ZANBATO SECURITIES LLC TERMS OF USE
Your access to and use of (i) this Website, which is operated by Zanbato
Securities LLC ("BROKER-DEALER") with technology provided by Zanbato, Inc.
("ZI"), (ii) all industry or financial data and information services which
may be owned or operated by or on behalf of BROKER-DEALER, ZI or Zanbato
Securities LLC ("ZS") (collectively, with the affiliates of ZI, "Zanbato"),
and (iii) all third party data, information, and services that may be
provided by, on behalf of, or through BROKER-DEALER or Zanbato ((i)-(iii)
collectively, the "Site") will be governed by the following terms and
conditions of use ("Terms of Use") and the Privacy Policy posted separately
on the Site. The Site, and the information contained on or available
through the Site, may be accessed only by persons who have been authorized
by BROKER-DEALER or Zanbato and, if an employee of a customer of
BROKER-DEALER, by their employer, to use the Site pursuant to these Terms
of Use (a "User"). By clicking the ACCEPT button at the end of these Terms
of Use, you represent that you are a User and that you accept these Terms
of Use and the separate Privacy Policies of BROKER-DEALER and Zanbato and
agree to be bound by them.
If you, or your employer, do not wish to be bound by these Terms of Use,
you must not use the Site.
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SITE.
Section 1 - SCOPE AND SITE STRUCTURE
1.1 Structure & Links
1.1.1 The Site. Through the Site, you can access and view investment
industry information, including individual assets, portfolios of assets,
limited partnership or similar interests in funds or assets, and other
opportunities available for investment, together with related financial
highlights, investment details, and other data and information provided, as
the case may be, by third-parties or Users (collectively, "Third-Party
Contributors" and "Third-Party Content") or by BROKER-DEALER or Zanbato
("BROKER-DEALER and Zanbato Content"). All data, databases, graphics,
research, information, opinions, statements, security identifiers, industry
classifications, and other material (in any form or media) provided by
BROKER-DEALER, Zanbato, any Third-Party Contributor, or any other third
party (collectively, "Information Providers") that is accessible or made
available on or through the Site, including all Third-Party Content and
BROKER-DEALER and Zanbato Content, will be collectively referred to in
these Terms of Use as "Site Content." Site Content will not include any
Linked Site Content (as defined below).
1.1.2 The Linked Sites. Your use of the Site or Site Content may
lead you, via a hyperlink or otherwise, to Web sites independently owned
and operated by Third-Party Contributors or other third parties
(collectively, the "Linked Sites"). If you click-through to any Linked
Site, either directly or indirectly through the Site, you acknowledge and
agree that you will be subject to the terms and conditions of usage and
privacy policies applicable to such Linked Sites, which are not controlled
by Zanbato or BROKER-DEALER. All data, software, databases, graphics,
research, information, opinions, statements, security identifiers, industry
classifications, or any other material (in any form or media) that is
accessible or made available on or through the Linked Sites will be
collectively referred to in these Terms of Use as "Linked Site Content."
1.2 Posted Guidelines. In addition to these Terms of Use, when using
the Site, you will be subject to and agree to follow any posted guidelines
or rules which may be posted from time to time on the Site, including
without limitation any and all disclaimers and restrictions on use
contained in any Site Content.
1.3 Status of the Site. The Site Content and the Linked Site Content
do not constitute legal, financial, accounting, investment, tax, or other
professional advice; you should consult with a financial advisor and legal
and tax professionals to assist in conducting due diligence as may be
appropriate prior to making any investment decision or hiring any
investment manager in connection with Site Content. BROKER-DEALER and
Zanbato will not have any liability to any person for any reliance on,
interpretation or analysis of, or investment decisions, action, or inaction
based upon information obtained from the Site.
1.4 Scope of Use.
1.4.1 Access. You agree to access and use the Site and all Site
Content solely pursuant to your login information (username and password).
You agree to notify us and change your password immediately, if your
password is lost, stolen, or misused. You are responsible for all activity
(including any unauthorized activity) attributable to your login
information.
