Section 1 - SCOPE AND SITE STRUCTURE
1.1 Structure & Links
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.
1.4.3 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.
1.6 Registration and Access Data; Authorized Customer Delegees
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.
1.8 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
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
Section 5 - REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties.
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;
(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;
(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;
(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
7.4 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.