Terms & Conditions

Moxy Vote, LLC, a Delaware limited liability company (“Moxy Vote”), provides the information and services on its world wide website(s) (the “Website”) under the following terms and conditions.  By using the Website you (“you” or “User”) are agreeing to be bound by the following Terms and Conditions of Use, as amended from time to time, and are agreeing to be bound by the Moxy Vote Website Privacy Policy, which is hereby incorporated entirely into these Terms and Conditions of Use.  These Terms and Conditions of Use shall apply to all Users, including (1) Users who intend to use the Website to post voting recommendations and other material to the Website for use by investors and/or to communicate with investors (sometimes referred to separately as “Advocate”) and (2) Users who intend to use the Website to view voting recommendations, communicate with other shareholders and/or transmit voting instructions via the Website (sometimes referred to separately as “Investor”), except to the extent it is expressly stated that a section, paragraph or provision applies only to Advocates or only to Investors.  Moxy Vote may revise and update these Terms and Conditions of Use as set forth below.

 

1.   Requirements of Use.  As a User, you agree to use the Website only for lawful purposes and subject to these Terms and Conditions of Use and the Moxy Vote Website Privacy Policy.  In addition, User’s use of the Website shall be subject to any usage policies that may be posted on the Website by Moxy Vote from time to time.

 

a.         In order for Users to register with, fully access, post on and otherwise use the Website, each User will provide certain information to Moxy Vote, including certain demographic and personal information or certain business information, as applicable.  Moxy Vote may add, modify or apply changes to the required information at any time in its sole discretion.  User warrants and agrees that, at the time of registration, all information provided is true and correct and, if User is an Advocate, owned by the Advocate.

 

b.         Specifically, you agree not to do any of the following: (i) upload to or transmit on the Website any defamatory, indecent, obscene, harassing, violent or otherwise objectionable material, or any material that is, or may be, protected by copyright, without permission from the copyright owner; (ii) use the Website to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (iii) intercept or attempt to intercept electronic mail not intended for you; (iv) misrepresent an affiliation with any person or organization; (v) upload to or transmit on the Website any advertisements or solicitations of business; (vi) restrict or inhibit use of the Website by other authorized Users; (vii) upload or otherwise transmit files that contain a virus or corrupted data; (viii) modify, move, add to, delete or otherwise tamper with the information contained in the Website; (ix) collect information about others (including e-mail addresses) without their consent; (x) attempt to collect information, or otherwise access the Website, using automated means (such as harvesting bots, robots, spiders, or scrapers); (xi) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over the Website or that you have a contractual obligation to keep confidential (notwithstanding its availability on the Website); (xii) post “spam,” transmit chain letters or engage in other similar activities; (xii) decompile, reverse engineer, disassemble or unlawfully use or reproduce any of the software, copyrighted or trademarked material, trade secrets or other proprietary information contained in the Website; or (xiv) engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website or which, as determined by Moxy Vote, may harm Moxy Vote or Users of the Website or expose them to liability.

 

c.         Any content and/or opinions uploaded, expressed or submitted to a message board, blog, chatroom or any other section of the Website (including password-protected areas), and all responses to questions, other than the content provided by Moxy Vote, are solely the opinions and responsibility of the person or entity submitting them and do not necessarily reflect the opinions of Moxy Vote.  You understand and acknowledge that you are responsible for whatever content you submit, and you, not Moxy Vote, have full responsibility for such content, including its legality, reliability and appropriateness. Under no circumstances shall you submit information that you know, or have reason to believe, is false or intentionally misleading. By uploading, providing to Moxy Vote to be uploaded, or otherwise transmitting material to any area of the Website, you warrant that the material is your own or is in the public domain or otherwise free of proprietary or other restrictions and that you have the right to post it to the Website (or to have it posted to the Website by Moxy Vote).  You grant to Moxy Vote the perpetual, irrevocable, transferable, worldwide, royalty-free right and license to use all content you upload or otherwise transmit to the Website in any manner Moxy Vote chooses, including, without limitation, on the Website, on any other site or in any other media, and including, but not limited to, copying, displaying, performing, sublicensing or publishing it in any format whatsoever, modifying it, incorporating it into other material or making a derivative work based on it.

