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Thank you for your interest in Institutional Capital Network, Inc., and our affiliates, including certain affiliates that are registered investment advisers and registered broker-dealers (collectively, “iCapital,” “we,” or “us”) as further detailed below and on the Site. The Terms of Service immediately below govern your use of the Site and depending on the services you use or where you are located, other terms of service may be applicable and will also govern your use of the Site.
Terms
of Service
Effective Date: August 16, 2023
Thank you for your interest in Institutional Capital Network,
Inc., and our affiliates, including certain affiliates that are registered
investment advisers and registered broker-dealers as further detailed on the
Site (collectively, “iCapital,” “we,” or “us”). iCapital owns, licenses, and operates certain websites,
applications and platforms (each a “Site”) that are primarily intended
to provide investment advisers (registered with the Securities and Exchange
Commission or a state), registered broker-dealers, banks, insurance companies,
accredited investors, qualified purchasers, other institutional accounts, and certain
investors in accordance with legal requirement in various jurisdictions with the ability to access and use
our financial products, tools, and services thereon(collectively, the “Financial Services”). In the
event of a conflict between the terms and conditions set forth in these Terms of
Service (“Terms of Service”) and any other terms, addendums,
guidelines or rules that apply to any specific portion of the Financial
Services (collectively, “Supplemental Terms”), the terms and conditions
set forth in the Supplemental Terms shall supersede and control with respect to
such conflict (collectively, these Terms of Service and Supplemental Terms, the
“Terms”). By using the Site, you are entering into a legally binding
agreement, and you hereby accept and agree to comply with the Terms and
represent and warrant that you have capacity and authority to bind, and do
bind, yourself to the Terms. For the avoidance of doubt, these “Terms” shall be interpreted to include any and all Supplemental Terms,
unless expressly stated otherwise or context and usage should prevent such an
interpretation. The terms “you”, “You”, “your”, “Your”,“yourself”,
“Yourself” and “Customer”, means the entity or Authorized User using
the Site or Financial Services. For purposes of these Terms, iCapital and you
may each be referred to as a “party” or collectively as the “parties.”
CERTAIN SUPPLEMENTAL TERMS:
·
If you are accessing the Site from the
European Economic Area, then the European
Terms of Service Addendum shall additionally apply to your use of the Site.
·
If you are receiving Financial Services from
iCapital, then the Financial Services Addendum shall additionally apply to your
use of the Site and any Financial Services.
·
If you are accessing the SIMON Platform, then the
Financial Services and Structured Investment Marketplace and Online Network “SIMON” Terms
of Service Addendums shall additionally apply to your use of the Site, the SIMON
Platform and any Financial Services.
·
If you transmit Personal Data subject to Data
Protection Law (each as defined therein), then the Data Protection Addendum
shall additionally apply to your use of the Site, the SIMON Platform, and any
Financial Services.
·
If you are accessing the AI Insight product, then
the Financial Services Addendum shall additionally apply to your use of the Site
and any Financial Services and the applicable iCapital counterparty with respect
to the AI Insight product is iCapital Advisors, LLC.
If you and iCapital have entered into any master agreement,
service agreement, customer agreement or other agreement governing
transactions, accounts or other matters pertaining to the relationship between you
and iCapital (each, a “Related Agreement”), then these Terms shall
supplement each such Related Agreement, and the terms of any Related Agreement
shall supersede the conflicting terms of these Terms.We reserve the right at
any time to change the terms and conditions set forth in the Terms or change
the Site, including eliminating or discontinuing any features of
functionality. Any changes we make will
be effective immediately upon the posting of new Terms on the Site. Be sure to return to https://www.aiinsight.com/terms-of-service/ to ensure familiarity with the most current version of the Terms.
thESE TERMS govern
YOUR USE OF the SITE INCLUDING ANY FINANCIAL service THEREON.Please read THESE
TERMS carefully as THEY set forth each party’s rights, OBLIGATIONS, and
liabilities, INCLUDING YOUR WAIVER TO A RIGHT TO A JURY TRIAL.
WE RESERVE THE RIGHT TO UPDATE
THESE TERMS AT ANY TIME BY POSTING AN UPDATED COPY OF THESE TERMS TO THE SITE. BY CONTINUING TO ACCESS AND USE THE SITE
AFTER THE POSTING OF AN UPDATED COPY OF THESE TERMS, YOU AGREE TO THE UPDATED TERMS.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND
EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL
ARBITRATION AGREEMENT IN SECTION 19 (DISPUTE RESOLUTION) (THE “DISPUTE
RESOLUTION”) AND CLASS ACTION/JURY TRIAL WAIVER
PROVISION IN SECTION 19.8 (JURY WAIVER AND LIMITATION OF RIGHTS)THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS
IN SECTION 19.4 (CLAIMS NOT COVERED BY ARBITRATION), THE EXCLUSIVE USE
OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY
GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
1.
General Information
Important information about iCapital’s regulated entities’
business operations, services, and fees can be found, for such entities that
are registered investment advisers, on the Securities and Exchange Commission’s
website and for such entities
that are registered broker-dealers, on BrokerCheck
by FINRA.As required under the Investment Advisers Act of 1940, as
amended(the
“Advisers Act”), iCapital will provide its Form ADV
disclosure brochure, which serves as the firm’s disclosure document, to all
clients.
2.
The Site and Financial Services
2.1.
The Site; Eligibility. The Site and each Financial Service
offered thereon are offered and available only to individuals who are eighteen (18)
years of age or older. By using the Site, you represent and warrant that you
are of legal age to form a binding contract with iCapital and meet all of the
foregoing eligibility requirements, including as
applicable on behalf of your entity and its affiliates and Authorized Users.
If you do not meet all of these requirements, you must not access or use the
Site. You are permitted to use the Site only for your internal business or
investment purposes, subject to the restrictions herein. Other than as
expressly set forth in these Terms, no license or other rights in or to the Site
are granted to you, and all such licenses and rights are hereby expressly
reserved to iCapital. iCapital reserves the right, at any time and without
notice to you, to modify, add, suspend, delete, or discontinue, temporarily or
permanently, the Site, or any portion thereof, in its sole discretion, and you
acknowledge and agree that iCapital will not be liable for any of the foregoing.
2.2.
Financial Services. We offer certain Financial Services
that provide information on alternative investment funds that may be exempt from
registration under Advisers Act and/or the U.S. Securities
Act of 1933, as amended (the “33 Act”). These
Financial Services allow potential investors, including without limitation, investment advisers (registered with the Securities and
Exchange Commission or a state), registered broker-dealers, banks, insurance
companies, accredited investors, qualified purchasers, other institutional
accounts, and certain investors in accordance with legal requirement in various
jurisdictions(“LP Users”), to review information on investment funds, to
consummate investments in such funds, and to receive reporting with respect to
those investments. Additionally, these Financial Services allow investment
advisers (registered with the Securities and
Exchange Commission or with a state), registered broker-dealers, banks,
other institutional accounts, and certain investors in accordance with legal
requirement in various jurisdictions (“SIMON and Annuity Users”) to
access education, a marketplace, and lifecycle information related to structured
investments, annuity products, and outcome driven exchange-traded finds.Furthermore,
these Financial Services may allow access by you or your Authorized Users to
information/educational/training materials as provided by iCapital Advisors, LLC and
its affiliates (“Education Users”). These Financial Services further
allow general partners or managers of investment funds (“GP Users”) and
transfer agent or administrator entities, or any other service providers
engaged by GP Users or investment funds (“Transfer Agents”) and such
Transfer Agents’ respective authorized users, including, but not limited to,
respective directors, officers, agents, principals, members, partners,
employees, and stockholders (collectively, “TA Users,” and together with
Education Users, SIMON and Annuity Users,GP Users, LP Users and Transfer Agents,
“Users”) to control and/or access the content presented on the Site with
respect to funds managed or handled by such Users. Except
with respect to funds sponsored, managed, and/or expressly distributed by an affiliate
of iCapital, unless expressly indicated, the funds described on the Site are
not offered or sold through the Site, and investors may not acquire an interest
in any such fund through the Site. Any such transaction may only occur between
a prospective investor and an investment fund separate and apart from the Site.
For access and use of the Site and the Financial Services described herein
by Transfer Agents and TA Users, the Supplemental Terms set forth in the
Transfer Agent Addendum shall apply to such Financial Services and are deemed a
part of these Terms and incorporated herein.
3.
Registration; Authorized User
3.1.
Registration and Accounts. In order to access
certain Financial Services on the Site, you must register with iCapital and
create an iCapital account. When you register with iCapital, you must provide
iCapital certain information (including personal information) and data. You
acknowledge and agree that iCapital may use the
personal information you provide to communicate with you, and such acceptable
methods of communication with you include telephone, electronic communication
(e.g., email), or text message. By registering with or using the Site,you
hereby affirm that all information you provide to iCapital is true and correct
to the best of your knowledge, information, and belief. You further affirm that
you have not omitted any material facts nor provided any intentionally
misleading facts in the submission of information or documents to iCapital. You
acknowledge that iCapital may record and monitor conversations between you and
us to maintain or improve the quality of the Site and Financial Services, for
issue resolution, or to promote and provide the Site and Financial Services.
You are solely responsible for all activities conducted under your account or
username, and you must take all necessary steps to ensure that your account,
username, or password are not compromised. You may not assign, otherwise
transfer or disclose your username, password, account or any information
obtained from the Site to any other person or entity. You acknowledge that
iCapital is not responsible for third-party access to your account that results
from theft or misappropriation of your account. iCapital reserves the right to
refuse or cancel service, terminate accounts where it is reasonably necessary
to do so to protect iCapital’s legitimate interests, or remove or edit content
in our sole discretion. You must immediately and without
delay inform iCapital if your account has become compromised. iCapital may, at
any time, change any account access protocols, any username or password
assigned by iCapital to you or any username password created by you.
3.2.
Authorized Users. For purposes of
these Terms, the term “Authorized Users” means you and your employees,
consultants, contractors, advisors and agents who are authorized by you to
access and use the Financial Services under the rights granted to you pursuant
to these Terms. For the avoidance of doubt, “Authorized Users” include, but are
not limited to, TA Users, GP Users, LP Users, Education Users and Transfer
Agents, in each case, as applicable. Without limiting anything contained
herein, you are responsible for your Authorized Users’ compliance with these
Terms. If you delegate authority to an Authorized User to act on behalf of your
account, you represent you have the legal right to do so, and you assume
responsibility for any actions taken by such Authorized User, including all
investor representations and warranties in any submitted response or document
and any breaches of these Terms herein. You agree that, to the maximum extent
permitted by law, iCapital, its affiliates and its and their respective
directors, officers, agents, principals, members, partners, employees, and
stockholders (collectively, the “iCapital Parties”) shall have no
responsibility or liability to you or any other party for any loss, liability,
claim, demand, damage, cost or expense (including without limitation any
attorneys’ fees or accountants’ fees or expenses or any investigatory or legal
fees, or punitive, special or consequential damages) arising out of or relating
to your Authorized Users’ actions on the Site or their use of your personal
information.
3.3.
Authorized User Responsibility. If you are acting as an Authorized User on behalf of
another, you represent and warrant to iCapital that you are assuming
responsibility for the actions you take on behalf of the account owner and in
any event agree to be bound by these Terms. You agree that, to the maximum
extent permitted by law, the iCapital Parties shall have no responsibility or
liability to you or any other party for any loss, liability, claim, demand,
damage, cost or expense (including without limitation any attorneys’ fees or
accountants’ fees or expenses or any investigatory or legal fees, or punitive,
special or consequential damages) arising out of your actions on the Site. You
as an Authorized User acting on behalf of another, represent and warrant that
you are duly authorized and
full legal authority to so act, have obtained all necessary consents including
written consent, and provided all required information to your investors in
accordance with Applicable Law.
4.
User Data; Data Protection; Feedback
4.1.
User Data. The term “User Data” means
information (including personal information), data, and other content, in any
form or medium, that is submitted, posted, or otherwise transmitted by or on
behalf of you or any third party, including Authorized Users, acting on your
behalf through the Site or in connection with the Financial Services. As
between iCapital and you, you own the User Data.You
acknowledge that you have all rights to provide the User Data to iCapital for
the purposes set forth herein and hereby grant to iCapital a worldwide,
nonexclusive, transferable, sublicensable, royalty-free license to host, copy, modify,
transmit, distribute, display, and process the User Data as reasonably
necessary for the purposes set forth herein or in the iCapital Privacy Policy,
including to provide any Financial Services and monitor, modify, and improve
(including develop) the Site and Financial Services and otherwise exploit the
User Data. You shall have sole responsibility for the accuracy, security,
quality, and legality of the User Data; for the means by which you acquired
such User Data; and, for the right to provide the User Data to iCapital for the
purposes of these Terms (including ensuring the receipt of all permissions from
individuals and other third parties as may be necessary in order to provide the
User Data for the purposes contemplated in these Terms). You further grant iCapital
the right to anonymize and aggregate User Data so that it does not identify you
or any other person (“Deidentified Data”)and to use and otherwise
exploit such Deidentified Data for any lawful purpose.The Site may allow Authorized
Users to post, submit, publish, display, or transmit to other Authorized Users,
User Data on or through the Site. All User Data must comply with the Terms
herein. Certain User Data may be considered non-confidential and
non-proprietary and available for viewing by all users on the Site and others
are considered confidential and proprietary and subject to access control
restrictions to certain Users of the Site, in each case as may be adjusted
based on your investment type or use of the Financial Services. However, we do not undertake to review all material
before it is posted on the Site and cannot ensure prompt removal of
objectionable material after it has been posted. Accordingly, we assume no
liability for any action or inaction regarding transmissions, communications or
content provided by any User or third party.
4.2.
Privacy Notice. Your use of the Site is, and the Financial Services
are, governed by iCapital’s privacy policy (the “Privacy Policy”).
Please review the Privacy Policy, as it contains important information on how
we collect, maintain, disclose and otherwise process information we collect
from you. We may update the Privacy Policy from time-to-time in our sole
discretion. It is your responsibility to review the Privacy Policy for any
changes each time that you use the Financial Services, and you should
understand that you are bound by such changes.
Our current Privacy Policy is available at https://www.aiinsight.com/privacy-policy/.The
parties each acknowledge and agree that User Data may contain personal
information and that iCapital may collect, use, disclose, transfer, or otherwise
process such personal information in accordance with the iCapital Privacy Policy
and iCapital Privacy Notice for U.S. Investors (Gramm-Leach Bliley Act), in
each case, as may be amended from time to time. Except where Customer or
Customer’s employer has entered into a separate Data Protection Addendum, each
of iCapital and Customer hereby agree to the terms of the Data Protection
Addendum.You also understand and acknowledge that information you provide on
the Site, including personal information, will be viewable by, or otherwise
provided to, anyone with whom you provide access, such as an Authorized User,
an additional signer or additional account holder, or the recipient of a group
email address. To the maximum extent permitted by law, you agree that the iCapital Parties shall have no responsibility or
liability to you or any other party for any loss, liability, claim, demand,
damage, cost or expense (including without limitation any attorneys’ fees or accountants’
fees or expenses or any investigatory or legal fees, or punitive, special or
consequential damages) arising out of or relating to the sharing of your
personal information with such parties.
4.3.
User Data Obligations.You
are permitted, and hereby agree, to only provide User Data to iCapital if such User
Data is accurate, reliable, complete, and relevant to our relationship and only
to the extent such disclosure will not violate any Applicable Law or infringe
upon a person’s data privacy rights or privileges, and you agree to maintain
and promptly update such information to keep it accurate, current and complete.
You further affirm that you have not
omitted any material facts nor provided any intentionally misleading facts in
the submission of information or documents to iCapital. If you provide any information that is
untrue, inaccurate, not current or incomplete, or we have reasonable grounds to
suspect that such information is untrue, inaccurate, not current or incomplete,
we have the right to suspend or terminate your account and refuse any and all
current or future use of the Site (or any portion thereof) or Financial
Services. IF YOU PROVIDE USER DATA (INCLUDING PERSONAL INFORMATION THEREIN) TO ICAPITAL,
YOU EXPRESSLY REPRESENT AND WARRANT TO ICAPITAL THAT YOU HAVE THE FULL RIGHT
AND AUTHORITY TO PROVIDE ICAPITAL WITH SUCH USER DATA (INCLUDING PERSONAL
INFORMATION THEREIN) AND THAT ICAPITAL’S USE AND PROCESSING OF USER DATA AS SET
FORTH HEREIN WILL NOT VIOLATE ANY PERSON’S RIGHTS OR PRIVILEGES, INCLUDING
RIGHTS TO PRIVACY. YOU HEREBY AGREE TO FULLY AND COMPLETELY INDEMNIFY AND HOLD
HARMLESS ICAPITAL PARTIES FOR ANY CLAIMS, ALLEGATIONS, HARM, OR DAMAGES THAT
MAY ARISE FROM YOUR PROVISION OF USER DATA (INCLUDING PERSONAL INFORMATION THEREIN)
TO ICAPITAL.
