- The Software is provided on the Site and in the Application. To access the Software via the Site, a link will be provided by us or by a registered representative or investment advisor representative associated with CFG (a “Representative”). To access the Software via the Application, you must (i) download the Application, and (ii) follow instructions provided on the Application.
- The Software is owned and hosted by a third party host (the "Host"). The Host retains ownership of and all right, title and interest in and to the Software, including any updates, bug fixes, maintenance releases and customizations made thereto.
- Cetera Financial Group, Inc. retains all right, title and interest to the Reports (defined in Section 3).
- The Site and Application and any content, text, graphics, logos, images, data compilations and icons thereon, as well as the design, structure, coordination and arrangement of the same, and any trademarks, trade names, trade dress, logos, service marks, brand marks or other intellectual property of CFG, including but not limited to the Decipher trademark (collectively, the “CFG Content“), which may be displayed on the Site or Application or otherwise in connection with the Software or related services, are the property of Cetera Financial Group, Inc. and/or its affiliate, Cetera Financial Holdings, Inc. (“CFH“), and are protected by United States and international copyright, trademark and trade dress laws, and various other intellectual property rights, unfair competition laws and other applicable laws.
- The Host, CFG and CFH retain all rights not expressly granted to you.
3. Analysis and Report
5. Technical Requirements
Your use of the Software may require a laptop, desktop computer, mobile device or other device (collectively, “Device“) with a camera function. It may be necessary to install other software on any such Device in order to access or operate the Software, including but not limited to Microsoft Windows 10, Windows 8, Windows 7, OSX 10.10, Microsoft Internet Explorer 11, Microsoft Edge, Chrome version 43 and above, Firefox version 38 and above, Safari version 8 and above, Opera versions 15 and above, and (within six months of the applicable software licensor's releasing them) all of their updates, upgrades and replacement programs, as applicable.
6. Use of the Site, Application, Software and Reports
- You may not and you agree not to, or enable others to:
- rent, lease, share, resell, sublicense, distribute, transfer, copy, reproduce, display, modify or timeshare the Software or any portion of it;
- permit any third party to access, use or display the Software or any services related thereto;
- take any action to reverse engineer, compile, translate, disassemble, copy or create derivative works of or based on the Software, in whole or in part, nor permit any third party to do so; or
- use the Software or any portion of it as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution.
- Prohibited uses of and activities related to the Software, Reports and any related services include, without limitation, any use or activity that involves, facilitates or attempts any of the following:
- to threaten, violate, or encourage the violation of, the legal rights of others;
- for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
- accessing, sending, receiving, displaying, perforating, disclosing, storing, or executing any content (a) in violation of any copyright, right of publicity, patent, trademark, service mark, trade name, trade secret or other intellectual property right; (b) in violation of any applicable agreement; or (c) without authorization;
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use or proper working of the Software, Reports, related services or any equipment used to provide the same;
- to alter, disable, reverse-engineer, interfere with, circumvent, copy, translate or create a derivative work of any aspect of the Software or Reports;
- to use the Software, Reports, or a component of the same, in a manner not authorized by CFG or the Host;
- to remove, modify or obscure any brand features, links, or notices appearing in the Software, Report or any other content related thereto;
- to violate any documentation or other material included or provided with the Software or Reports;
- to loan, sell, lease or use for timesharing or service bureau purposes the Software, Reports or any component thereof or any related services; or
- use any type of data gathering tools to access, acquire, copy, or monitor any portion of the Site, Application or Software, without CFG's express written consent, which CFG may withhold for any reason.
- Unauthorized or unlawful use of the Site, Application or Software or any third party content will result in termination of your access to the Site, Application and Software, and such unauthorized use may violate United States and international copyright, trademark and trade dress laws, and various other intellectual property, unfair competition and other applicable laws.
- Users of the Site, Application and Software remain responsible for their own compliance with all applicable laws, rules and regulations.
- Information contained in Reports is educational in nature and may assist you in evaluating your financial goals. Such information is not intended to constitute financial, investment, legal or tax advice. Your reliance on any Report is at your own risk.