 

d.         Moxy Vote reserves the right, but does not assume any responsibility, to (i) refuse to post to the Website or remove any material posted on the Website which Moxy Vote, in its sole discretion, deems inconsistent with the foregoing commitments, including any material Moxy Vote has been notified, or has reason to believe, constitutes a copyright infringement; and (ii) terminate any User’s access to all or part of the Website at any time and without notice.  However, Moxy Vote can neither review all material before it is posted on the Website nor ensure prompt removal of objectionable material after it has been posted.  Accordingly, Moxy Vote assumes no liability for any action or inaction regarding transmissions, communications or content provided by Users.  Moxy Vote reserves the right to take any action it deems necessary to protect the personal safety of the Users and the public; however, Moxy Vote has no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.

 

e.         Moxy Vote reserves the right to make available services that permit Users of the Website to contact other Users without disclosing User’s contact information (e.g., through a service that sends messages to the e-mail address associated with User’s account with Moxy Vote).  If User elects to respond to any correspondence from Website Users received through such services, or if User otherwise makes its contact information available to such Users, User does so at its own discretion and Moxy Vote has no responsibility in connection therewith.

 

f.          Your failure to comply with the restrictions on use of the Website or any other terms herein may result in the termination of your use of and/or access to the Website.

 

2.   Copyright and Trademarks.  The entire contents of the Website (including all information, software, text, displays, images and audio) and the design, selection and arrangement thereof, are proprietary to Moxy Vote or its affiliates or licensors and are protected by United States and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights. User may copy, create derivative works of, publicly display, republish, store, transmit or distribute any of the material on this Website without the prior written consent of Moxy Vote provided in each case that User does not alter or remove any copyright or other proprietary notices included in such materials and properly and visibly attributes that the material was obtained from moxyvote.com. Neither the title nor any intellectual property rights to any information or material in the Website are transferred to User, but remain with Moxy Vote or the applicable owner of such content. Except as expressly authorized by Moxy Vote in writing, User may not reproduce, sell or exploit for any commercial purposes (i) any part of the Website, (ii) access to the Website or (iii) use of the Website or of any services or materials available through the Website.

 

The company name, trademark and service mark “MOXY VOTE” and all related names, logos, products and service names, designs and slogans are trademarks of Moxy Vote.  Users may not use any of the foregoing for any purpose without prior written permission of Moxy Vote, including, but not limited to use as “hot links” or meta tags in other pages or websites on the world wide web without the written permission of Moxy Vote or such third party that may own such trademark.  All other names, brands and marks are used for identification purposes only and may be the trademarks or registered trademarks of their respective owners.

 

3.   Links to Third Party Websites.  The Website may contain links that will let you access other websites that are not under the control of Moxy Vote.  The links are only provided as a convenience by Moxy Vote or by Users and Moxy Vote does not endorse any of these websites.  Moxy Vote assumes no responsibility or liability for any material that may be accessed on other websites reached through this Website, nor does Moxy Vote make any representation regarding the quality of any product or service contained at any such website.

 

4.   Links from Third Party Websites.  Moxy Vote currently permits links to the Website and the framing of information contained on the Website, subject to the restrictions in Section 1 of these Terms and Conditions of Use.  Moxy Vote reserves the right to disable or disallow any links or frames at any time and for any reason.  Moxy Vote has no responsibility or liability for any material on other websites that may contain links to this Website.

 

5.   No Warranties.  Although Moxy Vote reserves the right to monitor the information on the Website, some of the information is supplied by independent third parties.  This third party information, other information and documents provided on this Website are provided “AS IS” without warranty of any kind, either express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, and non-infringement. Moxy Vote uses reasonable efforts to include accurate and up-to-date information on this Website; it does not, however, make any warranties or representations as to its accuracy, currency or completeness.  Moxy Vote may periodically add, change, improve, or update the information and documents on this Website without notice.  Moxy Vote assumes no liability or responsibility for any errors or omissions in the content of this Website.  User’s use of this Website is at User’s own risk.

 

6.   Disclaimer.  Moxy Vote is a website designed to facilitate proxy voting by shareholders of public companies.  It provides a web-based tool that allows shareholders to provide vote instructions to financial intermediaries with custody of their shares or to the agents of these intermediaries.  Moxy Vote views itself as an agent that is providing purely ministerial functions in this process.  Moxy Vote endeavors to be an objective facilitator of proxy voting and has no interest in the outcome of any vote with respect to any corporate governance or other matter for any public company.

