Last Updated: 11 October, 2024
1. Services and License
1.1 Services. On the terms and subject to the conditions set forth in these General Terms and Conditions (this “Agreement”), Cestrian Capital Research, Inc. (“Cestrian”) shall provide to the user (“User”) the services as indicated on the online checkout page relating to this Agreement (the “Services”), as well as all data, information, notes, reports, materials, and other content made available to User by Cestrian through the Services (collectively, “Content”). All Services and Content will be provided to User through Cestrian’s website, located at https://cestriancapitalresearch.com/, and/or at Cestrian’s Slack Workspaces, located at https://cestriansymposium.slack.com/ and / or https://grid-cestrian.enterprise.slack.com. Cestrian and User may each be referred to herein as a “Party” or, collectively, the “Parties”.
1.2 Grant of License. Subject to the terms and conditions of this Agreement, Cestrian hereby grants to User, during the term of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services and Content solely for User’s personal and/or internal investment management, reference, or information purposes. For the avoidance of doubt, User shall not share, distribute, or otherwise make available or accessible any Content received through the Services with or to any other person or entity; provided, however, if User is an Investment Professional (as defined in Section 1.5 below), then User may share Content internally within User’s own company or organization only (but not with or to any person or entity outside of User’s company or organization).
1.3 Use Restrictions. Except for the limited rights expressly granted in this Agreement, User has no rights in or to the Services or Content. Without limiting the generality of the foregoing, except in each case as otherwise permitted by this Agreement, User shall not (and shall not permit any third party to): (i) sell, rent, lease, sublicense, transfer, assign, time-share, distribute, or otherwise make the Services or Content available to any third party; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to separate the components of the Services or Content, or any part thereof (including, without limitation, viewing or otherwise obtaining source code); (iii) copy, modify, adapt, translate, or create derivative works of the Services or Content; (iv) alter, remove, or obscure any disclaimers, copyright notices, proprietary markings, trademarks or trade names from the Services or Content; (v) use the Services or Content, or any part thereof, in any manner to compete with or facilitate any third party in competing with any Cestrian product or service; (vi) use the Services or Content in violation of applicable law; (vii) damage the Services or interfere with the security or proper working of the Services, including, without limitation, any upload or transmission of any information, files, code, or other materials that contain viruses or are able to disrupt or damage the Services or Content, or take any action that imposes an unreasonable or disproportionately large load on the Services’ infrastructure; or (viii) attempt to defeat, modify, or work around any security features protecting the Services or any Content.
1.4 Accounts. In order to access and use the Services and Content, User may be required to set up and maintain an active user account (“Account”). To set up an Account, User may be required to provide certain information, such as User’s first and last name, email address, and billing information. User may also need to create a username and password for the Account and acknowledge and agree to this Agreement. User must provide complete and accurate information when setting up an Account, and User shall at all times keep current and promptly update its Account information (including payment information) as necessary. User shall be solely responsible for maintaining the confidentiality of its password and Account. User agrees to: (i) use a strong password and keep its password confidential and not share it with anyone else; (ii) not transfer any part of its Account to anyone else; and (iii) immediately notify Cestrian of any unauthorized use of its username, password, or Account. You acknowledge and agree that Cestrian is authorized to act on instructions received through use of User’s username, password, and/or Account, and that Cestrian may, but is not obligated to, deny access or block any use of User’s username, password, and/or Account, without prior notice, if Cestrian believes User’s username, password, and/or Account are being used by someone other than User, or for any other reason. User is solely responsible for all activity that occurs under its Account unless User reports misuse.
1.5 Investment Professionals. When signing up for the Services, User shall provide complete and accurate information and responses to permit Cestrian to determine if User is an Investment Professional. An “Investment Professional” includes, without limitation, any individual or entity who: (i) receives market data for or on behalf of its business or any other entity; (ii) is registered or qualified with the U.S. Securities and Exchange Commission (SEC), the U.S. Commodity Futures Trading Commission (CFTC), or any other securities agency, securities exchange, association or regulatory body, or commodities or futures contract market, association, or regulatory body, whether within or outside of the United States, or performs any functions similar to those that require an individual or entity to register or qualify with any of the foregoing; (iii) provides or is engaged to provide investment research and/or investment advice to any other individual or entity; (iv) is engaged as an asset manager; (v) uses the capital of any other individual or entity in the conduct of User’s trading, or conducts trading for the benefit of a corporation, partnership, or other entity; (vi) has entered into any agreement to share the profit of User’s trading activities or receive compensation for User’s trading activities; or (vii) receives office space, equipment, or other benefits in exchange for User’s trading or work as a financial consultant for any person, firm, or business entity. User shall keep current its information and responses and shall immediately notify Cestrian of any changes that do or may result in a determination by Cestrian that User is an Investment Professional. If Cestrian becomes aware that User is or may be an Investment Professional, but has not signed up for the Services as an Investment Professional, Cestrian may require User to upgrade its Services subscription to the appropriate Investment Professional tier, and/or pay any additional fees that would have become due and payable had User correctly signed up as an Investment Professional at an appropriate earlier date, in order to continue using the Services. Any determination as to whether or not User is an Investment Professional shall be made by Cestrian and is final and binding. For clarity, any failure by User to provide or maintain complete and accurate information or responses as required by this Section 1.5 shall be deemed a material breach of this Agreement, and Cestrian shall be entitled to immediately suspend User’s access to the Services and Content, and/or terminate this Agreement, in addition to any other remedies that may be available to Cestrian under this Agreement, at law, or otherwise.
