TERMS OF SERVICE
LAST UPDATED: 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 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://idirectpmfund.com/terms-of-service/ periodically 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://idirectpmfund.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 [email protected] (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: [email protected]. 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: [email protected] or 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.