4.4.
Feedback. To the extent you provide any suggestions for modification
or improvement or other comments, code, information, know-how, or other
feedback (whether in oral or written form) relating to the Site or a Financial Service
(“Feedback”), you hereby grant to iCapital a perpetual, irrevocable,
worldwide, non-exclusive, transferable, sublicensable, royalty-free license to
use and commercially exploit the Feedback in any manner iCapital sees fit
without accounting or other obligation. For the avoidance of doubt, Feedback is
considered iCapital’s information (and not User Data).
5.
Data Providers; Subcontractors
5.1.
Data Providers. Certain
information on the Site or in the Financial Services has been provided by third-party
data providers (“Data Providers” and such information, “Third Party
Content”). Third Party Content is protected by copyright and is owned or
licensed by the Providers. iCapital has not been involved in the preparation,
adoption or editing of Third Party Content, does not explicitly or implicitly
endorse or approve such content, and does not warrant the accuracy,
completeness, or usefulness of such content.
We are not responsible or liable to you or any third party for the
content or accuracy of any Third Party Content. Any reliance you place on such
content is strictly at your own risk. We disclaim all liability and
responsibility arising from any reliance placed on such content by you, or by
anyone who may be informed of any of such content. Data Providers do not
implicitly or explicitly endorse or approve such content, nor should such
content be considered investment advice or advocacy for the purchase or sale of
any security or other investment decision.
By
agreeing to these Terms, you agree (i) to waive any claim against iCapital Parties
and the Data Providers arising out of or related to the Third Party Content, (ii)
that you have no direct contractual privity with any Data Provider, and (iii)
that you will treat all such information and data provided by a Data Provider as
confidential, and not disclose any such data to any third party, and if
received in connection with the Financial Services, as Confidential Information
of iCapital.
5.2.
Subcontractors. iCapital may subcontract (whether under an
existing or new contract between iCapital and a third party) any part of the Site
or Financial Services provided hereunder, including the development, operation
and maintenance of the Site and the collection, retention, and processing of User
Data.
6.
iCapital Proprietary Information
6.1. Definition. Each party may make
available to the other party information that is identified as or should
reasonably be understood by the receiving party to be, proprietary or
confidential (the “Confidential Information”). Confidential Information
specifically includes, without limitation, these Terms, the Financial Services,
Order(s),all information obtained from the Site or provided to you or any Authorized
User by a representative of iCapital, including business plans and strategies,
trading or investment strategies, methodologies and results, risk management
models, and pricing and other financial information, technology (including
without limitation, source code, algorithms, processes, technical data and
documentation, product plans, research, software, and other confidential
intellectual property), trade secrets and other non-public information of iCapital’s
business affairs, clients, investors and personnel, and know-how, and other
financial information that is confidential in nature. Confidential Information may
not be shared by you or any Authorized User with any other party or used for
any purpose unless permitted herein. For the avoidance of doubt, as part of our
Financial Services, we share User Data (including personal information) with
third-party organizations that are providing a common or related financial
service directly to you. User Data shall not, unless otherwise required by law,
be considered Confidential Information. Confidential Information will not include
any information that: (i) is or becomes generally known to the public without
violation of these Terms by either party; (ii) is obtained by the receiving
party from a source other than the disclosing party without obligation of
confidentiality, including to either party; (iii) is independently developed by
the receiving party without reference to the other party’s Confidential Data;
or (iv) is aggregated data.
6.2. Obligations. During and after
your use of the Site, the party receiving Confidential Information will use the
Confidential Information of the disclosing party solely for the purpose for
which it is provided. Each party will treat the other party’s Confidential
Information with at least the same degree of protection as it would treat its
own Confidential Information of a similar nature, but in no event less than a
reasonable degree of care. Without limiting the foregoing, you may not share
iCapital’s Confidential Information with any other party or use it for any
purpose other than the evaluation of the merits of an investment opportunity
listed on the Site, except that you may share Confidential Information obtained
from the Site with your Authorized User or legal, tax or other professional
advisor, in each case, if such third party has a need to know basis to know
such Confidential Information, has been notified of the confidential nature of
the information, and agrees to maintain the confidentiality thereof.
Notwithstanding the foregoing confidentiality requirements, the receiving party
may disclose Confidential Information to the extent such disclosure is required
by law or order of a court or other governmental authority, provided it uses
commercially reasonable efforts to promptly notify the disclosing party prior
to such disclosure so that the disclosing party has the opportunity to seek a
protective order or otherwise prevent or restrict such disclosure. Notwithstanding anything to the contrary
herein, the receiving party need not provide notice in connection with
disclosure of Confidential Information if disclosed to governmental or
regulatory authorities (including bank examiners and self-regulatory
organizations) or internal or external auditors, in each case upon their request
therefor, pursuant to a regulatory review of the receiving party or its
representatives that is not specifically related to the disclosing party or the
Confidential Information. iCapital reserves the right at all times to disclose
any information as necessary to satisfy any applicable laws, statutes,
regulations, regulatory requirements, legal processes or governmental requests
(“Applicable Law”), or to edit or remove any information or materials on
the Site, in whole or in part, in iCapital’s sole discretion.
6.3. Confidentiality
Period; Remedies.
The confidentiality obligations will survive the termination of these Terms. In the event of a breach of this section, the
disclosing party will be entitled to seek equitable relief in addition to
whatever remedies it might have at law. You acknowledge that iCapital will be
irreparably harmed if the confidentiality obligations hereunder are not
specifically enforced and that iCapital would not have an adequate remedy at
law in the event of an actual or threatened violation by you of your confidentiality
obligations hereunder. Therefore, you agree and consent that, except in the
context of permitted disclosures as described herein, iCapital shall be
entitled to seek an injunction or any appropriate decree
of specific performance for any actual or threatened violation
or breaches by you, without the posting of any bond, and such other relief
as may be just and proper, including the right to recover all losses or damages
suffered by iCapital resulting from any such breach or threatened breach.
7.
Prohibited Activity; Acceptable Use
7.1.
General Restrictions. You are granted a non-exclusive,
non-transferable, revocable right to access and use the Site subject to
compliance with these Terms. By accessing the Site, you agree that you
will not, directly or indirectly, undertake (or cause a third party to
undertake) any of the following: (i) use the Site in violation of these Terms;
(ii) copy, modify, create a derivative work from, reverse engineer or reverse
assemble the Site, or otherwise attempt to discover any source code or method
of, models or data with respect to the Site and any trade secrets therein, or
allow any third party to do so; (iii) sell, assign, sublicense, distribute,
commercially exploit, grant a security interest in or otherwise transfer any
right in, or make available to a third party, the Content or
Site in any way; (iv) use or launch any automated system (excluding authorized
APIs) that accesses the Site in a manner that sends more request messages to iCapital’s servers in a given period of time than a human
can reasonably produce in the same period by using a conventional on-line web
browser; (v) use or attempt to use any engine, software, tool, agent or other
device or mechanism (including but not limited to, browsers, spiders, robots,
avatars or intelligent agents) to navigate or search the Site other than the
search engine and search agents available on the Site and other than generally
available third party web browsers; (vi) use the Site in any manner that damages,
disables, overburdens, or impairs any website or interferes with any other
party’s use and enjoyment of the Site; (vii) mirror or frame the Site or any
part of it on any other web site or web page; (viii) attempt to gain
unauthorized access to the Site or access the Site by any means other than
through the interface that is provided by iCapital for use in accessing the
Site; (ix)distribute, sell, resell or otherwise make the Site available to
any unauthorized third party;(x) use the Site for any purpose or in any manner
that is prohibited by these Terms; (xi) use the Site in any manner that may
violate patent, copyright, trademark, and other laws; and (xii) use the Site
for any purpose or in any manner that is unlawful.
7.2. Acceptable Use. Without limiting Section 7.1 or any other provision herein, you further agree that
you will not, directly or indirectly, use the Site (or cause a third party to
use the Site) in a manner that (i) is threatening, abusive, harassing,
stalking, or defamatory; (ii) is deceptive, false, misleading or fraudulent;
(iii) is invasive of another’s privacy or otherwise violates another’s legal
rights (such as rights of privacy and publicity) or inputs vulgar, obscene,
indecent or unlawful material into the Content;(iv) attempting to probe, scan
or test the vulnerability of a system or network or to breach security or
authentication measures without proper authorization; (v) infringes a third party’s intellectual
property right(s); (vi) uploads files that contain viruses, corrupted files, or
any other similar software or programs that may damage the operation of another
person’s computer; (vii) downloads any file that you know, or reasonably should
know, cannot be legally distributed in that way; (viii) falsifies or deletes
any author attributions, legal or proprietary designations, labels of the
origin or source of software, or other material contained in a file or Content
that is uploaded to the Site; (ix) restricts or inhibits any other user of the
Site from using and enjoying it; (x) is legally actionable between private
parties; and (xi) encourages, promotes, facilitates or instructs others to
engage in illegal activity, or promotes, encourages, or facilitates hate
speech, violence, discrimination based on race, color, sexual orientation,
marital status, gender or identity expression, parental status, religion or
creed, national origin or ancestry, sex, age, physical or mental disability,
veteran status, genetic information, citizenship and/or any other
characteristic protected by law. You
agree that you will not take any of the following actions: willfully tamper
with the security of the Site, including disabling, removing, defeating, or
avoiding any security device or system, circumventing or overcoming any
technological protection measures implemented to restrict access to portions of
the Site, including, without limitation, the password and login functionality
used to authenticate users; or tamper with any customer accounts related
thereto; access data on the Site that is not intended for you; log into a
server or account that you are not authorized to access; attempt to probe, scan
or test the vulnerability of the Site or to breach the security or
authentication measures without proper authorization; willfully render any part
of the Site unusable; or lease, distribute, license, sell or otherwise
commercially exploit the Site.Without
limiting the foregoing, we have the right to fully cooperate with any law
enforcement authorities or court order requesting or directing us to disclose
the identity or other information of anyone posting any materials on or through
the Site. YOU WAIVE AND HOLD HARMLESS THE ICAPITAL PARTIES AND THEIR LICENSEES
AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF
THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY
ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY ICAPITAL, SUCH PARTIES OR
LAW ENFORCEMENT AUTHORITIES.
7.3. Network Security Violations. Any violations of system or network security
including attempts to intentionally access a computer without authorization or
exceed Your authorized access level may result in civil and criminal charges,
including, but not limited to, charges under the Computer Fraud and Abuse Act
(18 U.S.C. §1030). We may investigate occurrences that might involve such
violations and may involve, and cooperate with, law enforcement authorities in
prosecuting users who are involved in such violations. We may, without prior
notice of any kind, restrict or terminate the access of any and all users of
the Site if we reasonably conclude that (i) You or any user engaged or
attempted to engage in any of the unauthorized activities identified in this
Section 7 or (ii) such restriction or termination is necessary
to prevent the spread or further spread of a virus, security breach or system
malfunction. In the event that we restrict or terminate access under these
circumstances, in our sole discretion, we will use commercially reasonable
efforts to restore access and use for proper purposes.
8.
Intellectual Property
8.1. Intellectual Property
Rights.
All content (except User Data) included on the Site, such as text, graphics,
logos, images, as well as the compilation thereof, all iCapital marks
associated with the Site, all data collected by iCapital, the computer programs
developed by iCapital or its personnel, all Third Party Content, all other iCapital
materials, information, software, specifications, APIs, know-how, methodologies
and other works of authorship, and all intellectual property rights in the
foregoing and any software used on the Site or otherwise accessible via the Financial
Services (collectively, “Content”), is the property of iCapital, the
Data Providers or other third parties with whom iCapital does business and is
protected by copyright and other laws that protect intellectual property and
proprietary rights, including trademark and copyright laws. For the avoidance of doubt, the
Site, including Content, is based upon proprietary technology of iCapital, and
the Site, including all intellectual property rights in the Site, belongs to
and is the property of iCapital and/or its licensors (if any). iCapital or its
licensors own and retain all copyrights in the Content. Except as specifically
permitted by these Terms, the Content may not be copied, reproduced, modified,
published, uploaded, posted, transmitted, performed, or distributed in any way,
and you agree not to modify, rent, lease, loan, sell, distribute, transmit,
broadcast, or create derivative works based on the Content or the Site, in
whole or in part, by any means. The logos and designs associated with this Site
and in the Content, and other marks used by iCapital from time to time are
trademarks and the property of iCapital or its licensors. You agree to observe
and abide by all copyright and other proprietary notices, legends or other
restrictions contained on the Site or in any such Content and will not make any
changes thereto. You may not take any action inconsistent with iCapital’s, or
its licensors’ ownership of the Site or Content.To the extent you create any
derivatives to or of any Content, you hereby assign to iCapital all right,
title and interest in and to such derivatives and all intellectual property
rights in the foregoing. No right, title or interest in or to any iCapital
property is granted, transferred or otherwise provided by these Terms.
8.2. DMCA. Pursuant to Title 17, United
States Code, Section 512I(2), notifications of claimed copyright infringement
should be sent to iCapital’s designated agent. ALL
INQUIRIES NOT RELEVANT TO OR NOT COMPLYING WITH THE FOLLOWING PROCEDURE WILL
RECEIVE NO RESPONSE. iCapital respects the intellectual property of others, and
we ask you to do the same. iCapital will process and investigate notices of
alleged infringement and will take appropriate actions under the Digital
Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws.
Upon receipt of notices complying with the DMCA and this section, iCapital will
act to remove or disable access to any Content or other material found to be
infringing or found to be the subject of infringing activity and will act to
remove or disable access to any reference or link to Content or material that
is found to be infringing. If you believe that your work has been copied in a
way that constitutes copyright infringement, please provide notice to iCapital.
To be effective, your notice must include ALL of the following: (i) a physical
or electronic signature of the person authorized to act on behalf of the owner
of an exclusive copyright that is allegedly infringed; (ii) a description of
the copyrighted work that you claim has been infringed; (iii) a description of
where the material that you claim is infringing is located on the Site; (iv)
your address, telephone number, and email address and all other information
reasonably sufficient to permit iCapital to contact you; (v) a statement by you
that you have a good faith belief that the disputed use is not authorized by
the copyright owner, its agent, or the law; and, (vi) a statement by you, made
under penalty of perjury, that this information is accurate and that you are
the copyright owner or authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed. All such notices of claimed copyright
infringement should be directed to legalnotices@icapitalnetwork.com (with “Notice of Infringement” in the subject line).
9.
Other Representations,
Warranties and Covenants
You hereby represent, warrant and covenant to
iCapital that you,(i) if an entity, have been duly formed with, and at all times,
shall maintain in full force and effect all requisite power and authority, all
necessary authorizations, approvals, orders, licenses, certificates and permits
of and from all governmental authorities, and all necessary rights, licenses
and permits from other parties, to agree to these Terms and engage in the
activities contemplated by these Terms; (ii) continue to be duly authorized and
empowered under all Applicable Laws to engage in the activities contemplated by
these Terms; (iii)maintain such books and records as are required by Applicable
Law in connection with these Terms; (iv) make all disclosures that are required
by Applicable Law in connection with these Terms and (v) obtained the necessary
consents under any Applicable Laws and regulations relating to the privacy or
processing of personal data of your investors.
10.
Securities Products
10.1.Disclaimer. None of the information contained in the Site
constitutes a recommendation, solicitation or offer by iCapital or its affiliates
to buy or sell any securities or other financial instruments or provide any
investment advice or service. The information contained in the Site has been
prepared without reference to any particular individual’s investment
requirements or financial situation. The information and Financial Services
provided on the Site are not provided to and may not be used by any person or
entity in any jurisdiction where the provision or use thereof would be contrary
to Applicable Law of any governmental authority or regulatory or
self-regulatory organization or clearing organization or where iCapital is not
authorized to provide such information or services. Some products and services
described in the Site will not be made available in all jurisdictions and to
all potential users.
10.2.Private Securities. You understand that we may make
available information about securities that are exempt from registration under
the Advisers Act and/or the 33 Act and you agree you will not (i) solicit any
offer to buy or offer to sell or make available interests or shares in any
security (a) in any manner which would be inconsistent with Applicable Law, or
with the procedures for solicitations contemplated in the confidential offering
memorandum of that applicable security or (b) by any form of general
solicitation or advertising, including, but not limited to, any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar medium or broadcast over television, radio, website (excluding the Site
and in such case only in accordance with the terms hereof) or by seminar or
meeting whose attendees have been invited by general solicitations or
advertising, or (ii) take any other action that would cause the sale of
interests or shares in any applicable security to fail to qualify for the
exemption under Section 4(a)(2) of the 33 Act or the Advisers Act.
