By using our site or subsequent sites owned by Birinyi Associates, Inc ("Site"), you are agreeing to comply with and be bound by the following terms and conditions. You need to agree to all of the following terms and conditions, to use this Site. The terms "Birinyi", "us", "we" or "our" refer to Birinyi Associates, Inc. The term "Service" includes, but is not limited to, the text, emails, content (both electronic and “hard copy”), graphics produced by Birinyi Associates, Inc and appearing on this Site. The terms "you" and "your" refer to the user of the Service or viewer of this Site.
Acceptance of Agreement
By using this Site, you represent to us that you have read and agree to the terms and conditions set forth in this document, which constitutes a legal and binding agreement between you and us (the "Agreement"). This Agreement constitutes the only and entire agreement between you and us, and supersedes all prior agreements, representations, warranties and understandings with respect to your use of the Site and the Service. This Agreement may be amended at any time by us, and from time to time, without any notice to you. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using or viewing this Site or the Service. You also agree to comply with U.S. law regarding the transmission of any information or data obtained from the Site or the Service in accordance with this Agreement. You also agree to not disrupt or interfere with the Site or the Service or use the Site or the Service for illegal purposes.
Copyrights and Trademarks
The works of authorship contained in the Service, including but not limited to all data, design, text, images, charts, audio, video or other data compilations or collective works, and all trademarks, trade names, service marks and other intellectual property, are owned, except as otherwise expressly stated, by Birinyi or one of our data providers, and may not be copied, reproduced, transmitted, displayed, performed, distributed, rented, sublicensed, altered, stored for subsequent use or otherwise used in whole or in part in any manner without the prior written consent of Birinyi in each instance. You agree to abide by all copyright notices or restrictions contained in the Site or the Service.
Disclaimer and Limitations of Liability
All information, data and analysis contained in the Site or the Service are provided "AS IS" and without warranty of any kind, either expressed or implied. All information, data and analysis provided by the Site or the Service is for informational and educational purposes only and is not a recommendation to buy or sell a security or basket of securities, including but not limited to equities, options and other derivative products, fixed income products, and ETFs. Birinyi believes all information, data and analysis contained in the Service to be accurate, but does not guarantee its accuracy. Under no circumstances, including, but not limited to, negligence and gross negligence, shall Birinyi, any of Birinyi´s affiliates, employees, or other third party data providers be liable to you for direct, indirect, consequential, incidental, special, punitive or exemplary damages even if an authorized Birinyi representative has been advised specifically of the possibility of such damages, arising from the use of or inability to use the Site or the Service, such as, but not limited to, losses, loss of revenue, anticipated profits or lost business. In no event shall Birinyi´s total liability to you for all damages, losses, and causes and action (whether in contract or tort, including but not limited to negligence) exceed the amount paid by you, if any, for accessing this Site or using the Service. All opinions expressed on this Site are subject to change without notice, and you should always obtain current information and perform appropriate due diligence before making trades or investment decisions. Birinyi, any of Birinyi´s affiliates, employees, may have long or short positions in the securities discussed in the Service and may purchase or sell such securities without notice. Birinyi uses various methods to evaluate investments which may, at times, produce contradictory recommendations with respect to the same securities. The performance of Birinyi´s past recommendations or investments is not a guarantee of future results and there is no guarantee that the results achieved in the past will be achieved in the future. As with all investment decisions (sales, purchases and short sales) you should perform your own independent research to determine if a given asset, stock, bond, ETF, option, future, commodity is suitable to your own unique risk tolerance. FURTHER, ALL INVESTMENTS CAN LOSE MONEY.
The securities mentioned in this Site or in the Service may not be suitable for all types of investors; their value and income they produce may fluctuate and/or be adversely affected by a multitude of factors that Birinyi has not researched nor tends to research.
