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TERMS OF SERVICE

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 (collectively, “iCapital,” “we,” or “us”) as further detailed on the Site (as defined below). The Terms of Service immediately below govern your use of the Site and depending on the services you use or where you are located, other terms of service may be applicable and will also govern your use of the Site.

Please note that additional, jurisdiction-specific terms and conditions shall apply with respect to institutions, corporate entities and/or individuals accessing the Site from the locations/jurisdictions contemplated in the Additional Jurisdiction Terms available at  Additional Jurisdiction Terms.

 

TABLE OF CONTENTS

I.    TERMS OF SERVICE
II.   EUROPEAN TERMS OF SERVICE ADDENDUM
III.  FINANCIAL SERVICES ADDENDUM
IV.  STRUCTURED INVESTMENT MARKETPLACE AND ONLINE NETWORK “SIMON” TERMS OF SERVICE ADDENDUM
         A. EXHIBIT A (ADDITIONAL CONTRACT TERMS FOR THE CUSIP DATABASE)
         B. EXHIBIT B (ADDITIONAL CONTRACT TERMS FOR ANNUITY PRODUCTS)
V.   DATA PROTECTION ADDENDUM
         A. EXHIBIT A (ANNEX A-1 AND ANNEX A-2)
         B. EXHIBIT B (NON-U.S. INVESTOR PRIVACY NOTICE)

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://icapital.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://icapital.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.

EUROPEAN TERMS OF SERVICE ADDENDUM

LAST UPDATED: August 16, 2023

 

This European Terms of Service Addendum (“Terms”) are Supplemental Terms to our Terms of Service and are applicable to any individuals accessing the Site from the European Economic Area.  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.

The relevant section of the icapital.com website relating to certain investment funds (including their respective sub-funds) (each a “Fund” and such relevant section of the website, “Site”) is an alternative investment platform operated by Institutional CN (Europe) – Empresa de Investimento, S.A. (“iCapital EU”) and hosted by iCapital Network Technology Solutions, LLC (together with its affiliates and subsidiaries, the “Site Provider”) on behalf of iCapital EU. The Site Provider (including its affiliates) owns (as the case may be), licenses and hosts certain websites, applications and platforms, including the Site.

Some of the provisions of these Terms are for the benefit of the Site Provider. Your use of the Site might also be subject to certain additional terms of use required by the Site Provider, and you agree that your use and access to the Site will also be governed by such terms.

With the exception of (i) any terms specifically relating to the Site which the Site Provider requires you to agree to and/or accept in order to access and/or use the Site or which are accessible from a hyperlink on the Site, (ii) any terms which iCapital EU requires you to agree to and/or accept in order to access and/or use the Site, and (iii) the relevant privacy notices or policies of the Site Provider, these Terms, including any addenda or Supplemental Terms hereto, as applicable, constitute the entire agreement between (x) the User and (y) iCapital EU and/or the Site Provider with respect to the Site, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the User and iCapital EU (and/or the Site Provider, where applicable) with respect to the Site. Other than as set out above, any terms of service or terms of use regarding the wider icapital.com website not referring to iCapital EU do not constitute part of User’s agreement with iCapital EU or the Site Provider with respect to this Site.

USERS QUALIFYING AS RETAIL INVESTORS WITHIN THE MEANING OF THE REGULATION (EU) 2015/760 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 29 APRIL 2015 ON EUROPEAN LONG-TERM INVESTMENT FUNDS (THE “ELTIF REGULATION”) AND WHO ARE ACCESSING THE SITE IN RELATION TO A FUND SUBJECT TO THE ELTIF REGULATION, SHOULD ALSO REFER TO SECTION 6.

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 EU to or require any Relevant Fund or iCapital EU to make or undertake any additional registration, notification, filing (or similar) obligations in addition to those the Relevant Fund and/or iCapital EU as applicable has made which are valid at the relevant time.

1.2 Role of the Site Provider. iCapital EU has subcontracted 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 EU. The Site Provider, on behalf of iCapital EU, provides technical support to Users only and is not authorized or regulated in the European Economic Area (“EEA”), the United Kingdom (“UK”), or Switzerland 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 the EEA, the UK and/or Switzerland. 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.

1.3 Privacy Notice. Your use of the Site is subject to the Privacy Policy. Please review the Privacy Policy, which also governs the Site and informs Users of the data collection practices. The Privacy Policy is available at https://icapital.com/privacy-policy/. User expressly permits iCapital EU to share any information it provides to iCapital EU with the Site Provider in connection with the provision of the services provided hereunder and for the purposes of management and operation of the Site by the Site Provider.

2. Other Representations, Warranties and Covenants

User hereby represents, warrants and covenants to iCapital EU 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) Your use of the Site will be for the purposes of your business, trade or profession. You and the Site Provider acknowledge and agree that the requirements of the E-Commerce Directive (2000/31/EC), as implemented in the EEA and the UK or its equivalent in Switzerland, are excluded to the fullest extent permissible by law;

(iii) 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

(iv) Where User is accessing the Site in its capacity as a distributor of an ELTIF (as such terms are used in the ELTIF Regulation), 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 EU 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 owner of the Site is based in the Grand Duchy of Luxembourg. The Site Provider hosts the Site on our behalf and we provide the Site for intended use by persons located in the EEA, the UK and Switzerland. We make no claims that the Site or any of its content is accessible or appropriate outside of the EEA, the UK, or Switzerland. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside of the EEA, the UK, or Switzerland you do so on your own initiative and are responsible for compliance with local laws.