2. Term and Termination
2.1 Term. If User has selected a monthly subscription as indicated on the online checkout page relating to this Agreement, the term of this Agreement shall commence on the date of purchase and automatically renew on a month-to-month basis unless either Party gives the other Party at least thirty (30) days’ prior written notice of non-renewal. If User has selected an annual subscription as indicated on the online checkout page relating to this Agreement, the term of this Agreement shall commence on the date of purchase and continue for an initial term of one (1) year thereafter. Following expiration of such initial term, this Agreement shall automatically renew for successive one (1) year periods unless either Party gives the other Party at least thirty (30) days’ prior written notice of non-renewal.
2.2 Termination. Either Party may terminate this Agreement at any time if the other Party: (i) materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching Party; or (ii) commences or becomes subject to any proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law, or makes a general assignment for the benefit of creditors.
2.3 Effect of Termination. Upon termination of this Agreement for any reason, User shall immediately cease all use of the Services and Content, and shall promptly destroy all Content in its possession or control, including all copies thereof. Unless this Agreement is terminated by User due to Cestrian’s breach, User shall not be entitled to any refund of any License Fees paid to Cestrian hereunder.
3. License Fees
3.1 License Fees. In exchange for the Services and Content provided and rights granted hereunder, User agrees to pay Cestrian the amount set forth on the online checkout page relating to this Agreement (“License Fees”) in accordance with the billing frequency indicated therein. Cestrian shall be entitled to increase the License Fees upon notice to User.
3.2 Payment. All payments are due in advance of service delivery for the period in question.
3.3 Taxes and Duties. All taxes, duties, fees, and other governmental charges of any kind (including sale and use taxes, but excluding taxes based on the gross revenues or net income of Cestrian) that are imposed by or under the authority of any government or any political subdivision thereof on User payment obligations under this Agreement, shall be borne and paid solely by User.
4. Title and Ownership
4.1 Acknowledgement of Ownership. User acknowledges and agrees that: (i) as between Cestrian and User, the Services, Content, and every part thereof, including, without limitation, any modifications, enhancements, and updates thereto, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein, are owned or licensed by Cestrian; and (ii) the Services and Content are protected by United States and international copyright law, intellectual property law and international treaty provisions. All rights not expressly granted to User under this Agreement are reserved by Cestrian.
5. Representations and Warranties
5.1 Mutual Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into and perform its obligations under this Agreement; and (ii) the execution and delivery of this Agreement will constitute a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms.
5.2 Cestrian Warranties. Cestrian represents and warrants that it will provide the Services and Content in a professional and workmanlike manner and in accordance with generally accepted industry standards.
5.3 GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATIONS OR WARRANTIES ARE BEING GIVEN BY CESTRIAN AS TO THE SERVICES, CONTENT, OR ANY PART THEREOF, ALL OF WHICH IS BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, CESTRIAN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, CESTRIAN DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR CONTENT IS OR WILL BE ACCURATE, CURRENT, SECURE, COMPLETE, RELIABLE, FREE OF ERRORS OR DEFECTS, CONSTANTLY AVAILABLE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH USER OR OTHERS MAY PUT IT.
5.4 NO INVESTMENT RECOMMENDATIONS OR PROFESSIONAL ADVICE. USER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND CONTENT ARE NOT INTENDED TO PROVIDE TAX, LEGAL, INSURANCE, OR INVESTMENT ADVICE, AND NOTHING IN THE SERVICES OR CONTENT SHOULD BE CONSTRUED AS AN OFFER TO SELL, A SOLICITATION OF AN OFFER TO BUY, OR A RECOMMENDATION FOR ANY SECURITY BY CESTRIAN. USER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY INVESTMENT, SECURITY OR STRATEGY, OR ANY OTHER PRODUCT OR SERVICE, IS APPROPRIATE OR SUITABLE FOR USER BASED ON USER’S INVESTMENT OBJECTIVES AND PERSONAL AND FINANCIAL SITUATION. USER SHOULD CONSULT AN ATTORNEY OR TAX PROFESSIONAL REGARDING ITS SPECIFIC LEGAL OR TAX SITUATION.