Termination of Service
Either you or Birinyi may terminate this Agreement with or without cause at any time and effective immediately. You may terminate the Agreement by discontinuing use of the Service and destroying all materials obtained from the Site or the Service. This Agreement will terminate immediately without notice from Birinyi if you, in Birinyi´s sole discretion, fail to comply with any provision of this Agreement. Upon termination by you or upon notice of termination by Birinyi, you must promptly destroy all materials obtained from the Site or the Service and any copies. The Copyrights and Trademarks and Disclaimer and Limitations of Liability provisions of this Agreement shall survive any termination of this Agreement.
If the service is canceled by you, for any reasons within 30 (thirty) days of your initial sign-up a minimum charge of 30 (thirty) days of service will be due and charged, the remaining balance, if any, will be promptly refunded. If you cancel after 30 (thirty) days of sign-up a pro-rated refund will be given.
Automatic Renewal and Pricing
By accepting this agreement you authorize Birinyi to automatically renew your service at the then prevailing rate in effect at the time of your renewal. You understand that your credit card will be kept on file with Birinyi. It will be automatically charged for another term of the service and will continue to be charged at each anniversary, or month (dependent on your subscription term), until you cancel such service. Birinyi will, 30 days before your credit card is automatically charged, send to your email that is on file, notification that your account is set to automatically renew and that your credit card will be charged. Birinyi reserves the right to change the pricing of the Services at its soul discretion and without notification. Birinyi has no obligation to ensure that your email that you have provided to the Site for notifications is accurate, up-to-date or that notifications are received to that email. Not receiving an email from the Site regarding the auto-renew feature of the website does not relieve you of your agreement for auto renewal.
This Agreement and the relationship of the Parties in connection with the subject matter of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, applicable to contracts entered into and performed within the state. The Parties hereby submit to the non-exclusive jurisdiction of the Federal or state courts located in Fairfield County, Connecticut. The parties unconditionally waive their respective rights to a jury trial for any claim or cause of action arising out of or relating to, directly or indirectly, this Agreement, any of the related documents, or any dealings between them arising out of or relating to the subject matter of this transaction or any related transactions.
The Site or the Service may be temporarily unavailable from time to time due to required maintenance, telecommunications interruptions, or other disruptions, such as acts of god, war or terrorism. Although Birinyi makes every reasonable effort to minimize such downtime, Birinyi does not guarantee full availability of the Site or the Service.
If any provision of this Agreement is found invalid or unenforceable, the following section on Limited Remedies & Liability provision will be enforced to the maximum extent permissible, and the other provisions of the Agreement will remain in force.
LIMITED REMEDIES & LIABILITY
IN NO EVENT SHALL BIRINYI BE LIABLE FOR ANY OF THE FOLLOWING: LOST PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WITH RESPECT TO THE DATA COMPONENTS OF ANY DATA SERVICE, SUCH COMPONENTS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER BIRINYI NOR ANY OTHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY DATA SERVICE, AND BIRINYI EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE
No modifications of this Agreement shall be valid or binding on either party unless acknowledged in writing and signed by a duly authorized officer of Birinyi. All notices or other communications given under this Agreement shall be in writing, sent to the address set forth below as principal place of business or such other addresses as Birinyi may designate pursuant to this Section, by overnight courier or personal delivery. Notice shall be deemed given upon receipt. A copy of any notice or other communication given by you to Birinyi shall be sent to:
PO Box 711
Westport, CT 06881
The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes all prior communications and agreements between the parties relating to the subject matter of this Agreement.
At Birinyi Associates, Inc. (the “Firm”), protecting the privacy of our Client’s personal information is one of our most important jobs. Our clients trust us with their financial and other personal information and we are committed to respecting their privacy and safeguarding that information.
This document sets forth the procedures adopted by the Firm to protect our clients’ privacy and to ensure compliance with Regulation S-P promulgated by the United States Securities and Exchange Commission. Pursuant to Regulation S-P, investment advisers registered with the SEC, among others, are required (i) to develop and adopt policies with respect to the disclosure of nonpublic personal information about consumers, (ii) to develop and adopt procedures for the protection of such consumer information, (iii) to deliver to those individuals who become customers, at the time they become customers, a notice that describes the then current privacy policies and procedures and (iv) to provide on an ongoing basis an annual notice that describes the then current privacy policies and procedures. A more detailed description of Regulation S-P is attached to these Policies and Procedures Concerning Privacy as Appendix A.
