The following terms and conditions (the “Additional Jurisdiction Terms”) supplement and form a part of the Terms of Service available at Terms of Service – iCapital (collectively, the “Terms of Service). These Additional Jurisdiction Terms shall apply with respect to institutions, corporate entities and/or individuals accessing the Site from the locations/jurisdictions contemplated herein. Capitalized terms used but not defined herein shall have the meanings set forth in the Terms of Service.
HONG KONG TERMS OF SERVICE ADDENDUM
Last Updated: October 27, 2023
This Hong Kong Terms of Service Addendum (“Terms”) are Supplemental Terms to our Terms of Service and are applicable to any institutions, corporate entities and/or individuals accessing the Site from Hong Kong. In the event of a conflict between these Terms and any other terms, guidelines or rules that apply to any specific portion of Financial Services, these Terms shall supersede and control with respect to such conflict. Any capitalized terms not defined herein shall have the meaning provided in the Terms of Service. We reserve the right to change the Terms at any time without notice. If you use the Site after the amended Terms have been published, you will be deemed to have agreed to the Terms, as amended.
The relevant section of the Site relating to certain investment funds (including their respective sub-funds) (each a “Fund”) is an alternative investment platform operated by iCapital Hong Kong Limited (“iCapital HK”) and hosted by iCapital Network Technology Solutions, LLC (together with its affiliates and subsidiaries, the “Site Provider”) on behalf of iCapital HK. The Site Provider (including its affiliates) owns (as the case may be), licenses and hosts certain websites, applications and platforms, including the Site.
By accessing this Site, you represent and warrant to us that you are a resident of Hong Kong and a Professional Investor (as defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) and any rules made under that ordinance).
1. The Site and Financial Services
1.1 Financial Services. The Financial Services we offer allow potential and existing investors who are Eligible Investors in relation to such funds (each a “Relevant Fund”), to review information on privately offered funds, to submit subscription application and retrieve subscription documents, and to receive reporting with respect to those investments. For the purposes of these Terms, an “Eligible Investor” is an investor that is (a) eligible for an investment in the Relevant Fund under the private placement memorandum, prospectus or offering circular, any supplements thereto, the limited partnership agreement or articles of incorporation (as applicable), subscription agreement and other fund documents of that Relevant Fund, and (b) whose participation in the Relevant Fund (and any marketing, promotion or distribution of Relevant Fund interests to such person) can lawfully be made under the Applicable Laws of the investor’s jurisdiction and will not subject the Relevant Fund or iCapital HK or any entity associated with iCapital HK to, or require any Relevant Fund or iCapital HK or any entity associated with iCapital HK to make or undertake any additional registration, notification, filing (or similar) obligations in addition to those the Relevant Fund, iCapital HK and/or any entity associated with iCapital HK as applicable has made which are valid at the relevant time.
1.2 Role of the Site Provider. iCapital HK has subcontracted or will subcontract parts of the services provided hereunder to the Site Provider, including the development, operation and maintenance of the Site. The Site is an auxiliary communications infrastructure system used for the purposes of storing information on certain privately offered investment funds and is hosted by the Site Provider on behalf of iCapital HK. The Site Provider, on behalf of iCapital HK, provides technical support to Users only and is not authorized or regulated in Hong Kong for the purposes of providing the Site. The Site Provider is not providing any investment service or carrying on any regulated activity for which a license is required in Hong Kong. Nothing in these Terms shall infer or create a client relationship between a User and the Site Provider. For the avoidance of doubt, to the extent any subscription documentation is uploaded, sent and/or transmitted for purposes of these Terms.
2. Other Representations, Warranties and Covenants
User hereby represents, warrants and covenants to iCapital HK and the Site Provider as follows:
(i) User’s use of or access to the Site will not require the Site Provider to be authorized or regulated under any Applicable Law;
(ii) User will act in conformity with the Relevant Fund’s private placement memorandum, prospectus or offering circular, any supplements thereto, the articles of incorporation, limited partnership agreement or other applicable constituent documents of the Relevant Fund, the subscription agreement and all other Applicable Laws to the relevant User’s use of the Site, including any investment restrictions, guidelines, mandates to which it and/or its clients or principals are subject; and
(iii) Where User is accessing the Site in its capacity as a distributor of a Relevant Fund, such User shall:
a. maintain such books and records as are required by Applicable Law in connection with these Terms; and
b. make all disclosures that are required by Applicable Law in connection with these Terms.
