By agreeing to these terms, you are certifying that you are either:
Agreeing to these terms is the legal equivalent of manually signing a paper copy of this Agreement on behalf of User. You represent, warrant and covenant to Bind Capital that you are authorized to execute this Agreement on behalf of yourself and your firm and that you intend for you and your firm to be legally bound by this Agreement. Each time you access Bind Capital's proprietary website (the "Site") you shall be deemed to have agreed to the terms and conditions of this Agreement on behalf of yourself and your firm. Access to the Site is being provided to User in reliance on this confirmation and the continuance of this status and User agrees to notify Bind Capital and cease using the Site should that status change. Bind Capital makes no representation that the Site is appropriate for the User. The User further agrees that the Site may be unavailable from time to time.
BEFORE ACCESSING THIS SITE, PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS USE OF THIS SITE AND ANY MATERIAL AVAILABLE THROUGH THIS SITE.
(a) "Confidential Information" shall mean information in any form, including but not limited to written, oral, or graphic information, disclosed through the Site to the User. Confidential Information may be disclosed as a consequence of or through any relationship or discussions with Bind Capital, access to Bind Capital's "Proprietary Technology" (as described below), and includes information about Bind Capital's business activities, products, processes, or services, including but not limited to information concerning finances, accounting, engineering, methods, processes, machines, compositions, technology, reports, briefs, formulas, electronic information processing procedures or protocols, computer programs and software (specifically including the proprietary Bind CapitalTools© software program and all information generated thereby), source codes, trade secrets, research and development programs or projects, business plans or strategies, customer lists, potential client lists, supplier information, marketing or sales plans, legal and regulatory strategies, the Site and any other commercial or trade information. Confidential Information also includes all information or property of others in the possession of Bind Capital, including investment manager due diligence reports and other information delivered to Bind Capital as part of the Fund due diligence services provided by others.
(b)"Proprietary Technology" shall mean inventions, invention disclosures, discoveries, improvements (whether obvious or non-obvious), trade secrets, trade names, trademarks, service marks, modifications, refinements, technology, technical data, know-how, ideas, mask works, industrial designs, computer software (specifically including the Bind CapitalTools© software program and all information generated thereby), the Site, protocols, and codes, whether or not patentable or capable of trade secret protection, or copyrightable material, relating to any of the activities, products, processes, or services of Bind Capital.
(a) User shall: (i) hold and maintain all Confidential Information received from Bind Capital in strict confidence; (ii) restrict disclosure of Confidential Information only to those individuals who (1) are User's Representatives that need to know the Confidential Information in order reasonably to carry out the terms of this Agreement (or any subsequent agreement between Bind Capital and User), (2) have been informed of the confidential nature of such Confidential Information, and (3) have agreed to be bound by the restrictions of this Agreement (or any subsequent agreement between Bind Capital and User) governing disclosure in any manner of Confidential Information, including, without limitation, restricting Confidential Information from disclosure to any other person or entity, absent the express written approval of Bind Capital; (iii) not duplicate, reproduce, distribute, store in any electronic information retrieval system, or disseminate in any other manner, the Confidential Information; (iv) employ procedures to prevent the unauthorized disclosure of Confidential Information that are commensurate with industry standards, but in no event less rigorous than procedures reasonably required to maintain the confidentiality of such Confidential Information; (v) use Confidential Information disclosed by Bind Capital only for the express purposes of this Agreement (or any subsequent agreement between Bind Capital and User), and not for any other purpose or otherwise for the benefit of User, its Representatives, or any other person; (vi) not measure, reverse engineer, decompile, disassemble, duplicate, or otherwise analyze the physical or digital structure, construction or operation of the Confidential Information; (vii) not share information and/or the content of any reports to the manager of the investment vehicle; and (viii) promptly return or destroy any and all originals and existing copies of such Confidential Information as may be in possession of User or User's custody or control at the termination of the business relationship between Bind Capital and User contemplated herein.
(b) Should a judicial or regulatory authority require User to disclose any of Bind Capital's Confidential Information, User shall provide notice to Bind Capital immediately upon receiving any notice or request thereof, such that Bind Capital shall be permitted the opportunity to oppose any such disclosure.
(c) In the event of any breach hereof (including without limitation the unauthorized disclosure or use of Confidential Information by User or User's Representatives), User shall indemnify Bind Capital for any and all direct, consequential or punitive damages incurred as a result of such breach (including, without limitation, any actual expenses, attorney's fees, and court costs) and shall reasonably compensate Bind Capital for damages resulting from such breach. User shall also release, defend, indemnify and hold Bind Capital harmless from any and all claims, demands, and causes of action or liability arising from the unauthorized disclosure or use of the Confidential Information. Furthermore, in the event of any breach, Bind Capital shall have the right to specifically enforce the provisions of this Agreement or obtain an injunction, temporary restraining order, or other equitable relief to prevent a continuing or threatened breach, in addition to seeking money damages; it being acknowledged and agreed that any such breach or threatened breach will cause immediate and irreparable injury to Bind Capital, and that monetary damages alone will not provide an adequate remedy.
