Blue Sky” laws, any other applicable United States federal or state securities laws, regulations and rules, any securities exchange or self-regulatory organization’s rules or regulations, any consumer protection, unfair competition, and anti-discrimination laws or regulations and any applicable foreign laws).  By way of example, and not as a limitation, you agree to not take any action that is listed below:

  • Infringes Rights. You agree not to upload, post, email, transmit, submit, or otherwise make available through the Website any material or content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such content. You further agree to not take any action that infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity, or violates any law or contract, including removing any copyright, trademark or other proprietary rights notices contained in or on the Website.
  • Information Disclosure. You agree not to share or disclose to anyone any information obtained through the Website about any investment offerings.
  • Distribution without Consent. You agree not to distribute in any medium any part of the Website or any content available thereon without our prior written authorization. The only exceptions are where the Company makes available the means for such distribution through functionality offered by the Website.
  • Website Alterations. You agree not to alter or modify any part of the Website.
  • Submitting False, Defamatory or Harassing Information. You agree not to upload, post, email, transmit or submit or otherwise make available through the Website any inappropriate, defamatory, infringing, obscene, false, misleading, inaccurate, harassing, threatening or unlawful material or content or imply that such content is sponsored or endorsed by the Company, any of its affiliates or any third parties.  You further agree not to take any action that would defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, such as rights of privacy and publicity.
  • Unlawful Purposes. You agree not to use the Website for any illegal or unauthorized purpose, including, without limitation, in violation of any United States federal and state securities or blue sky laws or regulations, securities exchange or self-regulatory organization’s rules or regulations, consumer protection, unfair competition, and anti-discrimination laws or regulations or equivalent laws or regulations in foreign jurisdictions.
  • Transfers or Assignments. You agree not to transfer or assign these Terms of Use, and any rights and licenses granted hereunder.
  • Non-Public Areas. You agree not to access, tamper with, or use non-public areas of the Website or any other computer systems or networks connected to the Website.
  • Breach of Security Measures. You agree not to breach any of our security or authentication measures.
  • Unauthorized Access or Contact. You agree not to gain unauthorized access to the Website, any other of the Company’s websites or services, or the computer systems or networks connected to the Website through hacking, password mining or any other means. You further agree not to contact any party or user other than as allowed through the Website.
  • Generate Artificial Traffic. You agree not to use the Website to artificially generate traffic or page links to a website or for any other purpose not expressly allowed under these Terms of Use.
  • Commercial Uses. You agree not to use the Website for any commercial uses or purposes, unless you obtain our prior written consent and approval.  Such commercial uses include but are not limited to: (i) soliciting other users for investments of any kind; (ii) offering or selling any products or services of any kind; (iii) making investment recommendations to other users; and (iv) advertisements, sponsorships, or promotions placed on or within the Website.
  • Unlawful Schemes or Activities. You agree not to upload, post, email or transmit, or otherwise make available through the Website any materials that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms of Use or the Privacy Policy. You further agree not to promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual.
  • Disabling Security Features. You agree not to circumvent, disable or otherwise interfere with security-related features or any other computer systems or networks connected to the Website. You also agree not to circumvent, disable or otherwise interfere with features that prevent or restrict use or copying of any Website material.
  • Impersonation. You agree not to impersonate any person or entity, including any employee or representative of the Company, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of any materials.
  • Other. You agree not to: (i) use the Website or take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on the Company’s or its third-party providers’ infrastructure or that could damage, disable, overburden, or impair the Website, or interfere with any other party’s use and enjoyment of the Website; (ii) interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website; (iii) bypass any measures the Company may use to prevent or restrict access to the Website (or other accounts, computer systems, or networks connected to the Website); (iv) run Maillist, Listserv, or any form of auto-responder or “spam” on the Website; (v) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Website or collect information about its users for any unauthorized purpose; or (vi) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.

Securities Law

Notwithstanding anything to the contrary in these Terms of Use, in no event shall anything in these Terms of Use be deemed to be a waiver, and we will not assert there has been a waiver, that would not be permissible under Section 14 of the Securities Act of 1933, Section 29(a) of the Securities Exchange Act of 1934, or any other applicable provision of federal and state securities laws.

Intellectual Property Rights

The Company name, the terms, the Company logo and all related names, logos, product and service names, designs and slogans, whether registered or unregistered, are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company.  All other names, logos, product and service names, designs and slogans on this Website, whether registered or unregistered, are the trademarks of their respective owners.

The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.  These Terms of Use permit you to use the Website for your personal, non-commercial use only.  You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  • If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by any end user license agreement for such applications.

