April 2019
YOU SHOULD READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE ACCESSING OR USING THIS WEBSITE.
Cabana, LLC, dba Cabana Asset Management, Cabana Financial, LLC, Cabana Law Group, Cabana Retirement Solutions, and The Cabana Group, LLC (collectively, “Cabana”, “we”, or “us”) welcomes you to our website (the “Website”) and appreciates your interest in us. 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 Website. Cabana is the operator and host of this Website and the environment and services accessible through the Website.
The Website contains general information about Cabana, its businesses and its portfolios and is directed at consumers considering products and services of Cabana and institutions interested in partnering with Cabana. The Website is not an offer of securities or any form of solicitation.
Your use of, and access to, the Website 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 inconsistency between this Agreement and any Other Agreement, the Other Agreements will govern. Some aspects of the Website contain supplemental terms and conditions and additional disclosures and disclaimers, which are hereby incorporated in this Agreement. In the event of a conflict, the supplemental terms and conditions and additional disclosures and disclaimers will govern for those aspects.
By accessing, browsing and/or using the Website, you acknowledge that you have read and understand, and agree to, this Agreement and all disclaimers and terms and conditions that appear on the Website now. This Agreement may be updated by us at any time. Your continued use of the Website 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 Website and your sole and exclusive remedy is to discontinue using the Website. If you are accessing the Website 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 Website to review this Agreement. The date of the last revision or update appears at the top of the Agreement under the title.
Your compliance with this Agreement is a condition of your right to access the Website. 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 Website 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 Website after such breach.
1. Privacy. For information on how Cabana collects, uses, and discloses information from its users of the Website, please review our Website Privacy Policy [insert link to Privacy Policy]. Your use of the Website indicates your consent to the data practices stated in our Website Privacy Policy.
2. Intellectual Property Rights and Ownership. All the material displayed on and/or accessible through the Website, including without limitation, software, text, graphics, charts, information, images, articles, reports, presentations and other material (the “Content”), is the property of Cabana or others and is protected by United States and international copyright and other laws. All names, logos, trademarks and service marks displayed on the Website (the “Trademarks”) are the property of Cabana or their respective owners, who may or may not be affiliated with Cabana. Nothing contained on the Website 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.
3. Notification to Cabana. If you believe that anything posted on the Website 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 Website, 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 Website can be reached by e‐mail at legal@cabanaportfolio.com.
4. Restrictions on Use. By accepting the terms of this Agreement through your use of the Website, 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 Website. The Website does not knowingly collect personal information about children under the age of 13.
The information, materials and other Content of the Website 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 Website and/or any Content obtained from the Website; (ii) making more than minimal copies of the Website materials; (iii) any derivative use of the Website 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 Website; or (v) including any portion of the Website on any other Website, on a server computer or in 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 Website, please contact us at info@cabanaportfolio.com. Any unauthorized use of the Website, 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 Website you shall 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 Website or the Content at any time without prior notice or liability.
5. Performance Information.
5.1 Past Performance. The information contained on, or comments expressed on, the Website may include certain prior indications of past investment performance. In considering such prior performance information, you should bear in mind that 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 performance methodology click here.
5.2 Analyses and Opinions. Market analyses and statements of opinions provided on the Website are inherently uncertain and are based on a number of assumptions. You should carefully review information regarding any such analyses and underlying assumptions.
5.3 Forward-Looking Statements. Certain information on the Website may contain certain “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.
5.4 Assets under Management. Any reference to Assets Under Management or AUM used on the Website 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.
5.5 Attribution of Quotations. Any statement or wording on the Website 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.
5.6 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 Website. 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 related to your business.
6. Third-Party Links. Cabana may provide links from the Website 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.
7. Non-Public Investor Sections of the Website. 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 Website through a uniquely assigned investor log-in (“Investor Sections”). In addition to this Website, 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 Website 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 Website. 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 Website 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.
8. Website Security. You are prohibited from violating or attempting to violate the security of the Website, 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 Website, 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 Website other than the search engine and search agents available on the Website 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 Website 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 Website.