1.4.2 Obligations. You agree to access and use the Site and all Site
Content (i) solely for your own personal use in connection with the lawful
internal business purposes of your company; and (ii) in compliance with
these Terms of Use, all restrictions which may be imposed by any
Information Provider, BROKER-DEALER and/or Zanbato all applicable local,
state, and national laws and regulations and the ZS ATS Rulebook
(the "Rulebook").
1.4.3 Restrictions on Use. Except as may be otherwise specifically
authorized in a signed writing by BROKER-DEALER and Zanbato, you will not
(i) directly or indirectly grant anyone else access to, or permit anyone
else to access or use, the Site or any Site Content or Linked Site Content
other than, if applicable, your employees and agents that you authorize to
access Information and transmit proposed indications of interest or orders
with respect to potential transactions to BROKER-DEALER on behalf of you or
your employer; (ii) copy, display, publish, republish, upload, distribute,
transfer, sell, assign, rent, timeshare, or sub-license any Site Content,
Linked Site Content or access thereto; (iii) resell or otherwise distribute
your Log-In Credentials (as defined below) displayed on the ATS; (iv)
alter, modify, delete, adapt, translate, disassemble, decompile, or reverse
engineer or otherwise attempt to discern the source code, algorithms,
software design or architecture of, or modify, adapt, translate or
reproduce the Site Content or Linked Site Content, or any part thereof,
including any software or any product or service identifications, author
attributions, copyright notices, disclosures, disclaimers, trade names,
trademarks, or proprietary restrictions in such Site Content or Linked Site
Content or any associated documentation; (v) create a separate database of
any Site Content or Linked Site Content or merge any part of the Site
Content or Linked Site Content with or into other software, or create
derivative works based upon the Site Content or Linked Site Content; (vi)
post any Site Content or Linked Site Content on any intranet, extranet, or
other application, system, or location; (vii) use any Site Content or
Linked Site Content to construct or facilitate the construction of any
products or services that compete with the Site or the Site Content; (vii)
use information which you have received through access to the Site or
Linked Site Content as to the workings of the Site for any purpose
whatsoever (other than use of the Site), including without limitation
competition with the Site; or (viii) take or authorize any action that
could detrimentally interfere with the proper workings of the Site or any
Linked Site. When you use the Site and any Linked Site, you will be
permitted to view such Information as is permitted by BROKER-DEALER,
Zanbato and the Information Provider. Only BROKER-DEALER or one of its
authorized registered representatives may place an indication of interest
or order, on your behalf, if and when such indication of interest or order
is approved by BROKER-DEALER.
1.4.4 Entitlement Rights. Please note that you may not be able to
gain access to all of the Site Content. Your entitlement to Site Content
may be limited by (i) applicable laws and regulations (including securities
laws), (ii) Zanbato and/or BROKER-DEALER, and/or (iii) internal policies
and practices of the applicable Information Provider, in each case as may
be amended from time to time at any time. Such restrictions are maintained
via an entitlement system which controls your ability to view particular
items of Site Content. BROKER-DEALER and Zanbato disclaim any and all
liability associated with entitlement decisions made by them or by
Information Providers.
1.5 Intellectual Property and Proprietary Rights. You agree that any
and all Site Content, including as it is constructed, compiled, prepared,
selected and arranged by the Information Providers, (i) may constitute
valuable proprietary information and commercial property of the Information
Providers, (ii) may be protected by United States and international
intellectual property laws, including copyright, trademark, trade secret,
or patent law, and (iii) constitutes an expenditure of substantial time,
effort, and money by the Information Providers. You acknowledge that, other
than a right to use the Site and the Site Content as contemplated by these
Terms of Use, neither BROKER-DEALER, Zanbato, nor any other Information
Provider by giving you access to the Site and the Site Content is granting
you any proprietary rights in the Site, any Site Content, or any associated
trademarks or other intellectual property subsisting in or available
through any of the foregoing.
