Last updated December 31, 2019
ACCEPTANCE OF AGREEMENT
Welcome to ONEILCAPITAL.com (the “Site“) presented by O’Neil Capital Management Inc. (“Company”, “we”, or “us”). The following terms and conditions, together with any documents incorporated by reference (this “Agreement“) govern your use, whether as a guest or a registered User, of the Site and any other sites, products, services, features, contents, mobile sites, and applications/or offered by us from time to time that link or otherwise refer to this Agreement, (collectively, including the Site, the “Services“).
Your use of the Services is also subject to additional guidelines or rules posted in certain areas of the Service. We may also provide products or services that are governed by supplemental terms as may be provided by the Company, from time to time. Such additional guidelines, rules, and/or supplemental terms are also incorporated into this Agreement. Failure to comply in full with the Agreement will result in cessation of access and use privileges and may result in legal actions taken against offending individuals and/or organizations in our sole discretion. We reserve the right to block your access to the Services for violation of this Agreement. This Agreement may be updated at any time without notice (though if changes are significant, we will typically post a notice on the Site). You agree to review the Agreement periodically to be aware of such modifications. Your continued use of the Services constitutes acceptance of any changes to this Agreement.
PLEASE NOTE THAT THE “ARBITRATION & CLASS ACTION WAIVER AGREEMENT” SECTION BELOW CONTAINS PROVISIONS THAT REQUIRE WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING BETWEEN YOU AND THE COMPANY UNDER THIS AGREEMENT TO BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT, AND THAT YOU AND THE COMPANY WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE READ THE ARBITRATION & CLASS ACTION WAIVER AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY USING THE SERVICES AND ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE ARBITRATION & CLASS ACTION WAIVER AGREEMENT.
The word “User(s)” means any Person (also referred to as “you” or “yours“) visiting, accessing, or using the Services. The word “Person(s)” means any natural person, proprietorship, corporation, partnership, or other entity whatsoever. The word “or” includes the word “and“. The words “includes” or “including” means “includes, but is not limited to” or “including, but not limited to.”
The Services are offered and available to Users who are at least eighteen (18) years of age and reside in the United States. Users and the Person executing this Agreement on behalf of any User that is a proprietorship, corporation, partnership, or other entity, represent that such Person is duly authorized by all necessary and appropriate corporate or other action to execute the Agreement on behalf of User. By visiting, accessing, subscribing to, and/or using the Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.
The Company may require proof of your identity or eligibility at any time to participate or continue to participate in a Service. Failure to provide evidence of identity or eligibility satisfactory to the Company, and determined in the Company’s sole discretion, may result in suspension or termination of your account(s) with the Company and/or access to the Services. The Company reserves the right to monitor all activities on the Services, including any effort to establish accounts in violation of this Agreement and to deny access to anyone, including those users who use proxy servers and/or IP addresses residing in certain geographical areas.
You may only use the Services for lawful purposes and in accordance with this Agreement. You specifically agree to not:
The owner of the Services is based in the United States. We provide the Services for use only by Persons located in the United States. We make no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain Persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
You agree that any notices that the Company may be required by Applicable Laws to send to you will be effective upon either: (a) the Company’s sending an e-mail message to the e-mail address you have on file with the Company; or (b) the Company publishing such notices on the Site. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
The content, data, and/or materials that are included in, or referenced as part of, the Services are for informational and educational purposes only. The Company, its corporate affiliates, and business partners do not guarantee the accuracy, reliability, or suitability of any content presented and such information may be incomplete, condensed, outdated, or otherwise inaccurate. Further, the content, data, and/or materials that are included in, or referenced as part of, the Services are subject to change at any time without notice.
DISCLAIMER OF WARRANTIES, TERMS, & LIABILITY
THE SERVICES, INCLUDING ANY CONTENT, DATA, AND/OR MATERIALS ACCESSIBLE ON THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THERE MAY BE DELAYS, OMISSIONS, AND/OR INACCURACIES IN SUCH ITEMS. THE COMPANY INDEMNIFIED PARTIES (AS DEFINED BELOW) CANNOT AND DO NOT GUARANTEE THE ACCURACY, SEQUENCE, COMPLETENESS, TIMELINESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES AND/OR THE CONTENT, DATA, AND/OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES OR BY ANY FORCE MAJEURE OR ANY OTHER CAUSE BEYOND THEIR REASONABLE CONTROL AND HEREBY EXPRESSLY DISCLAIM ANY WARRANTY THEREFORE.