11.
Marketing Rule
This section is
intended to address U.S. regulatory requirements applicable to “advertisements,”
as defined in Advisers Act Rule 206(4)-1 (the “Marketing Rule”). The Marketing Rule sets forth, among other
things, certain content standards and disclosure requirements applicable to the
marketing of private funds (which includes third-party testimonials and
endorsements) advised by SEC-registered investment advisers. Certain of iCapital’s affiliates advise
private funds that appear on the Site, including “access funds” that typically
exist for the purpose of investing in third-party managed funds. Private funds
advised by third parties, including GP Users, also appear on the Site.
You understand that
the Site contains information regarding iCapital’s and other third parties’
services and activities, including with respect to private funds, which may
constitute an “advertisement” as defined under the Marketing Rule. Unless and
only to the extent otherwise permitted under any other Supplemental Terms, your
access to the Sites is not intended to permit you to engage in, and you are not
authorized to and shall not engage in (nor are you authorized to, nor shall
you, direct or otherwise permit any third party to engage in), any
communication which is or contains an “advertisement,” “endorsement,” or
“testimonial” (as each such term is defined under the Marketing Rule) of
iCapital, any GP User, or any fund listed on the iCapital platform, and you
shall not use any information or materials obtained from or in connection with
any Site for such purposes.
In any event and
notwithstanding the foregoing, to the extent you are an “investment adviser” as
defined in the Marketing Rule, all of your activities, including, without
limitation, those in connection with your use of any Site, shall be in
accordance with all aspects of the Marketing Rule applicable to or in respect
of such activities, iCapital, any GP User, or any fund listed on the iCapital
platform.
You understand that,
as a result of the relationship between iCapital and other Users that provide
Financial Services (including, specifically, GP Users), (i) iCapital is
financially compensated for such arrangements through payment of, as
applicable, management, servicing or similar fees (which are calculated as
described in documents pertaining to securities offerings of iCapital or the GP
Users and their affiliates) and, if applicable, certain fees for placement of
investors in the securities offered by iCapital or GP Users and their
affiliates (which are typically calculated as a percentage of an investor’s
aggregate commitment to the offered securities), and (ii) the existence of such
compensation may create conflicts of interest whereby, for example, iCapital
may (a) be more inclined (x) to establish access funds for investment in
securities sponsored or managed by the GP Users and their affiliates than for
investment in securities sponsored or managed by other fund managers and (y) to
establish access funds upon terms and conditions more favorable to the GP Users
and their affiliates than iCapital would otherwise agree to in the absence of
such compensation; (b) be more inclined to make positive statements about the
GP Users and their affiliates in order to encourage investors to make a larger
commitment to the securities offered by GP Users and their affiliates, thereby
increasing the fees paid to iCapital; or (c) to vote or exercise consent
rights, if any, in respect of interests in underlying securities held by access
funds in a manner more favorable to such GP Users.
12.
Minimum System Requirements; Links to Third-Party Sites
and Products
12.1.Minimum System
Requirements. You will not be
provided any copies of any software or a copy of the Site. You shall bear your
own costs in connection with the Site, including allocating sufficient internal
technology resources and procuring all services, desktop hardware, desktop software,
and other technology (including Internet access and web browser) necessary to
access the Site. At all times during
your use of the Site, you shall be required to maintain minimum system levels
as may be set forth by iCapital from time to time.
12.2.Linked Sites. The Site may contain links to other websites or
embedded functionality provided by other websites, (e.g. DocuSign) (“Linked
Sites”), which may or may not be under the control of iCapital. For the
avoidance of doubt, iCapital is not responsible for the contents of any Linked
Site that is owned or operated by a third party (“Third-Party Links”),
including without limitation any link contained in a Linked Site, or any
changes or updates to a Linked Site. iCapital provides any Third-Party Links to
you only as a convenience, and the inclusion of the same does not imply
endorsement by iCapital or any association with its operators.
12.3.Third-Party Accounts. You may be able to connect your iCapital account to
third-party accounts. By connecting your iCapital account to your third-party
account, you acknowledge and agree that you are consenting to the continuous
release of information about you to others (in accordance with your privacy
settings on those third-party sites).If
you do not want information about you to be shared in this manner, do not use
this feature.
13.
Indemnification
To the maximum extent permitted by law, you
agree to indemnify, defend and hold harmless iCapital Parties and Data
Providers for any losses, costs, lawsuits, liabilities and expenses (including
reasonable attorneys’ fees) relating to or arising out of (i) your or your
Authorized Users’ use of or inability to use the Site or Financial Services (other
than to the extent resulting from iCapital’s gross negligence, fraud or willful
misconduct), (ii) your or your Authorized Users’ unauthorized use of personal
information derived from, or provided to,the Site or Financial Services, (iii)
any act of negligence, willful misconduct, fraud or bad faith by you or your
Authorized Users, (iv) your or your Authorized Users’ violation of these Terms
or your or your Authorized Users’ violation of any rights of a third party, (v)
your violation of any Applicable Law, (vi) your or your Authorized Users’
provision or use of User Data, or (vii) in the case of a financial advisor and
other intermediary users,any claim by your client or any other third party with
respect to a security offered on the Site arising out of your or your Authorized
Users’ actions. iCapital reserves the right, at its own cost, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by you, in which event you will fully cooperate with iCapital
in asserting any available defenses.
14.
Disclaimer; Limitation of Liability
14.1.GENERAL. BY USING THE SITE OR FINANCIAL SERVICES, YOU AGREE THAT
THE INFORMATION AND CONTENT CONTAINED THEREIN IS ONLY FOR YOUR GENERAL
INFORMATION AND USE AND IS NOT INTENDED AS A RECOMMENDATION OF ANY SECURITY OR
FUND DESCRIBED THEREIN, AN OFFER OF ANY SECURITY OR FUND, OR AN INVITATION FOR
AN OFFER. IN PARTICULAR, THE CONTENT DOES NOT CONSTITUTE ANY FORM OF ADVICE,
RECOMMENDATION, REPRESENTATION, ENDORSEMENT, OR ARRANGEMENT BY ICAPITAL OR
ANY OF ITS EMPLOYEES AND IS NOT INTENDED TO BE RELIED UPON BY YOU IN MAKING (OR
REFRAINING FROM MAKING) ANY SPECIFIC INVESTMENT OR OTHER DECISIONS. YOU SHOULD
CONSULT YOUR OWN PROFESSIONAL TAX, LEGAL AND OTHER APPROPRIATE ADVISORS BEFORE
MAKING ANY SUCH DECISION. ANY AGREEMENTS, TRANSACTIONS OR OTHER ARRANGEMENTS
MADE BETWEEN YOU AND ANY THIRD PARTY NAMED ON (OR LINKED TO OR FROM) THE SITE OR
FINANCIAL SERVICES ARE AT YOUR SOLE DISCRETION AND RESPONSIBILITY. BY USING THE
SITE OR FINANCIAL SERVICES, YOU EXPRESSLY AGREE THAT SUCH USE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
SITE AND FINANCIAL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND
“WITH ALL FAULTS” BASIS.
14.2.LIMITATION OF LIABILITY. YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW,ICAPITAL
AND ICAPITAL PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSSES THAT RELATE TO
YOUR BUSINESS OR INVESTMENT CHOICES INCLUDING LOST PROFITS OR LOSS OF PRIVACY
OR LOSS OF OR DAMAGE TO DATA, OR ANY IMPROPER USE OR IMPROPER DISCLOSURE OF
INFORMATION CAUSED BY YOU OR ANY PERSON USING YOUR, OR AN AUTHORIZED USER’S,
LOGIN CREDENTIALS.ICAPITAL CANNOT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DOES
NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM
THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE OR OF THE INTERNET, OR FOR
MISUSE OF ANY ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED
THROUGH THE SITE. IN NO EVENT SHALL ICAPITAL’S AGGREGATE LIABILITY
HEREUNDER EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00).
14.3.NO WARRANTIES. YOU ACCEPT THAT, EXCEPT WHERE REQUIRED BY LAW, WE DO
NOT GIVE ANY WARRANTIES WITH RESPECT TO THE SITE, FINANCIAL SERVICES, OR ANY
CONTENT. ICAPITAL HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS OR DUTIES OF
EVERY NATURE WHATSOEVER (EXCEPT TO THE EXTENT THAT SUCH WARRANTIES CANNOT BE
WAIVED UNDER APPLICABLE LAW), INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE, ANY EXPRESS OR STATUTORY WARRANTIES, AND ANY WARRANTIES OR
DUTIES REGARDING ACCURACY, TIMELINESS, COMPLETENESS, PERFORMANCE, AVAILABILITY,
LACK OF NEGLIGENCE, OR OF WORKMANLIKE EFFORT. NEITHER DO WE PROVIDE ANY
WARRANTY THAT THE SITE IS FREE FROM INFECTION BY VIRUSES OR ANYTHING ELSE THAT
HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES (EXCEPT WHERE REQUIRED BY LAW).YOU FURTHER
ACKNOWLEDGE AND AGREE THAT THE SITE AND FINANCIAL SERVICES MAY NOT MEET YOUR
REQUIREMENTS, MAY NOT BE COMPATIBLE WITH ANY PARTICULAR INFORMATION SYSTEM, AND
MAY NOT RESULT IN ANY ACTUAL BUSINESS OPPORTUNITIES, REVENUE OR SAVINGS. YOU
FURTHER ACKNOWLEDGE AND AGREE THAT THE SITE AND FINANCIAL SERVICES MAY NOT BE
CONTINUOUSLY AVAILABLE AND MAY CONTAIN ERRORS, BUGS, MALICIOUS CODE, AND OTHER DEFECTS
THAT MAY NOT BE CORRECTED AND THE CONTENT MAY NOT BE ACCURATE, TIMELY OR
COMPLETE. THE SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT
IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND,TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ICAPITAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY
FAILURES, VIRUSES, LOSS OR COMPROMISE TO USER DATA, OR OTHER DAMAGE RESULTING
FROM SUCH PROBLEMS. THE ENTIRE RISK AS TO THE USE OF THE SITE AND FINANCIAL
SERVICES IS ASSUMED BY YOU. NOTHING IN THIS CLAUSE EXCLUDES ANY STATUTORY
WARRANTIES OR GUARANTEES THAT YOU MAY HAVE UNDER APPLICABLE LAWS.
14.4.Other Exclusions. In addition to but
separate from the above specific exclusions and to the full extent allowed by Applicable
Law, you also agree that iCapital will not be liable to you for any other
indirect, special, consequential incidental, punitive or exemplary damages
whatsoever that arise out of or are related to your use of the Site. Further, iCapital
is not liable for any Force Majeure event. We do not
control telephones, third-party communications networks (including your
Internet service provider) or the Internet or the acts of third parties, and
you agree that we can therefore not be liable for any problem experienced by
you on account of faults and failures in such systems. “Force Majeure”
shall mean any cause or causes beyond the reasonable control of iCapital (which
include but are not limited to strikes, riots, war, acts of God, invasion,
fire, explosion, floods, epidemics, pandemics, public health crises, and acts
of government or governmental agencies or instrumentalities).
15.
Geographic
Restrictions
We make no claims that the Site, Financial
Services or any Content is accessible, lawful, or appropriate outside of the
United States. Access to the Site may not be legal by certain persons or in
certain countries. If you access the Site from outside the United States, you
do so on your own initiative and are responsible for compliance with local
laws.
16.
Marketing
16.1.Marks. The trademarks,
trade names, service marks, and logos, whether or not registered by a party (“Marks”)
of iCapital and you are the sole and exclusive property of the respective
owning party.
16.2.Permission to Publish
Marks. You hereby agree to
(i) allow iCapital to include a brief description of the Financial Services
provided to you in iCapital’s promotional materials, (ii) allow iCapital to
make reference to you in case studies, return on investment analyses, white
papers and related marketing materials, (iii) serve as a reference to
iCapital’s potential clients, (iv) provide interviews to the news media and
provide quotes for press releases, (v) make presentations at conferences, upon
iCapital’s reasonable request and at iCapital’s cost, (vi) permit iCapital to
use the your Mark in iCapital’s product literature, press releases, social
media and other marketing materials, and (vii) participate in case studies for
the Financial Services at the request of iCapital. You hereby consent to the
receipt of marketing communications from iCapital.
16.3.Prohibited Use. You shall not, nor shall any of your respective
affiliates or agents, without the prior written approval of iCapital, (i) name
or show iCapital as a client or business partner or otherwise in your
advertising or marketing materials or other text, audio, visual or electronic
media for public distribution, without iCapital’s advanced written consent
(email sufficient), or (ii) issue any press releases announcing the execution
of the transactions contemplated hereby or otherwise make any public statements
regarding the transactions contemplated hereby, except for the issuance of a
mutually agreed upon press release, on the terms and conditions as agreed to by
iCapital.
17.
Assignment
Neither party may assign these Terms or
otherwise transfer any right or obligation under these Terms, without the prior
written consent of the other party, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing, (i) either party may assign these
Terms in their entirety to an acquirer of all or substantially all of the assets
or equity of such party to which these Terms relate, whether by merger, asset
sale, or otherwise,provided that, in the event of an assignment by you, all fees
then due and payable to iCapital have been paid, and (ii) iCapital may assign
its rights or obligations to its affiliates. Any attempt by a party to assign
or transfer its rights or obligations under these Terms other than as permitted
by this Section 17 shall be void and of no effect. Subject to the foregoing, these
Terms shall be binding upon and inure to the benefit of the parties’ successors
and permitted assigns.
18.
Communications; Notice
Visiting the Site or sending emails to
iCapital constitutes electronic communications. You consent to receive
electronic communications, and you agree that all agreements, notices,
disclosures and other communications that we provide to you electronically, via
email and on the Site, satisfy any legal requirement that such communications
be in writing. In addition, we welcome your questions or comments regarding the
Terms. All notices and communications with respect to
these Terms shall be sent to iCapital at the following: iCapital
Network, Inc., ATTN: LEGAL, 60 East 42nd Street, 26th Floor, New York, New York
10165.
19.
Dispute Resolution
PLEASE READ THIS SECTION OF THESE TERMS CAREFULLY.
IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHTS TO TRY CLAIMS IN COURT BEFORE A
JUDGE OR JURY AND THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE,
OR REPRESENTATIVE CLAIM OR ACTION.
19.1.Mandatory Informal
Dispute Resolution.
If either party has a Claim (as defined
below), the parties agree to make a good faith effort to resolve it informally
prior to initiating a formal arbitration proceeding. The party that intends to
initiate an arbitration proceeding must first send a notice to the other party
that describes the Claim. The notice must include the initiating party’s name
and contact information (address, telephone number, and email address) and a
detailed description of (1) the nature and basis of the Claim
and (2) the nature and basis of the relief sought, with a detailed
calculation. Your notice shall be sent by mail to iCapital Network, Inc., ATTN:
LEGAL, 60 East 42nd Street, 26th Floor, New York, New York 10165 or by email to:
legalnotices@icapitalnetwork.com. You must personally sign the
notice. Our notice to you shall be sent to the most recent contact information
we have on file for you. If requested by the party that receives the notice,
the other party must personally participate in a telephone settlement
conference (if a party is represented by counsel, counsel may also participate)
to discuss the Claim. If the Claim is not resolved within sixty (60) days after
receipt of the notice (which period can be extended by agreement of you and
us), either party may commence an arbitration proceeding consistent with the
process set forth below. Compliance with and completing this informal dispute
resolution process is a condition precedent to filing a demand for arbitration.
The statute of limitations and any filing fee deadlines for a formal
arbitration proceeding shall be tolled while the parties engage in this
informal dispute resolution process. If the sufficiency of a notice or
compliance with this informal dispute resolution process is at issue, it may be
decided by a court at either party’s election, and any arbitration proceeding
shall be stayed pending resolution of the issue. A court of competent
jurisdiction shall have the authority to enforce this condition precedent to
arbitration, which includes the power to enjoin the filing or prosecution of a
demand for arbitration.
19.2.Agreement to
Arbitrate.
If the parties are unable to resolve a Claim through the mandatory informal
dispute resolution process, the parties agree that, except as set forth below,
all Claims between you and us will be resolved entirely through the binding
individual arbitration process set forth in this section. For purposes of this section,
“iCapital,” “we,” “our,” and “us” include iCapital and its employees, officers,
directors, parents, agents, controlling persons, subsidiaries, affiliates,
predecessors, acquired entities, successors, and assigns.