1.6 Registration and Access Data; Authorized Customer Delegees
1.6.1 Registration Data and Access Data. In consideration of your
use of the Site, you and/or your employer agree to (i) provide true,
accurate, current and complete Registration Data and Access Data (as
defined in the Privacy Policy) to BROKER-DEALER and Zanbato and the other
applicable Information Providers, either as provided directly to
BROKER-DEALER and Zanbato and/or the other applicable Information Providers
by your employer or as prompted by the Site, and (ii) maintain and promptly
update the Registration Data and Access Data, or similar information
provided directly to any Information Provider, and to keep the same true,
accurate, current, and complete.
1.6.2 Authorized Customer Delegees. If you are a customer of
BROKER-DEALER, you shall designate to BROKER-DEALER and Zanbato such of
your delegees ("Authorized Customer Delegees") you wish to have access to
the Site and shall promptly notify BROKER-DEALER and Zanbato of all
additions and deletions to your list of Authorized Customer Delegees.
1.7 Log-In Credentials; Security.
1.7.1 Log-In Credentials. Zanbato shall provide separate log-in
credentials (a "Log-In Credential") to you if you are designated by notice
from BROKER-DEALER to Zanbato and approved by BROKER-DEALER and Zanbato to
access the Site. The Log-In Credential will permit you to access and use
the ATS. BROKER-DEALER and you shall keep your Log-In Credential strictly
confidential using at least the same degree of care that BROKER-DEALER uses
to protect its own confidential information, but in no even less than the
industry-recommended degree of care for such credentials. Each Log-In
Credential may only be used by you. Upon the request of BROKER-DEALER or a
customer of BROKER-DEALER by whom you are employed or engaged to terminate
a Log-In Credential provided to you, Zanbato shall effect such request as
soon as reasonably practicable after receipt thereof. In the event your
Log-In Credential is lost, stolen or compromised, you shall be responsible
for notifying BROKER-DEALER and Zanbato of the same, and Zanbato shall
cancel any such lost, stolen or compromised Log-In Credential as soon as
practicable after receipt of such notice. You shall remain responsible for
any actions taken through the use of your Log-In Credential until your
Log-In Credential is cancelled.
1.7.2 Authorized Access.Your Log-In Credential shall be
limited to your use only. If you are a Customer of BROKER-DEALER, you must,
through BROKER-DEALER, obtain a separate Log-In Credential for each of your
Authorized Customer Delegees you wish to authorize to enter into legally
binding Transactions on your behalf. You assume full responsibility for any
use, unauthorized use or misuse of the Site and the Linked Sites by any of
your officers, directors, employees, agents and Authorized Customer
Delegees, or by any other persons through your facilities, and you
acknowledge and agree that any breach by such persons of any of your
obligations in respect of the Site and the Linked Sites shall constitute a
breach of such obligations by you. Customers of BROKER-DEALER shall monitor
each of their Authorized Customer Delegee's access to and use of the Site
and the Linked Sites and shall ensure that such Authorized Customer
Delegees abide by and comply with all applicable laws and the ZS ATS
Rulebook (the "Rulebook") and your obligations hereunder. If you are a
customer of BROKER-DEALER, you are solely responsible for all acts or
omissions of your Authorized Customer Delegees and of any person using the
ATS through Log-In Credentials on your behalf. Without limitation of the
foregoing or any other provision of these Terms of Use, if you are a
customer of BROKER-DEALER, you agree to be bound by the terms of all
indications of interest or orders placed on or through the Site by
BROKER-DEALER at your request or the request of any of your Authorized
Customer Delegees.