5. Miscellaneous

IF YOU ARE A CONSUMER AND HAVE YOUR HABITUAL RESIDENCE IN THE EEA, THE UK, OR SWITZERLAND YOU ADDITIONALLY ENJOY THE PROTECTION AFFORDED TO YOU BY MANDATORY PROVISIONS OF THE LAW OF YOUR COUNTRY OF RESIDENCE (AS APPLICABLE).

6. ELTIF Users

This Section 6 shall only apply to retail investors within the meaning of the ELTIF Regulation who are accessing the Site in relation to a fund subject to the ELTIF Regulation (for the purposes of this Section 6, the “ELTIF Fund”). In relation to such persons, in case of any discrepancy between the other provisions of these Terms and this Section 6, the provisions of this Section 6 shall prevail.

6.1. Investment Advice. You will be provided with appropriate investment advice. The investment advice will not be provided by iCapital EU, the Site Provider or their respective affiliates but by a third regulated entity. None of iCapital EU, the Site Provider or their respective affiliates bear any responsibility for inappropriate investment advice given by the third regulated entity.

6.2. Facilities. In accordance with the ELTIF Regulation and Delegated Regulation (EU) 2018/480 supplementing the ELTIF Regulation, facilities for making subscriptions, making payments, repurchasing or redeeming units of the ELTIF Fund and to make available the information the ELTIF Fund and the AIFM are required to provide under the ELTIF Regulation, will be made available to you.

FINANCIAL SERVICES ADDENDUM

LAST UPDATED: August 16, 2023

 

This Financial Services Addendum (“Financial Services Addendum”) are Supplemental Terms to our Terms of Service and collectively govern access to and use of the Financial Services by any individual or entity creating an account for the Financial Services (“Customer”). Any capitalized term not defined herein shall have the meaning provided in the Terms of Service.

By registering, creating an account, clicking a “Sign Up” or “I accept” or similar button, or using the Financial Services, you agree to be bound to these terms and conditions together with all applicable exhibits, order form, purchase agreement, or other process set forth by iCapital that regulates access to a Service (an “Order”), attachments, and addenda (the “Addendum”).  If you order the Financial Services through an Order, the Order may contain additional terms and conditions. Unless expressly set forth otherwise, such additional terms and conditions are hereby incorporated into this Addendum in relation to your use of the Financial Services.

In the event of a conflict, an exhibit, attachment, Order, or addendum prevails over this Addendum.

We may revise this Addendum or any additional terms and conditions that are relevant to the Financial Services from time to time. We will post the revised terms on our Site with an “effective date”. IF YOU CONTINUE TO USE THE FINANCIAL SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of this Addendum.

1. Customer Responsibilities

You shall, and shall cause each of your Authorized Users to, abide by the terms of this Addendum. You agree that you will use the Financial Services, and require your Authorized Users to use the Financial Services, only in accordance with Applicable Law. Any action or omission of an Authorized User shall constitute an act or omission on your part. You will monitor your own use of the Financial Services and report all use of the Financial Services that you become aware of, by you or your Authorized Users, that exceeds the standards or limits set forth in this Addendum or any applicable Order. iCapital may investigate and take any (or no) action that it believes is appropriate for violation of this Addendum, including, but not limited to terminating access by Authorized Users. You agree that you will not (or cause or permit any Authorized User or other person to) 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 Financial Services in any way.

2. Other Representations, Warranties and Covenants

2.1. Customer Warranty. Customer hereby represents, warrants and covenants to iCapital as follows: (i) Customer has a pre-existing contractual relationship with all applicable sponsors and/or issuers of each private investment fund, structured investment and similar alternative investment, annuity products, and securities (collectively, the “Financial Products”) to be accessed through the Financial Services and is authorized to provide the Financial Services with respect to each such Financial Product; (ii) Customer agrees that no iCapital Parties shall have any responsibility or liability to Customer 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 a Financial Product; and (iii) Customer will advise iCapital promptly of: (a) the receipt by Customer of any communication specifically with respect to the offering of any Financial Prod interests from the Securities and Exchange Commission, any state securities commissioner or any other regulatory authority in any other jurisdiction; and (b) the threat (if such threat is reasonably likely to have a material adverse effect on a Financial Product) or commencement of any lawsuit, proceeding or investigation to which Customer is (or is threatened to be if such threat is reasonably likely to have a material adverse effect on a Financial Product) a party specifically with respect to the offering of any Financial Product interests.

2.2. Acknowledgment; Representations. You and your Authorized Users (i) acknowledge that iCapital does not intend to act as a fiduciary under Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended, with respect to any investor’s decision to purchase, hold, or withdraw from, a particular Financial Product, and (ii) represent that there are no material suits, actions, claims or proceedings pending or, to your knowledge, threatened in any court or before or by any governmental or administrative body, nor have there been any such material suits, actions, claims or proceedings to which you, or any of your key employees, is a party, or to which any material portion of your assets is subject, which, in each case, would be reasonably expected to have a material adverse effect on your ability to perform your services hereunder.