6. Indemnification and Limitation of Liability
6.1 Indemnification. User shall indemnify, defend, and hold harmless Cestrian, its affiliates, and its and their respective officers, directors, shareholders, employees, contractors, suppliers, agents, successors, and assigns from and against any and all claims, demands, suits or other proceedings, and all resulting losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees), arising out of or relating to User’s access to or use of the Services or Content, including, but not limited to, any investment action (or inaction) taken by or on behalf of User based on User’s use of or reliance on the Services, Content, or any part thereof.
6.2 Limitation of Liability. IN NO EVENT SHALL CESTRIAN BE LIABLE FOR ANY: (I) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST REVENUE, EVEN IF CESTRIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EXCEEDING THE TOTAL LICENSE FEES PAID BY USER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, THE LIABILITY OF CESTRIAN SHALL BE LIMITED IN ACCORDANCE WITH THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.
7. Confidentiality
7.1 Confidential Information. User shall maintain as strictly confidential all non-public information of Cestrian, including, but not limited to, the Services, Content, and the terms of this Agreement (“Confidential Information”), using measures at least as rigorous as those used to protect User’s own confidential information, but in no event less than a reasonable degree of care. User shall use Confidential Information solely as necessary to perform its obligations and exercise its license rights hereunder, and shall not disclose Confidential Information to any third party. Upon any expiration or termination of this Agreement, User shall, at Cestrian’s option, return or securely destroy all Confidential Information in User’s possession or control, including all copies thereof.
7.2 Exceptions. The confidentiality obligations in this Section 7 will not apply to information that: (i) is in or enters the public domain without breach of this Agreement by User; (ii) User was in possession of prior to first receiving it from Cestrian; (iii) was developed by User independently without reference to Cestrian’s confidential information; or (iv) User receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, User may disclose Confidential Information to the extent required by law or by order of a court or governmental agency; provided, however, that User shall give Cestrian prompt written notice, and shall reasonably cooperate with Cestrian to obtain an appropriate protective order or other appropriate remedy.
7.3 Injunctive Relief. User acknowledges and agrees that any breach of this Section 7 may cause immediate and irreparable injury to Cestrian, and in the event of such breach, Cestrian shall be entitled to seek injunctive relief in addition to any and all other remedies available at law or in equity.
8. Miscellaneous
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of California without regard to the conflicts of law rules of that jurisdiction. Each Party consents to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California in connection with all disputes arising hereunder and waives any objection to the propriety or convenience of venue in such courts. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT.
8.2 Notices. All notices to Cestrian in relation to this Agreement must be sent by email to minerva@cestriancapital.com. All notices to User in relation to this Agreement will be sent either by email to the email address on file for User and/or by message within the Slack Workspace. Notices shall be deemed given forty-eight (48) hours after transmission, unless the email bounces back or the Slack Workspace specifically reports that the message was undelivered.
8.3 Assignment. User may not transfer or assign any of its rights or obligations hereunder without the prior written consent of Cestrian. Any purported assignment, transfer, or delegation in the absence of such consent shall be null and void. This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto.
8.4 Independent Parties. The Parties shall at all times be independent contractors with respect to this Agreement. Neither Cestrian nor User is, or will be considered, the agent, employee, legal representative, partner or joint venturer of the other for any purpose.
8.5 Force Majeure. Cestrian shall be excused from performance of its obligations under this Agreement, in whole or in part, if the failure or inability to perform is caused by acts of God, governmental authorities, riots, strikes, acts of war, epidemics, fire, flood, communication line or equipment failures, power failures, the infrastructure of the Internet, or any other cause beyond Cestrian’s reasonable control.
8.6 No Waiver of Enforcement Rights. No failure or delay on the part of either party in exercising any right hereunder shall operate as a waiver of or impair any such right. No provision of this Agreement may be waived except by a written instrument signed by the Parties waiving compliance.
8.7 Severability. If any provision in this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the Parties hereto, and shall be enforceable, as though the invalid or unenforceable provision were not contained herein.
8.8 Survival. Sections 1.3, 2.3, 4.1, 5.3, 5.4, and 6 through 8, and any other terms that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
8.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, understandings, promises, and representations. This Agreement may not be amended or modified in any matter except by a written instrument signed by both Parties.
8.10 Changes. Cestrian may change or modify this Agreement at any time, and all such changes and modifications will become effective immediately upon notice, which, for the avoidance of doubt, Cestrian may give by any means, including, but not limited to, by sending a message to the User’s email address that Cestrian has on file for User (if any) or posting a revised version of this Agreement or other notice on or within the Services. User agrees to view this Agreement often to stay informed of changes and modifications that may affect User. User’s use of the Services and Content constitutes User’s continuing agreement to be bound by this Agreement, as it may be changed or modified from time to time.