19.3.Claims.“Claims”
subject to this section include all of the following: (1) claims relating to or
arising out of these Terms or any prior or later versions of these Terms, as
well as any changes to these Terms; (2) claims relating to or arising out of
any aspect of any relationship between you and us; (3) claims relating to or
arising out of your access of, use of, or any transactions through, by, or
using the Site or Financial Services; and (4) claims relating to the
interpretation, scope, applicability, or enforceability of these Terms or this section
except as set forth in the Mandatory Informal Dispute
Resolution provision above, and the Public
Injunctive Relief Waiver and the Additional Procedures for Mass Arbitration
provisions below. Except as provided above and below, as applicable, (1)
claims are subject to arbitration whether they are based in contract, tort,
federal or state statute, constitution, regulation, or any other legal theory,
or whether they seek legal or equitable remedies; (2) all claims are subject to
arbitration whether they arose in the past, may currently exist, or may arise
in the future; and (3) claims include claims or disputes that arose before the
parties entered into these Terms or after termination of these Terms.
19.4.Claims Not Covered By
Arbitration.
Claims filed by you or by us in a small claims court are not subject to
arbitration, so long as the dispute remains in such court and advances only an
individual claim for relief. Claims filed by you or
us in court to enjoin infringement or other misuse of intellectual property
rights and claims filed by us in court to enjoin any actual or threatened
violation or breaches by you of your confidentiality obligations hereunder are
also not subject to arbitration. The “Class and Representative Action Waiver”
and “Public Injunctive Relief Waiver” provisions set forth additional
claims not subject to arbitration.
19.5.Commencing an
Arbitration.Except
as set forth in the Additional Procedures for Mass Arbitration
provision, unless the parties agree in writing to select a different
arbitration administrator, the arbitration shall be administered by the
American Arbitration Association (“AAA”) as follows: under AAA’s Commercial
Rules for commercial disputes and under AAA’s Consumer Arbitration Rules for consumers with non-commercial disputes, except as
modified by this section. AAA’s rules may be obtained from www.adr.org or
1-800-778-7879 (toll-free). If AAA is for any reason
unable to serve and the parties are unable to agree on an alternative
arbitration administrator, then a court of competent jurisdiction shall appoint
an arbitration administrator. To commence an arbitration proceeding, you or iCapital
must send a personally signed demand for arbitration that describes (1) the
nature and basis of the Claim(s), and (2) the nature and basis of the relief
sought, including a detailed calculation, along with a certification that you
or we are party to this section and completed the informal dispute resolution
process referenced above. Your notice shall be sent to: legalnotices@icapitalnetwork.comor iCapital Network, Inc.,
ATTN: LEGAL, 60 East 42nd Street, 26th Floor, New York, New York 10165. Our notice shall be sent to the most recent
contact information we have on file for you. You or iCapital must also contact
AAA or chosen arbitration administrator and follow its appropriate procedures
to commence the arbitration.
19.6.Arbitration Procedure. Unless you and we
agree otherwise in writing, the arbitration shall be decided by a single,
neutral arbitrator, who shall be a retired judge or a lawyer with at least ten
years of experience, selected in accordance with the chosen arbitration
administrator’s rules.The arbitrator will decide the Claim or Claims in
accordance with the terms of these Terms and applicable substantive law,
including the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”),
and applicable statutes of limitation. The arbitrator shall honor claims of
privilege recognized at law. Except as provided in the “Public Injunctive
Relief Waiver” provision below, the arbitrator may award damages or other
relief (including injunctive relief) available to the individual claimant under
Applicable Law.
The arbitrator will
take reasonable steps to protect proprietary or confidential information. Any
arbitration hearing shall take place in the county in which you reside, unless
the parties agree in writing to a different location or the arbitrator so
orders. If all Claims are for $10,000 or less, you or we, as the case may be, may
choose whether the arbitration will be conducted solely on the basis of
documents submitted to the arbitrator, through a telephonic hearing, or by an
in-person hearing in accordance with the arbitration administrator’s rules. You
and an iCapital representative shall personally appear (with counsel if you and
we are represented) at an initial telephone conference with a case manager
before an arbitrator is appointed and at a hearing should one be scheduled by
the arbitrator.
At your or our
request, the arbitrator will issue a reasoned written decision sufficient to
explain the essential findings and conclusions on which the award is based. The
arbitrator’s award shall be final and binding except that any party may appeal
any award relating to a Claim for more than $100,000 or for injunctive relief
to a three-arbitrator panel appointed by the arbitration administrator, which
will reconsider de novo any aspect of the appealed award. The panel’s decision
will be final and binding. In either event, you or we may seek to have the
award vacated or confirmed and entered as a judgment in any court having
jurisdiction.
19.7.Arbitration Costs.Payment of all filing, administration, and arbitrator fees
will be governed by the applicable AAA rules as set forth above or, if a
different arbitration administrator is selected, its rules. If you are a
consumer with a non-commercial dispute, we will pay any filing, administration,
or arbitrator fees the arbitration administrator requires you to pay if, in a
writing signed by you: (1) you claim to be unable to afford it; and (2) you
demonstrate that you sought, but were unable to obtain, a waiver of that fee
from the arbitration administrator. To the extent allowed by Applicable Law and
our agreements, the arbitrator may award arbitration costs and attorneys’ fees
to the prevailing party.
19.8.Jury Waiver and Limitation of Rights. You and we agree
that, by agreeing to arbitrate any Claims, the parties are each waiving the
right to a trial by jury or a trial before a judge in court (except for matters
that may be taken to a court pursuant to this section). You and we acknowledge
that arbitration will limit our legal rights, including the right to
participate in a class action, the right to a jury trial, the right to conduct
full discovery, and the right to appeal.
19.9.Class Action and Representative Action
Waiver.You and we agree that each may bring Claims against the
other only in an individual capacity, and not as a plaintiff or class member in
any purported class or representative proceeding. Further, unless
mutually agreed to in writing by you and us, the claims of two or more persons
may not be joined, consolidated, or otherwise brought together in the same
arbitration. The arbitrator shall have no authority to
conduct any class, private
attorney general or other
representative proceeding. This provision does not apply to requests for
public injunctive relief, which are addressed in the Public Injunctive
Relief Waiver provision below.
19.10.
Public Injunctive Relief Waiver.Neither
you nor we will have the right to seek public injunctive relief as a remedy for
any Claim against one another (a “Public Injunctive Relief Request”) in
arbitration, if such a waiver is permitted by the FAA. If such a waiver is
deemed unenforceable, you and we agree that the Public Injunctive Relief
Request shall be severed from any other Claims and/or remedies you have. The
Public Injunctive Relief Request must be adjudicated by a court after all your
other Claims to be decided in arbitration under this section are resolved in
arbitration. The validity, enforceability, and effect of this provision
shall be determined exclusively by a court, and not by any arbitration
administrator or arbitrator.
19.11. Additional Procedures for Mass Arbitration. If twenty-five (25)
or more similar claims of consumers with non-commercial disputes are asserted
against iCapital by the same or coordinated counsel or are otherwise
coordinated (and your Claim is one such claim), you understand and agree that
the resolution of your Claim might be delayed. You also agree to the following
process and application of the AAA Multiple Consumer Case Filing Fee Schedule
and Supplementary Rules.
Counsel for the claimants and counsel for iCapital shall
each select fifteen (15) cases (per side) to proceed first in individual
arbitration proceedings as part of a bellwether process. The remaining cases
shall not be filed or deemed filed in arbitration nor shall any AAA fees be
assessed in connection with those claims until they are selected to proceed to
individual arbitration proceedings as part of the initial bellwether process.
If the parties are
unable to resolve the remaining cases after the conclusion of the initial
thirty (30) proceedings, the parties shall participate in a global mediation
session before a retired judge, and iCapital shall pay the mediator’s fee. If
the parties are unable to resolve the remaining matters in mediation at this
time, each side shall select twenty (20) cases (per side) to proceed to
individual arbitration proceedings as part of a second bellwether process. (If
there are fewer than forty (40) claims remaining, all shall proceed.) The
remaining cases shall not be filed or deemed filed in arbitration nor shall any
AAA fees be assessed in connection with those cases until they are selected to
proceed to individual arbitration proceedings as part of this staged process.
If the parties are
unable to resolve the remaining cases after the conclusion of the forty (40)
proceedings, the parties shall participate in another global mediation session
before a retired judge, and iCapital shall pay the mediator’s fee. If the
parties are unable to resolve the remaining matters in mediation at this time,
this staged process shall continue with one hundred (100) cases proceeding at
one time that are selected randomly or by the AAA in staged sets, until all the
claims included in these coordinated filings, including your case, are
adjudicated or otherwise resolved. Between staged sets of proceedings, iCapital
agrees to participate in a global mediation session should your counsel request
it in an effort to resolve all remaining claims.
A single arbitrator
shall preside over each case. Only one case may be assigned to each arbitrator
unless the parties agree otherwise. The statute of limitations and any filing
fee deadlines shall be tolled for Claims subject to this provision from the
time the first cases are selected for the initial bellwether process until the
time your case is selected, withdrawn, or otherwise resolved. A court of
competent jurisdiction shall have the authority to enforce this paragraph by
enjoining the mass filing or prosecution of arbitration demands against iCapital.
Should a court of competent jurisdiction decline to
enjoin this provision, you and we agree that your and our counsel shall engage
in good faith discussions with the assistance of an arbitrator to devise and
implement procedures that ensure that arbitration remains efficient and
cost-effective for all parties. Either party may engage with the AAA to
address reductions in arbitration fees.
19.12. Governing Law.Notwithstanding any other section in these
Terms to the contrary, you and we agree that you and we are participating in
transactions that involve interstate commerce and that this section and any
resulting arbitration are governed by the FAA. Notwithstanding any section in these
Terms to the contrary, to the extent state law applies, the laws of New York without
regard to conflicts of law principles shall apply. No state statute pertaining
to arbitration shall apply.
19.13. Severability.Notwithstanding any section in these Terms to
the contrary, if any provision of this section, except for the Class Action
and Representative Action Waiver provision above, is deemed invalid or
unenforceable for any reason, it shall not invalidate the remaining portions of
this section. However, if the Class Action and Representative Action Waiver
provision is deemed invalid or unenforceable in whole or in part, then this
entire section shall be deemed invalid and unenforceable.
20.
Miscellaneous
iCapital reserves the right, in its sole discretion, to terminate
your access to the Site and a Financial Service or any portion thereof at any
time, without notice. To the maximum extent permitted by law, these Terms are
governed by the laws of the State of New York, and you hereby consent to the
exclusive jurisdiction and venue of courts in New York in all disputes arising
out of or relating to the use of the Site. Use of the Site is unauthorized in
any jurisdiction that does not give effect to all provisions of these Terms,
including without limitation, this section. You agree that no joint venture,
partnership, employment, or agency relationship exists between you and iCapital
as a result of these Terms or use of the Site. Headings used in these Terms are
for reference purposes only. Unless otherwise stated, if any provision of these
Terms is determined to be invalid or unenforceable pursuant to Applicable Law,
such provision shall be deemed deleted from these Terms, but such deletion
shall not affect the enforceability of any other provision in these Terms. Those
terms that by their nature are intended
to survive any expiration or termination of the Terms, including but not
limited to confidentiality and indemnification obligations, shall so survive.These
Terms, as applicable, constitute the entire agreement between you and iCapital
with respect to the Site and Financial Services and supersede all prior or
contemporaneous communications and proposals, whether electronic, oral or
written, between you and iCapital with respect to the Site and Financial
Services.
****
European
Terms of Service Addendum
Effective Date: August 16, 2023
This European Terms of
Service Addendum (“Terms”) are Supplemental Terms to our Terms of
Service and are applicable to any individuals accessing the Site from the
European Economic Area. In the event of
a conflict between these Terms and any other terms, guidelines or rules that
apply to any specific portion of Financial Services, these Terms shall
supersede and control with respect to such conflict. Any capitalized terms not
defined herein shall have the meaning provided in the Terms of Service.
The
relevant section of the www.icapital.com website relating to certain investment
funds (including their respective sub-funds) (each a “Fund” and such relevant
section of the website, “Site”) is an alternative investment platform
operated by Institutional CN (Europe) – Empresa de Investimento, S.A. (“iCapital
EU”) and hosted by iCapital Network Technology Solutions, LLC (together
with its affiliates and subsidiaries, the “Site Provider”) on behalf of
iCapital EU. The Site Provider (including its affiliates)
owns (as the case may be), licenses and hosts certain websites, applications
and platforms, including the Site.
Some of the provisions of
these Terms are for the benefit of the Site Provider. Your use of the Site
might also be subject to certain additional terms of use required by the Site
Provider, and you agree that your use and access to the Site will also be
governed by such terms.
With the exception of (i)
any terms specifically relating to the Site which the Site Provider requires
you to agree to and/or accept in order to access and/or use the Site or which
are accessible from a hyperlink on the Site, (ii) any terms which iCapital EU
requires you to agree to and/or accept in order to access and/or use the Site,
and (iii) the relevant privacy notices or policies of the Site Provider, these
Terms, including any addenda or Supplemental Terms hereto, as applicable,
constitute the entire agreement between (x) the User and (y) iCapital EU and/or
the Site Provider with respect to the Site, and supersede all prior or
contemporaneous communications and proposals, whether electronic, oral or
written, between the User and iCapital EU (and/or the Site Provider, where
applicable) with respect to the Site. Other than as set out above, any terms of
service or terms of use regarding the wider www.icapital.com website not
referring to iCapital EU do not constitute part of User’s agreement with
iCapital EU or the Site Provider with respect to this Site.
Users
qualifying as retail investors within the meaning of the Regulation (EU)
2015/760 of the European Parliament and of the Council of 29 April 2015 on
European long-term investment funds (the “ELTIF Regulation”) and who are
accessing the Site in relation to a fund subject to the ELTIF Regulation,
should also refer to Section 6.
1.
The Site and Financial Services
1.1. Financial
Services. The Financial Services we offer allow potential and
existing investors who are Eligible Investors in relation to such funds (each a
“Relevant Fund”), to review information on privately offered funds, to
submit subscription application and retrieve subscription documents, and to
receive reporting with respect to those investments.
For the purposes of these Terms, an “Eligible
Investor” is an investor that is (a) eligible for an investment in the
Relevant Fund under the private placement memorandum, prospectus or offering
circular, any supplements thereto, the limited partnership agreement or
articles of incorporation (as applicable), subscription agreement and other
fund documents of that Relevant Fund, and (b) whose participation in the
Relevant Fund (and any marketing, promotion or distribution of Relevant Fund
interests to such person) can lawfully be made under the Applicable Laws of the
investor’s jurisdiction and will not subject the Relevant Fund or iCapital EU
to or require any Relevant Fund or iCapital EU to make or undertake any
additional registration, notification, filing (or similar) obligations in
addition to those the Relevant Fund and/or iCapital EU as applicable has made
which are valid at the relevant time.
1.2. Role
of the Site Provider. iCapital EU has subcontracted parts of the
services provided hereunder to the Site Provider, including the development,
operation and maintenance of the Site. The Site is an auxiliary communications
infrastructure system used for the purposes of storing information on certain
privately offered investment funds and is hosted by the Site Provider on behalf
of iCapital EU. The Site Provider, on behalf of iCapital EU, provides technical
support to Users only and is not authorized or regulated in the European
Economic Area (“EEA”), the United Kingdom (“UK”), or Switzerland
for the purposes of providing the Site. The Site Provider is not providing any
investment service or carrying on any regulated activity for which a license is
required in the EEA, the UK and/or Switzerland. Nothing in these Terms shall
infer or create a client relationship between a User and the Site Provider. For
the avoidance of doubt, to the extent any subscription documentation is
uploaded, sent and/or transmitted for purposes of these Terms.
1.3. Privacy
Notice. Your use of the Site is subject to the
Privacy Policy. Please review the Privacy Policy, which also governs the Site and
informs Users of the data collection practices. The Privacy Policy is
available at https://icapital.com/privacy-policy/. User expressly permits
iCapital EU to share any information it provides to iCapital EU with the Site
Provider in connection with the provision of the services provided hereunder
and for the purposes of management and operation of the Site by the Site
Provider.
2.
Other
Representations, Warranties and Covenants
User hereby represents,
warrants and covenants to iCapital EU and the Site Provider as follows:
(i)
User’s use of or access to the Site will not
require the Site Provider to be authorized or regulated under any Applicable
Law;
(ii)
Your use of the Site will be for the purposes
of your business, trade or profession. You and the Site Provider acknowledge
and agree that the requirements of the E-Commerce Directive (2000/31/EC), as
implemented in the EEA and the UK or its equivalent in Switzerland, are
excluded to the fullest extent permissible by law;
(iii)
User will act in conformity with the Relevant
Fund’s private placement memorandum, prospectus or offering circular, any
supplements thereto, the articles of incorporation, limited partnership
agreement or other applicable constituent documents of the Relevant Fund, the
subscription agreement and all other Applicable Laws to the relevant User’s use
of the Site, including any investment restrictions, guidelines, mandates to
which it and/or its clients or principals are subject; and
(iv)
Where User is accessing the Site in its
capacity as a distributor of an ELTIF (as such terms are used in the ELTIF
Regulation), such User shall:
a. maintain
such books and records as are required by Applicable Law in connection with
these Terms; and
b. make
all disclosures that are required by Applicable Law in connection with these
Terms.
