December 31, 2021
YOU SHOULD READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE ACCESSING OR USING THIS TOOL.
Cabana LLC (dba “Cabana Asset Management”), Cabana Institutional, LLC, Cabana Financial, LLC, and The Cabana Group, LLC (collectively, “Cabana”, “we”, or “us”) welcomes you to our Tool and mobile applications Tool and appreciates your interest in us. These terms are for the Cabana Advisers Tool (the “Tool”) and is a distinct website that is separate from our main Cabana website. These legal notices and terms and conditions of use are a contract between you and Cabana (the “Agreement”) and govern your visit to and use of the Tool. Cabana is the operator and host of this Tool and the environment and services accessible through the Tool.
The Tool contains general information about Cabana, its businesses and its portfolios and is directed at investment advisers considering products and services of Cabana and institutions interested in partnering with Cabana. The Tool is not an offer of securities or any form of solicitation. YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS AND CONDITIONS OF USE LIMIT CABANA’S LIABILITY AND THAT YOU ARE RELEASING CABANA FROM VARIOUS CLAIMS IN SECTION 14 BELOW. THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 20 THAT AFFECT YOUR RIGHTS UNDER THIS AGREEMENT.
Your use of, and access to, the Tool is subject to the terms and conditions of this Agreement. This Agreement does not amend or supersede any previous written agreements you may have, or are a party to with Cabana (“Other Agreement”). In the event of any conflict between the terms of this Agreement and the terms contained in any Other Agreement, the terms of the Other Agreements will govern but solely with respect to the subject matter thereof. Some aspects of the Tool contain supplemental terms and conditions and additional disclosures and disclaimers (collectively, the “Supplemental Terms”), which Supplemental Terms are hereby incorporated in this Agreement. In the event of any conflict between the terms of this Agreement and the Supplemental Terms, the Supplemental Terms will govern.
By accessing, browsing or using the Tool, you acknowledge that you have read and understand, and agree to, this Agreement and all disclaimers and terms and conditions that appear on the Tool now. This Agreement may be modified by us at any time without notice. Your continued use of the Tool after any such modifications constitutes your acceptance of the modified terms and conditions. If you do not accept this Agreement, you do not have permission to access, browse or use the Tool and your sole and exclusive remedy is to discontinue using the Tool. If you are accessing the Tool on behalf of another party, you agree to assume all fiduciary, regulatory and other requirements and duties that may apply to your relationship to such party. As such, we strongly recommend that you periodically visit this page of the Tool to review this Agreement. The date of the last revision or update appears at the top of the Agreement under the title. You may wish to print or save a local copy of this Agreement for your records.
Your compliance with this Agreement is a condition of your right to access the Tool. Your breach of any provision of this Agreement or Other Agreements will automatically, without the requirement of notice of any other action, revoke and terminate your right to access the Tool and you will be fully liable for conversion, misappropriation, trespass to chattels and all other claims and cause, regardless of the identity of the claimant or injured party, arising from or relating to your continued use of the Tool after such breach.
Access to the Tool, or any Content contained herein, that are available on mobile devices may utilize SMS/iMessage, which may cause you to incur SMS or data charges with your wireless provider. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or SMS/iMessage features (as applicable).
1. Privacy. For information on how Cabana collects, uses, and discloses information from its users of the Tool, please review our Tool Privacy Policy at Privacy Policy | The Cabana Group. Your use of the Tool indicates your consent to the data practices stated in our Tool Privacy Policy. If you submit feedback or suggestions about our Tool, or any Content herein, you agree that we may use your feedback or suggestions without obligation to you.
2. Intellectual Property Rights, Ownership and License. All the material displayed on or accessible through the Tool, including without limitation, software, code, data, text, graphics, charts, information, images, articles, reports, presentations, the look and feel, design, and organization and other material (the “Content”), is the property of Cabana or other third parties and is protected by United States and international copyright and other laws. All names, logos, trademarks and service marks displayed on the Tool (the “Trademarks”) are the property of Cabana or their respective owners, who may or may not be affiliated with Cabana. Nothing contained on the Tool should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Content or Trademark without the written permission of Cabana or such other party that may own the applicable Content or Trademark. Nothing in this Agreement shall constitute a waiver of any trademark, copyright or other intellectual property rights. Cabana reserves the right to enforce its intellectual property rights to the full extent of the law.