All employees of the Firm are required to be familiar with the Firm’s Policies and Procedures Concerning Privacy and are responsible for compliance with those procedures that apply to their activities. A violation of the procedures set forth herein by an employee may cause the Firm to be in violation of Regulation S-P and may be grounds for dismissal of such employee.
The Firm’s Policies and Procedures Concerning Privacy will be updated periodically, as appropriate. Employees are required to be familiar with any changes made to these Policies and Procedures Concerning Privacy and are responsible for complying with the procedures set forth herein on an ongoing basis, as those procedures may change from time to time.
The Firm’s Compliance Officer is responsible for ensuring that the employees of the Firm comply with the procedures set forth herein. In order to ensure that these procedures are complied with, the Compliance Officer will conduct a formal audit of such compliance no less often than annually. In addition, the Compliance Officer will, on an ongoing basis, regularly spot-check compliance. Any questions with respect to the procedures set forth in this Compliance Manual should be directed to the Firm’s Compliance Officer.
Use and Storage of Client Files
At the time of the establishment of a new account for a client of the Firm, the Firm creates a separate file for that client. Each client’s file consists of a correspondence file and a monthly statement and confirmations file and contains copies of the records that are required by law to be maintained with respect to that client’s account, as well as the information the Firm requires in order to adequately and appropriately service that client’s account.
Client files that are less than two years old are not to be removed from the offices of the Firm.
Monthly statement and confirmations files that are more than two years old may be sent to the Firm’s off-site storage facility. Correspondence files are to remain at the offices of the Firm at all times. Access to the Firm’s off-site storage facility is restricted to certain authorized personnel.
Certain client information is stored on the Firm’s computer network, which is password protected. No client information shall be downloaded or otherwise transferred from the Firm’s computer network to an unsecured computer and no client information that has been saved on a computer disk shall be removed from the Firm’s offices.
Changes to Client Information
From time to time, clients may wish to change or update information in their files. No employee shall make any change to client information without verifying the identity of the requesting party. If a change request is made by telephone, the employee acting on such change request shall verify the identity of the requesting party. If the requesting party is not personally known to the employee, the employee shall verify the name, address, social security number and account number of the requesting party. Change requests made in writing must be signed by the client and the signature of the client shall be compared to a specimen signature in the client’s file. No change to a client’s information will be made at the request of a person who is not the client or a legal guardian of the client.
Requests for Client Information
From time to time, the Firm may receive requests from third parties (such as accountants or lawyers) for information relating to a client. In the event that such a request is received, it shall be directed to the employee responsible for that client’s account. No client information will be released to a third party unless the client has expressly authorized such release. The client’s authorization may be written or verbal, provided that a verbal authorization must be followed up with a written confirmation. In the case of a verbal authorization given over the telephone, the employee responsible for the client’s account shall not release any client information if there is any doubt as to the identity of the person giving such authorization.
Delivery of Privacy Notices
A copy of the Firm’s Privacy Notice shall be delivered to each client of the Firm at the time an account is opened for that client. As part of the procedure followed in establishing client accounts, each client shall be required to acknowledge, in writing, receipt of the Firm’s Privacy Notice.
A copy of the Firm’s Privacy Notice shall also be delivered to each client annually, at a time selected by the Firm’s Compliance Officer.
A copy of the Firm’s current form of Privacy Notice is set forth in Appendix B hereto.
No employee is to send any e-mail that contains personal financial information about any client of the Firm. In particular, do not send any e-mail that contains account numbers, account balances, information with respect to trades made on behalf of a client or any other account information. If a client sends an e-mail that contains any such information, employees should not reply to that e-mail. Rather, either call the client on the telephone or send the client a new e-mail that does not contain any personal financial information about the client.
Employees should not ask or encourage clients to send any personal information to the Firm via e-mail. Clients should be advised that e-mail may not be secure and that information should be sent to the Firm in another, secure, fashion.