1.8 User Provided Content. All Site Content (other than the
BROKER-DEALER and Zanbato Content and Linked Site Content), including
comments, questions, and opinions uploaded, expressed, or submitted to a
message board, blog, or other publicly available section of the Site
(including password-protected areas) and all responses thereto are solely
the opinions and responsibility of the person or entity submitting them and
not BROKER-DEALER and Zanbato. You understand and acknowledge that you are
responsible for whatever content you submit and that you, not BROKER-DEALER
or Zanbato, have full responsibility for such content, including its
legality, reliability, and appropriateness. Under no circumstances may you
submit information that you know, or have reason to believe, is false or
intentionally misleading. By uploading or otherwise transmitting material
to any area of the Site, you warrant that the material is your own or is in
the public domain or otherwise free of proprietary or other restrictions
and that you have the right to post it to the Site. You grant to
BROKER-DEALER and Zanbato the perpetual, irrevocable, transferable,
worldwide, royalty-free right and license to use all content you upload or
otherwise transmit to the Site in any manner BROKER-DEALER and Zanbato may
choose in connection with the Site. BROKER-DEALER and Zanbato reserve the
right, but do not assume any responsibility, to remove any material posted
on the Site which BROKER-DEALER and Zanbato, in their sole discretion, deem
inconsistent with the foregoing commitments, including without limitation
any material as to which BROKER-DEALER or Zanbato has been notified, or
have reason to believe, constitutes a copyright infringement. BROKER-DEALER
and Zanbato can neither review all material before it is posted on the Site
nor ensure prompt removal of objectionable material after it has been
posted. Accordingly, BROKER-DEALER and Zanbato will have no liability for
any action or inaction regarding or otherwise involving Third-Party
Content.
1.9 Right to Terminate User Access. BROKER-DEALER and Zanbato
reserve the right to limit, restrict, and terminate your access to and use
of the Site at any time, in whole or in part, with or without cause in its
sole discretion and without notice. No Information Provider, BROKER-DEALER
or Zanbato will have any liability in connection with such limitation,
restriction, or termination of your access to or use of the Site.
Section 2 - INDEMNIFICATION
2.1 Indemnification. You agree, at your own cost and expense, to indemnify
and hold harmless each of BROKER-DEALER and Zanbato and their officers,
directors, agents, employees, owners, and consultants from and against all
claims, losses, damages, liabilities, costs, and expenses, including
reasonable attorneys' fees and costs, as incurred, (i) by you or any third
party (including without limitation other Users) arising in any manner out
of your use of, or inability to use, the Site, any Linked Site, any Site
Content, any Linked Site Content, or any Web site, data, software, or
information accessed or obtained from any of the foregoing; (ii) by
BROKER-DEALER or Zanbato arising in any manner in connection with any
nonperformance by you of any provision of these Terms of Use (including the
provision of any Site Content to any person who is not a User permitted to
receive such Site Content); or (iii) by you arising in any manner out of
any claim that BROKER-DEALER and Zanbato's use of the Third-Party Content
or Linked Sites infringes the intellectual property rights of any other
person.
Section 3 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
3.1 Disclaimers; Site, Site Content and Linked Site Content. The
Site Content and the Linked Site Content are provided to facilitate
identification of investment opportunities by sophisticated investors and
to provide a vehicle for access to related information, and are not a
confirmation of any opinion or information contained therein. Neither
Zanbato nor BROKER-DEALER make any representation or warranty as to the
contents of any Linked Site or any Site Content provided by a third party.
The Site Content and Linked Site Content generally speak only as of the
date issued. You should not rely on the Site Content and Linked Site
Content as expressing the applicable Information Provider's current opinion
or as representing current information. The Site Content and Linked Site
Content may contain or provide credit, quality, risk and other ratings,
research and generalized investment opinions obtained from various sources.
You agree that such Site Content and Linked Site Content (i) are impersonal
in nature and subject to change or withdrawal without notice, (ii) do not
constitute legal, accounting, tax or investment advice, (iii) do not take
into account your investment objectives, financial situation or particular
needs, (iv) do not constitute a solicitation or recommendation for the
purchase, sale, or holding of any financial instrument or product, or a
representation that any investment strategy or product is suitable for you,
(v) are meant to be reviewed in their entirety, including any footnotes,
legal disclaimers, restrictions, or disclosures, and any copyright or
proprietary notices, and (vi) are provided for informational purposes only.