You may access, view, and use the Tool on your computer or other device and, unless otherwise indicated in this Agreement, make single copies or prints of the content generated by the Tool for your use only as set forth in this Agreement.
3. User Eligibility. The Tool is not available to the general public and is only available for use by investment advisers or their representatives. An investment adviser may request to be a user of the Tool (a “User”) by submitting a request in such manner as Cabana may make available. Cabana determines, in its absolute and sole discretion, whether an applicant is eligible to become a User. In certain circumstances, Cabana may invite individuals to become Users. Access to the Tool is granted to each applicant in their individual capacity, and a User’s account (an “Account”) is not intended to imply the User’s representation of any commercial entity, corporation, or other business organization. Businesses or other legal entities may not use an Account for any purpose.
4. Registered User Account, Password and Security. After we have approved you for use of the Tool, as part of the registration or Account creation process, we will create login credentials for you, which may include you providing an email address and selecting a password. You also have to give us certain registration information, all of which must be accurate and updated. You agree to provide true, accurate and complete information during the registration process and/or to promptly update your Account information with any changes as they occur. Only one person may use the username and password associated with an Account. You agree not to impersonate any person or company or use a name that you are not authorized to use. You must keep your login credentials strictly confidential; you may not allow anyone to use your registration, and you may not access the Tool using any other person’s login credentials. We reserve the right to suspend or terminate your access at any time in our sole discretion. We are not responsible for losses incurred as the result of a misuse of email addresses, passwords or registration. If you are not an investment adviser or a representative of an investment adviser, you are not authorized to use the Tool.
5. Notification to Cabana. If you believe that anything posted on the Tool infringes any intellectual property right that you own or control, please provide Cabana with the following written information:
- Name, address, telephone number, e‐mail address and physical or electronic signature of the rights holder, or someone authorized to act on the rights holder’s behalf;
- A description of the intellectual property that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located on the Tool, with enough detail that Cabana may find it;
- A written statement that you have a good faith belief that the disputed use is not authorized by the rights holder, its agent or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the rights holder or authorized to act on the rights holder’s behalf.
- Cabana’s agent for notice of claims of intellectual property right infringement on the Tool can be reached by e‐mail at legal@thecabanagroup.com.
6. Restrictions on Use. By accepting the terms of this Agreement through your use of the Tool, you certify that you are 18 years of age or older. If you are under the age of 18, you may not use or access the Tool. The Tool does not knowingly collect personal information about children under the age of 13.
The information, materials and other Content of the Tool may not be copied, displayed, distributed, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, used to create a derivative work or otherwise used for public or commercial purposes without the express written consent of Cabana in each instance. Our prior express written consent is required for (i) any resale or commercial use of the Tool or any Content obtained from the Tool; (ii) making more than minimal copies of the Tool materials; (iii) any derivative use of the Tool or any portion thereof; (iv) any use of automated programs, data mining, robots or other data gathering and extraction tools in connection with your use of the Tool; or (v) including any portion of the Tool, including any Content on any other Tool, on a server computer or in any documents, including but not limited to “mirroring” the information and/or displaying the information by means of HTML frames or similar means. If you seek permission for such use of our Tool, please contact us at info@thecabanagroup.com. Any unauthorized use of the Tool, Content or Trademarks may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
You warrant that when using the Tool you will not violate or facilitate any violation of any applicable local, state, federal or international law, statute, regulation, code or ordinance, including, without limitation, regulations promulgated by or the rules of any national or other securities exchange.
Cabana reserves the right to change, suspend, or discontinue all or any part of the Tool or the Content at any time without prior notice or liability.