You must not:

  • Modify copies of any materials from this Website.
  • Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this Website.
  • Access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.  No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

Copyright Infringement

If you believe that any material on the Website infringes upon any copyright which you own or control, you may send a written notification of such infringement to us.  To meet the notice requirements under the Digital Millennium Copyright Act (“DMCA”), the notification must be a written communication that includes the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) 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; (iv) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has 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 (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, the registrations of users who are deemed to be repeat infringers. We may also, at our sole discretion, limit access to the Website and/or terminate the registrations of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Termination

We may terminate your access to all or any part of the Website any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your use of the Website. If you wish to terminate your account, you may do so by contacting us. All provisions of the Terms of Use that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information.  Any reliance you place on such information is strictly at your own risk.  We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents. This Website may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services.  All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.  All information we collect on this Website is subject to our Privacy Policy.  By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Third Party Content

The Website may contain content from and links to third party websites or content that is not owned or controlled by the Company (collectively, “Third Party Content”). The Company does not control, endorse, investigate or adopt any Third Party Content, and assumes no responsibility for any Third Party Content, or the accuracy, availability, privacy policies, or practices of such content. In addition, the Company will not and cannot censor or edit such Third Party Content and makes no representations or warranties of any kind regarding the Third Party Content, including with respect to accuracy or completeness. By using the Website, YOU EXPRESSLY RELEASE THE COMPANY FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY CONTENT. Accordingly, we encourage you to be aware when you leave the Website and to read the terms and conditions and privacy policy of every other website that you visit. Users use such Third Party Content at their own risk.

Linking to the Website and Social Media

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

This Website may provide certain social media features that enable you to link from your own or certain third-party websites to certain content on this Website, or send e-mails or other communications with certain content, or links to certain content, on this Website.  You may also be able to cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.  You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features.

Subject to the foregoing, you must not establish a link from any website that is not owned by you, or cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.  You further agree not to link to any part of the Website other than the homepage, or to otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with these Terms of Use.  You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.  We may disable all or any social media features and any links at any time without notice in our discretion.

Links on our Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only.  This includes links contained in advertisements, including banner advertisements and sponsored links.  We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Notice Policy

By using the Website, you consent to receive from the Company, or any of its affiliates, officers, directors, partners, agents, or employees, all communications, including notices, agreements, legally required disclosures, or other information in connection with the Website or investment offerings made available to you (collectively, “Notice Information”) electronically. The Company may provide the electronic Notice Information by posting it on the Website or sending the Notice Information to the email address you provided to us during the account registration process. If you desire to withdraw your consent to receive Notice Information electronically, you must discontinue your use of the Website. Electronic Communication Privacy Act Notice (18 USC §§ 2701-2711): The Company makes no guaranty of confidentiality or privacy of any communication or information transmitted on the Website or any website linked to the Website. The Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade secret information, or any other content stored on our equipment, transmitted over networks accessed by the Website, or otherwise connected with your use of the Website.

Disclaimers

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the website or any services or items obtained through the website or to your downloading of any material posted on it, or on any website linked to it.

Your use of the website, its content and any services or items obtained through the website is at your own risk. The website, its content and any services or items obtained through the website are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied. Neither the company nor any person associated with the company makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of the website. Without limiting the foregoing, neither the company nor anyone associated with the company represents or warrants that the website, its content or any services or items obtained through the website will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that our site or the server that makes it available are free of viruses or other harmful components or that the website or any services or items obtained through the website will otherwise meet your needs or expectations.

The company hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantability, non-infringement and fitness for particular purpose.

Limitation on Liability

In no event will the company, its affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the website, any websites linked to it, any content on the website or such other websites or any services or items obtained through the website or such other websites, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.

The foregoing does not affect any liability which cannot be excluded or limited under applicable law.

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, any use of the Website’s content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website.

Governing Law and Jurisdiction

All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule, whether of the State of Florida or any other jurisdiction.  Any lawsuit, action or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the state or federal courts sitting in the State of Florida, in each case located in the City of Orlando or County of Orange.  The Company retains the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your place of residence or any other relevant location. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

At the Company’s sole discretion, we may require you to submit any disputes arising from the use of these Terms of Use or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the law of the State of Florida.

Limitation on Time to File Claims

Any cause of action or claim you may have arising out of or relating to these terms of use or the website must be commenced within one (1) year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred.

No Waiver

No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition, or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

Severability

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Entire Agreement

The Terms of Use and our Privacy Policy, along with any other documents executed between us, constitute the sole and entire agreement between you and CapAcuity, LLC with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website.