3. Education Services

You agree that with respect to any Financial Services identified as educational, you are solely responsible for evaluating the accuracy, completeness, and usefulness of all such information, and the quality thereof accessed through the Financial Services. iCapital does not explicitly or implicitly endorse or approve of such information, and does not warrant the accuracy, completeness or usefulness of such information. We are not responsible or liable to you or any third party for such information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by you, or by anyone who may be informed of any of such information.

4. Insurance

During the term of this Addendum, and for three (3) years thereafter, you shall maintain insurance coverage, with one or more insurance companies that have a rating of A minus or better and a financial size category of VIII or larger (both as determined by A. M. Best & Company) and that are licensed or approved to do business in the states where activities described herein are to be performed. This insurance shall include without limitation the following types and amounts of coverage:  (i) Workers’ Compensation and related insurance as prescribed by the law of each state in which work is performed; (ii) Employer’s Liability Insurance with limits of at least one million ($1,000,000) for each occurrence; (iii) Comprehensive General Liability Insurance, including: contractual liability; products and completed operations coverage; and if the use of motor vehicles is required under this Addendum, Comprehensive Motor Vehicle Liability Insurance; each with limits of at least one million dollars ($1,000,000) for bodily injury, including death, to any one person, and one million dollars ($1,000,000) for each occurrence of property damage; (iv) Errors and Omissions / Professional Liability Insurance covering the liability due to error, omission or negligence and internet liability, and computer related errors and omissions, including identity theft and invasion of privacy with limits of at least five million dollars ($5,000,000) for each occurrence; (v) Cyber / Privacy Liability Insurance covering data breaches and intrusions by a third parties to nonpublic personal information or account information, with limits of at least five million dollars ($5,000,000); (vi) Umbrella (Excess) Liability Insurance providing excess coverage to the primary insurance coverage described in subparagraph (iii) above with limits of at least three million dollars ($3,000,000); and (vii) a Financial Institution Bond with limits of at least five million dollars ($5,000,000) covering all thefts and other dishonest acts by employees.  The amounts of coverage specified above shall not be construed as a limitation of a party’s liability to the other party under this Addendum. Notwithstanding the foregoing, to the extent that you are an individual who is accessing the Site and Financial Services on behalf of yourself and not an entity or another person, then you shall maintain insurance subject to scope and quantum limitations appropriate to the nature of your usage of the Financial Services.

STRUCTURED INVESTMENT MARKETPLACE AND ONLINE NETWORK “SIMON”
TERMS OF SERVICE ADDENDUM

LAST UPDATED: August 16, 2023

 

1. Introduction

SIMON Markets LLC, SIMON Annuities and Insurance Services LLC and/or SIMON Technologies LLC and any successor entities, as listed on the Site (“SIMON,” “we” or “us” “our”) is the operator and host of the Structured Investment Marketplace and Online Network, a platform that includes certain structured products and annuity products and other products and services (including services provided by one or more third parties) that is accessible through https://www.simonmarkets.com (the “SIMON Platform”). These terms & conditions (“Terms”) are Supplemental Terms to the Terms of Service and Financial Services Addendum and collectively govern Your access to and use of the SIMON Platform. Your compliance with the Terms and any Related Agreement(s) is a condition of Your access to the SIMON Platform. All other use is strictly prohibited. Any capitalized terms not defined herein shall have the meaning provided in the Terms of Service.

BY USING THE SIMON PLATFORM YOU AGREE TO BE BOUND BY THE TERMS   AND ALL DISCLAIMERS AND TERMS AND CONDITIONS THAT APPEAR ELSEWHERE ON THE SIMON PLATFORM NOW OR IN THE FUTURE. IF YOU DO NOT AGREE WITH ALL OF THE FOREGOING, YOU MUST IMMEDIATELY DISCONTINUE USING THE SIMON PLATFORM.

SIMON HAS THE RIGHT TO CHANGE THE SIMON PLATFORM OR THESE TERMS AT ANY TIME WITHOUT PRIOR NOTICE BY POSTING AN UPDATED COPY OF THESE TERMS TO THE SIMON Platform, WHETHER AS A RESULT OF CHANGES IN LAW OR POLICY OR OTHERWISE. THEREFORE, EACH TIME YOU USE THE SIMON PLATFORM, YOU SHOULD VISIT AND REVIEW THE THEN CURRENT TERMS. YOUR CONTINUED USE OF THE SIMON PLATFORM WILL CONSTITUTE ACCEPTANCE OF SUCH CHANGES.

SIMON MAY, WITHOUT NOTICE AND IN ITS SOLE DISCRETION, CHANGE OR DISABLE YOUR ACCESS TO THE SIMON PLATFORM AT ANY TIME FOR ANY REASON IT DEEMS ADVISABLE OR APPROPRIATE.

2. Services Offered by the SIMON Platform

The services that are available through the SIMON Platform may include, among other things, (i) education modules, (ii) structuring and analytical tools, (iii) a marketplace of financial products (iv), a service for entering indications of interest, (v) access through third parties to annuity illustration and e-application services and other information relating to annuity products, and (vi) certain other services and tools made available by third parties. You may use some or all of the services made available to You through the SIMON Platform, which may depend on Your status as a registered broker-dealer, registered investment adviser, bank, licensed insurance producer or otherwise.