THE COMPANY INDEMNIFIED PARTIES SHALL NOT BE LIABLE TO YOU OR TO ANYONE ELSE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY ITS NEGLIGENCE, OMISSION IN PROCURING, COMPILING, INTERPRETING, EDITING, WRITING, REPORTING, TRANSMITTING, OR DELIVERING ANY DATA THROUGH THE SERVICES OR FOR INTERRUPTION IN THE SERVICES. IN NO EVENT, WILL THE COMPANY INDEMNIFIED PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR USE OF OR INABILITY TO USE THE SERVICES, THE SITE, ANY SITES LINKED TO OR FROM THE SERVICES, ANY DATA ON THE SERVICES, OR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE UPON SUCH INFORMATION OR DATA OR FOR ANY CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES, DAMAGES RESULTING FROM INCONVENIENCE, OR LOSS OF USE OF THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SERVICE MAY BE DISCONTINUED OR LIMITED AT ANY TIME. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, licensors, advertisers and sponsors, agents, directors, officers, and employees and third-party information providers (collectively, the “Company Indemnified Parties“) harmless from and against any and all Losses resulting or arising from any claim, action or proceeding brought by any third party in connection with or relating to your access to or use of the Services (or the use of the Services by another Person using your password) or violation of this Agreement. “Losses” means any and all penalties, claims, actions, suits, costs, judgments, settlements, and expenses of whatever nature, whether incurred by or issued against an indemnified party or a third party, including: (a) indirect, special, punitive, consequential, or incidental losses or damages (including, but not limited to, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation, or other indirect loss or damage); and (b) administrative costs, investigatory costs, litigation costs, expert costs, and auditors’ and attorneys’ and fees and disbursements (including in-house personnel).
You agree to take all reasonable steps to protect the Services from unauthorized access or use. Upon registering, if required, you will use your email address as a user name and choose a password that will permit you to access the Service(s), you must treat such information as confidential, and you must not disclose it to any other Person. You agree that you will be the sole User of the Services under your account. Your user name and password are subject to cancellation or suspension by the Company, including upon your misuse of the usernames or passwords in any way. You agree that you will use your best efforts to prevent any third party from obtaining your username and password, and you will immediately inform the Company of any actual or potential unauthorized access to a username or password or to the Services. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your username, password, or other personal information.
PROPRIETARY RIGHTS & PROTECTION
All of the data, information, content, materials, services, and software displayed on, transmitted through, or used in connection with the Services, as well as its trade dress, layout, presentation, selection, and arrangement, are owned by the Company (collectively, the “Content“). The Company actively protects its rights to the Content to the fullest extent of the law. You may not use such Content except as provided in this Agreement.
You may use the Services, including any Content, online and solely for your personal, non-commercial use, and you may download or print a single copy of any portion of the Content for your personal, non-commercial use, provided that you do not remove any trademark, copyright, or other notice contained in such Content. No other use is permitted. You may not, for example, republish the Content on any Internet, Intranet, or Extranet site or incorporate the Content in any database, compilation, archive, or cache. You may not distribute any of the Content to others, whether or not for payment or other consideration, and, unless explicitly permitted on the Services, you may not modify, copy, frame, reproduce, sell, publish, transmit, display, download, share, or otherwise use any portion of the Content without the prior written consent of the Company. Any use of the Services not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark, and/or other laws.
You agree that any breach of the Agreement may be enforced by the Company by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies available to it. You may not frame or utilize framing techniques that involve any Content, trademark, logo, copyrighted material, or other proprietary information (including images, text, page layout, or form) of any portion of the Services without our express prior written consent.
DURATION & SURVIVAL
Even after your account or access to the Services is terminated by you or by the Company, this Agreement will remain in full force and effect with respect to your past and future use of the Services. Any rights to your account terminate upon your death. If any of the provisions of this Agreement, or application thereof to any Person or circumstance, shall to any extent be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to Persons or circumstances other than those as to which they are held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
CHANGES TO THE SERVICES OR THE AGREEMENT
The Company may, at any time, change or discontinue any aspect or feature of a Service, including Content, hours of availability, and equipment and software needed for access or use. We may update the Content, including, but not limited to, any Data on the Services from time to time, but Content is not necessarily complete or up-to-date. Any of the material on the Services may be out-of-date at any given time, and we are under no obligation to update such material.