 

Moxy Vote is not a Broker/Dealer or registered investment advisor under United States federal securities law or securities laws of other jurisdictions, and does not advise individuals as to the advisability of investing in, purchasing or selling securities or other financial products, or as to the advisability of voting in any way on corporate governance or other matters.  Nothing in the Website constitutes an offer or solicitation to buy or sell any securities.  The content on the Website has been prepared for informational purposes only and does not constitute legal, financial, accounting, investment, tax or other professional advice, and Investors should carefully review all relevant company materials prior to voting or authorizing a broker to vote your shares for any investments you hold.  Investors should consult with a financial advisor and legal and tax professionals as may be appropriate prior to making any investment decision.  Moxy Vote shall not have any liability for any reliance on, interpretation or analysis of, or investment or voting decisions, action or inaction based upon information obtained from the content provided on the Website.  Moreover, Moxy Vote is under no obligation to ensure that Users or any third parties providing content to the Website are, or any person accessing or using the Website is, in compliance with the rules and regulations governing the proxy process pursuant to the Securities Exchange Act of 1934, as amended, including any filing or notice requirements (the “Proxy Rules”) or any other securities laws.  It is solely the obligation of each User providing content to the Website relating to voting recommendations, rationales and similar material, or any person accessing or using the Website for any reason, to comply with the Proxy Rules and all other applicable laws, including securities laws, with respect to its use of the Website, material posted by it to the Website (or provided by it to Moxy Vote to be posted), or stored on the Website after posting.

 

The Website’s posting of any content provided by any User or any other person or entity does not imply sponsorship, endorsement, or approval of such by Moxy Vote.  Moxy Vote does not perform and has not performed any prior or ongoing due diligence, analysis, or conducted any other investigation of the User, person or entity providing content. Moxy Vote makes no guarantee whatsoever that any content appearing on the Website, and representations made by or about any User, person or entity that appears on the Website, are accurate, complete, reliable, adequate or current.

 

User understands that Moxy Vote is dependent on other organizations to update Investors’ proxy delivery preferences with the applicable custodian.  Moreover, Moxy Vote is dependent on other organizations to compile and deliver vote instructions to the appropriate parties.  As such, Moxy Vote is not responsible for any errors or delays in processing caused by these third parties affecting Users in any way.

 

7.   Liability of Moxy Vote and its Affiliates; Disclaimer of Warranties.  Neither Moxy Vote nor any of its affiliates assumes any liability for the materials, information and opinions provided on, or available through, the Website.  Reliance on the content provided on the Website is solely at User’s own risk.  Moxy Vote disclaims any liability for injury or damages resulting from the use of any content provided on the Website.

 

THE WEBSITE, CONTENT AND LINKS TO THIRD PARTY PRODUCTS AND SERVICES AVAILABLE THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEITHER MOXY VOTE NOR ANY PERSON ASSOCIATED WITH MOXY VOTE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR THE CONTENT. SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING, NEITHER MOXY VOTE NOR ANYONE ASSOCIATED WITH MOXY VOTE WARRANTS OR REPRESENTS THAT THE WEBSITE, THE CONTENT OR THE LINKS TO THIRD PARTY PRODUCTS OR SERVICES PROVIDED ON OR THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE WEBSITE WILL OTHERWISE MEET THE NEEDS OR EXPECTATIONS OF USER, INCLUDING WITH RESPECT TO THE NUMBER OF VISITORS TO THE WEBSITE, ANY VOTING RESULT, OR THE NUMBER OF VOTES WITH RESPECT TO ANY ISSUE. MOXY VOTE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

IN NO EVENT WILL MOXY VOTE, ITS AFFILIATES, ITS LICENSORS OR CONTRACTORS BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH USER’S USE OF, OR INABILITY TO USE, THE WEBSITE, CONTENT, ANY THIRD PARTY PRODUCTS OR SERVICES PROVIDED ON OR THROUGH THE WEBSITE OR ANY LINKED SITE, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, LOST PROFITS OR DAMAGES RESULTING FROM DELAY, INTERRUPTION IN SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE WEBSITE OR THE CONTENT OR SERVICES OR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET, WHETHER OR NOT THERE IS NEGLIGENCE BY MOXY VOTE AND WHETHER OR NOT MOXY VOTE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

 

8.   Indemnification.  User shall indemnify and hold harmless Moxy Vote and its shareholders or other equity owners, officers, managers, directors, employees, agents, affiliates, third party information providers, licensors, contractors and others involved in the Website or the delivery of services or information over the Website (the “Indemnified Parties”), from and against any and all liabilities, expenses, damages and costs, including reasonable attorneys’ fees, which may be imposed on, incurred by or asserted against any of the Indemnified Parties by any person, arising from any violation by User of the terms of this Agreement or User’s use of the Website, any content or other information provided by User to Moxy Vote, or any information obtained from the Website.

