New Island Capital Management, Inc.
Rev. April 2019
Welcome and thank you for visiting https://www.newislandcap.com (this “Website”), a Website operated by New Island Capital Management, Inc., a Delaware corporation (“New Island Capital”). By accessing or using this Website, you as the user (“you”) agree to be bound by the following terms and conditions (these “Terms”).
PLEASE READ THESE TERMS CAREFULLY. YOUR USE OF THIS WEBSITE IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS.
The Website is intended for individuals 18 years of age or older. By using or accessing the Website, you represent and warrant that you are at least 18 years of age. If you are not at least 18 years of age or do not agree with these Terms, do not use or access the Website.
- Use of this Website.
- License. On the condition that you comply with all of your obligations under these Terms, New Island Capital grants you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access this Website with a generally available web browser to view information and use this Website. Any other use of this Website is strictly prohibited and a violation of these Terms. New Island Capital reserves 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 Website and all related items.
- Revision of these Terms. New Island Capital reserves the right to update these Terms from time to time by posting new Terms on this page. You are advised to consult these Terms regularly for any changes. Your continued use of the Website after such changes have been made constitutes acceptance of those changes. The last revision date is at the top of this page.
- Cessation of Service. New Island Capital reserves the right to modify, terminate, and suspend the operation of this Website, without notice or liability, at any time and for any or no reason in its sole and absolute discretion.
- Content. The Website is for general informational purposes only, and may not be up-to-date, accurate, or complete. The content that is made available in connection with this Website, including the written copy, visual interfaces, interactive features, graphics, designs, databases and their data, computer code, products, software, and all other elements and components of this Website (the “Website Content”), should not be construed as investment or other professional advice. New Island Capital does not assume any responsibility for the the Website Content and will not be liable for any damages or injury arising from your use or reliance upon the Website Content or your access to, or inability to access, such information. Before you act on any Website Content, you should independently confirm any facts that are important to your decision. You use the Website Content at your own risk.
- Conduct. You agree that you will not:
- violate any of New Island Capital’s rights or use this Website to violate the rights of any third party such as copyright or trademark rights;
- copy information from this Website except as necessary for your personal, non-commercial use to view, save, print, fax, or e-mail such information;
- otherwise reproduce, modify, distribute, display, or provide access to this Website or the Website Content;
- create derivative works from, decompile, disassemble or reverse engineer any portion of this Website;
- upload to or distribute through this Website 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;
- remove or modify any copyright or other intellectual property notices that appear on this Website;
- access or use this Website 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 Website, its computer systems, or network;
- attempt to gain unauthorized access to any of this Website’s computer systems or networks;
- use this Website in any way that is unlawful, harms New Island Capital’s business, New Island Capital’s service providers, licensors, representatives or any other user, or breaches any policy or notice on this Website;
- charge any person for access to any portion of this Website or any information on this Website;
- engage in “framing” or “mirroring,” or otherwise simulate the appearance or functionality of this Website; and
- assist, encourage, or enable others to do any of the preceding prohibited activities.
- Intellectual Property.
- Content of this Website. New Island Capital owns all of the Website Content. New Island Capital also owns the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights throughout the world associated with this Website and the Website Content, which are protected by copyright, trade dress, patent, trademark and other applicable intellectual property rights and laws. Notwithstanding the foregoing, New Island Capital agrees that your information provided by you under these Terms shall remain, as between you and New Island Capital, owned by you.
- Restrictions. You may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display, perform or in any way exploit any of the Website Content in whole or in part, except as expressly authorized by the applicable rights holder. New Island Capital does not transfer to you any of New Island Capital’s technology or other intellectual property or technology rights. All right, title and interest in and to New Island Capital’s technology and intellectual property will remain solely with New Island Capital.
- Indemnification. You agree to indemnify, defend and hold New Island Capital, as well as New Island Capital’s affiliates, suppliers, licensors, and partners, including the shareholders, officers, directors, managers, members, partners, trustees, employees, agents and representatives of each of them (collectively, the “New Island Capital Parties”) harmless from any and all claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising out of or relating to your access to or use of this Website or your violation of these Terms. New Island Capital 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 New Island Capital Parties, and you agree to cooperate with New Island Capital’s defense of such claims. You agree not to settle any such matter without New Island Capital’s prior written consent. New Island Capital will use reasonable efforts to notify you of any such claim, action, or proceeding when New Island Capital becomes aware of it. Each of the New Island Capital Parties is an express third party beneficiary of this indemnification provision, with full rights to enforce its terms.
- Limitations of Liability.
- No Consequential Damages. New Island Capital 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 New Island Capital 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 New Island Capital, 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.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE NEW ISLAND CAPITAL PARTIES’ MAXIMUM AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE WEBSITE 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, New Island Capital’s liability will be limited to the maximum extent permitted by law.
- Disclaimer of Warranties. THIS WEBSITE IS PROVIDED “AS IS,” AND NEW ISLAND CAPITAL: (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 WEBSITE 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 WEBSITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF NEW ISLAND CAPITAL TO ANY THIRD PARTY. USE OF THIS WEBSITE IS AT YOUR SOLE RISK. 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, New Island Capital does not make any warranty of any kind with respect to freedom from patent, trademark, or copyright infringement, or theft of trade secrets and New Island Capital does not assume any liability hereunder for any infringement of any patent, trademark, or copyright arising from the use of the Website or rights granted or provided by New Island Capital hereunder.
- Digital Millennium Copyright Act Compliance; Notices. New Island Capital respects the intellectual property rights of others and expects users of the Website to do the same. Pursuant to 17 United States Code 512(c)(2) (Digital Millennium Copyright Act of 1998), New Island Capital’s designated agent for notice of alleged copyright infringement appearing on the Website is:General Counsel
New Island Capital Management, Inc.
560 Commercial Street, Suite 400
San Francisco, California 94111
Filing a notice of infringement with New Island Capital requires compliance with the requirements specified in Title II of the Digital Millennium Copyright Act of 1998. All other notices or other correspondence to New Island Capital under these Terms must be sent to the foregoing address.
- Governing Law. These Terms shall be governed by the laws of the State of California, regardless of conflict of laws principles.
- Arbitration. Any dispute, controversy or claim arising out of or in connection with or relating to your use of this Website or these Terms, or any breach or alleged breach of these Terms, shall be submitted to a single arbitrator who shall be a retired judge and settled by final and binding arbitration administered by the Judicial Arbitration & Mediation Services, Inc., (“JAMS”) in accordance with the then existing JAMS Arbitration Rules. 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 and County of San Francisco, California. The arbitrator shall render an award and a written, reasoned opinion in support thereof. The arbitrator shall award reasonable attorneys’ fees and costs, including the arbitrator’s fees, to the prevailing party. The results of the arbitration shall be kept confidential except as required by applicable law or to file a motion to confirm the arbitrator’s award. Judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. BY PROCEEDING UNDER THIS ARBITRATION CLAUSE, 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.
- Injunctive Relief. You acknowledge that any use of the Website or Website Content contrary to this Agreement may cause irreparable injury to New Island Capital and its affiliates, and under such circumstances New Island Capital and its affiliates will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
- Export Laws. You acknowledge that the Website and the Website Content may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer, or disclose any portion of the Website, the Website Content or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
- Beneficiaries. Except as otherwise expressly stated in these Terms, nothing in these Terms is intended to, nor will be deemed to, confer rights or remedies upon any third party.
- Amendments; Waivers. New Island Capital 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 New Island Capital. 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.
- 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.
- 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.
- 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.