3. Securities Products
3.1. Advisor or Fiduciary. Unless explicitly agreed otherwise in writing, neither iCapital HK nor the Site Provider is, by virtue of making the information contained on the Site available to you or facilitating such arrangements (respectively), acting as your advisor or fiduciary. The Site is provided to you solely on the basis that you have the capability to independently evaluate risk and will exercise independent judgment in evaluating investment decisions. Your investment decisions will be based on your own independent assessment of the opportunities and risks presented by a potential investment, market factors and other investment considerations.
4. Geographic Restrictions
The Site is issued by iCapital HK. The Site Provider hosts the Site on behalf of iCapital HK for intended use by residents in Hong Kong. The contents of the Site have not been reviewed by the Hong Kong Securities and Futures Commission. We make no claims that the Site or any of its content is accessible or appropriate outside of Hong Kong. The information contained in this Site does not constitute a distribution, an offer to buy or sell any interests in the Relevant Fund or the solicitation of any offer to buy or sell any interests in the Relevant Fund, or engage in the investment management services or investment advisory services in any jurisdiction in which the distribution or offer is not authorized or would be contrary to local laws or regulations. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside of Hong Kong, you do so on your own initiative and are responsible for compliance with any applicable laws and regulations.
5. Amendments to the Data Processing Addendum
The following shall amend the Data Processing Addendum (the “DPA”) with respect to institutions, corporate entities and/or individuals accessing the Site from Hong Kong.
(a) The definition of “Data Protection Laws” definition is hereby amended to add reference to “the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) (“PDPO”).”
(b) The definition of “Restricted Transfer” definition is hereby amended to add the following subclause: “where the PDPO applies, a transfer of Personal Data to a country outside Hong Kong.”
(c) The definition of “Third Country” is hereby amended to add the following subclause: “f the entity transferring personal data is established or controlling personal data in Hong Kong, a jurisdiction outside Hong Kong.”
5.2. Cross-Border Data Transfers
(a) The second sentence of Section 6 and the Section entitled “Onward Transfers” are hereby amended to add “Hong Kong” to the lists of named countries/regions.
(b) A new subsection of Section 6 is hereby added that should read as follows:
Hong Kong Transfer. In the event Financial Professional exports to iCapital any Personal Data from Hong Kong to any Third Country, the Parties shall comply with the Recommended Model Contractual Clauses, as updated and amended by the Hong Kong Privacy Commissioner for Personal Data, issued in May 2022 (“RMCs”), provided that the RMCs shall be supplemented and completed, as appropriate, with the data processing descriptions and Party responsibilities, clause options, and similar criteria set forth in Section 6.1 herein and the annexes attached hereto. For the purposes of supplementing and completing the RMCs, the Parties agree that any dispensation with the adopted format shall not adversely affect the appropriateness of the safeguards provided therein. For the avoidance of doubt, with respect to Hong Kong data transfers, in the event of a conflict between the EU Standard Contractual Clauses and the RMCs, the terms and hierarchy set forth in the RMCs shall supersede and control with respect to such Hong Kong data transfers only. In the event that the version of the RMC incorporated by this DPA is subsequently varied, revoked or otherwise replaced in circumstances where iCapital expects to incur consequential increases in costs or risk and provided that iCapital has undertaken reasonable efforts to mitigate any such increases, then iCapital may terminate its agreement with Financial Professional, upon providing reasonable notice of the same to Financial Professional in writing.
6. Contact us
iCapital HK (CE Number: BTM925) is a legal entity incorporated in Hong Kong holding a license granted by the Hong Kong Securities and Futures Commission for carrying on Type 1 (dealing in securities) and Type 4 (advising on securities) regulated activities. The license held by iCapital HK is subject to the conditions (i) iCapital HK shall not hold client assets; and (ii) iCapital HK shall only provide services to Professional Investors.
If you have any questions in relation to any Relevant Fund, please contact your iCapital HK salesperson directly or send an email to [email protected].
For complaint related matters, please send an email to [email protected] or send a mail to:
iCapital Hong Kong Limited
Room 1003, 10/F, St. George’s Building
2 Ice House Street
Central, Hong Kong