Third-party Service Agreements
From time to time, the Firm enters into agreements with unaffiliated third parties who provide services to the Firm. In connection with these agreements, the Firm may be required to make information about our clients available so that the services we are contracting for can be provided. Where that is the case, the Firm will not engage any third party to provide such services unless that third party agrees that it will not disclose or use any information about the Firm’s clients that is provided or otherwise made available to such third party by the Firm other than to carry out the purposes for which the Firm disclosed or made available such information. Where there is a written agreement to provide such services, that written agreement must contain the following paragraph, or language of similar effect:
Adviser and the Service Provider agree that each shall take all steps reasonably necessary to comply with applicable laws and regulations, including, without limitation, the Gramm-Leach-Bliley Act and Regulation S-P, requiring the protection of nonpublic personal information about Adviser’s customers. The Service Provider agrees that it shall not use or disclose any information relating to Adviser’s customers provided or otherwise made available to the Service Provider by Adviser for any purpose other than to carry out the purposes for which Adviser provided or otherwise made available such information. Adviser and the Service Provider agree that, to the extent either has not already done so, each shall adopt policies and procedures that comply with the provisions of the Gramm-Leach-Bliley Act and Regulation S-P for the protection of the nonpublic personal information of Adviser’s customers and shall create and maintain physical, electronic and procedural safeguards to guard such information.
In the preceding paragraph, the word “Adviser” is used to refer to the Firm.
Access to the Firm’s Offices; Visitors
Access to the Firm’s offices is restricted to authorized personnel, including employees of the Firm, authorized visitors and authorized maintenance personnel. A receptionist is generally on duty between the hours of 8:30 AM and 5:30 PM. When there is no receptionist on duty, the office will be locked.
All visitors to the Firm are to be escorted during the time that they are inside the Firm’s offices. No visitor is to be left unattended in any location where he or she is not within sight of an employee of the Firm. If an employee sees an unescorted visitor in the Firm’s offices, the employee should ask the visitor who he or she is visiting and escort the visitor either to that person’s office or to the reception area.
Any document that contains any identifiable information about any client of the Firm is to be shredded prior to being disposed of. This includes, without limitation, any document that contains the name of a client (even if no other information about the client is contained in the document) or from which the identity of a client can be deduced or any information about a client can be obtained, and any record that is a consumer report or is derived from a consumer report.
In addition, no medium, including computer equipment, on which consumer report information is stored shall be sold, donated or transferred so long as such information remains stored on such medium. In the case of electronic media, removal of such information must be in such a manner that the information cannot be practicably read or reconstructed.
Prior to disposing of any document, the employee disposing of such document shall examine it to determine whether it is to be shredded prior to disposal. If a document is to be shredded prior to disposal, the employee disposing of such document shall do so.
Disposal of Records
Certain client records that are more than five years old may no longer be required to be maintained by the Firm. In the event that the Firm elects to dispose of any client records, any documents so disposed of that contain any identifiable information about any client of the Firm are to be shredded prior to being disposed of.
The Compliance Officer shall be responsible for arranging or providing training for employees with respect to the proper disposal of client information where necessary to ensure that all employees understand and are able to comply with the policies set forth above.
The Firm has taken steps to protect the security of its computer network and to ensure that client information that is stored on the network will not be corrupted or lost. Among other things, the Firm’s computer network cannot be accessed by any person who has not been registered as a user and granted a password. In addition, the Firm blocks access to certain Internet sites to maintain the integrity of the Firm’s computer network. No employee shall take any action that might compromise the security of the Firm’s computer system. In particular, no employee shall disclose his or her password to any person who is not an employee of the Firm. All employees are expected to take appropriate steps to keep their passwords confidential.
The security and reliability of the Firm’s computer network will be tested on a regular basis. In addition, the Firm will regularly assess the adequacy of the security measures in place and developments in technology to determine whether changes should be made. The Firm has designated IMT Computers in coordination with Jeffrey Rubin as the person responsible for the Firm’s computer system.