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 Website if we reasonably conclude that such restriction or termination is necessary to prevent, or prevent the further spread of a virus, security breach or system malfunction. If we so restrict or terminate access we will use commercially reasonable efforts to restore access and use to users for proper purposes promptly.
9. Disclaimers.
9.1 No Offer of Securities or Advice. You acknowledge and agree that the Content is solely for general, informational purposes and nothing contained in the Website 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 Website 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.
9.2 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 Website. Additional general disclosures regarding Cabana and its products and services can be found at http://thecabanagroup.com/wp-content/uploads/2018/12/Cabana-General-Disclosures.pdf .
9.3 Disclaimer of Warranties. THE WEBSITE, INCLUDING ALL CONTENT, IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES OF ANY KIND. BY USING THE WEBSITE, 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 OR THE LIKE (COLLECTIVELY “REPRESENTATIVES”) WARRANT THAT THE USE OF THE WEBSITE 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 WEBSITE.
10. Indemnification. As a condition to your use of the Website, you agree to 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 breach of this Agreement and/or your use of the Website or its Content or resulting from any action (or inaction) you take or decision you make in reliance on the information contained on the Website.
11. Limitations of Liability. BY USING THE WEBSITE, YOU ACKNOWLEDGE: (i) THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK; (ii) THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH YOUR USE OF THE WEBSITE; AND (iii) THAT IN NO EVENT SHALL CABANA OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE WEBSITE 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 WEBSITE, (b) ANY ERRORS OR OMISSIONS IN THE CONSENT OF THE WEBSITE, (c) YOUR ACCESS TO, USE OF OR INABILITY TO USE THE WEBSITE 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 WEBSITE 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.
12. 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.
13. Complete Agreement. This Agreement and our Website Privacy Policy constitute the entire agreement between you and Cabana relating to the public facing elements of the Website and your use of these portions of the Website, and supersede any prior agreements or understandings not incorporated herein with regards to these portions. Certain restricted areas of the Website 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.
14. 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 Website 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 Website, as well as all copies of such materials, whether made under the Agreement or otherwise. If this Agreement is terminated, the following provisions shall survive: Section 2 (Intellectual Property Rights and Ownership), Section 9 (Disclaimers), Section 10 (Indemnification), Section 11 (Limitations of Liability), Section 12 (Severability and Waiver), Section 13 (Complete Agreement), Section 14 (Termination of the Agreement), Section 15 (Governing Law and Venue) and Section 16 (Class Action and Arbitration).
15. Governing Law and Venue. The Website is made available to you from the State of Arkansas in the United States. If you elect to access and/or use the Website from outside of the United States, we make no warranties that materials on this Website 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 Website 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). You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts sitting in Fayetteville, Arkansas for the purpose of resolving any dispute relating to your access to or use of the Website. Notwithstanding the foregoing, you expressly acknowledge and agree that Cabana may seek injunctive or other appropriate relief in any court of competent jurisdiction and you consent to exclusive jurisdiction and venue in such courts. You agree that this may require you to submit any disputes related to the use of the Website to final and binding arbitration in the State of Arkansas.
16. Class Action and Arbitration. By using the Website, you agree that if any dispute should arise between you and Cabana, you will bring your claim on an individual basis and waive your right to pursue any claim in a class action. You agree that Cabana, at its sole discretion, may require you to submit any disputes arising from the use of the Website, related services or this Agreement, including disputes arising from or concerning their interpretation, violation, nullity, invalidity, non-performance or termination, as well as disputes about filling gaps in this contract or its adaptation to newly arisen circumstances, to final and binding arbitration under the International Rules of Arbitration (the “Rules”) of the American Arbitration Association, by one or more arbitrators appointed in accordance with the Rules. You agree with us that this section satisfies the writing requirement of the Federal Arbitration Act. Notwithstanding the Rules, however, such proceeding shall be governed by the laws of the State of Arkansas and will take place in Fayetteville, Arkansas.
17. Contact Information. Thank you for visiting our Website. Please contact us at info@cabanaportfolio.com if you have any questions about our Website or this Agreement. Electronic mail or other communications through this Website to Cabana (or any of its employees, agents or representatives) may not be secure and we do not guarantee the confidentiality of such communications.