 

9.   Privacy.  Protecting the privacy of Users of our Websites is important to Moxy Vote.  The Moxy Vote Website Privacy Policy, incorporated entirely into these Terms and Conditions of Use, describes how we use and protect information you provide to us on or through our Website.

 

10. Security.  The security of information transmitted through the Internet can never be guaranteed.  Moxy Vote is not responsible for any interception or interruption of any communications through the Internet or for changes to or losses of data.  User is responsible for maintaining the security of any password, user ID, or other form of authentication involved in obtaining access to password protected or secure areas of Moxy Vote Websites.  If User discloses his, her or its password to any other person, it is at the risk of User.  Access to and use of password protected and/or secure areas of the Website is restricted to authorized persons only.  Unauthorized access to such areas is prohibited and may lead to criminal prosecution.  In order to protect you and your data, Moxy Vote may suspend your use of the Website, without notice, pending an investigation, if any breach of security is suspected.  User does not own the account it uses to access the Website, and it does not own any data Moxy Vote stores on its servers with respect to User’s account.

 

11. Changes to These Terms.  Moxy Vote may revise and update these Terms and Conditions of Use, as well as the Moxy Vote Website Privacy Policy, without notice and in Moxy Vote’s sole discretion by posting the amended terms and policy to this Website, except that changes that would materially adversely affect Advocates shall require the express written or electronic consent of Advocates.  Other than such changes applicable to Advocates requiring express written consent, your continued use of the Website after the date on which the revised terms are posted means that you accept and agree to the revised Terms and Conditions of Use. If you disagree with the Terms and Conditions of Use (as amended from time to time) or are dissatisfied with this Website, your sole and exclusive remedy is to discontinue using the Website.  Notwithstanding the foregoing, the modified terms will not apply retroactively to disputes that arose before the date the modifications were posted except as otherwise permitted by law.  Following discontinuation of use of the Website by a User, Moxy Vote in its sole and absolute discretion reserves the right to remove, or continue to post, any content provided by any User. 

 

12. Procedure for Making Claims of Copyright Infringement.  Notices of claimed copyright infringement on the Website should be directed to: Moxy Vote, LLC, 1800 Bayberry Court, Suite 103, Richmond, VA 23226, Attention: Legal Department.

 

13. Jurisdiction/Governing Law. These Terms and Conditions of Use shall be governed and construed in accordance with the laws of the State of Delaware, USA, and applicable federal laws without regard to conflicts of law principles. User agrees that any and all proceedings relating to this Website and the subject matter contained herein shall be maintained in the courts of the state of Delaware or the federal district courts sitting in Delaware, which courts shall have exclusive jurisdiction for such purpose.

 

14.Miscellaneous.  These Terms and Conditions of Use, as they may be amended from time to time, completely and exclusively state the agreement between you and Moxy Vote with respect to the Website, and no other terms that may have been communicated to you orally or in any other manner shall have any force or effect.  If any part of these Terms and Conditions of Use is unenforceable, the unenforceable part shall be construed to reflect, as nearly as possible, the original intentions of the parties. The other provisions of these Terms and Conditions of Use shall remain in full force and effect.  Moxy Vote’s failure to insist upon or enforce strict performance of any provision of these Terms and Conditions of Use shall not constitute a waiver of the provision.

 

15. Comments.  Moxy Vote welcomes your comments and suggestions.  Moxy Vote has the right, but not the obligation, to use your comments and suggestions in connection with its business.  For avoidance of doubt, Moxy Vote shall own any developments by Moxy Vote or on its behalf arising out of your comments, suggestions or other submissions.

 

16. Disclosure of Affiliates.  A majority of the interest in Moxy Vote, LLC is owned by TFS Capital, LLC, a privately held portfolio management firm that serves mutual fund and private (hedge) fund clients.  The mutual funds managed by TFS Capital, LLC are regulated under the Investment Company Act of 1940 and may, from time to time, have proxy ballots voted through this website.  In addition, the various investment funds managed by TFS Capital, LLC may hold securities that are voted through this website.   

 

ADDITIONAL PROVISIONS APPLICABLE TO INVESTORS

 

A.  One Account.  Investor agrees to establish only one Moxy Vote account that corresponds with his or her personal information and will not establish accounts on behalf of others unless legally entitled to do so.  An Investor may link multiple brokerage accounts to a single Moxy Vote account so that all electronic proxy ballots may be delivered to the Investor at moxyvote.com.