7. User Representations and Warranties
- By accessing and using the Site, Application or Software, you represent and warrant that you:
- Are 18 years of age or older;
- Are not a resident of or otherwise located in a member country of the European Union or European Economic Area;
- Reside in a geographic area in which CFG Affiliate products and services are available (your eligibility for particular products and services is subject to final determination and approval by the applicable CFG Affiliate);
- Will provide information to CFG and its Affiliates, as applicable, that is true, accurate, current, and complete;
- Will use the Site, Application and Software solely for your personal use; and
- Will comply with all applicable laws, rules, regulations, and regulatory guidance.
9. User Termination
10. Third Party Providers
- Certain content on the Site or Application may be provided by independent, third parties (collectively, “Independent Providers“).
- ANY THIRD PARTY CONTENT ON THE SITE OR APPLICATION IS OBTAINED FROM SOURCES BELIEVED TO RELIABLE. CFG EXPRESSES NO OPINION AS TO AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, CURRENCY, COMPLETENESS OR ADEQUACY OF ANY THIRD PARTY CONTENT PROVIDED ON THE SITE OR APPLICATION OR OTHERWISE IN CONNECTION WITH THE SOFTWARE.
11. Third Party Links
Once you leave the Site or Application, CFG and its Affiliates accept no responsibility for, and make no representations or warranties regarding, the content, products, services or privacy policies of any third party websites. Any links to other websites (“Linked Websites“) or references to products, services, or publications other than those of CFG or its Affiliates are provided solely as a convenience to you and do not imply the endorsement or approval of such Linked Websites or such products, services, or publications by CFG or its Affiliates. If you choose to access Linked Websites, you do so at your own risk. Neither CFG nor its Affiliates monitor the Linked Websites for accuracy or completeness. You are solely responsible for evaluating the accuracy, reliability and timeliness of any information on a Linked Website.
- CFG reserves the right to modify, at its sole discretion, any aspect of the Site, Application and Software or the information thereon at any time and without notice to you. Any such modification will be effective immediately upon posting, and your continued use of the Site, Application and/or Software will constitute your acceptance of such modifications.
13. Electronic Communications
The Site or Application may provide e-mail addresses or other methods for electronic communication with CFG, its Affiliates or their representatives. All e-mail or other messages sent to and from CFG, its Affiliates or their representatives will be stored and archived.
14. Telephone Call Monitoring and Recording
Authorized employees or agents of CFG or its Affiliates may monitor and record all or portions of your telephone calls to CFG or its Affiliates for quality control, customer service, employee training, security, and other lawful purposes.
15. No Representations or Warranties
YOU BEAR FULL AND COMPLETE RESPONSIBILITY IN THE USE OF, OR RELIANCE ON, THE SITE, APPLICATION, SOFTWARE AND REPORTS. YOUR USE OF THE SITE, APPLICATION, SOFTWARE AND REPORTS IS AT YOUR SOLE RISK.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER CFG NOR ITS AFFILIATES WILL BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES TO YOU OR YOUR COMPUTER EQUIPMENT, MOBILE OR OTHER DEVICE OR OTHER TANGIBLE OR INTANGIBLE PROPERTY ARISING FROM YOUR USE OF THE SITE, APPLICATION OR SOFTWARE, YOUR BROWSING IN OR DOWNLOADING OF ANY CONTENT FROM THE SITE, APPLICATION OR SOFTWARE, OR YOUR ACCESSING, ATTEMPTING TO ACCESS OR DOWNLOADING ANY REPORT. IN NO EVENT WILL CFG OR ITS AFFILIATES BE LIABLE FOR ANY INJURY, LOSS, DAMAGE OR CLAIM, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES, OR INCONVENIENCES OF ANY KIND, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING FROM OR IN ANY WAY CONNECTED WITH (A) ANY USE OF THE SITE, APPLICATION, SOFTWARE OR REPORTS, EVEN IF CFG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY FAILURE, DELAY, OR UNAVAILABILITY (INCLUDING BUT NOT LIMITED TO THE INABILITY TO USE OR ACCESS THE SITE, APPLICATION, SOFTWARE OR REPORTS), EVEN IF CFG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CFG AND ITS AFFILIATES DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE, APPLICATION, SOFTWARE OR THE REPORTS.