7. Not Advisory Services
You Are Not Receiving Investment Advice and You Acknowledge Investment Risks. By using the Tool, you understand and acknowledge that the Tool is not intended to provide financial advice and that Cabana does not guarantee any investment results. All information displayed by the Tool, including all financial and market commentary, stock, bond, fund, or other securities research, is for convenience and general information purposes only and not intended to be relied upon as investment advice. All investments entail a risk of loss, and you may lose money. You also understand that all investments are subject to various market, currency, economic, political, business, and other risks. Investments, particularly those in international stocks and stocks of smaller companies, present numerous risks, can be very volatile, and can result in a loss of principal. International investments include risks of currency fluctuation, political and economic instability, and differences in financial reporting in addition to the risks present in domestic investments. Investments in smaller companies may involve greater risks than investments in larger, more mature companies. You should not engage in any financial transactions based on the information provided or presented to you by the Tool. Neither Cabana, nor any of its Third-Party Providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of any financial or other information provided through the Tool and the Services.
The Tool is merely a simulation and is for Advisor Use Only. You acknowledge that the Tool is intended for use only to assist you in generating a target strategy composed of certain Cabana’s Portfolios and does not reflect an actual investment portfolio. By accepting the terms of this Agreement, you acknowledge and agree
- That the Tool is merely a simulation of the Cabana strategies and uses a representative algorithm to create simulated model portfolios and does not generate investment recommendations, historical performance results, or actual model portfolios;
- You have read the Disclaimers and understand them and acknowledge that the information and outputs presented in the Tool are merely hypothetical and is not to be used as the basis for making any recommendations to your clients; and
- You will use the Tool only for purposes consistent with applicable law and you will not use the Tool as part of any device, scheme, or artifice to defraud any of your clients or prospective clients or to otherwise engage in any act, practice, or course of business which is fraudulent, deceptive, or manipulative.
- In order to take any screenshot, picture, or otherwise capture or printout the Tool or any part of it (collectively, “Imagery”), you must: (i) have prior permission from the investment advisory firm you are affiliated with to create that Imagery; and (ii) include within the Imagery all disclaimers from the Tool. If you produce any Imagery, you acknowledge and agree that you are liable for all damages caused by the use of such Imagery, whether incurred by you, your client, or any third-party.
Financial Advisory Services by Cabana. The Tool is a tool made available for use by you, and is not intended to be, nor shall it be construed as, investment advisory services. This Agreement applies only to your use of the Tool and does not apply to any investment advice or recommendations provided by any Cabana personnel. Any advisory services provided by Cabana are governed by your investment advisory agreement with Cabana, which is included in the definition of Other Agreements for purposes of this Agreement.
8. Performance Information.
8.1 Past Performance. The information contained in the Tool may include certain prior indications of past investment performance. In considering such prior performance information, you should bear in mind that the Tool displays hypothetical performance, and that, in any event, past performance is not necessarily indicative of future results and there can be no assurance that an investment will, or is likely to, achieve comparable results to those achieved in the past, or that significant losses will be avoided. To view methodology for how Cabana generally reports performance outside of the Tool, click here.
8.2 Analyses and Opinions. Market analyses and statements of opinions provided in the Tool are inherently uncertain and are based on a number of assumptions. You should carefully review information regarding any such analyses and underlying assumptions.
8.3 Forward-Looking Statements. Certain information on the Tool may contain “forward-looking statements” about Cabana, the funds or accounts it advises and their underlying investments which can be identified by the use of words such as “may”, “will”, should”, “expect”, “anticipate”, “project”, “estimate”, “intend”, “continue”, or “believe” or similar expressions. Cabana undertakes no obligation to update publicly or revise any forward-looking statements. Due to various risks and uncertainties, actual events, results or performance may differ materially from those reflected or contemplated in such forward-looking statements. No representation or warranty is made as to future performance or such forward-looking statement.
8.4 Assets under Management. Any reference to Assets Under Management or AUM used on the Tool reflect the combined Assets Under Management of Cabana and its affiliate investment advisors as of the close of the prior calendar quarter unless otherwise indicated.
8.5 Attribution of Quotations. Any statement or wording on the Tool that is presented as a quotation or testimonial is a quotation or testimonial of an employee of Cabana, and not a quotation or testimonial from a third party, investor or portfolio company personnel.