3. Representations, Warranties and Covenants.
User hereby makes the following representations, warranties and covenants on behalf of itself and its Representatives, as of the date hereof and continuing thereafter:
(a) User has the authority to enter into this Agreement. The terms of this Agreement do not conflict with the terms of any other agreement to which User is a party. User is in good standing in the jurisdiction in which it is organized. User is not, nor will User become, a person with whom U.S. persons or entities are restricted from doing business under regulations of OFAC or other governmental action and User will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
(b) User shall only make Confidential Information available to persons who satisfy the requirements of an "accredited investor" under the Securities Act of 1933, as amended, and Rule 501 of Regulation D adopted thereunder and/or a "qualified purchaser" as that term is defined under Section 2(a)(51) of the Investment Company Act of 1940, as amended. User specifically acknowledges that User and User's Representatives may be held liable for damages including any civil penalties, fines or judgments resulting from providing access to Confidential Information to persons that are not accredited investors and/or qualified purchasers or are not otherwise entitled to receive the Confidential Information.
(c) All Confidential Information shall only be used for purposes of evaluating the investment opportunities of persons permitted hereunder. User may not modify, copy, distribute, broadcast, transmit, reproduce, publish, license, transfer, sell, mirror, frame, or otherwise use any Confidential Information for any other purpose. No Confidential Information shall be used in a manner that is not permitted by this Agreement or by applicable law or regulations.
(d) The information contained in any questionnaires, forms, reports or other documents delivered by User to Bind Capital is true, complete and correct as of the date thereof.
4.Exclusive Ownership of Confidential Information.
User and its Representatives acknowledge Bind Capital's sole and exclusive right, title, and interest in and to any and all copyrights (specifically including the federal copyright registration for the proprietary Bind CapitalTools© software program), patents, trademarks, service marks, trade secrets, and other intellectual property rights, registrations, grants, awards and licenses, whether presently issued, applied for, or issuable or capable of being issued in the future by any governmental entity with respect to any Proprietary Technology. User and its Representatives shall (a) not contest, take any action which would result in the denial, impairment, infringement, revocation, or rescission of, or file any application or other document seeking any right, interest, registration, grant, award or license in or to, any Invention or derivative thereof without the prior written consent of Bind Capital after Bind Capital shall have received written notification of the specific action proposed to be taken by the User (which consent by Bind Capital may be granted, delayed or withheld in the sole discretion of Bind Capital), and (b), if the User shall directly or indirectly obtain any such intellectual property rights, promptly notify Bind Capital of such occurrence and promptly transfer any such rights to Bind Capital at no cost upon receipt of a written notification from Bind Capital by executing and delivering such transfer instruments (in form and substance satisfactory to Bind Capital) as Bind Capital shall request. User and its Representatives acquire absolutely no rights or licenses in the Confidential Information. Except as otherwise expressly permitted herein, User may not modify, copy, distribute, broadcast, transmit, reproduce, publish, license, transfer, sell, mirror, frame, or otherwise use any Confidential Information.
5.Disclaimer; Limitation of Liability.
(a) User and its Representatives acknowledge that (i) Bind Capital derives the Confidential Information from numerous sources, including, but not limited to, Bind Capital's own research and diligence, Bind Capital's underlying investment vehicles, managers of underlying investment vehicles, third party due diligence providers and other public or non-public sources, (ii) the Confidential Information is provided "as is" and "as available," and Bind Capital makes no representation or warranty of any kind, express or implied, as to the accuracy, timeliness, or completeness of the Confidential Information, including, but not limited to, satisfactory quality, non-infringement, legality, accessibility, timeliness, suitability or merchantability, reliability, title or fitness for a particular purpose, (iii) the use of the Confidential Information is at User's sole risk, (iv) to the full extent permissible by law, Bind Capital expressly disclaims any liability or responsibility to User, User's Representatives or any third party for damages resulting from the use of the Confidential Information, or any errors or omissions in, or decisions made in reliance on, any aspect of the Site, (v) User agrees to waive any and all liability claims as it relates to his or her use of Site information, for all purposes, and (vi) Bind Capital may make modifications or changes in the Confidential Information at any time, for any reason.