CFG WILL NOT BE LIABLE FOR ANY LOSSES, CLAIMS, INJURIES, LIABILITIES OR DAMAGES RESULTING FROM A CAUSE OVER WHICH CFG DOES NOT HAVE DIRECT CONTROL, INCLUDING BUT NOT LIMITED TO THE FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, INACCESSIBILITY OF ANY SERVICE PROVIDERS, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, WAR, ACTS OF TERRORISM, EARTHQUAKES, FLOODS AND STRIKES OR OTHER LABOR PROBLEMS, GOVERNMENT RESTRICTION, EXCHANGE OR MARKET RULINGS, SUSPENSION OF TRADING, ACTS OR OMISSIONS OF UNAFFILIATED THIRD PARTIES, ACTS OF GOD OR UNFORESEEN ILLEGAL ACTIONS OF ANOTHER (“FORCE MAJEURE“ CONDITIONS).
You will indemnify, defend and hold harmless CFG, its Affiliates, and their respective officers, directors, employees, representatives and agents from and against any claim, damages, cause of action or demand, including, but not limited to, reasonable legal, accounting, attorneys' fees and other professional fees, brought by you or on your behalf or by third parties, as a result of your use of the Site, Application, Software or Reports.
THE FOREGOING “NO REPRESENTATION OR WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION“ PROVISIONS MAY NOT APPLY TO CONSUMERS WITHIN THE STATE OF NEW JERSEY OR IN OTHER JURISDICTIONS WHERE PROHIBITED BY LAW.
19. Waiver and Serverability
Cetera Financial Group, Inc.
Attn: General Counsel
200 Pacific Coast Highway, Suite 1200
El Segundo, CA 90245
21. Choice of Law
22. Court Costs and Attorneys' Fees
23. Pre-Dispute Arbitration Clause
- User and CFG (collectively referred to herein as "parties") understand and agree that:
- The parties are giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed;
- Arbitration awards are generally final and binding, and a party's ability to have a court reverse or modify an arbitration award is very limited;
- The parties' ability to obtain discovery including documents, witness statements, or other discovery is generally more limited in arbitration than in court proceedings;
- The arbitrators do not generally have to explain the reason(s) for their award and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited;
- The rules of some arbitration forums may impose fees and time limits for bringing a claim in arbitration;
- No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action or who is a member of putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; (ii) the class is decertified; or (iii) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this agreement except to the extent stated herein; and
- There are two exceptions to this arbitration agreement. First, if we reasonably believe that you have violated or threatened to violate our intellectual property rights or if you use the Site in violation of Section 6, you agree that we would be irreparably harmed by such violation or use and that we may seek injunctive or other appropriate relief in any court of competent jurisdiction without first proving actual damages or posting a bond. Second, any claim, at the option of the claiming party, may be resolved in small claims court in Los Angeles, California, if the claim and the parties are within the jurisdiction of the small claims court and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
- Payment of all filing, administration, and arbitrator fees will be governed by the American Arbitration Association's rules, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, at your request, CFG will reimburse you for all filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator's decision or settlement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, CFG is relieved of its obligation to reimburse you for any fees associated with the arbitration.
- This Section or any of its provisions are void where prohibited by law.
24. Entire Agreement
26. Terms Applicable for Apple iOS and Other Platforms
- You acknowledge that CFG, and not Apple, is responsible for providing the Software and content thereof.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Software.
- To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software.
- Further, you agree that if the Software, or your possession and use of the Software, infringes on a third-party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- When using the Software, you agree to comply with any and all third-party terms that are applicable to any platform, website or technology that interacts with the Software.