You also agree that (m) any disclaimers, restrictions, disclosure, or hedge
clauses in such Site Content and Linked Site Content apply to any partial
document or material in the same manner as they do the whole and will be
deemed incorporated in the portion of any Site Content or Linked Site
Content that you consult or download, (n) hypothetical or projected
performance results (where permitted to be shown) have inherent
limitations, with results that may under- or over-compensate for the
impact, if any, of any number of market, political, and economic factors,
and (o) no representation is being made that any reliance on any such Site
Content or Linked Site Content will or is likely to achieve profits or
losses or any particular results of any kind. You further agree that (x) no
Information Provider is under any obligation to provide such Site Content
or Linked Site Content to you, (y) if you receive such Site Content through
the Site (or Linked Site Content through any Linked Sites) or other means,
you may not receive such content at the same time as other customers of the
applicable Information Provider or its affiliates, and (z) no Information
Provider or its affiliates is under an obligation through the Site to
undertake, and may without notice choose not to undertake, to advise you of
changes in the Site Content made available through the Site (or any Linked
Site Content made available through any Linked Site) or otherwise provided
to you.
3.2 Information "As Is" and "As Available"; Advisors. THE SITE, THE
SITE CONTENT AND THE LINKED SITE CONTENT ARE PROVIDED "AS IS" AND "AS
AVAILABLE" WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE SITE, ANY LINKED
SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT, OR ANY WEB SITE, DATA,
SOFTWARE, OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING IS
AT YOUR OWN RISK. BROKER-DEALER AND ZANBATO CANNOT AND DO NOT GUARANTEE OR
MAKE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE
ACCURACY, VALIDITY, SEQUENCE, TIMELINESS, COMPLETENESS, OR CONTINUED
AVAILABILITY OF THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED
SITE CONTENT, OR ANY WEB SITE, DATA, SOFTWARE, OR INFORMATION ACCESSED OR
OBTAINED FROM ANY OF THE FOREGOING. IN NO EVENT WILL BROKER-DEALER OR
ZANBATO BE LIABLE FOR ANY DECISION MADE OR ACTION OR INACTION TAKEN BY YOU
IN RELIANCE ON THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED SITE
CONTENT, OR ANY WEB SITE, DATA, SOFTWARE, OR INFORMATION ACCESSED OR
OBTAINED FROM ANY OF THE FOREGOING. BROKER-DEALER AND ZANBATO FURTHER
EXPLICITLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU
ASSUME THE ENTIRE RISK OF ANY USE YOU MAY MAKE OF THE SITE, ANY LINKED
SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT, OR ANY WEB SITE, DATA,
SOFTWARE, OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING.
BROKER-DEALER AND ZANBATO WILL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR
INDIRECTLY, FOR ANY DAMAGES OR LOSS (INCLUDING DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, AND ANY AND ALL OTHER FORMS OF DAMAGES OR LOSSES
REGARDLESS OF THE FORM OF THE ACTION OR THE BASIS OF THE CLAIM) CAUSED OR
ALLEGED TO BE CAUSED IN CONNECTION WITH YOUR USE OF THE SITE, ANY LINKED
SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT OR ANY WEB SITE, DATA,
SOFTWARE OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING,
WHETHER OR NOT FORESEEABLE AND EVEN IF ANY INFORMATION PROVIDER HAS BEEN
ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. BROKER-DEALER AND
ZANBATO USE ADVISORS AND CONSULTANTS WHO ASSIST WITH THE PRESENTATION OF
THE SITE AND SITE CONTENT AND WHO MAY RECEIVE PERFORMANCE BASED
COMPENSATION IF THEY ARE MEMBERS IN GOOD STANDING OF THE FINANCIAL INDUSTRY
REGULATORY AUTHORITY.
Section 4 - TERMINATION
4.1 Term of Agreement. These Terms of Use shall have a
perpetual term unless and until your access to the Site has been terminated
in accordance with this Section 4.