The services are provided to assist You in integrating investment and/or annuity products for which SIMON makes information and related services available through the SIMON Platform, including exchange-traded funds, structured notes or other debt instruments, and structured certificates of deposit (collectively, “Investment Products”) as well as annuity products including those registered as securities under the Securities Act of 1933, as amended, and those exempt from such registration (collectively, “Annuity Products”), into Your business. However, the utility of the SIMON Platform is subject to the use You make of it and it should not be relied upon as the sole means by which You satisfy Your regulatory and compliance responsibilities.

SIMON may also offer the SIMON Platform or any portion thereof to other persons and on different terms than the terms hereof. SIMON may, from time to time, make changes or additions to the services available on the SIMON Platform, and any changes or additions will be reflected on the SIMON Platform. You agree to use the services solely in accordance the Terms and any additional terms that may be agreed to between You and us from time to time in relation to the services provided through the SIMON Platform. SIMON is not obligated to continue to offer any of the services available through the SIMON Platform.

3. Acceptable Use

The SIMON Platform is targeted to broker-dealers, banks (including banks with affiliated broker-dealers), investment advisers (registered with the Securities and Exchange Commission or a state), licensed insurance producers, insurers issuing Annuity Products, issuers and sponsors of Investment Products and other financial intermediaries and to their qualified employees or agents who are financial professionals and who are knowledgeable and authorized to offer, buy or transact in Investment Products and/or Annuity Products. When using the SIMON Platform, You must comply with all laws and regulatory requirements applicable to Your use of the SIMON Platform or Your involvement with Investment Products and Annuity Products, including investment guidelines, mandates, and/or guidelines of Your clients or principals, as well as any notices, advisories, restrictions, legends or disclaimers displayed through the SIMON Platform or otherwise communicated to You (including from issuers and sponsors of Investment Products and insurers issuing Annuity Products). In addition, You and each of Your employees and agents utilizing the SIMON Platform must have all necessary licenses and registrations applicable to Your use of the SIMON Platform and involvement with Investment Products and/or Annuity Products.

4. Content

The SIMON Platform, all of the information and materials contained therein, any information generated from the SIMON Platform, any information derived from the information and materials contained therein (collectively, “Content”) as is the software used to make the SIMON Platform available are and shall remain the property of SIMON, its licensors and suppliers, and issuers, sponsors, and insurers with products on the SIMON Platform.

Certain pre-qualified individuals using the SIMON Platform (“Regulation S Sales Representatives”) may have access to materials relating to offerings intended to be made outside the United States in reliance on Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”) (such materials, “Regulation S Materials”). If You are a Regulation S Sales Representative, You represent, warrant and agree to the Regulation S Representations, Warranties and Agreements set forth and defined in Section 7  (Representations, Warranties and Agreements) relating to such materials and offerings. If You are not qualified to offer and sell Regulation S Investment Products (including if you are acting on behalf of a registered investment adviser, or manage assets in a fiduciary capacity, or otherwise are acting on behalf of a purchaser) and see materials identified as Regulation S Materials on the SIMON Platform, then You should immediately contact Your SIMON salesperson and your internal compliance department and should not access any Regulation S Materials on the SIMON Platform. In such circumstances, You should instead obtain a password that will not provide You access to the Regulation S Materials.

You acknowledge and agree to the Additional Contract Terms for the CUSIP Database set forth as Exhibit A.

SIMON’s trademarks, service marks, trade names, domain names, trade dress and other proprietary logos and indicia are the property of SIMON (“SIMON Marks”). All other trademarks, service marks, trade names, domain names, trade dress and other proprietary logos and indicia are the property of the identified person, company or organization (“Additional Marks”). You agree not to use any SIMON Marks or Additional Marks. Notwithstanding any of the foregoing, any goodwill arising out of Your use of the SIMON Marks shall inure to the benefit of and belong to SIMON. No trademark or service mark license is granted in connection with the right to use Content as set forth herein. Access to the SIMON Platform does not authorize anyone to use any name, logo or mark in any manner. You also will not use any trade mark, service mark, trade name, domain name or logo of any person, company or organization in a way that is likely or intended to cause confusion with the SIMON Marks or that would infringe, dilute or cause any confusion with respect to that person’s, company’s or organization’s marks.

Subject to the terms and conditions of these Terms, You are permitted to store, display, analyze, reformat and print Content only for Your own internal business uses or as expressly permitted in writing by SIMON. You are not permitted to publish, disclose, transmit, or otherwise reproduce any Content, in whole or in part, in any form outside of Your organization, other than to agents or representatives who are acting on Your behalf and that have agreed in writing to maintain its confidentiality. Notwithstanding anything stated to the contrary herein or in any Related Agreement, SIMON does not authorize You to make available any Content to Your customers other than (i) prospectuses and marketing materials labeled as such and downloadable in PDF format on the SIMON Platform, (ii) marketing materials, applications, illustrations and disclosure documents provided through insurers issuing the Annuity Products labeled as such and downloadable in PDF format on the SIMON Platform, or (iii) any other Content that SIMON has explicitly identified for such purpose in its sole discretion (collectively, “Permissible Customer Content”).