8.6 Market Information. We may make a broad range of financial information that we obtain from our agents, vendors or partners (“Third Party Providers”) available to you through the Tool. This may include financial market data, quotes, news, analyst opinions and research reports (collectively, “Market Information”). We do not endorse or approve the Market Information, and we make it available to you only as a convenience. Cabana and our Third Party Providers do not (a) guarantee the accuracy, timeliness, completeness or correct sequencing of the Market Information; or (b) warrant any results from your use or reliance on the Market Information. Market Information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Neither Cabana nor the Third Party Providers are obligated to update any information or opinions contained in any Market Information, and we may discontinue offering Market Information at any time without notice. You agree that neither Cabana nor the Third Party Providers will be liable in any way for the termination, interruption, delay or inaccuracy of any Market Information. You will not redistribute or facilitate the redistribution of Market Information, nor will you provide access to Market Information to anyone who is not authorized by Cabana to receive it. If you are a securities broker, dealer, banker or investment advisor, you agree not to use the Market Information provided by us for any purpose.
9. Third-Party Links. Cabana may provide links from the Tool to websites operated by third parties who may or may not be affiliated with Cabana. We do not endorse, have any responsibility for or make any representations about, any other websites, including their products and services, content, communications and website use policies. We make no express or implied warranty about the accuracy, copyright compliance, legality, merchantability or any other aspect of the content of such links. The use of third party websites is entirely at your own risk. By accessing these links, you acknowledge that such other Websites or locations are not under the control of Cabana and you agree that Cabana shall not be responsible for any information or additional links found at such website or location, or for your use of such information. You agree that your use of such third party websites shall be governed by the Terms of Use and Privacy Policy contained in such third party websites, and not the terms of this Agreement. Content on any such third party websites is the sole responsibility of the individual or entity that makes it available to you. Cabana may review such third party content to determine whether it is illegal or violates our policies, and we may remove or refuse to display such third party content that we believe violates our policies or the law. But we do not generally review content beforehand, and we are not obligated to do so.
10. Non-Public Investor Sections of the Tool. If you are a Cabana investor, client or are a representative of a Cabana investor or client, you may have been granted access to certain non-public portions of the Tool through a uniquely assigned investor log-in (“Investor Sections”). In addition to this Tool, your use of the Investor Sections may also be governed by applicable Other Agreements and by all applicable laws and regulations. All information available through the Investor Sections of the Tool is confidential and proprietary to Cabana. This includes all investment information and results, offering materials, financial statements and other information provided through the Investor Sections of the Tool. You will use best efforts to keep all this information strictly confidential. You will not disclose any of this information to any person or use it for any purpose other than those expressly permitted by Cabana in writing. If you have been granted access to the Investor Sections by Cabana, you must maintain confidentiality of your log-in information and you remain responsible for all usage of the Investor Sections of the Tool through your account, whether such use is made by you or anyone else. You must immediately notify us of any known or suspected unauthorized use of your log-in information or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your log-in information.
11. Tool Security. You are prohibited from violating or attempting to violate the security of the Tool, including, without limitation, (i) accessing data not intended for you or logging onto a server or an account which you are not authorized to access; (ii) disabling, removing, defeating, or avoiding any security device or system, including, without limitation, the password and log-in functionality used to authenticate users; (iii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iv) attempting to interfere with services to any user, host or network, including, without limitation, via means of submitting a virus to the Tool, overloading, “flooding,” “spamming,” “mailbombing” or “crashing;” (v) sending unsolicited email, including promotions and/or advertising of products or services; (vi) forging any TCP/IP packet header or any part of the header information in any email or posting; (vii) using or attempting to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Tool other than the search engine and search agents available on the Tool and other than generally available third party web browsers; (viii) reverse engineering, decompiling or disassembling the underlying software; (ix) removing any notices, warnings, labels, annotations or instructions from any portion of the Tool or any related material, including, without limitation, any patent, trademark, copyright , or other proprietary notices or license provisions; or (x) otherwise invading the privacy of, obtaining the identity of, or obtaining any personal information about any user of the Tool.