4.2 Early Termination. Your access to the Site and any Linked Site
may be terminated by you, BROKER-DEALER or Zanbato: (i) upon notice, in the
event of any action, application or proceeding taken in respect of the
bankruptcy or insolvency of you, BROKER-DEALER or Zanbato, (ii) upon
notice, in the event you, BROKER-DEALER or Zanbato has materially breached
any provision of these Terms of Use and has failed to cure such breach
within five (5) days after written notice of such breach; or (iii) with or
without cause, upon ten (10) days' prior notice to you or BROKER-DEALER and
Zanbato, as the case may be, for any reason and without any liability to
the other Party (except as provided in Section 4.4).
4.3 Additional Termination Rights of Zanbato. In addition to its
other rights and remedies hereunder, Zanbato shall have the right to
terminate your access to the Site by notice to you: (i) upon the
occurrence of any event which would prevent Zanbato from providing the
Site to authorized users generally, including, without limitation, any
loss or potential loss of regulatory authorization or license by ZS,
any change in applicable law affecting the Site or interpretation by
any regulatory authority, or any determination by Zanbato to cease
providing the Site; (ii) if Zanbato determines, in its sole discretion,
that the you or any of your officers, directors, employees or agents
(including any Authorized Customer Delegee) may have violated these
Terms of Use, the Rulebook or any applicable law in connection with
their use of the Site or any Linked Site; or (iii) if Zanbato
determines, in its sole discretion, that the security or normal
operation of any part of the Site has been compromised and cannot be
promptly cured. In the event that Zanbato exercises its rights to
terminate this Agreement under this Section 4.3, it shall do so without
any liability to you as a result of such termination.
4.4 Effect of Termination. Termination of your access to
the Site shall not terminate or otherwise modify your obligations with
respect to any liability or matter arising, or if you a customer of
BROKER-DEALER, of any obligation for a transaction executed on your
behalf on the ATS prior to such termination.
In addition, Sections 2, 3 and 5 shall survive any
termination of your access to the Site (as well as any provision which
expressly survives termination or by its nature would be understood to
survive termination) and shall continue to apply to you, BROKER-DEALER and
Zanbato. For the avoidance of doubt, although the representations,
warranties, covenants and obligations set forth in this Agreement shall
only apply during the period you are authorized to access the Site (as set
forth therein), termination of your access shall not terminate or otherwise
modify BROKER-DEALER'S or Zanbato's rights under these Terms of Use to seek
damages or other remedies for breaches of such representations, warranties,
covenants and obligations set forth in Section 5 during the period
of your access to the Site. Upon termination of your access to the Site,
you shall immediately cease all use of the Site.
Section 5 - REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties.
5.1.1 General Representations. You represent and warrant to
BROKER-DEALER and Zanbato that: (i) you have the power and authority to
accept and agree to these Terms of Use and fulfill your obligations
hereunder; (ii) upon your acceptance of these Terms of Use will constitute
your legal, valid and binding obligation, enforceable against you in
accordance with their terms; and (iii) your acceptance of these Terms of
Use will not violate any applicable laws, or any agreement by which you are
bound or by which any of your assets are affected.