5. Disclaimers and Limitation of Liability

5.1. Content Not to be Construed as a Solicitation or Recommendation. The SIMON Platform, including the Content, has been prepared for informational purposes only without regard to any particular user’s or Your customers’ investment objectives, financial situation, or means, and SIMON is not soliciting or recommending that You or Your customers take any action based upon it. The SIMON Platform, including the Content, is not to be construed as a recommendation to buy or sell any security, annuity, financial product or instrument, or otherwise to participate in any particular trading strategy.

5.2. Limitations on Accuracy; Third Party Data. Although the SIMON Platform and the Content are based upon information that SIMON considers reliable and endeavors to keep current, SIMON has not verified information that issuers or sponsors of Investment Products, insurers issuing Annuity Products, or other users of the SIMON Platform make available on or through the SIMON Platform and SIMON does not represent that such information is accurate, current, or complete and it should not be relied upon as such. Information made available on or through the SIMON Platform (including indicative price information for Investment Products and crediting and other terms of Annuity Products) may include information or other data received from third parties which SIMON considers reliable, but SIMON does not represent that such third-party information or data is accurate or complete and it should not be relied upon as such.

5.3. Content Not to be Construed as Advice. SIMON does not provide and nothing contained on or generated by the SIMON Platform should be construed to be business, financial, investment, insurance, hedging, trading, legal, regulatory, tax, accounting or any other form of advice, nor should You make the SIMON Platform the only basis for any investment and/or insurance decisions made by or on behalf of You, Your client or Your managed or fiduciary accounts. To the extent that any information on the SIMON Platform refers to a particular tax treatment, such treatment depends on the individual circumstances of Your client and may be subject to change.

5.4. SIMON Is Not Acting as Your Advisor or Fiduciary. Unless explicitly agreed otherwise in writing, SIMON is not, by virtue of making available to You the SIMON Platform and the Content, acting as Your advisor or fiduciary. The SIMON Platform is provided to You solely on the basis that You have the capability to independently evaluate investment risk and will exercise independent judgment in evaluating investment and/or insurance decisions in that Your investment and/or insurance decisions will be based on Your own independent assessment of the opportunities and risks presented by a potential investment, Investment Product, Annuity Product, market factors and other investment considerations.

5.5. Price and Performance Information. Unless explicitly stated otherwise, any prices provided on the SIMON Platform are indicative only. Such prices or values may not reflect actual prices or values that would be available in the market at the time provided or at the time You may decide to purchase or sell an interest in a particular Investment Product and/or Annuity Product. SIMON accepts no responsibility for updating any pricing information.

Past performance of Investment Products is not a reliable indicator of future performance. The value of investments and the income derived from them may decrease or increase, and investors may not get back the amount originally invested or may lose all of their investment. Other market factors may also affect performance.

Past Performance of Annuity Products calculated and displayed on SIMON does not represent actual performance and should not be interpreted as an indication of such performance in the past or in the future. Past performance of an Annuity Product should not be taken as an indication or guarantee of future performance, and no representation or warranty, expressed or implied is made regarding future performance.

The SIMON Platform and the Content should not be used for valuation purposes and should not be relied upon for the maintenance of your books and records or for any tax, accounting, legal or other purposes.

5.6. System Outages, Slowdowns, and Capacity Limitations. You may experience difficulty accessing the SIMON Platform or communicating with the SIMON Platform through the Internet or other electronic and wireless services due to, among other things and including but not limited to high Internet traffic, systems capacity limitations or other transmission problems. Any computer system or other electronic device, whether it is Yours, an Internet service provider’s or SIMON’s can experience unanticipated outages or slowdowns, or have capacity limitations.

You are solely responsible for obtaining and maintaining the necessary hardware, software, internet connectivity and other systems and network requirements necessary to access the SIMON Platform. SIMON shall have no liability, contingent or otherwise, to You or to third parties, or any responsibility whatsoever, for the failure of any connection or communication service to provide or maintain Your access to the SIMON Platform, or for any interruption or disruption of such access or any erroneous communication between the SIMON Platform and You, regardless of whether the connection or communication service is provided by SIMON or a third party service provider. SIMON may, from time to time, make changes to the SIMON Platform, which may require You to change or replace (at Your own expense) computer hardware or software or other equipment to maintain Your access to the SIMON Platform.

6. IRS Circular 230 Disclosure

No statement contained on the SIMON Platform concerning U.S. tax matters is intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed on the SIMON Platform.

7. Your Representations, Warranties and Agreements

7.1. Representations, Warranties and Agreements.

By using the SIMON Platform, You represent, warrant and agree that:

You have the sophistication, expertise and investment knowledge, or insurance knowledge in the case of Annuity Products, needed to evaluate the Content made available through the SIMON Platform and, if You are investing for others, making investment decisions for others or offering the products available on the SIMON Platform to others, You have the ability and expertise to determine and will determine, prior to purchasing or offering such products to others, that the products You have selected are suitable and appropriate for Your customers and that Your customers are eligible to invest in or purchase the products You have selected.