Any violations of system or network security including attempts to intentionally access a computer without authorization or exceed your authorized access level may result in civil and criminal charges, including but not limited to charges under the Computer Fraud and Abuse Act (18 U.S.C. §1030). We may investigate occurrences that might involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. We may, without prior notice or warning of any kind, restrict or terminate the access of any and all users of the Tool if we reasonably conclude that such restriction or termination is necessary to prevent, or prevent the further spread of a virus, security breach, system malfunction or damage to the Tool, any Content or any systems owned or used by Cabana. If we so restrict or terminate access we will use commercially reasonable efforts to restore access and use to users for proper purposes once any threats have been resolved.
12. Disclaimers.
12.1 No Offer of Securities or Advice. You acknowledge and agree that the Content is solely for general and informational purposes, and nothing contained in the Tool may be construed as a solicitation, offer, recommendation or representation of suitability or endorsement of any security or investment and may not be relied upon in connection with any offer or sale of securities or other assets. Cabana is not providing the Tool to provide investment or other advice and nothing herein should be deemed to be a recommendation that you buy, sell, or hold any security or other investment. You further acknowledge and agree that the Content does not provide any tax, legal, accounting or other professional advice. In making an investment decision, you must rely on your own examination of an investment, including the merits and risks involved. Cabana advises that you consult with your own advisors with respect to any matters involved with making an investment, including your own tax, legal, accounting or other professional advisors.
12.2 Content Disclaimers. Certain Content was obtained from published and non‐published sources, including from companies in which funds we advise have invested. Such information may not have been, and in many cases, has not been, independently verified by Cabana and Cabana makes no warranties or representations or assumes any responsibility as to the accuracy, reliability or correctness of the Content (or for updating the Content based on facts learned following its publication). Cabana is not responsible for any action or decision you make in reliance on any information contained on the Tool. Additional general disclosures regarding Cabana and its products and services can be found at https://thecabanagroup.com/general-disclosures.
12.3 Disclaimer of Warranties. THE TOOL, INCLUDING ALL CONTENT, IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES OF ANY KIND. BY USING THE TOOL, YOU EXPRESSLY AGREE THAT SUCH USE IS AT YOUR SOLE RISK. NEITHER CABANA, NOR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS, CONTRACTORS, DISTRIBUTORS, MERCHANTS, SPONSORS, LICENSORS, AFFILIATES OR THE LIKE (COLLECTIVELY “REPRESENTATIVES”) WARRANT THAT THE USE OF THE TOOL, INCLUDING ANY CONTENT, WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER CABANA NOR ITS REPRESENTATIVES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CABANA AND ITS REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, CABANA ALSO DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THIS TOOL.
13. Indemnification. As a condition to your use of the Tool, you indemnify, defend and hold harmless Cabana and its Representatives against any and all claims, liabilities, damages, costs or other expenses (including, without limitation, attorneys’ fees) that may arise directly or indirectly out of or from your actual or alleged breach of this Agreement and/or your use or misuse of the Tool or its Content or resulting from any action (or inaction) you take or decision you make in reliance on the information, including the Content, contained on the Tool.
14. Limitations of Liability. BY USING THE TOOL, YOU ACKNOWLEDGE: (i) THAT YOUR USE OF THE TOOL IS AT YOUR SOLE RISK; (ii) THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH YOUR USE OF THE TOOL; AND (iii) THAT IN NO EVENT SHALL CABANA OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE TOOL BE LIABLE FOR ANY DAMAGES, LOSSES OR LIABILITIES OF ANY KIND RELATED TO (a) YOUR RELIANCE ON OR USE OR INABILITY TO USE THE INFORMATION, MATERIALS, PRODUCTS OR SERVICES ON THE TOOL, (b) ANY ERRORS OR OMISSIONS IN THE CONSENT OF THE TOOL, (c) YOUR ACCESS TO, USE OF OR INABILITY TO USE THE TOOL OR (d) ANY FAILURE OF PERFORMANCE, ERROR, OMMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE OR SYSTEM FAILURE OR OTHER COMPUTER MALFUNCTION, IN EACH CASE ((a) THROUGH (d)) INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR LOSS OF OR DAMAGE TO PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF CABANA OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR LIABILITIES. CABANA RESERVES THE RIGHT TO ALTER OR REMOVE THE CONTENT OF THIS TOOL OR SUSPEND OR TERMINATE YOUR USE IN ANY WAY, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES.