5.1.2 Representations, Warranties and Agreements. You represent and
warrant to, and agree with BROKER-DEALER and Zanbato (which
representations, warranties and agreements shall be deemed repeated each
time you access or use the Site), that:
(i) You are in compliance with all applicable laws in all material
respects;
(ii) all information provided by you in writing to BROKER-DEALER and
Zanbato (including all information contained in applications,
questionnaires and information forms, and including information delivered
via electronic means) is true and accurate in all material respects;
(iii) if you are a customer of BROKER-DEALER, you satisfactorily meet any
eligibility criteria or other requirements contained in the Rulebook and
are able to effect settlement of transactions effected on your behalf in
accordance with the Rulebook and these Terms of Use;
(iv) you have all Intellectual Property Rights (as defined in the Rulebook)
in and to any information submitted by you to the Site, and its use of any
software or equipment to access the Site (other than software or equipment
provided by BROKER-DEALER or Zanbato) does not violate any third party's
Intellectual Property Rights;
(v) if you are a Customer of BROKER-DEALER, you are authorized to enter
into the transactions entered into on your behalf through the Site, and
each of such transactions, as confirmed by the Site, is your legal, valid
and binding obligation, enforceable against you in accordance with its
terms and these Terms of Use;
(vi) If you are a customer of BROKER-DEALER, alone or together with your
Authorized Customer Delegee, you possess the sophistication, experience,
knowledge and expertise in financial and business matters to make your own
investment decisions and to properly assess the merits, risks and
suitability of investing in, and entering into transactions on the Site;
(vii) If you are a customer of BROKER-DEALER, alone or together with your
Authorized Customer Delegee, you are (x) capable of evaluating investment
risks independently, both in general and with regard to particular
transactions and investment strategies involving a security or securities
and (y) will exercise independent judgment in evaluating the merits of all
potential transactions;
(viii) you acknowledge, agree and understand that (x) all transactions
entered into on the Site are unsolicited transactions, (y) no such
transaction will be solicited or recommended by BROKER-DEALER or Zanbato
and (z) your decision to enter into any transaction on the Site will be
based on your own research and information, or on research and information
obtained from a source other than the Site, BROKER-DEALER or Zanbato, and
neither BROKER-DEALER, Zanbato nor any of their respective representatives
will have any input into your decision to enter into such transaction;
(ix) If you are a customer of BROKER-DEALER, you are and will continue to
be either (x) a qualified institutional buyer under Rule 144A of the
Securities Act of 1933, as amended (the "Securities Act"), (y) a qualified
purchaser, as defined in Section 2(a)(51) of the Investment Company Act, or
(z) an accredited investor under Rule 501 of Regulation D of the Securities
Act, subject to the right of BROKER-DEALER to impose higher accreditation
standards to comply with suitability requirements;
(x) you shall comply with all applicable laws related to anti-money
laundering and sanctions and (y) if you are a Customer of BROKER-DEALER,
you shall ensure that you and your Authorized Customer Delegees follow such
applicable laws with respect to your and their use of and access to the
Site.
You shall notify BROKER-DEALER and Zanbato promptly in the event any of the
foregoing representations and warranties become untrue at any time during
the term of this Agreement.
5.1.3 Role of Zanbato. You acknowledge and agree that,
notwithstanding anything to the contrary herein:
(i) Zanbato shall not, directly or indirectly, be a principal to any
transaction on the Site or be responsible for, or otherwise guarantee,
performance of any transaction entered into by you, and you shall proceed
solely against the counterparty in that transaction, and not against
Zanbato, to collect or recover any amounts owed to you or to enforce any of
its rights in connection with, or as a result of, such transaction;
(ii) neither the relationship between you and Zanbato, nor the services
provided by Zanbato, nor any other aspect of these Terms of Use shall give
rise to any fiduciary duties on the part of Zanbato;
(iii) BROKER-DEALER and Zanbato may receive fees from subscribers to the
Site representing both the buyer and seller in respect of a transaction
effected through the Site; and
(iv) if you are a customer of BROKER-DEALER, the submission or posting of
any Information to or on the Site by BROKER-DEALER, Zanbato or any
authorized user of the Site shall not be deemed a recommendation by Zanbato
or such authorized user that you enter into any particular transaction or
that any particular transaction is suitable or appropriate for you.