You (i) have the authority to bind the authorized client or service provider on whose behalf You are accessing the SIMON Platform, (ii) accept these terms on Your own behalf as an individual and on behalf of the authorized client or service provider on whose behalf You are accessing the SIMON Platform, and (iii) are acting at the express instruction of the authorized client or service provider on whose behalf You are accessing the SIMON Platform and agreeing to the Terms.

Your use of the SIMON Platform and the Content does not create or give rise to any relationship or obligations between SIMON and Your customers, account holders or accounts that You manage.

You will not make available to Your customers, accounts that You manage or any other persons any Content that is not Permissible Customer Content.

You agree that You will not sell, buy or invest on behalf of another person or account any product made available through the SIMON Platform to or for any person or account that does not meet the requirements for investing in or buying such product, as set forth in the prospectus (or contract for an Annuity Product) or other applicable disclosure document with respect to such product.

You agree to comply with any selling restrictions of any product made available through the SIMON Platform, as set forth in the prospectus or other applicable disclosure document with respect to such product.

You agree that: (i) Your use of any Content (whether created by SIMON or any third party) made available by SIMON in the Learning Center for use with Your customers (including, but not limited to, any videos) (“SIMON-Available Customer Content”) will only be for educational purposes; (ii) You will not use any SIMON-Available Customer Content in connection, or in conjunction, with any offer or sale of Investment Products, Annuity Products, other securities or financial instruments that are not securities (such as fixed index annuities); and (iii) You will not use or send any SIMON-Available Customer Content to any of Your customers in any manner that could make or cause such materials to be a prospectus or free-writing prospectus. You agree to not use or send any SIMON-Available Customer Content in conjunction with any recommended transaction or investment strategy involving any Investment Product, Annuity Product, other securities or financial instruments that are not securities.

You agree not to use any back-tested performance information except when acting in a selling group and non-discretionary capacity with respect to the offer and sale of structured notes.

You agree to cooperate with any reasonable request made by SIMON in order to respond to any inquires made by any third-party service providers, exchanges, or other regulatory, self-regulatory or governmental authorities in connection with the SIMON Platform.

You (and, if applicable, accounts on whose behalf You are acting or who You manage) are a resident in a jurisdiction which permits You to view the Content and use the services provided by or through the SIMON Platform.

You have and will maintain, as applicable, all licenses and registrations as: (i) a broker-dealer with the U.S. Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority, Inc. (“FINRA”) and any other securities authority with which You are required to register as a broker-dealer in accordance with Applicable Laws (“Registered Broker-Dealer”); (ii) an investment adviser with the SEC or any other securities authority with which You are required to register as an investment adviser in accordance with Applicable Laws (“Registered Investment Adviser”); (iii) a bank with the appropriate banking authorities with which You are required to be licensed or chartered as a bank in accordance with Applicable Laws (“Registered Bank”); and/or (iv) an insurance producer in the required lines of business and in the applicable jurisdictions (“Licensed Insurance Producer”), in each case as applicable, necessary to offer, sell, purchase or transact in the Investment Products and/or Annuity Products made available through the SIMON Platform for Yourself or for others. Each of Your employees/personnel and agents that offers, sells, purchases or transacts in the Investment Products and/or Annuity Products made available on the SIMON Platform is and will be duly licensed and registered in each category of licensing and registration appropriate to his or her functions and responsibilities in accordance with Applicable Laws, including for Registered Broker-Dealers applicable FINRA rules and State securities laws (“Registered Person”), and for Licensed Insurance Producers, as an individually licensed insurance producer.

For the avoidance of doubt, employees/personnel and agents of Registered Broker-Dealers (including those that are also Registered Investment Advisers) must maintain the registrations/licenses listed directly below to view the listed products and You agree to immediately notify SIMON if You do not maintain such registrations/licenses and are able to view such products on the SIMON Platform or if You are aware that an individual using the SIMON Platform does not maintain the appropriate registrations/licenses:

  • Structured Investments: Must maintain the Series 7 and appropriate state securities registrations;
  • Annuity Products Registered Under the Securities Act (e.g., Structured Annuities): Must maintain the Series 6 or Series 7, appropriate state securities registrations, and be an individually licensed insurance producer in accordance with any state requirements; and
  • Annuity Products Exempt from Registration Under the Securities Act (e.g., Fixed Indexed Annuities): Must be an individually licensed insurance producer in accordance with any state requirements.

Employees/personnel and agents of Registered Investment Advisers and Registered Banks must maintain the licensing and registrations required by his or her functions and responsibilities in accordance with Applicable Law, and must be an individually licensed insurance producer in accordance with any state requirements to view Annuity Products. You must immediately notify SIMON if You do not maintain the registrations/licenses required by Applicable Laws or if You are aware of an individual using the SIMON Platform without his or her required registrations/licenses.

You are complying and will comply with all Applicable Laws and regulations in connection with the offer, sale, trading or purchase of such Investment Products and/or Annuity Products, including, without limitation, any reporting obligations. You will only use the SIMON Platform in Your capacity as a Registered Broker-Dealer, Registered Person, Registered Investment Adviser, Registered Bank, and/or Licensed Insurance Producer, as applicable.