3.
Securities Products
3.1. Advisor
or Fiduciary. Unless explicitly agreed otherwise in
writing, neither iCapital EU nor the Site Provider is, by virtue of making the
information contained on the Site available to you or facilitating such
arrangements (respectively), acting as your advisor or fiduciary. The Site is
provided to you solely on the basis that you have the capability to
independently evaluate risk and will exercise independent judgment in
evaluating investment decisions. Your investment decisions will be based on
your own independent assessment of the opportunities and risks presented by a
potential investment, market factors and other investment considerations.
4.
Geographic
Restrictions
The owner of the Site is
based in the Grand Duchy of Luxembourg. The Site Provider hosts the Site on our
behalf and we provide the Site for intended use by persons located in the EEA,
the UK and Switzerland. We make no claims that the Site or any of its content
is accessible or appropriate outside of the EEA, the UK, or Switzerland. Access
to the Site may not be legal by certain persons or in certain countries. If you
access the Site from outside of the EEA, the UK, or Switzerland you do so on
your own initiative and are responsible for compliance with local laws.
5.
Miscellaneous
IF YOU ARE A CONSUMER AND
HAVE YOUR HABITUAL RESIDENCE IN THE EEA, THE UK, OR SWITZERLAND YOU
ADDITIONALLY ENJOY THE PROTECTION AFFORDED TO YOU BY MANDATORY PROVISIONS OF
THE LAW OF YOUR COUNTRY OF RESIDENCE (AS APPLICABLE).
6.
ELTIF Users
This Section 6 shall only
apply to retail investors within the meaning of the ELTIF Regulation who are
accessing the Site in relation to a fund subject to the ELTIF Regulation (for
the purposes of this Section 6, the “ELTIF Fund”). In relation to such
persons, in case of any discrepancy between the other provisions of these Terms
and this Section 6, the provisions of this Section 6 shall prevail.
6.1. Investment
Advice. You will be provided with appropriate investment
advice. The investment advice will not be provided by iCapital EU, the Site
Provider or their respective affiliates but by a third regulated entity. None
of iCapital EU, the Site Provider or their respective affiliates bear any
responsibility for inappropriate investment advice given by the third regulated
entity.
6.2. Facilities. In
accordance with the ELTIF Regulation and Delegated Regulation (EU) 2018/480
supplementing the ELTIF Regulation, facilities for making subscriptions, making
payments, repurchasing or redeeming units of the ELTIF Fund and to make
available the information the ELTIF Fund and the AIFM are required to provide
under the ELTIF Regulation, will be made available to you.
****
Financial
Services Addendum
Effective Date: August 16, 2023
This Financial Services Addendum (“Financial Services
Addendum”) are Supplemental Terms to our Terms of Service and collectively
govern access to and use of the Financial Services by any individual or entity
creating an account for the Financial Services (“Customer”). Any
capitalized term not defined herein shall have the meaning provided in the
Terms of Service.
By registering,
creating an account, clicking a “Sign Up” or “I accept” or similar button, or
using the Financial Services, you agree to be bound to these terms and
conditions together with all applicable exhibits, order form, purchase
agreement, or other process set forth by iCapital that regulates access to a
Service (an “Order”), attachments, and addenda (the “Addendum”). If you order the Financial Services through
an Order, the Order may contain additional terms and conditions. Unless
expressly set forth otherwise, such additional terms and conditions are hereby
incorporated into this Addendum in relation to your use of the Financial
Services.
In the event of a
conflict, an exhibit, attachment, Order, or addendum prevails over this
Addendum.
We may revise this
Addendum or any additional terms and conditions that are relevant to the
Financial Services from time to time. We will post the revised terms on our
Site with an “effective date”. IF YOU CONTINUE TO USE THE FINANCIAL SERVICES
AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS.
You agree that we shall not be liable to you or to any third party for any
modification of this Addendum.
1.
Customer Responsibilities
You shall, and shall cause each of your
Authorized Users to, abide by the terms of this Addendum. You agree that you
will use the Financial Services, and require your Authorized Users to use the
Financial Services, only in accordance with Applicable Law. Any action or
omission of an Authorized User shall constitute an act or omission on your
part. You will monitor your own use of the Financial Services and report all
use of the Financial Services that you become aware of, by you or your
Authorized Users, that exceeds the standards or limits set forth in this
Addendum or any applicable Order. iCapital may investigate and take any (or no)
action that it believes is appropriate for violation of this Addendum,
including, but not limited to terminating access by Authorized Users. You agree
that you will not (or cause or permit any Authorized User or other person to)
sell, assign, sublicense, distribute, commercially exploit, grant a security
interest in or otherwise transfer any right in, or make available to a third
party, the Financial Services in any way.
2.
Other
Representations, Warranties and Covenants
2.1.
Customer Warranty.
Customer hereby
represents, warrants and covenants to iCapital as follows: (i) Customer has a
pre-existing contractual relationship with all applicable sponsors and/or
issuers of each private investment fund, structured investment and similar
alternative investment, annuity products, and securities (collectively, the “Financial
Products”) to be accessed through the Financial Services and is authorized
to provide the Financial Services with respect to each
such Financial Product; (ii) Customer agrees that no iCapital Parties shall
have any responsibility or liability to Customer for any loss, liability,
claim, demand, damage, cost or expense (including without limitation any
attorneys’ fees or accountants’ fees or expenses or any investigatory or legal
fees, or punitive, special or consequential damages) arising out of or relating
to a Financial Product; and (iii) Customer will advise iCapital promptly of:
(a) the receipt by Customer of any communication specifically with respect to
the offering of any Financial Prod interests from the Securities and Exchange
Commission, any state securities commissioner or any other regulatory authority
in any other jurisdiction; and (b) the threat (if such threat is reasonably
likely to have a material adverse effect on a Financial Product) or
commencement of any lawsuit, proceeding or investigation to which Customer is
(or is threatened to be if such threat is reasonably likely to have a material
adverse effect on a Financial Product) a party specifically with respect to the
offering of any Financial Product interests.
2.2.
Acknowledgment; Representations.
You and your Authorized Users (i) acknowledge that iCapital does not intend
to act as a fiduciary under Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended, with
respect to any investor’s decision to purchase, hold, or withdraw from, a
particular Financial Product, and (ii) represent that there are no material
suits, actions, claims or proceedings pending or, to your knowledge, threatened
in any court or before or by any governmental or administrative body, nor have
there been any such material suits, actions, claims or proceedings to which
you, or any of your key employees, is a party, or to which any material portion
of your assets is subject, which, in each case, would be reasonably expected to
have a material adverse effect on your ability to perform your services
hereunder.
3.
Education Services
You agree that with respect to any Financial
Services identified as educational, you are solely responsible for evaluating
the accuracy, completeness, and usefulness of all such information, and the
quality thereof accessed through the Financial Services. iCapital does not
explicitly or implicitly endorse or approve of such information, and does not
warrant the accuracy, completeness or usefulness of such information. We are
not responsible or liable to you or any third party for such information. Any
reliance you place on such information is strictly at your own risk. We
disclaim all liability and responsibility arising from any reliance placed on
such information by you, or by anyone who may be informed of any of such
information.
4.
Insurance
During the term of this Addendum, and for
three (3) years thereafter, you shall maintain insurance coverage, with one or
more insurance companies that have a rating of A minus or better and a
financial size category of VIII or larger (both as determined by A. M. Best
& Company) and that are licensed or approved to do business in the states
where activities described herein are to be performed. This insurance shall
include without limitation the following types and amounts of coverage: (i) Workers’ Compensation and related
insurance as prescribed by the law of each state in which work is performed;
(ii) Employer’s Liability Insurance with limits of at least one million
($1,000,000) for each occurrence; (iii) Comprehensive General Liability
Insurance, including: contractual liability; products and completed operations
coverage; and if the use of motor vehicles is required under this Addendum,
Comprehensive Motor Vehicle Liability Insurance; each with limits of at least
one million dollars ($1,000,000) for bodily injury, including death, to any one
person, and one million dollars ($1,000,000) for each occurrence of property
damage; (iv) Errors and Omissions / Professional Liability Insurance covering
the liability due to error, omission or negligence and internet liability, and
computer related errors and omissions, including identity theft and invasion of
privacy with limits of at least five million dollars ($5,000,000) for each
occurrence; (v) Cyber / Privacy Liability Insurance covering data breaches and
intrusions by a third parties to nonpublic personal information or account
information, with limits of at least five million dollars ($5,000,000); (vi)
Umbrella (Excess) Liability Insurance providing excess coverage to the primary
insurance coverage described in subparagraph (iii) above with limits of at least
three million dollars ($3,000,000); and (vii) a Financial Institution Bond with
limits of at least five million dollars ($5,000,000) covering all thefts and
other dishonest acts by employees. The
amounts of coverage specified above shall not be construed as a limitation of a
party’s liability to the other party under this Addendum. Notwithstanding the
foregoing, to the extent that you are an individual who is accessing the Site
and Financial Services on behalf of yourself and not an entity or another person,
then you shall maintain insurance subject to scope and quantum limitations
appropriate to the nature of your usage of the Financial Services.
****
Structured Investment Marketplace and Online Network “SIMON”
Terms of Service Addendum
Effective
Date: August 16, 2023
1. Introduction
SIMON Markets LLC, SIMON Annuities
and Insurance Services LLC and/or SIMON Technologies LLC and any successor
entities, as listed on the Site (“SIMON,” “we” or “us” “our”)
is the operator and host of the Structured Investment Marketplace and Online
Network, a platform that includes certain structured products and annuity
products and other products and services (including services provided by one or
more third parties) that is accessible through https://www.simonmarkets.com (the “SIMON Platform”).
These terms & conditions (“Terms”) are Supplemental Terms to the
Terms of Service and Financial Services Addendum and collectively govern Your
access to and use of the SIMON Platform. Your compliance with the Terms and any
Related Agreement(s) is a condition of Your access to the SIMON Platform. All
other use is strictly prohibited. Any capitalized terms not defined herein
shall have the meaning provided in the Terms of Service.
BY USING THE SIMON PLATFORM YOU
AGREE TO BE BOUND BY THE TERMS AND ALL DISCLAIMERS AND TERMS AND CONDITIONS THAT
APPEAR ELSEWHERE ON THE SIMON PLATFORM NOW OR IN THE FUTURE. IF YOU DO NOT
AGREE WITH ALL OF THE FOREGOING, YOU MUST IMMEDIATELY DISCONTINUE USING THE
SIMON PLATFORM.
SIMON HAS THE RIGHT TO CHANGE THE
SIMON PLATFORM OR THESE TERMS AT ANY TIME WITHOUT PRIOR NOTICE BY POSTING AN
UPDATED COPY OF THESE TERMS TO THE SIMON Platform, WHETHER AS A RESULT OF
CHANGES IN LAW OR POLICY OR OTHERWISE. THEREFORE, EACH TIME YOU USE THE SIMON
PLATFORM, YOU SHOULD VISIT AND REVIEW THE THEN CURRENT TERMS. YOUR CONTINUED
USE OF THE SIMON PLATFORM WILL CONSTITUTE ACCEPTANCE OF SUCH CHANGES.
SIMON MAY, WITHOUT NOTICE AND IN ITS
SOLE DISCRETION, CHANGE OR DISABLE YOUR ACCESS TO THE SIMON PLATFORM AT ANY
TIME FOR ANY REASON IT DEEMS ADVISABLE OR APPROPRIATE.
2. Services
Offered by the SIMON Platform
The services that are available
through the SIMON Platform may include, among other things, (i) education
modules, (ii) structuring and analytical tools, (iii) a marketplace of
financial products (iv), a service for entering indications of interest, (v)
access through third parties to annuity illustration and e-application services
and other information relating to annuity products, and (vi) certain other
services and tools made available by third parties. You may use some or all of
the services made available to You through the SIMON Platform, which may depend
on Your status as a registered broker-dealer, registered investment adviser,
bank, licensed insurance producer or otherwise.
The services are provided to assist
You in integrating investment and/or annuity products for which SIMON makes
information and related services available through the SIMON Platform,
including exchange-traded funds, structured notes or other debt instruments,
and structured certificates of deposit (collectively, “Investment Products”)
as well as annuity products including those registered as securities under the
Securities Act of 1933, as amended, and those exempt from such registration
(collectively, “Annuity Products”), into Your business. However, the
utility of the SIMON Platform is subject to the use You make of it and it
should not be relied upon as the sole means by which You satisfy Your regulatory
and compliance responsibilities.
SIMON may also offer the SIMON
Platform or any portion thereof to other persons and on different terms than
the terms hereof. SIMON may, from time to time, make changes or additions to
the services available on the SIMON Platform, and any changes or additions will
be reflected on the SIMON Platform. You agree to use the services solely in
accordance the Terms and any additional terms that may be agreed to between You
and us from time to time in relation to the services provided through the SIMON
Platform. SIMON is not obligated to continue to offer any of the services
available through the SIMON Platform.
3. Acceptable
Use
The SIMON Platform is targeted to
broker-dealers, banks (including banks with affiliated broker-dealers),
investment advisers (registered with the Securities and Exchange Commission or
a state), licensed insurance producers, insurers issuing Annuity Products,
issuers and sponsors of Investment Products and other financial intermediaries
and to their qualified employees or agents who are financial professionals and
who are knowledgeable and authorized to offer, buy or transact in Investment
Products and/or Annuity Products. When using the SIMON Platform, You must
comply with all laws and regulatory requirements applicable to Your use of the
SIMON Platform or Your involvement with Investment Products and Annuity
Products, including investment guidelines, mandates, and/or guidelines of Your
clients or principals, as well as any notices, advisories, restrictions,
legends or disclaimers displayed through the SIMON Platform or otherwise
communicated to You (including from issuers and sponsors of Investment Products
and insurers issuing Annuity Products). In addition, You and each of Your
employees and agents utilizing the SIMON Platform must have all necessary
licenses and registrations applicable to Your use of the SIMON Platform and
involvement with Investment Products and/or Annuity Products.
4. Content
The SIMON Platform, all of the
information and materials contained therein, any information generated from the
SIMON Platform, any information derived from the information and materials
contained therein (collectively,“Content”) as is the software used to
make the SIMON Platform available are and shall remain the property of SIMON,
its licensors and suppliers, and issuers, sponsors, and insurers with products
on the SIMON Platform.
Certain pre-qualified individuals
using the SIMON Platform (“Regulation S Sales Representatives”) may have
access to materials relating to offerings intended to be made outside the
United States in reliance on Regulation S (“Regulation S”) under the
Securities Act of 1933, as amended (the “Securities Act”) (such
materials, “Regulation S Materials”). If You are a Regulation S Sales
Representative, You represent, warrant and agree to the Regulation S
Representations, Warranties and Agreements set forth and defined in Section
7 (Representations,
Warranties and Agreements)relating
to such materials and offerings. If You are not qualified to offer and sell
Regulation S Investment Products (including if you are acting on behalf of a
registered investment adviser, or manage assets in a fiduciary capacity, or
otherwise are acting on behalf of a purchaser) and see materials identified as
Regulation S Materials on the SIMON Platform, then You should immediately
contact Your SIMON salesperson and your internal compliance department and
should not access any Regulation S Materials on the SIMON Platform. In such
circumstances, You should instead obtain a password that will not provide You
access to the Regulation S Materials.
You acknowledge and agree to the
Additional Contract Terms for the CUSIP Database set forth as Exhibit A.
SIMON's trademarks, service marks,
trade names, domain names, trade dress and other proprietary logos and indicia
are the property of SIMON (“SIMON Marks”). All other trademarks, service
marks, trade names, domain names, trade dress and other proprietary logos and
indicia are the property of the identified person, company or organization (“Additional
Marks”). You agree not to use any SIMON Marks or Additional Marks.
Notwithstanding any of the foregoing, any goodwill arising out of Your use of
the SIMON Marks shall inure to the benefit of and belong to SIMON. No trademark
or service mark license is granted in connection with the right to use Content
as set forth herein. Access to the SIMON Platform does not authorize anyone to
use any name, logo or mark in any manner. You also will not use any trade mark,
service mark, trade name, domain name or logo of any person, company or
organization in a way that is likely or intended to cause confusion with the
SIMON Marks or that would infringe, dilute or cause any confusion with respect
to that person's, company's or organization's marks.