The Company may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of any Service following the posting of a revised Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
DISSEMINATION, DISCONTINUANCE, OR MODIFICATION
You understand that, at any time, the Company may discontinue disseminating any feature of the Services, including, but not limited to, any category of Data, may change or eliminate any transmission method, and may change transmission speeds, or other signal characteristics. You will not hold the Company liable for any resulting liability, loss, or damages that may arise therefrom. You acknowledge that the Company, in its sole discretion, may from time to time make modifications to its system(s), the Services, or Data.
USER CONTRIBUTIONS; ONLINE COMMUNITIES & FORUMS; RULES, POLICIES, & DISCLAIMERS
The Services may contain the ability to post content or messages or otherwise communicate with other users, including message boards, chat functionality, personal web pages or profiles, forums, and other interactive features that allow users to post, submit, publish, display, or transmit to other Users or other Persons (hereinafter, “post“) content or materials (collectively, “User Contributions“) on or through the Services. Any User Contribution you post to the Services will be considered non-confidential and non-proprietary.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible, or liable to any third-party, for the content or accuracy of any User Contributions posted by you or any other user of the Services. User Contributions, including any messages in online communities or forums express the views of the author of the message, not necessarily the views of the Company or any entity affiliated with the Company.
The Company does not claim ownership of any User Contribution. However, by posting a User Contribution to the Services, you grant to the Company and our distributors a worldwide, royalty-free, perpetual, non-exclusive, and fully transferable and sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display User Contributions you post, in whole or in part, throughout the world for any purpose, including commercial and promotional purposes without additional compensation or consent.
REMOVAL OF POSTS & MESSAGES
Any User who feels that a posted message is objectionable is encouraged to contact us at email@example.com. We may have the ability to remove objectionable or violative messages and if it is determined that removal is necessary, we will make every effort to do so within a reasonable time frame. This is a manual process, however, so we may not be able to remove particular messages immediately.
If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyright(s), you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing our Designated Agent (as defined below) with the following information in writing: (a) a physical or electronic signature of a Person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following designated agent (“Designated Agent“):
O’Neil Capital Management Inc.
12655 Beatrice Street
Los Angeles, California, 90066
Only DMCA notices should be sent to the Designated Agent. You acknowledge and agree that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
If your content was removed (or access thereto was disabled) and you believe that such content is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to Applicable Laws, to make such content available to us for use on the Services, you may send a counter-notice containing the following information to our Designated Agent: (a) your physical or electronic signature; (b) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and (e) your name, address, telephone number, and, if applicable, e-mail address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider or the user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
You represent and warrant that: (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns; and (b) you will not post any content or materials that:
DISCLAIMER FOR USER CONTRIBUTIONS
The Company and the Company Indemnified Parties and related companies are not responsible for the accuracy, errors, or omissions of any information posted as User Contributions, including any content or links included in such User Contributions, and are not responsible for any trading or investment decisions based on such information. The U.S. Securities and Exchange Commission recognizes the growing possibility of cyberfraud. Please refer to www.sec.gov/investor/pubs/cyberfraud.htm for further information, or to the SEC’s main website at www.sec.gov or the National Association of Securities Dealers, Inc. at nasd.com.
Any personal information you post in User Contributions becomes public information. You should exercise caution when deciding to disclose any personal information. The Company and the Company Indemnified Parties are not responsible for any events or damages arising from your disclosure of personal information in a User Contribution. You are solely responsible for your interactions with other users of the Services, providers of any Third-Party Services, or any other Persons with whom you interact on, through or in connection with the Services. The Company reserves the right, but has no obligation, to become involved in any way with any disputes between you and such Persons.
Although the Company does not and cannot review all the messages posted and is not responsible for the content of any of these messages, the Company reserves the right to delete any message for any or no reason whatsoever, including but not limited to excessive use of copyrighted material, using the Services for commercial purposes, or excessive self-promotion. The Company reserves the right to determine what constitutes “excessive” related to message removal. We do not guarantee or warrant the accuracy, completeness, or usefulness of any message, and are not responsible for the contents of any message. You remain solely responsible for the content of your User Contributions, and you agree to indemnify and hold harmless the Company and the Company Indemnified Parties and all affiliates with respect to any claim based upon transmission of your User Contributions.