If You are a Registered Broker-Dealer, You agree to provide a copy of the relevant prospectus, latest financial report, and/or any other offering documents to each person to whom You offer products that are made available through the SIMON Platform, at or prior to the offer, and to disclose the risks and ensure that they understand the risks of investing in any such product. If You are a Registered Investment Adviser or a Registered Bank, You agree to comply with any obligation to provide the relevant prospectus and/or any other offering documents to each person to whom You offer products that are made available through the SIMON Platform.

If You are a Licensed Producer, you agree to timely provide all required applications, illustrations, disclosure documents, buyer’s guides, contract forms and any other documents required by state insurance laws or the insurer issuing the Annuity Products to each person to whom You offer Annuity Products that are made available on the Insurance Product Marketplace.

If You are not a Registered Broker-Dealer, You represent that You meet the requirements of the term “institutional account” in FINRA Rule 4512(c) (or any successor rule) and “institutional investor” in FINRA Rule 2210(a)(4) (or any successor rule).

YOU WILL NOTIFY SIMON PROMPTLY IF THERE IS ANY FAILURE TO COMPLY WITH ANY OF THE ITEMS ABOVE AND WILL PROVIDE PROMPTLY SUCH FURTHER INFORMATION AS SIMON MAY REASONABLY REQUEST.

7.2. Regulation S Representations, Warranties and Agreements.

By using the SIMON Platform as a Regulation S Sales Representative, You further represent, warrant, acknowledge and agree to the following (collectively, the “Regulation S Representations, Warranties and Agreements”):

(i) investment products identified as Regulation S Materials (including, without limitation, by a “Regulation S” or similar identifier) will only be offered or sold in reliance on Regulation S (the “Regulation S Investment Products”) and subject to such additional offering or selling restrictions identified in the applicable Regulation S Materials;

(ii) any offers or sales of the Regulation S Investment Products must be made in “offshore transactions” (as defined under Rule 902(h) of Regulation S);

(iii) You will not engage in any “directed selling efforts” (as defined under Rule 902(c) of Regulation S) with respect to Regulation S Investment Products;

(iv) You will not offer or sell Regulation S Investment Products to “U.S. persons” (as defined under Rule 902(k) of Regulation S);

(v) at or prior to confirmation of sale of any Regulation S Investment Products, You will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Regulation S Investment Products from You during the distribution compliance period a confirmation or notice that the purchaser is subject to the same restrictions on offers and sales that apply to a distributor; and

(vi) Regulation S Investment Products that have already been sold may remain subject to the distribution compliance period (which may be an indefinite period of time) during which a distributor, its affiliates or any affiliates of the issuer may not offer or sell to, or for the account or benefit of, a U.S. person (other than a distributor); and – with regard to Regulation S Investment Products that have already been sold, issuers and their affiliates will only be able to re-offer and re-sell such Regulation S Investment Products in compliance with Rule 902 or Rule 903 of Regulation S (as applicable), registration under the Securities Act or an exemption from the registration requirements of the Securities Act.

8. Compensation

Whether or not you are directly charged any fee for accessing the SIMON Platform, or otherwise obtaining Services hereunder, fees may be charged to other parties including, but not limited to, Issuers, Sponsors, Underwriters, Brokers, and Insurers. Such fees to other parties may be a flat fee or may be based on the sales of Investment Products or Annuity Products by such parties, whether or not those Investment Products and/or Annuity Products are displayed to you on the SIMON Platform.

9. Additional Disclaimers

Any investment in any Investment Products should only be made having fully and carefully read the relevant prospectus, latest financial report, and/or any other offering documents for the relevant Investment Product. The terms of any investment in an Investment Product are governed by the relevant offering documents (or equivalent documentation). In the event of any inconsistency between the information on the SIMON Platform and the terms specified in, or established pursuant to, the documents establishing the terms of issue or contract, the terms so specified or determined shall prevail.

Any purchase of an Annuity Product should only be made having fully and carefully read the relevant documents related to such product, including but not limited to the application, illustration, disclosure document, buyer’s guide, contract form, and any other documents for the relevant Annuity Product. The terms of any Annuity Product are governed by the relevant contract form. In the event of any inconsistency between the information on the SIMON Platform and the terms specified in, or established pursuant to, the issuing insurance company’s documents related to the Annuity Product, the terms so specified or established shall prevail.

The Learning Center provided through the SIMON Platform is not designed to provide a comprehensive education on complex instruments generally or even on the types of products offered through the SIMON Platform specifically. The materials provided by the Learning Center are general and high level only, and You should supplement the materials with other available information about Investment Products and Annuity Products, including current information provided by regulatory authorities. The materials in the Learning Center are solely for educational purposes and are in no way intended to be an offer of any securities, including Investment Products and Annuity Products. In no event should the information provided through the Learning Center be viewed as a substitute for (i) reading the relevant prospectus, latest financial report, and/or any other offering documents for the relevant Investment Product or Annuity Product You intend to purchase or offer to Your customers or (ii) reading the relevant application, illustration, disclosure document, buyer’s guide, contract form, and any other documents for the relevant Annuity Product you intend to offer Your customers. The Learning Center is not designed to be a substitute for Your compliance and supervisory program including Your training. Your use of the Learning Center is subject to Your own compliance policies and procedures and supervisory oversight. SIMON has no compliance or supervisory responsibility related to Your use of the Learning Center.