(b) The Confidential Information is offered solely for informational purposes and does not constitute a solicitation, an offer, or an invitation to make an offer to buy or sell any investments. Neither Bind Capital nor any of its affiliates are a fiduciary or advisor with respect to any financial services or products unless otherwise required by law. The Confidential Information does not constitute any form of investment, legal, regulatory, tax, or compliance advice or any representation as to whether any security or investment is suitable to User or will be profitable. Any such advice should be obtained from an appropriately qualified third party. No information on the Site shall be construed as a recommendation, endorsement, or sponsorship by Bind Capital.
(d) Under no circumstances shall Bind Capital or Bind Capital's Representatives be liable for any reason for any losses or damages (whether direct or indirect) related to Confidential Information, including, but not limited to, lost profits, business, income, contracts, anticipated savings, data, goodwill or wasted time, or any other losses of any kind arising from the use of the Confidential Information by the User. No direct or indirect partner, member or shareholder of Bind Capital shall be personally liable for the performance of the obligations of, or in respect of any claims against, Bind Capital arising under this Agreement. No personal judgment shall be sought or obtained against any of the foregoing in connection with this Agreement.
(e) Past performance is not indicative of future results. Without limiting the generality of the foregoing, certain components of the Confidential Information are based on statistical models that solely provide a means to analyze relationships that may have existed in the past and should not be interpreted as a prediction of future performance.
(f) User acknowledges that Bind Capital provides no assurances as to the availability of any investment, even if it is contained in the Confidential Information.
(g) While Bind Capital is not required to perform due diligence on any investments, Bind Capital may perform operational due diligence on particular hedge fund investments. Bind Capital may, from time to time, designate a fund as a "Candidate Fund." Notwithstanding the foregoing, despite an investment's designation as a Candidate Fund, Bind Capital makes no representation or warranty about any Candidate Fund, or its suitability or appropriateness for any particular segregated portfolio. Bind Capital may make modifications to the list of Candidate Funds at any time, for any reason.
Neither User nor any party acting on its behalf will offer any investments available on the Site by any form of general solicitation or general advertising (or to any person with which it does not have a "substantive and pre-existing relationship" (consistent with, and as set forth and described under, relevant SEC No-Action Letters and Releases)), or engage in any solicitation or other activity in violation of any statute, law, ordinance, rule, public administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any governmental authority.
7. Password Policy; Right to Restrict or Terminate Access.
Use of the Confidential Information requires both sign-in information ("Sign-In Name") and a password ("Password") for access to Bind Capital's Site. Each Sign-In Name and corresponding Password can be used only by the individual intended to receive such information. User may not share its Sign-In Name or Password with any other person. Accordingly, User shall keep its Password confidential at all times, and such Password shall be deemed to be Confidential Information hereunder. User shall promptly notify Bind Capital if it becomes aware of any loss or theft of a Password or any unauthorized use of a Password. Bind Capital reserves all rights in its sole discretion to change, restrict, suspend or terminate access or use of the Site at any time without prior notice or liability.
8. Use of Internet; Security of Site.
(a) Use of the Internet is solely at User's own risk and is subject to all applicable local, state, national, and international laws and regulations. While Bind Capital has endeavored to create a secure and reliable Site, please be advised that the confidentiality of any communication or material transmitted to/from the Site over the Internet cannot be guaranteed. Accordingly, Bind Capital is not responsible for the security of any information transmitted via the Internet. User assumes sole and complete risk for using the Site.
9. Electronic Delivery.
(b) In order to promote cost savings and to improve the timeliness of delivery, Bind Capital delivers information via the Site, upon request. The Internet is not secure and may contain computer viruses or other defects, may not be accurately replicated on other systems, or may be intercepted, accessed, deleted or interfered with by unauthorized or unintended third parties without Bind Capital's or the User's knowledge. Bind Capital makes no warranties in relation to these matters. It is the User's responsibility to timely read any and all information posted to the Site. The User will have to check the Site regularly to avoid missing time-sensitive information as such electronic delivery on or through the Site is sufficient to constitute actual delivery thereof. As such, the posting of information constitutes legal notice of information contained therein and User accepts the same. The User will be responsible to notify Bind Capital if it is unable to access the Site. Users may contact Bind Capital for technical assistance regarding the Site. It is the User's responsibility to notify Bind Capital should the User not want to use the Site as its primary means of communication and document delivery.
10. Electronic Signature Process.
(a) Subscription Agreements, Additional Subscription Requests, Redemption Requests, and other documents related to the Investor's investment that require the User's signature are available through the Fund's proprietary website. The Fund typically expects these documents to be signed electronically via its secure Electronic Signature Process. As part of this process, the Fund will use the User's email address for identity authentication purposes. The User agrees that it will be solely responsible for notifying the Fund in writing of any change in its email address, and that the Fund may not seek to verify or confirm the User's email address as provided. Upon request, the Fund will make paper documents available for signature.