Subject to the terms and conditions
of these Terms, You are permitted to store, display, analyze, reformat and
print Content only for Your own internal business uses or as expressly
permitted in writing by SIMON. You are not permitted to publish, disclose,
transmit, or otherwise reproduce any Content, in whole or in part, in any form
outside of Your organization, other than to agents or representatives who are
acting on Your behalf and that have agreed in writing to maintain its
confidentiality. Notwithstanding anything stated to the contrary herein or in
any Related Agreement, SIMON does not authorize You to make available any
Content to Your customers other than (i) prospectuses and marketing materials
labeled as such and downloadable in PDF format on the SIMON Platform, (ii)
marketing materials, applications, illustrations and disclosure documents
provided through insurers issuing the Annuity Products labeled as such and
downloadable in PDF format on the SIMON Platform, or (iii) any other Content that
SIMON has explicitly identified for such purpose in its sole discretion
(collectively, “Permissible Customer Content”).
5. Disclaimers
and Limitation of Liability
5.1. Content Not to be Construed as a
Solicitation or Recommendation.The
SIMON Platform, including the Content, has been prepared for informational
purposes only without regard to any particular user's or Your customers'
investment objectives, financial situation, or means, and SIMON is not
soliciting or recommending that You or Your customers take any action based
upon it. The SIMON Platform, including the Content, is not to be construed as a
recommendation to buy or sell any security, annuity, financial product or
instrument, or otherwise to participate in any particular trading strategy.
5.2. Limitations on Accuracy; Third Party
Data.Although the SIMON Platform and the
Content are based upon information that SIMON considers reliable and endeavors
to keep current, SIMON has not verified information that issuers or sponsors of
Investment Products, insurers issuing Annuity Products, or other users of the
SIMON Platform make available on or through the SIMON Platform and SIMON does
not represent that such information is accurate, current, or complete and it
should not be relied upon as such. Information made available on or through the
SIMON Platform (including indicative price information for Investment Products
and crediting and other terms of Annuity Products) may include information or
other data received from third parties which SIMON considers reliable, but
SIMON does not represent that such third-party information or data is accurate
or complete and it should not be relied upon as such.
5.3.
Content Not to
be Construed as Advice.
SIMON does not provide and nothing contained on or generated by the SIMON
Platform should be construed to be business, financial, investment, insurance,
hedging, trading, legal, regulatory, tax, accounting or any other form of
advice, nor should You make the SIMON Platform the only basis for any
investment and/or insurance decisions made by or on behalf of You, Your client
or Your managed or fiduciary accounts. To the extent that any information on
the SIMON Platform refers to a particular tax treatment, such treatment depends
on the individual circumstances of Your client and may be subject to change.
5.4.
SIMON Is Not
Acting as Your Advisor or Fiduciary.
Unless explicitly agreed otherwise in writing, SIMON is not, by virtue of
making available to You the SIMON Platform and the Content, acting as Your
advisor or fiduciary. The SIMON Platform is provided to You solely on the basis
that You have the capability to independently evaluate investment risk and will
exercise independent judgment in evaluating investment and/or insurance
decisions in that Your investment and/or insurance decisions will be based on
Your own independent assessment of the opportunities and risks presented by a
potential investment, Investment Product, Annuity Product, market factors and
other investment considerations.
5.5. Price and Performance Information. Unless explicitly stated
otherwise, any prices provided on the SIMON Platform are indicative only. Such
prices or values may not reflect actual prices or values that would be
available in the market at the time provided or at the time You may decide to
purchase or sell an interest in a particular Investment Product and/or Annuity
Product. SIMON accepts no responsibility for updating any pricing information.
Past
performance of Investment Products is not a reliable indicator of future
performance. The value of investments and the income derived from them may
decrease or increase, and investors may not get back the amount originally
invested or may lose all of their investment. Other market factors may also
affect performance.
Past
Performance of Annuity Products calculated and displayed on SIMON does not
represent actual performance and should not be interpreted as an indication of
such performance in the past or in the future. Past performance of an Annuity
Product should not be taken as an indication or guarantee of future
performance, and no representation or warranty, expressed or implied is made
regarding future performance.
The
SIMON Platform and the Content should not be used for valuation purposes and
should not be relied upon for the maintenance of your books and records or for
any tax, accounting, legal or other purposes.
5.6. System Outages, Slowdowns, and
Capacity Limitations. You
may experience difficulty accessing the SIMON Platform or communicating with
the SIMON Platform through the Internet or other electronic and wireless
services due to, among other things and including but not limited to high
Internet traffic, systems capacity limitations or other transmission problems.
Any computer system or other electronic device, whether it is Yours, an
Internet service provider's or SIMON's can experience unanticipated outages or
slowdowns, or have capacity limitations.
You
are solely responsible for obtaining and maintaining the necessary hardware,
software, internet connectivity and other systems and network requirements
necessary to access the SIMON Platform. SIMON shall have no liability,
contingent or otherwise, to You or to third parties, or any responsibility
whatsoever, for the failure of any connection or communication service to provide
or maintain Your access to the SIMON Platform, or for any interruption or
disruption of such access or any erroneous communication between the SIMON
Platform and You, regardless of whether the connection or communication service
is provided by SIMON or a third party service provider. SIMON may, from time to
time, make changes to the SIMON Platform, which may require You to change or
replace (at Your own expense) computer hardware or software or other equipment
to maintain Your access to the SIMON Platform.
6. IRS
Circular 230 Disclosure
No statement contained on the SIMON
Platform concerning U.S. tax matters is intended or written to be used, and
cannot be used, for the purpose of (i) avoiding penalties under the Internal
Revenue Code, or (ii) promoting, marketing or recommending to another party any
transaction or matter addressed on the SIMON Platform.
7. Your
Representations, Warranties and Agreements
7.1. Representations, Warranties and
Agreements.
By using the SIMON Platform, You
represent, warrant and agree that:
You have the sophistication,
expertise and investment knowledge, or insurance knowledge in the case of
Annuity Products, needed to evaluate the Content made available through the
SIMON Platform and, if You are investing for others, making investment
decisions for others or offering the products available on the SIMON Platform
to others, You have the ability and expertise to determine and will determine,
prior to purchasing or offering such products to others, that the products You
have selected are suitable and appropriate for Your customers and that Your
customers are eligible to invest in or purchase the products You have selected.
You (i) have the authority to bind
the authorized client or service provider on whose behalf You are accessing the
SIMON Platform, (ii) accept these terms on Your own behalf as an
individual and on behalf of the authorized client or service
provider on whose behalf You are accessing the SIMON Platform, and (iii) are
acting at the express instruction of the authorized client or service provider
on whose behalf You are accessing the SIMON Platform and agreeing to the Terms.
Your use of the SIMON Platform and
the Content does not create or give rise to any relationship or obligations
between SIMON and Your customers, account holders or accounts that You manage.
You will not make available to Your
customers, accounts that You manage or any other persons any Content that is
not Permissible Customer Content.
You agree that You will not sell,
buy or invest on behalf of another person or account any product made available
through the SIMON Platform to or for any person or account that does not meet
the requirements for investing in or buying such product, as set forth in the
prospectus (or contract for an Annuity Product) or other applicable disclosure
document with respect to such product.
You agree to comply with any selling
restrictions of any product made available through the SIMON Platform, as set
forth in the prospectus or other applicable disclosure document with respect to
such product.
You agree that: (i) Your use of any
Content (whether created by SIMON or any third party) made available by SIMON
in the Learning Center for use with Your customers (including, but not limited
to, any videos) (“SIMON-Available Customer Content”) will only be for
educational purposes; (ii) You will not use any SIMON-Available Customer
Content in connection, or in conjunction, with any offer or sale of Investment
Products, Annuity Products, other securities or financial instruments that are
not securities (such as fixed index annuities); and (iii) You will not use or
send any SIMON-Available Customer Content to any of Your customers in any
manner that could make or cause such materials to be a prospectus or
free-writing prospectus. You agree to not use or send any SIMON-Available
Customer Content in conjunction with any recommended transaction or investment
strategy involving any Investment Product, Annuity Product, other securities or
financial instruments that are not securities.
You agree not to use any back-tested
performance information except when acting in a selling group and
non-discretionary capacity with respect to the offer and sale of structured
notes.
You agree to cooperate with any
reasonable request made by SIMON in order to respond to any inquires made by
any third-party service providers, exchanges, or other regulatory,
self-regulatory or governmental authorities in connection with the SIMON
Platform.
You (and, if applicable, accounts on
whose behalf You are acting or who You manage) are a resident in a jurisdiction
which permits You to view the Content and use the services provided by or
through the SIMON Platform.
You have and will maintain, as
applicable, all licenses and registrations as: (i) a broker-dealer with the U.S.
Securities and Exchange Commission (“SEC”), the Financial Industry
Regulatory Authority, Inc. (“FINRA”) and any other securities authority
with which You are required to register as a broker-dealer in accordance with
Applicable Laws (“Registered Broker-Dealer”); (ii) an investment adviser
with the SEC or any other securities authority with which You are required to
register as an investment adviser in accordance with Applicable Laws (“Registered
Investment Adviser”); (iii) a bank with the appropriate banking authorities
with which You are required to be licensed or chartered as a bank in accordance
with Applicable Laws (“Registered Bank”); and/or (iv) an insurance
producer in the required lines of business and in the applicable jurisdictions
(“Licensed Insurance Producer”), in each case as applicable, necessary
to offer, sell, purchase or transact in the Investment Products and/or Annuity
Products made available through the SIMON Platform for Yourself or for others.
Each of Your employees/personnel and agents that offers, sells, purchases or
transacts in the Investment Products and/or Annuity Products made available on
the SIMON Platform is and will be duly licensed and registered in each category
of licensing and registration appropriate to his or her functions and
responsibilities in accordance with Applicable Laws, including for Registered
Broker-Dealers applicable FINRA rules and State securities laws (“Registered
Person”), and for Licensed Insurance Producers, as an individually licensed
insurance producer.
For the avoidance of doubt,
employees/personnel and agents of Registered Broker-Dealers (including those
that are also Registered Investment Advisers) must maintain the
registrations/licenses listed directly below to view the listed products and
You agree to immediately notify SIMON if You do not maintain such
registrations/licenses and are able to view such products on the SIMON Platform
or if You are aware that an individual using the SIMON Platform does not
maintain the appropriate registrations/licenses:
·
Structured
Investments: Must maintain the Series 7 and
appropriate state securities registrations;
·
Annuity
Products Registered Under the Securities Act (e.g., Structured Annuities): Must maintain the Series 6 or Series 7, appropriate state
securities registrations, and be an individually licensed insurance producer in
accordance with any state requirements; and
·
Annuity
Products Exempt from Registration Under the Securities Act (e.g., Fixed Indexed
Annuities): Must be an individually licensed
insurance producer in accordance with any state requirements.
Employees/personnel and agents of
Registered Investment Advisers and Registered Banks must maintain the licensing
and registrations required by his or her functions and responsibilities in
accordance with Applicable Law, and must be an individually licensed insurance
producer in accordance with any state requirements to view Annuity Products.
You must immediately notify SIMON if You do not maintain the
registrations/licenses required by Applicable Laws or if You are aware of an
individual using the SIMON Platform without his or her required
registrations/licenses.
You are complying and will comply
with all Applicable Laws and regulations in connection with the offer, sale,
trading or purchase of such Investment Products and/or Annuity Products,
including, without limitation, any reporting obligations. You will only use the
SIMON Platform in Your capacity as a Registered Broker-Dealer, Registered
Person, Registered Investment Adviser, Registered Bank, and/or Licensed
Insurance Producer, as applicable.
If You are a Registered
Broker-Dealer, You agree to provide a copy of the relevant prospectus, latest
financial report, and/or any other offering documents to each person to whom
You offer products that are made available through the SIMON Platform, at or
prior to the offer, and to disclose the risks and ensure that they understand
the risks of investing in any such product. If You are a Registered Investment
Adviser or a Registered Bank, You agree to comply with any obligation to
provide the relevant prospectus and/or any other offering documents to each
person to whom You offer products that are made available through the SIMON
Platform.
If You are a Licensed Producer, you
agree to timely provide all required applications, illustrations, disclosure
documents, buyer's guides, contract forms and any other documents required by
state insurance laws or the insurer issuing the Annuity Products to each person
to whom You offer Annuity Products that are made available on the Insurance
Product Marketplace.
If You are not a Registered
Broker-Dealer, You represent that You meet the requirements of the term
“institutional account” in FINRA Rule 4512(c) (or any successor rule) and
“institutional investor” in FINRA Rule 2210(a)(4) (or any successor rule).
YOU WILL NOTIFY SIMON PROMPTLY IF
THERE IS ANY FAILURE TO COMPLY WITH ANY OF THE ITEMS ABOVE AND WILL PROVIDE
PROMPTLY SUCH FURTHER INFORMATION AS SIMON MAY REASONABLY REQUEST.
7.2. Regulation S
Representations, Warranties and Agreements.
By using the SIMON Platform as a
Regulation S Sales Representative, You further represent, warrant, acknowledge
and agree to the following (collectively, the “Regulation S Representations,
Warranties and Agreements”):
(i)
investment products identified as
Regulation S Materials (including, without limitation, by a “Regulation S” or
similar identifier) will only be offered or sold in reliance on Regulation S
(the “Regulation S Investment Products”) and subject to such additional
offering or selling restrictions identified in the applicable Regulation S
Materials;
(ii)
any offers or sales of the
Regulation S Investment Products must be made in “offshore transactions” (as
defined under Rule 902(h) of Regulation S);
(iii)
You will not engage in any “directed
selling efforts” (as defined under Rule 902(c) of Regulation S) with respect to
Regulation S Investment Products;
(iv)
You will not offer or sell
Regulation S Investment Products to “U.S. persons” (as defined under Rule
902(k) of Regulation S);
(v)
at or prior to confirmation of sale
of any Regulation S Investment Products, You will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Regulation S Investment Products from You during
the distribution compliance period a confirmation or notice that the purchaser
is subject to the same restrictions on offers and sales that apply to a
distributor; and
(vi)
Regulation S Investment Products
that have already been sold may remain subject to the distribution compliance
period (which may be an indefinite period of time) during which a distributor,
its affiliates or any affiliates of the issuer may not offer or sell to, or for
the account or benefit of, a U.S. person (other than a distributor); and - with
regard to Regulation S Investment Products that have already been sold, issuers
and their affiliates will only be able to re-offer and re-sell such Regulation
S Investment Products in compliance with Rule 902 or Rule 903 of Regulation S
(as applicable), registration under the Securities Act or an exemption from the
registration requirements of the Securities Act.
8. Compensation
Whether or not you are directly
charged any fee for accessing the SIMON Platform, or otherwise obtaining
Services hereunder, fees may be charged to other parties including, but not
limited to, Issuers, Sponsors, Underwriters, Brokers, and Insurers. Such fees
to other parties may be a flat fee or may be based on the sales of Investment
Products or Annuity Products by such parties, whether or not those Investment
Products and/or Annuity Products are displayed to you on the SIMON Platform.
9. Additional
Disclaimers
Any investment in any Investment
Products should only be made having fully and carefully read the relevant
prospectus, latest financial report, and/or any other offering documents for
the relevant Investment Product. The terms of any investment in an Investment
Product are governed by the relevant offering documents (or equivalent
documentation). In the event of any inconsistency between the information on
the SIMON Platform and the terms specified in, or established pursuant to, the
documents establishing the terms of issue or contract, the terms so specified or
determined shall prevail.
Any purchase of an Annuity Product
should only be made having fully and carefully read the relevant documents
related to such product, including but not limited to the application,
illustration, disclosure document, buyer's guide, contract form, and any other
documents for the relevant Annuity Product. The terms of any Annuity Product
are governed by the relevant contract form. In the event of any inconsistency
between the information on the SIMON Platform and the terms specified in, or
established pursuant to, the issuing insurance company's documents related to
the Annuity Product, the terms so specified or established shall prevail.
The Learning Center provided through
the SIMON Platform is not designed to provide a comprehensive education on
complex instruments generally or even on the types of products offered through
the SIMON Platform specifically. The materials provided by the Learning Center
are general and high level only, and You should supplement the materials with other
available information about Investment Products and Annuity Products, including
current information provided by regulatory authorities. The materials in the
Learning Center are solely for educational purposes and are in no way intended
to be an offer of any securities, including Investment Products and Annuity
Products. In no event should the information provided through the Learning
Center be viewed as a substitute for (i) reading the relevant prospectus,
latest financial report, and/or any other offering documents for the relevant
Investment Product or Annuity Product You intend to purchase or offer to Your
customers or (ii) reading the relevant application, illustration, disclosure
document, buyer's guide, contract form, and any other documents for the
relevant Annuity Product you intend to offer Your customers. The Learning
Center is not designed to be a substitute for Your compliance and supervisory
program including Your training. Your use of the Learning Center is subject to
Your own compliance policies and procedures and supervisory oversight. SIMON
has no compliance or supervisory responsibility related to Your use of the
Learning Center.