Section 6 - NONDISCLOSURE
6.1 Nondisclosure of Confidential Information. You agree to use
reasonable care, but in no event no less than the same degree of care that
you use to protect your own confidential and proprietary information of
similar importance, and to prevent the unauthorized use, disclosure,
publication or dissemination of proprietary, non-public, confidential
information ("Confidential Information") of any Information Provider. You
agree to accept an Information Provider's Confidential Information for the
sole purpose of evaluation in connection with your business discussions
with BROKER-DEALER. You agree not to disclose or use Confidential
Information otherwise for your own or any third party's benefit without the
prior written approval of an authorized representative of BROKER-DEALER in
each instance. You may disclose Confidential Information if required by any
judicial or governmental request, requirement or order; provided that you
first take, if permitted to do so by the judicial or governmental authority
with jurisdiction, reasonable steps to give the Information Provider
sufficient prior notice in order to contest such request, requirement or
order by notifying the Information Provider of such request. You may only
disclose Confidential Information to your employees or agents with a need
to know for the sole purpose of evaluation in connection with your business
discussions with BROKER-DEALER and, in the case of agents, only to the
extent that the agent has signed a non-disclosure and non-circumvention
agreement at least as restrictive as this Agreement. Information will not
be deemed Confidential Information of an Information Provider that (i) is
already in your possession prior to disclosure by such Information
Provider, (ii) that is or becomes generally available in the public domain
other than as a result of unauthorized disclosure by you or your employees
or agents, or (iii) is acquired by a third party not in violation of an
obligation of secrecy to such Information Provider.
Section 7 - MISCELLANEOUS
7.1 Bids, Offers and Firm Orders. "Bids" and “Offers" on the Site represent non-binding indications of
interest submitted by Zanbato, BROKER-DEALER or one of their respective authorized registered representatives on
behalf of their clients (unless such bids/offers are noted as “firm”). A “firm” bid or offer (each, a “Firm Order”)
obligates the customer of Zanbato or BROKER-DEALER submitting the Firm Order to pay commissions or banking fees on
introduction of a counter-party accepting the terms of their Firm Order, meaning these orders represent a higher
level of commitment to transact. Bid and Offers may be for any class of equity security of an issuer and may be for
blocks of shares held, exercizable, or held or to be held in special purpose vehicles. Rights of holders of the
securities will vary, and transactions may be subject to transfer restrictions, including a right of first refusal
by the issuer or others. Some issuers may restrict transfers in their securities to certain classes of investor.
Specific information on a given ticket is available from Zanbato market operators through its Z-Chat function.
7.2 Entire Agreement. These Terms of Use, together with the Privacy
Policy, and as applicable, the Zanbato ATS Rulebook, the Authorized
Registered Representative User Agreement, Subscriber Agreement as well as
any definitive written agreement executed by the parties constitute the
entire agreement of the parties hereto with respect to the subject matter
hereof and supersede all prior discussions, agreements, and undertakings,
both written and oral, between the parties with respect to the subject
matter of these Terms of Use.
7.3 Changes. BROKER-DEALER and Zanbato may change the terms of these
Terms of Use at any time. The most up-to-date version of these Terms of Use
will be available on the Site. You agree that your continued use of the
Site will constitute acceptance of any new or modified version of these
Terms of Use. If you do not agree with any such amendment, your sole remedy
will be to terminate your access to the Site in accordance with Section 4.
7.4 Severability. If any term or other provision of these Terms of
Use is invalid, illegal or unenforceable in a jurisdiction, all other terms
and provisions of these Terms of Use will nevertheless remain in full force
and effect in such jurisdiction so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
materially adverse to any party and such invalidity, illegality, or
unenforceability in such jurisdiction will not have any effect in any other
jurisdiction.
7.5 Governing Law and Arbitration. This Agreement shall be
governed by the laws of the State of New York, without regard to its
conflicts of laws principles. The parties shall attempt to resolve any
disputes under this Agreement in an amicable manner by mediation before
a single mediator administered by the American Arbitration Association
("AAA") or Judicial Arbitration & Mediation ("JAMS"), under their
respective applicable commercial mediation rules, before resorting to
arbitration. Thereafter, any unresolved dispute arising out of or
relating to this Agreement shall be settled by binding and
non-appealable arbitration administered by the AAA or JAMS under their
respective Commercial Arbitration Rules, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction over the parties in the state or federal courts located in
New York and the parties hereby consent to the personal jurisdiction
and exclusive venue of these courts.