(b) If a User has any doubts about the authenticity of an email purportedly sent by the Fund or the Fund Manager, the User is required to contact the purported sender immediately. User email messages are not secure and may contain computer viruses or other defects, may not be accurately replicated on other systems, or may be intercepted, accessed, deleted or interfered with by unauthorized or unintended third parties without the knowledge of the Fund or the User.
11. Miscellaneous Provisions.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of laws. Any action to enforce this Agreement will be brought in the federal or state courts presiding in Miami, Florida, U.S., and all parties to this Agreement expressly agree to be subject to the jurisdiction of such courts. In connection with its use of the Site, the User shall comply with all applicable law and shall not take any action that would place Bind Capital in violation of any applicable law.
(b) If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
(c) No joint venture, partnership, employment, or agency relationship exists between Bind Capital and User by way of this Agreement or by virtue of User's use of the Confidential Information.
(d) This Agreement between Bind Capital and User represents the entire agreement between Bind Capital and User with respect to use of the Site, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written between Bind Capital and User with respect to the Site.
(e) Bind Capital reserves the right to modify the terms and conditions of this Agreement in its sole discretion from time to time. Any rights not expressly granted herein are reserved.
(f) Failure to insist on strict performance of this Agreement will not operate as a waiver of any subsequent default or failure of performance. No waiver by Bind Capital of any right under this Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. No waiver shall be effective unless in writing.
(g) Bind Capital welcomes feedback and suggestions about how to improve the Site. Any ideas, suggestions, information, know-how, material, or any other content (collectively, "content") received from User will be deemed to include a royalty-free nonexclusive right and license for Bind Capital to use said content.
(h) Bind Capital may provide links, in its sole discretion, to other web sites for the convenience of its users in locating related information and services. You are encouraged to exercise discretion while browsing through the Site or any connected hyperlinks to external websites. Such sites have not necessarily been reviewed by Bind Capital and are maintained by third parties over which Bind Capital exercises no control. Accordingly, Bind Capital expressly disclaims any responsibility for the content, the accuracy of the information, and/or quality of products or services provided by or advertised on these third-party web sites. Bind Capital is not responsible for the privacy practices of such other web sites. Moreover, these links do not imply an endorsement with respect to any third party or any web site or the products or services provided by any third party nor does Bind Capital’s inclusion of these links imply association with the owners or operators of such external sites, and the views expressed at such external websites are not necessarily the views of Bind Capital or its affiliates. Your hyper-linking to, or use of, any such external site is at your own risk. Any concerns regarding any hyperlink should be directed to the respective website owner or operator/webmaster.
(i) To the extent the User is an investor of one of the Fund portfolios advised by a portfolio advisor, such Investor hereby represents that it understands, as described more fully in the Fund’s confidential offering memorandum, the relationships by and among it and such portfolio advisor on one hand, and such portfolio advisor and Bind Capital on the other hand, including that such investor is a “client”, as defined under the U.S. Investment Advisers Act of 1940 (as amended), of such portfolio advisor and not Bind Capital; such investor further represents and warrants that it understands, notwithstanding any branding (which may reflect such portfolio advisor and not Bind Capital) on this Site (i.e. any materials thereunder) provided or sent to such investor by such portfolio advisor regarding the Fund (or its portfolio), the Fund and all levels of the fund structure are sponsored, administered, and controlled directly or indirectly by Bind Capital and not such portfolio advisor (other than, for purposes of clarity, certain investment decisions, monitoring, and other activities with respect to such investor’s portfolio as described more fully in the Fund’s confidential offering memorandum).
12. Tracking Technologies.
The Site may use tracking technologies to enhance Bind Capital's service to its Users and to better develop the Site and its content. Tracking technologies used on the Site may include, but are not limited to: Microsoft Application Insights; Google Analytics; and Google Adwords.
13. Forward-Looking Statements
Any information, data, statements, opinions, or projections made in the Site may contain certain forward-looking statements, projections and information that are based on the beliefs of Bind Capital as well as assumptions made by, and information currently available to, Bind Capital. Such statements in the Site reflect the view of Bind Capital with respect to future events and are subject to certain risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described in the Site. Furthermore, although carefully verified, data is not guaranteed as to accuracy or completeness.
14. User Acknowledgment.
User, by agreeing to use the Site, acknowledges the terms herein and agrees to be bound by the foregoing. Bind Capital, in its sole discretion, may at any time and for any or no reason suspend, limit, restrict, modify or terminate User's access to the Site. Please print this agreement for your records.