The fact that SIMON has made the
information and services provided on the SIMON Platform available to You does not
constitute a representation that any Investment Product and/or Annuity Product
described on the SIMON Platform is suitable or appropriate for You, Your
clients or Your managed or fiduciary accounts. Certain transactions, including
those involving futures, options, and high-yield securities, give rise to
substantial risk and are not suitable for all investors. You should not enter
into any transaction unless You have fully understood all such risks as set out
in applicable offering documentation (or contract form for an Annuity Product)
and have independently determined that such transactions are appropriate for
You or Your client or Your managed or fiduciary accounts. Any discussion of the
risks contained on the SIMON Platform with respect to any Investment Product
and/or Annuity Product should not be considered to be a disclosure of all risks
or a complete discussion of the applicable risks.
Indications of interest to transact
in Investment Products submitted through SIMON will be considered by the issuer
of the Investment Product on a case by case basis and may be rejected by the
issuer for any reason in the issuer's sole discretion.
Applications to purchase Annuity
Products submitted through the third party e-application services are subject
to the terms and conditions of Exhibit B. Applications to purchase Annuity
Products, whether through any third party e-application service or otherwise,
will be considered by the insurer issuing the Annuity Product on a case by case
basis and may be rejected by the insurer for any reason in the insurer's sole
discretion.
10. Platform
Data and Other Data and Your Content
We may share data and information
regarding Your use of the SIMON Platform, including, but not limited to, Your
indications of interest, quotes, positions, financing activity, trades,
web-based interface or API usage, behavioral patterns such as your consumption
of Content or interactions with product providers, Your transactions in
Investment Products and/or Annuity Products available through the SIMON
Platform or otherwise, the results of testing You have conducted of Your
employees and agents using the SIMON Training Module to the extent You have
access to such testing/modules, and other data and analytics (all of such
information, “ Your Information”). You acknowledge and agree that
Your Information will be available to us and You consent to our making Your
Information available to our affiliates, agents service providers and product
providers on the SIMON Platform and to any regulator or self-regulatory
organization with jurisdiction over us, our affiliates or product providers.
You also consent to our affiliates, agents, service providers and product
providers contacting You in connection with the performance, receipt and
maintenance of the SIMON Platform. Without limitation of the foregoing:
You hereby grant to SIMON a
worldwide, irrevocable, transferrable, assignable, royalty-free right and
license, during and after the term of these Terms, to transmit, communicate and
distribute Your Information to issuers and sponsors of Investment Products and
insurers issuing Annuity Products on the SIMON Platform with whom You have a
business relationship, including without limitation for purposes of entering
into transactions with You, and to use Your Information for any internal
purpose, including for improving client experience with and enhancing our
products and services.
You hereby grant to SIMON a
worldwide, irrevocable, transferrable, assignable, royalty-free right and
license to, during and after the term of these Terms, directly and through
agents and contractors to aggregate, perform analytics on, compile, create
derivative works from, use, distribute, sub-license, disclose and sell for our
own and our affiliates’ benefit Your Information on an anonymized and
aggregated basis together with such information from other users of the SIMON
Platform (such anonymized and aggregated data, “Platform Data”). SIMON
has adopted policies and procedures designed to protect the confidentiality of
Your client-specific information (i.e., information that is not anonymous and
aggregated) by limiting access to those personnel who have a “need to know.”
SIMON may use Platform Data for
multiple internal and external purposes, including but not limited to market
color reports, analytical tools and trading and risk management strategies for
market making and liquidity provision. As with other products and services,
SIMON may elect to share Platform Data with all or a subset of its clients
based on the clients' overall relationship with SIMON, including, but not
limited to, the extent of business that a client conducts with SIMON.
Platform Data, which is created
using considerable expertise, labor, money and goodwill, is protected by
intellectual property and other proprietary rights under the laws of the United
States and other countries. To avoid doubt, as between You and SIMON, SIMON
owns all right, title and interest (including, but not limited to, all
intellectual property rights) in and to the SIMON Platform and the Platform
Data.
If SIMON provides You with any
Platform Data, SIMON is granting You a personal, non-transferable,
non-sub-licensable, non-exclusive, worldwide, revocable license to use such
Platform Data solely for Your internal purposes. Except as otherwise required
by law or regulation, You will treat all Platform Data as confidential
information and may not provide it outside of Your organization other than to
agents or representatives who are acting on Your behalf and have agreed to
maintain its confidentiality. You are responsible for all actions and inactions
of such agents and representatives. In addition, You agree not to take,
maintain or direct action that interferes with SIMON's rights, title and
interest in and to the Platform Data.
11. Use
of the SIMON Platform Outside the United States
USE OF THE SIMON PLATFORM OR CONTENT
MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS. THE SIMON PLATFORM IS NOT TO
BE USED, AND IS NOT INTENDED FOR USE, BY ANY PERSON RESIDENT IN ANY LOCATION OR
JURISDICTION WHERE SUCH USE MAY BE CONTRARY TO LOCAL LAW, REGULATION OR
BUSINESS PRACTICES. SIMON DISCLAIMS ALL RESPONSIBILITY IF YOU ACCESS, USE OR
DOWNLOAD ANY CONTENT FROM THE SIMON PLATFORM IN VIOLATION OF ANY LAW OR
REGULATION IN THE JURISDICTION OF WHICH YOU ARE A CITIZEN OR IN WHICH YOU ARE
RESIDING OR DOMICILED.
12. Termination
These Terms are effective unless and
until terminated by either You or SIMON. You may terminate these Terms at any
time with notice to SIMON, whereupon You must immediately cease using or
accessing the SIMON Platform, Content and/or any services provided through the
SIMON Platform. SIMON may terminate the Terms, in SIMON's sole discretion, at
any time and deny You access to the SIMON Platform. Upon any termination of the
Terms by either You or SIMON, or if You cease to be a client of SIMON, You must
promptly destroy all reasonably accessible copies of Content downloaded or
otherwise obtained from the SIMON Platform, whether made under the Terms or
otherwise, except to the extent necessary to comply with any Applicable Laws
and regulations. Notwithstanding any termination of these Terms, Sections 5
(Disclaimers and Limitation of Liability), 6 (IRS Circular 230
Disclosure), 7 (Your Representations, Warranties and Agreements), 10
(Platform Data and Other Data), and 11 (Use of the SIMON Platform
Outside the United States) shall survive any such termination.
13. General
We may assign,
transfer or sublicense any or all of our rights or these Supplemental Terms or
delegate any of our obligations under these Supplemental Terms. Notices to You
may be made via posting to this website, by email, or by regular mail in
SIMON's discretion. A printed version of this the Terms and any notice given in
electronic form is admissible in judicial or administrative proceedings
relating to the Terms to the same extent as in printed form. Except as
otherwise agreed in writing, including in any Related Agreement, these Terms
are the sole, final and entire agreement between You and SIMON relating to the
SIMON Platform and Content and supersedes any and all prior or contemporaneous
written or oral agreements or understandings between You and SIMON relating to
the SIMON Platform and Content. SIMON may amend the Terms as set forth herein.
You may not amend or modify the Terms.
14. Contact
SIMON
If You have any questions about the
Terms please contact Your SIMON salesperson.
****
Exhibit A
Additional
Contract Terms for the CUSIP Database
You agree and acknowledge that the
CUSIP Database and the information contained therein is and shall remain
valuable intellectual property owned by, or licensed to, CUSIP Global Services
(“CGS”) and the American Bankers Association (“ABA”), and that no
proprietary rights are being transferred to You in such materials or in any of
the information contained therein. Any use by You outside of the clearing and
settlement of transactions requires a license from CGS, along with an
associated fee based on usage. You agree that misappropriation or misuse of
such materials will cause serious damage to CGS and ABA, and that in such event
money damages may not constitute sufficient compensation to CGS and ABA;
consequently, You agree that in the event of any misappropriation or misuse,
CGS and ABA shall have the right to obtain injunctive relief in addition to any
other legal or financial remedies to which CGS and ABA may be entitled.
You agree that You shall not publish
or distribute in any medium the CUSIP Database or any information contained
therein or summaries or subsets thereof to any person or entity except in
connection with the normal clearing and settlement of security transactions.
You further agree that the use of CUSIP numbers and descriptions is not
intended to create or maintain, and does not serve the purpose of the creation
or maintenance of, a master file or database of CUSIP descriptions or numbers
for itself or any third party recipient of such service and is not intended to
create and does not serve in any way as a substitute for the CUSIP MASTER TAPE,
PRINT, DB, INTERNET, ELECTRONIC, CD-ROM Services and/or any other future
services developed by CGS.
NEITHER CGS, ABA NOR ANY OF THEIR
AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY,
ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP
DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT
ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE
NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH
MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY
OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES,
WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF
CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY YOU FOR ACCESS TO SUCH
MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN.
FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS
OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.
You agree that the foregoing terms
and conditions shall survive any termination of its right of access to the
materials identified above.
The following additional terms are
required to be included in the Terms pursuant to our agreement with CGS.
However, if You receive CGS Data (as hereafter defined) pursuant to an API
through the SIMON Platform, the terms set forth below do not apply to You; and
- if the authorized client or service provider on whose behalf You are
accessing the SIMON Platform has a CGS License Agreement that permits broader
rights than those granted below, then the terms of that CGS License Agreement –
and not the terms set forth below – shall govern Your use of the CGS Data.
To the extent that You receive CUSIP
standard numbers, CUSIP standard descriptions, CGS ISINs, CINS numbers and
other information about financial instruments (“CGS Data”): (i) You must
be issued a unique password; such password may not be shared or transferred;
(ii) You may download CGS Data to a desktop/computing device used solely for
your individual use and not for any centralized, interdepartmental or shared
use; (iii) Once downloaded to Your desktop/computing device, the CGS Data must
remain on Your desktop/computing device and may not be uploaded, copied,
transferred to, stored or managed in any other desktop/computer device,
including that of any other user, or any device, directory, database or other
repository that is shared or can be accessed by others (e.g. the download
functionality may not be used to populate master security databases); and - You
may download CGS Data only as a convenience in connection with Your use of the
SIMON Platform and not as an alternative to obtaining the CGS Data from and/or
pursuant to an agreement with CGS.
Exhibit B
Additional
Contract Terms for Annuity Products
If You are authorized to access,
view and transact in Annuity Products including third party illustration and
e-application services and the databases, software, proprietary tools,
hardware, and other technology used to provide such illustrations and
e-application services (collectively, “ 3rd Party Annuity Technology”)
therein, You agree to access and use the 3rd Party Annuity Technology solely
for the purpose of managing forms development and other configurations data and
process made available to You with the 3rd Party Annuity Technology.
Notwithstanding the preceding sentence You may permit Your agents to access and
use 3rd Party Annuity Technology for creating illustrations, forms
developments, and the subsequent completion and submission of insurance
application forms on behalf of individual consumers for the purchase of
insurance products and services. You agree not to use the 3rd Party Annuity
Technology for purposes of monitoring its availability, performance, or
functionality, or for any other benchmarking, business intelligence data mining
or competitive purposes.
****
Data Protection Addendum
Effective Date: August 16, 2023
This Data Protection Addendum (“DPA”)
amends, and forms part of, the iCapital Terms of Service between iCapital,
acting on behalf of itself and, to the extent required under applicable Data
Protection Laws, in the name and on behalf of its affiliates, and the
applicable entity who transmits Personal Data subject to Data Protection Law
(as those terms are defined below) to or through the Services (“Financial
Professional”). iCapital and Financial Professional are collectively
referred to as the “Parties” and each a “Party.”
Financial
Professional and iCapital hereby agree to comply
with this DPA, including the cross-border transfer terms herein.
1.
Definitions
“Financial Professional Party Data”
means personal data
related to Financial Professional Authorized Users.
“Affiliate” of a Party means any
entity that directly or indirectly now or hereafter controls, is controlled by,
or is under common control with that Party.
“Data Protection Law” means, as and
to the extent they apply to that Party, any applicable laws and regulations in
relation to the privacy or processing of personal data relating to identifiable
individuals that restrict the transfer of Personal Data to third countries,
including but not limited to as may be applicable, as updated, amended, or
replaced from time to time: (a) the EU General Data Protection Regulation
(Regulation (EU) 2016/679) (“GDPR”); (b) equivalent requirements in the
United Kingdom including the UK General Data Protection Regulation and the Data
Protection Act 2018 (“UK Data Protection Law”), (c) the Swiss Federal
Act on Data Protection (“FADP”); and (d) other national laws
implementing, revising or replacing the GDPR, each as updated, amended or
replaced from time to time.
“Personal Data” means information
processed in furtherance of the Services that relates to an identified or
identifiable individual.
“Investors” are those persons or entities that
meet the following qualifications: (i) certain investors in accordance with
legal requirement in various jurisdictions, (iii) a person with the requisite
skill and expertise to adequately assess the risks of investing in the types of
products offered through the Services, and (iv) such other suitability
requirements as are mutually agreed to by the Parties.
“Restricted Transfer” means: (i) where the GDPR
applies, a transfer of Personal Data from the EEA to a country outside of the
EEA which is not subject to an adequacy determination by the European
Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from
the UK to any other country which has not received an adequacy decision from
the competent UK authority (iii) where
the FADP applies, a transfer of Personal Data to a country outside of
Switzerland which has not received an adequacy decision from the competent
Swiss authority.
“Third Country” means, (i) if the
entity transferring Personal Data is established in the European Economic Area
(“EEA”) or Switzerland, a jurisdiction outside the EEA or Switzerland
that has not been deemed adequate for data protection purposes by the European
Commission (in the case of the EEA) or Swiss authorities (in the case of
Switzerland), or (ii) if the entity transferring data is established in the UK,
a jurisdiction outside the UK that has not been deemed adequate for data
protection purposes under UK law.
The terms “Data Controller,” “Data
Processor,” “Data Subject,” “process,” “processing,”
and “transfer” shall be interpreted in accordance with the applicable
Data Protection Laws.
Any capitalized terms
not defined herein shall have the meaning provided in the iCapital Terms of
Service
2.
Scope and Roles and Responsibilities
2.1. Scope of
Personal Data Processed. The Parties acknowledge that, in order to perform the Services, each
Party may make certain
Personal Data available to the other
Party. The relationship of the Parties with respect to such Personal Data is set forth herein.
2.2. Financial
Professional Party Data. The Parties acknowledge and agree that the
Financial Professional Party Data Financial Professional may make available to
iCapital contains Personal Data relating to Financial Professional’s employees, agents, and contractors who
use, or otherwise are involved in, fund management related to the Services
(collectively, the “Financial
Professional Authorized Users”).
Each Party acknowledges and agrees that (i) iCapital processes Financial Professional Party Data in
furtherance of the Services, and (ii) iCapital independently determines the
purposes and means of any processing of Financial
Professional Party Data that is required to provide the Services.
Therefore, each Party further acknowledges and agrees that iCapital is an
independent data controller with respect to any and all Financial Professional Party Data that it collects, transfers, or
otherwise processes pursuant to the Services.
2.3. Investor
Personal Data. The Parties acknowledge and agree that iCapital is the
Data Controller of Personal Data related to Investors (“Investor Personal Data”). The Parties acknowledge that Investors
may contact Financial Professional about the Services. In such circumstances, Financial
Professional acts as a Data Processor of such Investor Personal Data on behalf
of iCapital, and shall process such Investor Personal Data in accordance with
the obligations set forth in Section 3.2 herein.
2.4. Other. To the
extent the Parties process Personal Data in furtherance of the Services other
than in the circumstances set forth above, the Parties shall act as independent
Data Controllers.
3.
Compliance; Party Obligations
Each Party shall be individually and separately
responsible for complying with its obligations that apply to it (whether as a
Data Controller or Data Processor) pursuant to Data Protection Law.
3.1. Data Controller. Where a Party acts as a Data
Controller of Personal Data processed under the iCapital Terms of Service, it
shall:
(i) limit the collection, transfer, and
processing of Personal Data to what is reasonably necessary to provide or
receive the Services, as applicable, or as otherwise agreed to, in writing, by
the Parties;
(ii) ensure that it has an appropriate
legal basis for the collection, transfer, and processing of Personal Data; and
(iii) in the case of Financial Professional Party Data and if required by an applicable
Data Protection Law, obtain the necessary consent from the relevant Financial Professional Authorized User
for such collection, transfer, and processing.