ARBITRATION & CLASS ACTION WAIVER AGREEMENT
The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any and all claims between you and the Company in any way related to or concerning this Arbitration & Class Action Waiver Agreement, any other aspect of this Agreement (including their applicability and their conformance to Applicable Laws), any products or services provided by the Company, any billing disputes, handling of your personal information, and any disputes relating to telephonic, text message, or any other communications either of us received from the other.
The only exceptions to this Arbitration & Class Action Waiver Agreement are that: (i) each of you and Company retains the right to sue in small claims court; and (ii) each of you and the Company may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. EACH OF YOU AND THE COMPANY ALSO AGREES TO GIVE UP THE ABILITY TO SEEK TO REPRESENT, IN A CLASS ACTION OR OTHERWISE, ANYONE BUT EACH OF YOU AND COMPANY. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages). This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration & Class Action Waiver Agreement. This Arbitration Agreement shall survive termination of this Agreement.
The arbitrator is bound by the terms of this Agreement. Additionally, demands for arbitration must be in writing and within the applicable statute of limitations. If either you or the Company wants to arbitrate a claim, you or Company must first send by mail to the other a written Notice of Dispute (“Notice“) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Service to which the Notice relates, and the relief requested. Your Notice to the Company must be sent by mail to: Arbitration Notice of Dispute, O’Neil Capital Management Inc., Attn: Legal, 12655 Beatrice Street, Los Angeles, CA 90066. The Company will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first forty-five (45) days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
If you and we do not resolve the Dispute within forty-five (45) days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at: www.jamsadr.com/consumer-minimum-standards. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to the Company at the address listed above to which you sent your Notice of Dispute. All communications between you and the Company (and/or our representatives) in connection with the attempted resolution of any Dispute shall be deemed to have been delivered in furtherance of a Dispute settlement and shall be exempt from discovery and production, and not admissible as evidence, in any subsequent proceeding related to the resolution of the Dispute.
JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against the Company, you and the Company acknowledge and agree to abide by the following: (a) if you are seeking to recover less than ten thousand dollars ($10,000 USD) (inclusive of attorneys’ fees), the Company will pay the filing fee on your behalf or reimburse your payment of it; (b) if you are seeking to recover ten thousand dollars ($10,000 USD) or more, you will have to pay the filing fee charged by JAMS, but the Company will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator; (c) you and the Company agree that, if the claims to be arbitrated total less than ten thousand dollars ($10,000 USD) (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing; the Company will not request a hearing for any claims totaling less than ten thousand dollars ($10,000 USD) – this provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules; and (d) you and the Company agree that, if the claims to be arbitrated total ten thousand dollars ($10,000) or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
GOVERNING LAW & JURISDICTION
Use of the Services, including any Transactions on or through the Services, and any controversy, claim, or dispute arising out of or relating in any way to your use of the Services, this Agreement, and/or products purchased through the Services shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules. Any claim or cause of action you may have with respect to the Company or the Services must be commenced within one (1) year after the claim or cause of action arose. Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
CLASS ACTION WAIVER
BOTH YOU AND THE COMPANY WAIVE THE RIGHT TO BRING ANY CONTROVERSY, CLAIM, OR DISPUTE ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OF THE SERVICES OR PURCHASES THROUGH THE SERVICES AS A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION, OR TO PARTICIPATE IN A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION REGARDING ANY SUCH CLAIM BROUGHT BY ANYONE ELSE.
FEEDBACK, COMMENTS, & CONCERNS
For any ideas, suggestions, recommendations, requests, or other feedback that you provide to the Company (collectively, “Feedback”) you grant the Company a perpetual, irrevocable, transferable, worldwide, fully-paid, royalty-free license to create derivative works and fully use and exploit such Feedback without any obligation to you (monetary or otherwise).
TRADEMARK & COPYRIGHT OWNERSHIP NOTICE
The Services contain proprietary, original content that is protected by U.S. copyright and international treaties. The Company retains all intellectual property rights. The Company will pursue legal action against anyone who misappropriates its name, trademarks, or content. This notice constitutes fair warning. All trademarks used herein are the exclusive property of their respective trademark owners and may not be used in any way without written consent of their owner.