 

B.  Accuracy of Personal Information.  Investor understands that the personal and brokerage information provided may be vital to the functioning of the Website and, as such, agrees to promptly update this information if it becomes inaccurate or incomplete.  Investor acknowledges that providing false, incorrect or incomplete information, including a misrepresentation by Investor as to his, her or its identity at any time, may lead to inaccurate voting instructions and potential legal violations for which it may be held responsible. Moreover, Investor understands that most of the communications sent by Moxy Vote will be distributed by e-mail to the e-mail address provided by the Investor. As such, it is critical for the Investor to ensure that the current e-mail address on file remains accurate. Investor acknowledges that Moxy Vote may terminate an account based upon a failure-to-deliver notification returned by the Investor's stated e-mail address. Termination of the Investor's account will include notifying the Investor's broker, or the broker's agent, to change the Investor's delivery preference to paper delivery at the address maintained by the Investor's broker.

 

C.  Vote Delivery Instructions.  Investor acknowledges that in order to utilize the voting functionality of the Website, Investor must first change his or her delivery preference for proxy materials that is maintained by his or her broker.  Moxy Vote will facilitate this process by relaying instructions to the brokerage firm provided or, if applicable, the firm’s agent.  Once these instructions are processed, the new delivery preference will remain in effect until changed by the Investor.  Investor understands that it may take several weeks for a change in the delivery instructions to be processed.   

 

D.  Voting Instruction Disclaimer.  Voting Instruction Disclaimer. Investor understands that Moxy Vote has no discretionary control over voting instructions and is merely acting as an agent of Investor with respect to the receipt and delivery of proxy voting instructions  As an agent, and at the specific instruction of Investor, Moxy Vote will gather information about voting desires of Investor and transmit that information to the relevant shareholder of record (whether a bank, brokerage custodian or otherwise) or, if applicable, the custodian’s agent. Vote instructions are gathered by Moxy Vote on a security-by-security basis for each unique security held by a given Investor. As such, shares in a given security that are owned by a single Investor, but that are held at multiple custodians, will be voted based on a single vote instruction.

 

E.   Limitations on Voting and Vote Confirmations.  Investor understands that he or she may not be able to provide vote instructions for all of his or her securities through the Website.  Moxy Vote makes no guarantees about which shares may or may not able to be voted.  In addition, Moxy Vote is unable to verify that a given vote instruction was received and processed by a given public company.  Vote results, in aggregate, are required to be disclosed by public companies in quarterly or annual reports on Form 10-Q or 10-K filed with the U.S. Securities and Exchange Commission.

 

F.   Transmission of Personal Data.  Investor acknowledges and agrees that by providing Moxy Vote with any personal information through the Website, Investor consents to the transmission of such personal User information as necessary for processing in accordance with Moxy Vote’s standard business practices and the Moxy Vote Website Privacy Statement.

 

ADDITIONAL PROVISIONS APPLICABLE TO ADVOCATES

 

A.  Term; Payment of Fees.  Advocate is not subject to any fees or charges from Moxy Vote in connection with its use of the Website; however, Moxy Vote reserves the right to impose a charge for Website use in the future upon written notice to and acceptance by Advocate.

 

B.     Provision of Material to be Posted.

 

1.   It is the duty of advocate to provide accurate information and to make updates promptly when any circumstances have changed such that the information provided is false or misleading.  Failure to adhere to the terms of this paragraph may result in termination of advocate’s rights with respect to the website.  Moxy Vote in its sole discretion will determine who may qualify to have its information posted on the website and reserves the right to reject or revoke any information at any time without notice and is not liable for any loss as a result of the rejection or revocation.

 

2.   Advocate will have access to portions of the Website that will allow it to contribute voting recommendations and other material to the Website.  The content provided by Advocate shall be displayed publicly on the Website in areas accessible by Users of the Website unless otherwise noted.  In addition, the name, logo, and certain credentials of Advocate may be posted alongside any content submitted by it.  Advocate agrees and acknowledges that its name and other information associated with it, may be posted in connection with the content.  Advocate understands that all of its content posted to publicly available portions of the Website are nonconfidential for all purposes.

 

C.     No Endorsement By Moxy Vote.  Advocate shall not claim to be endorsed by Moxy Vote.

 

D.    Advocate’s Logo.  Advocate grants to Moxy Vote the perpetual, irrevocable, transferable, worldwide, royalty-free right and license to use Advocate’s name and/or trade name, logo, trademark and service mark on the Website and in Moxy Vote’s marketing and other promotional materials.