3.2. Financial Professional Acting as a
Data Processor. Where Financial Professional acts as a Data
Processor of Investor Personal Data, it shall:
(i) process Investor Personal Data solely:
(i) to fulfill its obligations to iCapital under the Services, including this
DPA; (ii) on iCapital’s behalf; and (iii) in compliance with Data Protection
Law;
(ii) ensure that the persons it authorizes
to process the Investor Personal Data have committed themselves to
confidentiality or are under an appropriate statutory obligation of
confidentiality;
(iii) taking into account the nature of the
processing, assist iCapital by implementing appropriate technical and
organizational measures, including but not limited to facilitation by support
staff to ensure that iCapital may at any time respond to request(s) from data
subjects exercising their rights under Data Protection Law. Any such data
subject request received by Financial
Professional will be referred to iCapital promptly;
(iv) provide reasonable assistance to and
cooperation with iCapital for iCapital’s consultation with regulatory
authorities in relation to the processing or proposed processing of Investor
Personal Data, and promptly notify iCapital of (i) any third-party complaints
regarding the processing of Investor Personal Data; or (ii) any government
requests for access to or information about Financial Professional’s processing of Investor Personal Data on
iCapital’s behalf, unless prohibited by Data Protection Law. Financial Professional will provide
iCapital with reasonable cooperation and assistance in relation to any such
request. If Financial Professional is
prohibited by applicable Data Protection Law from disclosing the details of a
government request to iCapital, Financial
Professional shall inform iCapital that it can no longer comply with
iCapital’s instructions under this DPA without providing more details and await
iCapital’s further instructions. Financial
Professional shall use all reasonable and available legal mechanisms to
challenge any demands for data access through national security process that it
receives, as well as any non-disclosure provisions attached thereto;
(v) provide reasonable assistance to and
cooperation with iCapital for iCapital’s performance of a data protection
impact assessment of processing or proposed processing of Investor Personal Data, when required
by applicable Data Protection Law, and at iCapital’s reasonable expense; and
(vi) promptly notify iCapital if it
determines that (i) it can no longer meet its obligations under this DPA or
applicable Data Protection Law; or (ii) in its opinion, an instruction from
iCapital infringes applicable Data Protection Law.
3.3. Non-U.S. Investor Privacy Notice. Where Financial Professional
transfers Investor Personal Data to iCapital for iCapital to process as a Data
Controller, Financial Professional shall provide the Investor with the Non-U.S.
Investor Privacy Notice attached hereto as Exhibit B.
4.
Information Security
4.1. Controls. Each Party shall implement and
maintain appropriate technical, physical, and administrative security controls
to protect and safeguard the Personal Data under its control against
accidental, unauthorized or unlawful access, use, disclosure, loss, destruction,
or damage.
4.2. Notification. With respect to Personal Data for
which the Parties act as independent Data Controllers, each Party shall be
independently responsible for notifying data subjects and regulatory
authorities of a data breach affecting the confidentiality, integrity, or
availability of Personal Data (“Personal Data Breach”) within its
custody and control, or within the custody and control of a processor, provided
that each Party shall provide commercially reasonable assistance to the other
in order to facilitate the data breach notifications described in this
paragraph.
4.3. Financial Professional Notifications. With respect to Personal Data for
which Financial Professional acts
as a Processor to iCapital, Financial
Professional shall notify iCapital without undue delay (and in call
cases within 48 hours) of any Personal Data Breach of Financial Professional Authorized User Personal Data or Investor
Personal Data in its custody or control (or within the custody and control of a
subprocessor) and will assist iCapital with its Personal Data Breach-related
obligations, including without limitation, by:
(i) taking commercially reasonable steps
to mitigate the effects of the Personal Data Breach and reduce the risk to Financial Professional Authorized User
Personal Data and/or Investors whose Personal Data was involved; and
(ii) providing iCapital with the following
information, to the extent known:
a.
the nature of
the Personal Data Breach, including, where possible, how the Personal Data
Breach occurred, the categories and approximate number of data subjects
concerned, and the categories and approximate number of Financial Professional Authorized User Personal Data and/or
Investor Personal Data records concerned;
b.
the likely
consequences of the Personal Data Breach; and
c.
measures taken
or proposed to be taken by the party to address the Personal Data Breach,
including, where appropriate, measures to mitigate its possible adverse
effects.
5.
Mutual Assistance; Records of Processing
Each Party shall provide commercially reasonable
assistance to the other Party to assist the other Party to comply with privacy
requests, data protection impact assessments, and consultations with regulatory
and supervisory authorities with respect to Personal Data. Each Party shall, to
the extent required by applicable Data Protection Law, maintain complete and
accurate records of its processing activities. Each Party shall provide the
other Party with contact details of at least one employee who will serve as the
point of contact and responsible manager for all issues arising out of the
processing of Personal Data.
6.
Cross-Border Data Transfers
Each Party shall protect all Personal Data it receives
from a third country in a manner no less stringent than required by applicable
law of the country in which the Personal Data originated. To the extent
Personal Data originates in the EEA, Switzerland, or the UK via a Restricted Transfer, the
Parties shall comply with the following:
6.1. European Transfers. In the event Financial Professional exports to iCapital any Personal Data from
the EEA, the Parties shall comply with the standard contractual clauses adopted
by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021
for the transfer of personal data to Third Countries pursuant to Regulation
(EU) 2016/679 of the European Parliament and of the Council (“EU Standard
Contractual Clauses”), which are hereby incorporated into, and form an
integral part of, this DPA, subject to the following: (i) the EU Standard
Contractual Clauses shall be governed by the Module One clauses (Transfer
controller to controller) or, in the case of Investor Personal Data, the Module
Four clauses (Transfer processor controller), and Financial Professional shall be the data exporter and iCapital
shall be the data importer; (ii) Clause 7 (Optional – Docking Clause) of the EU
Standard Contractual Clauses shall be deemed incorporated herein and applicable
to the Parties and third parties; (iii) for purposes of Clause 11 (Redress) of
the EU Standard Contractual Clauses, the Parties agree that the optional
wording shall not be incorporated therein; (iv) for purposes of Clause 13 of
the EU Standard Contractual Clauses (Supervision), the competent supervisory
authority shall be the Irish Data Protection Authority; (v) for purposes of
Clause 17 (Governing law) of the EU Standard Contractual Clauses, the Parties
agree that the EU Standard Contractual Clauses shall be governed by the law of
Ireland and Clause 17, “Option 1” shall apply accordingly; (vi) for purposes of
Clause 18 (Choice of forum and jurisdiction) of the EU Standard Contractual
Clauses, the Parties agree that any dispute arising from the EU Standard
Contractual Clauses shall be resolved by the Courts of Ireland, and Clause
18(b) shall apply accordingly; (vii) Annex A-I of Exhibit A of this DPA shall
be incorporated into Annex I of the EU Standard Contractual Clauses; and (viii)
Annex A-II of Exhibit A of this DPA shall be incorporated into Annex II of the EU Standard Contractual Clauses.
6.2. Swiss Transfers. In the event Financial Professional exports to iCapital any Personal Data from
Switzerland, the Parties shall comply with the EU Standard Contractual Clauses,
as set forth in Section 6.1 herein, subject to the following: (i) references to
“Regulation (EU) 2016/679” or “that Regulation” in the EU Standard Contractual
Clauses are to be understood as references to the Swiss Federal Act on Data
Protection (FADP); (ii) references to specific Article(s) of “Regulation (EU)
2016/679” are to be understood as references to the equivalent Article or
provision of the Swiss FADP; (iii) the term “member state” in the EU Standard
Contractual Clauses shall not be interpreted in such a manner as to exclude
data subjects in Switzerland from enforcing their rights in Switzerland, in
accordance with Clause 18(c), provided Switzerland is their habitual residence;
(iv) the “competent supervisory authority” under Part C of Annex II of the EU
Standard Contractual Clauses is the Swiss Federal Data Protection and
Information Commissioner; (v) the applicable law for contractual claims under
Clause 17 in the EU Standard Contractual Clauses is Swiss law; and (vi) in
relation to Clause 18(a), any disputes arising from the EU Standard Contractual
Clauses shall be resolved by the courts of Switzerland.
6.3. UK Transfers. In the event Financial Professional exports to iCapital any Personal Data from
the United Kingdom, the Parties shall comply with the EU Standard Contractual
Clauses, as updated and amended by the International Data Transfer Addendum to
the EU Standard Contractual Clauses (B.1.0) issued by the UK Information
Commissioner’s Office under S119A(1) Data Protection Act 2018, in force 21
March 2022 (“UK Addendum”), provided that the UK Addendum shall be
supplemented and completed, as appropriate, with the data processing
descriptions and Party responsibilities, clause options, and similar criteria
set forth in Section 6.1 herein and the annexes attached hereto. For the
purposes of supplementing and completing the UK Addendum, the Parties agree
that any dispensation with the adopted format shall not adversely affect the
appropriateness of the safeguards provided therein. For the avoidance of doubt,
with respect to UK data transfers, in the event of a conflict between the EU
Standard Contractual Clauses and the UK Addendum, the terms and hierarchy set
forth in the UK Addendum shall supersede and control with respect to such UK
data transfers only. In the event that the version of the UK Addendum
incorporated by this DPA is subsequently varied, revoked or otherwise replaced
in circumstances where iCapital expects to incur
consequential increases in costs or risk and provided that iCapital has
undertaken reasonable efforts to mitigate any such increases, then iCapital may
terminate its agreement with Financial
Professional, upon providing reasonable notice of the same to Financial Professional in writing.
6.4. Onward Transfers. iCapital shall not transfer such
Personal Data from the EEA, Switzerland, or the United Kingdom to any Third
Country, except to the extent such transfer is in accordance with an applicable
Data Protection Law.
Exhibit A
Annex A-I (Data Processing Activities)
A. List of parties:
|
Name (Data Exporter)
|
Financial Professional
|
|
Address
|
As set forth in the order or other
contracting terms governing the use of the Services.
|
|
Contact person’s name, position and contact details
|
As set forth in the order or other contracting terms
governing the use of the Services.
|
|
Activities relevant to the data transferred
|
Set forth below
|
|
Signature and date
|
As of the first day using the
Services
|
|
Role (controller / processor)
|
Data Controller; Data Processor
|
|
Name (Data Importer)
|
Institutional Capital Network, Inc., acting on behalf of itself and, to the extent required
under applicable Data Protection Laws, in the name and on behalf of its
Affiliates that provide Services to Financial Professional.
|
|
Address
|
60 East 42nd Street, New York, NY 10165 USA.
|
|
Contact person’s name, position and contact details
|
legalnotices@icapitalnetwork.com
|
|
Activities relevant to the data transferred
|
Set forth below
|
|
Signature and date
|
As of the first day of providing the Services to Financial
Professional
|
|
Role (controller / processor)
|
Data Controller
|
B. Description of Transfer: Unless otherwise set forth in a
statement of work, order, or similar documentation, the description of the
Personal Data transferred is as follows:
Categories of Data Subjects: For Controller to Controller Transfers: Financial Professional Authorized Users For Processor to Controller
Transfers: Investors (as that term is defined in the DPA).
Categories of Personal Data transferred: For Personal Data of Financial Professional Authorized
Users: contact data; professional information; nationality, place and date of
birth, and passport number; persistent identifiers; records of the Services
obtained; tax information. For Qualified Investor Personal Data: contact data
and information provided by the Qualified Investor in relation to their
inquiry.
Sensitive data transferred: None.
The frequency of transfer: Continuous and for so long as Financial Professional uses the
Services.
Nature of Processing: For Controller to Controller Transfers: To enable Financial Professional Authorized Users
to access and use the Services. For Processor to Controller Transfers: To
facilitate resolution of inquiries and requests from Qualified Investors.
Purpose of the data transfer and further processing: For Controller to Controller
Transfers: To enable Financial
Professional Authorized User to access and use the Services, and to
enable iCapital to maintain and support the Services. For Processor to
Controller Transfers: To enable iCapital to provide assistance in resolving
inquiries and requests from Qualified Investors.
The period for which Personal Data will be retained: For the duration of the provision of
Services and for the termination and transition period thereafter.
Subprocessor transfers: Not applicable.
C.Competent Supervisory Authority: The competent supervisory authority in accordance with
Clause 13 of the EU Standard Contractual Clauses is the supervisory authority
of Ireland, which is the Data Protection Commission.
Annex A-II (Security Controls)
iCapital shall apply at all times the following security
measures to safeguard Personal Data subject to a Restricted Transfer (referred
to as “Personal Data” for purposes of this Annex A-II):
1. Administrative Measures. iCapital
shall implement and maintain policies and procedures governing the conditions
and circumstances in which iCapital personnel may access Personal Data. Prior
to providing any of its personnel access to information systems that retain or
transmit Personal Data (“Information Systems”), iCapital shall undertake
commercially reasonable measures to identify the reliability of such personnel,
and provide appropriate information security and privacy training to such
personnel.
2. Physical Security;
Business Continuity. iCapital shall establish,
implement, and maintain appropriate physical security measures designed to
protect Information Systems.
3. Access Controls. iCapital
shall promptly terminate its personnel’s access to Personal Data when such
access is no longer required.
4. Account Management. iCapital
will use reasonable measures to manage the creation, use, and deletion of all
account credentials used to access an Information System.
5. System Maintenance;
Segmentation. iCapital shall, from time to time, use vulnerability scanning tools to
periodically scan Information Systems, use patch management and software update
tools for Information Systems, and prioritize and remediate vulnerabilities by
severity.
6. Security Testing. iCapital
shall, at least annually, undertake internal and external scanning and testing
to assess any vulnerabilities to an Information System. Such scanning and
testing shall be conducted by iCapital or by any external qualified,
credentialed, and industry-recognized auditor or consultant.
7. Remediation. iCapital shall remedy vulnerabilities identified
during any security testing in a commercially reasonable manner and timeframe
based on severity.
8. Incident
Response Plans. iCapital shall establish, implement, and maintain a written
incident response plan (“IRP”) to identify, remediate, respond to, and
recover from, a security event involving the confidentiality, integrity, or
availability of Personal Data (“Security Event”). The IRP shall include:
(i) the designation of a senior employee who shall be responsible for
establishing, implementing, and maintaining the IRP, (ii) the identification of
internal and external resources to assist in addressing a Security Event, (iii)
processes and programs to contain and remediate the impact of a Security Event
and to recover to a normal state of business operations, and (iv) processes to
convene, when appropriate, a post-Security Event review to assess the
effectiveness and efficiency of identifying, remediating, responding to, and
recovering from, a Security Event.
Exhibit B
Non-U.S.
Investor Privacy Notice
Institutional Capital Network, Inc., and our affiliates,
including certain affiliates that are registered investment advisers and
registered broker-dealers as further detailed on the site (collectively, “iCapital,”
“we,” or “us”) are providing you this privacy notice in
accordance with Article 14 of the Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on the free movement
of such data (hereinafter the “GDPR”) because your investment advisor
has provided your information to iCapital in connection with your investment or
prospective investment in an iCapital product.
1. The Data Controller of your Personal
Data is iCapital.
2. The contact information for
matters concerning data protection is 60 East 42nd Street, New York, NY 10165
USA.
3. The purposes for processing
personal data and our legal bases for doing so are:(i) to fulfill
a contract with you, including to facilitate your investments; (ii) in
furtherance of our legitimate interests, including to provide investor
support, secure our services, verify your identity, and collect payments owed
to us; (iii) to comply with our legal obligations, such as to verify
your identity to comply with anti-money-laundering laws and export restrictions;
and (iv) Your consent, where legally permitted.
4. The categories of personal data
we collect include name, contact place and date of birth,
passport
number, tax information, bank account details, source of funds, and details
related to your investment activities.
5. The recipients of your personal
data include (i) our subsidiaries and affiliates, (ii) our service
providers,
such as cloud hosting providers and background check providers, (iii) sponsors
of funds in which you choose to invest or in which you have expressed an
interest in investing; (iv) third parties, governmental agencies, and law
enforcement agencies to comply with our legal obligations or valid judicial
process in the EEA, UK or Switzerland; (v) to third parties in connection with
an actual or prospective business transaction to acquire all or part of our
assets; and (vi) to other parties where we have your consent to do so or as
otherwise permitted by law.
6. We will retain your personal
data for as long as reasonably necessary to provide you the
services and
comply with our legal obligations in your jurisdiction related to retention of
financial information.
7. You have the following rights
under applicable data protection law: (i) right to access your
personal data;
(ii) right to request rectification of inaccurate data we hold about you; (iii)
right to request erasure of your personal data; (iv) right to object to
processing of your personal data; (v) right to request that we restrict
processing of personal data that you believe to be unlawful; and (vi) right to
data portability.
8. You may lodge a complaint with:
a. Our data protection officer, whose
contact information is as follows:
Institutional Capital Network, Inc.
Attn: Ian Polonsky
60 East 42nd Street, 26th Floor,
New York, NY 10165
privacyrequest@icapitalnetwork.com
b. The local supervisory authority for
data protection in your jurisdiction.
|