15. Severability and Waiver. If any provision of this Agreement is found to be invalid, void, or for any reason unenforceable, it will be construed in such a manner that would make the provision valid or enforceable. If it is not possible to construe the provision in such a manner that would make it valid or enforceable, then only the term or portion of the provision that renders it unenforceable will be stricken without affecting the enforceability of the remaining provisions. Any failure of Cabana to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement.
16. Complete Agreement. This Agreement and our Tool Privacy Policy constitute the entire agreement between you and Cabana relating to the public facing elements of the Tool and your use of these portions of the Tool, and supersede any prior agreements or understandings not incorporated herein with regards to these portions. Certain restricted areas of the Tool may require you to agree to supplemental terms and conditions. This Agreement is not intended to modify or amend Other Agreements you may have with Cabana regarding other matters. This Agreement does not create any third party beneficiary rights. If you do not comply with this Agreement, and Cabana does not take action right away, this does not mean that Cabana is giving up any rights that Cabana may have (such as taking action in the future). If it turns out that a particular term of this Agreement is not enforceable, this will not affect any other terms contained herein. You may not assign or delegate your rights or obligations relating to this Agreement without Cabana’s prior written consent. Cabana may assign this Agreement or assign or delegate any of Cabana’s rights or obligations hereunder at any time.
17. Termination of the Agreement. Cabana reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement (and/or your access to all or any part of this or any other Cabana Tool or the Content) at any time and for any reason without prior notice or liability. Upon any termination of this Agreement you must promptly destroy all materials downloaded or otherwise obtained from the Tool, as well as all copies of such materials, whether made under the Agreement or otherwise. If this Agreement is terminated, the provisions regarding the following topics survive the termination: Intellectual Property Rights and Ownership, Disclaimers, Indemnification, Limitations of Liability, Severability and Waiver, Complete Agreement, Termination of the Agreement, Governing Law and Venue and Class Action and Arbitration.
18. Governing Law and Venue. The Tool is made available to you from the State of Arkansas in the United States. If you elect to access or use the Tool from outside of the United States, we make no warranties that materials on this Tool are appropriate or available for use in such locations. You agree that you are solely responsible for compliance with any laws of your specific jurisdiction and further agree that you shall not use the Tool if you are restricted by any local, state, national or international laws. The laws of the State of Arkansas, without regard to its principles of conflict of laws, will govern this Agreement (including any disputes concerning or related to this Agreement).
19. Binding Arbitration and Arbitration.
17.1 Purpose. Any and all Disputes (as defined below) involving you and Cabana will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 19 (the “Arbitration Provision”) will be broadly interpreted. Notwithstanding anything to the contrary in this Agreement, this Section 19 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
19.2 Definitions. The term “Dispute” means any claim or controversy related to the Tool, Content or any services provided by Cabana hereunder, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before these terms or any prior agreement; (3) claims that arise after the expiration or termination of these terms; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, the term “Cabana” means Cabana LLC and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of your access to the Tool, including any Content.
19.3 Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its Tool (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Cabana by mail to Cabana LLC, 220 S. School Avenue, Fayetteville, AR 72701.
19.4. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Cabana may bring an individual action in a small claims court in the area where you access the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
19.5. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify Cabana about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its Tool (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Cabana agree otherwise, any arbitration hearing will take place in Fayetteville, Arkansas. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
19.6. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS OR USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
19.7. Arbitration Fees and Costs. The payment of the JAMS fees and costs will be split equally between the parties. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS’s fees and costs shall be governed by the JAMS Rules and you shall reimburse Cabana for all fees and costs that were your obligation to pay under the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor.
19.8. Severability and Waiver of Jury Trial. If any part of subsection 19.6 of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration provision will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND CABANA AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
20. Contact Information. Thank you for visiting our Tool. Please contact us at info@thecabanagroup.com if you have any questions about our Tool or this Agreement. Electronic mail or other communications through this Tool to Cabana (or any of its employees, agents or representatives) may not be secure and we do not guarantee the confidentiality of such communications.
