Welcome and thank you for visiting cochranbooth.com (this “Site”), a website operated by Cochran, Booth & Company, 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. These terms do not purport to supersede any legally binding agreements between you and Provider, such as investment agreements and limited partnership agreements, which are independent from your 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. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS. 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. 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, 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.
2. Your Account.
Account Creation. In order to access restricted portions of this Site, you are required to create an account on this Site (your “Account”) 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.
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 (your “Information”). You assume all risks associated with your Information, including reliance on its quality, accuracy or reliability by any other person or entity.
c. Termination.
i. By you. You may terminate your Account at any time by electronic mailing Provider at contact@cochranbooth.com.
ii. By Provider. If Provider has reason to suspect that you have breached these Terms, or that any of your Information 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. Any suspension, termination or cancellation of your Account 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 (collectively, “Your Information”) 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 Your Information 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 rights and authority to use the Site and to enter into these Terms;
b. the performance of your obligations under these Terms will not violate, 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;
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. any information submitted to the Site or Provider by you is true, accurate, and correct;
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 (“Electronic Contracts”), whether by typing your name, checking a box, pressing a button, clicking through a link, or demonstrating other intent to be bound to such Electronic Contract, 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 or its licensors own all of the content that is made available in connection with this Site (the “Site Content”), including visual interfaces, interactive features, graphics, designs, databases and their data, computer code, products, software and all other elements and components of this Site. Provider or its licensors also own the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world associated with this Site and the Site Content, which are protected by copyright, trade dress, patent, trademark and other applicable intellectual property rights and laws.
Restrictions. You may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display, perform or in any way exploit any of the Site Content in whole or in part, except as expressly authorized by the applicable rights holder. 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.
5. Privacy. Provider respects your privacy and limits the sharing of data about you with third parties. Please consult the Provider’s Privacy Policy, available on this website for more information. By agreeing to these Terms, you acknowledge and consent to the use, sharing and disclosure of your personal information and data as described in such Provider 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, liability, damages and costs (including, but not limited to, attorneys’ fees) arising out of or relating to:
a. your access to or use of this Site;
b. your violation of these Terms, including without limitation your breach of any representation or warranty;
c. your infringement, or the infringement of any third party using your Account, of any intellectual property or other right of any person or entity; or
d. the nature and content of all materials, Electronic Contracts, 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 Services. This Site includes links to third-party products, services and websites, as well as materials provided by third parties (collectively, “Third-Party Content”). Neither these Terms nor this Site endorse or take responsibility for any Third-Party Content. You agree that the Provider Parties are not responsible for the availability or contents of Third-Party Content. You understand that the Provider Parties have no obligation to, and generally do not, approve or monitor materials provided by third parties through this Site. Your use of Third-Party Content is at your own risk.
8. Limitations of Liability.
a. DISCLAIMER OF WARRANTIES. 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, QUALITY, ACCURACY, AND TITLE; AND (iii) DOES NOT WARRANT THAT THIS SITE IS OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. 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. 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. Provider shall not be liable for any indirect, special, incidental, exemplary, punitive or consequential loss or damage of any kind, including without limitation, lost business or profits, 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, THE PROVIDER PARTIES’ MAXIMUM AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND 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. Role of Juniper Square.
a. Acknowledgment. You acknowledge that Juniper Square, Inc., a Delaware corporation (“Juniper Square”), hosts and operates this Site on behalf of and as a licensor to Provider, and consent to the sharing of information about you with Juniper Square for storage and processing, in each case for the purpose of hosting this Site and facilitating provision of products and services by Provider to you. As the licensor of this Site, Juniper Square owns all of the Site Content and related intellectual property, other than such Site Content that is proprietary or personal information of Provider or its users. Juniper Square also own the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world associated with this Site and the Site Content (other than such intellectual property rights that constitute proprietary information or registered intellectual property of Provider or its users), which are protected by copyright, trade dress, patent, trademark and other applicable intellectual property rights and laws. You will be required to agree to Juniper Square’s Terms of Use as a condition to your Use of this Site.
b. Third-Party Beneficiary. You agree that Juniper Square is an express third party beneficiary of these Terms, with full rights to enforce any or all of their provisions, on its own behalf or on behalf of Provider.
10. 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 investors@cochranbooth.com 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.
11. Confidentiality. The information available on the Site relates to Provider, its affiliates and affiliated investment funds (collectively, the “Disclosing Parties”). This information is highly confidential. You hereby agree to maintain such information in strict confidence and acknowledge that such information is proprietary and confidential, that the Disclosing Parties and their affiliates derive independent economic value from such information not being generally known, and that such information is subject to reasonable efforts by the Disclosing Parties to maintain its secrecy. You hereby agree that information available on the Site constitutes trade secrets and that the disclosure of any such information will cause substantial and irreparable competitive harm, as well as financial and strategic damage, to the Disclosing Parties, their affiliates and/or the investment funds and opportunities managed by the Disclosing Parties or their affiliates (each a “Fund”). The reports available on the Site are for use by investors and potential investors or their authorized designees in such a Fund, and you hereby agree that this information shall only be used by you in connection with an evaluation or the monitoring of your investment in such Fund. In addition, you agree that any information on this Site shall not be disclosed to any other person or entity or reproduced in any manner (by print, by electronic means or otherwise) without the express written authorization of the applicable Disclosing Party; provided, that such information may be disclosed on a need-to-know basis to other employees of your organization and to your investment advisers (so long as (i) they are bound by an obligation to maintain the confidentiality of such information that is at least as protective as your obligations under these Terms and Conditions, and (ii) such other employees and investment advisers are not given your password to access this Site) or as explicitly required by applicable law. You agree to be responsible for the consequences of dissemination of any information from the Site by such employees and investment advisers.
12. Miscellaneous
a. Governing Law. These Terms shall be governed by the laws of the State of Michigan, regardless of conflict of laws principles.
b. Arbitration. Any dispute, controversy or claim arising out of or in connection with or relating to your use of this Site or these Terms, or any breach or alleged breach these Terms, shall be submitted to a single arbitrator and settled by binding arbitration pursuant to the Commercial Rules then in effect of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the city of Traverse City of Grand Traverse County, Michigan. Judgment upon the award may be entered in any court of competent jurisdiction. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS.
c. 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.
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. Neither party will 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 such party’s reasonable control, so long as such party 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 investors@cochranbooth.com. 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 supersedes all prior and contemporaneous representations, promises, agreements and understandings, whether oral or written, between the parties concerning the subject matter hereof. 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.