The fact that SIMON has made the information and services provided on the SIMON Platform available to You does not constitute a representation that any Investment Product and/or Annuity Product described on the SIMON Platform is suitable or appropriate for You, Your clients or Your managed or fiduciary accounts. Certain transactions, including those involving futures, options, and high-yield securities, give rise to substantial risk and are not suitable for all investors. You should not enter into any transaction unless You have fully understood all such risks as set out in applicable offering documentation (or contract form for an Annuity Product) and have independently determined that such transactions are appropriate for You or Your client or Your managed or fiduciary accounts. Any discussion of the risks contained on the SIMON Platform with respect to any Investment Product and/or Annuity Product should not be considered to be a disclosure of all risks or a complete discussion of the applicable risks.

Indications of interest to transact in Investment Products submitted through SIMON will be considered by the issuer of the Investment Product on a case by case basis and may be rejected by the issuer for any reason in the issuer’s sole discretion.

Applications to purchase Annuity Products submitted through the third party e-application services are subject to the terms and conditions of Exhibit B. Applications to purchase Annuity Products, whether through any third party e-application service or otherwise, will be considered by the insurer issuing the Annuity Product on a case by case basis and may be rejected by the insurer for any reason in the insurer’s sole discretion.

10. Platform Data and Other Data and Your Content

We may share data and information regarding Your use of the SIMON Platform, including, but not limited to, Your indications of interest, quotes, positions, financing activity, trades, web-based interface or API usage, behavioral patterns such as your consumption of Content or interactions with product providers, Your transactions in Investment Products and/or Annuity Products available through the SIMON Platform or otherwise, the results of testing You have conducted of Your employees and agents using the SIMON Training Module to the extent You have access to such testing/modules, and other data and analytics (all of such information, “ Your Information”). You acknowledge and agree that Your Information will be available to us and You consent to our making Your Information available to our affiliates, agents service providers and product providers on the SIMON Platform and to any regulator or self-regulatory organization with jurisdiction over us, our affiliates or product providers. You also consent to our affiliates, agents, service providers and product providers contacting You in connection with the performance, receipt and maintenance of the SIMON Platform. Without limitation of the foregoing:

You hereby grant to SIMON a worldwide, irrevocable, transferrable, assignable, royalty-free right and license, during and after the term of these Terms, to transmit, communicate and distribute Your Information to issuers and sponsors of Investment Products and insurers issuing Annuity Products on the SIMON Platform with whom You have a business relationship, including without limitation for purposes of entering into transactions with You, and to use Your Information for any internal purpose, including for improving client experience with and enhancing our products and services.

You hereby grant to SIMON a worldwide, irrevocable, transferrable, assignable, royalty-free right and license to, during and after the term of these Terms, directly and through agents and contractors to aggregate, perform analytics on, compile, create derivative works from, use, distribute, sub-license, disclose and sell for our own and our affiliates’ benefit Your Information on an anonymized and aggregated basis together with such information from other users of the SIMON Platform (such anonymized and aggregated data, “Platform Data”). SIMON has adopted policies and procedures designed to protect the confidentiality of Your client-specific information (i.e., information that is not anonymous and aggregated) by limiting access to those personnel who have a “need to know.”

SIMON may use Platform Data for multiple internal and external purposes, including but not limited to market color reports, analytical tools and trading and risk management strategies for market making and liquidity provision. As with other products and services, SIMON may elect to share Platform Data with all or a subset of its clients based on the clients’ overall relationship with SIMON, including, but not limited to, the extent of business that a client conducts with SIMON.

Platform Data, which is created using considerable expertise, labor, money and goodwill, is protected by intellectual property and other proprietary rights under the laws of the United States and other countries. To avoid doubt, as between You and SIMON, SIMON owns all right, title and interest (including, but not limited to, all intellectual property rights) in and to the SIMON Platform and the Platform Data.

If SIMON provides You with any Platform Data, SIMON is granting You a personal, non-transferable, non-sub-licensable, non-exclusive, worldwide, revocable license to use such Platform Data solely for Your internal purposes. Except as otherwise required by law or regulation, You will treat all Platform Data as confidential information and may not provide it outside of Your organization other than to agents or representatives who are acting on Your behalf and have agreed to maintain its confidentiality. You are responsible for all actions and inactions of such agents and representatives. In addition, You agree not to take, maintain or direct action that interferes with SIMON’s rights, title and interest in and to the Platform Data.

11. Use of the SIMON Platform Outside the United States

USE OF THE SIMON PLATFORM OR CONTENT MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS. THE SIMON PLATFORM IS NOT TO BE USED, AND IS NOT INTENDED FOR USE, BY ANY PERSON RESIDENT IN ANY LOCATION OR JURISDICTION WHERE SUCH USE MAY BE CONTRARY TO LOCAL LAW, REGULATION OR BUSINESS PRACTICES. SIMON DISCLAIMS ALL RESPONSIBILITY IF YOU ACCESS, USE OR DOWNLOAD ANY CONTENT FROM THE SIMON PLATFORM IN VIOLATION OF ANY LAW OR REGULATION IN THE JURISDICTION OF WHICH YOU ARE A CITIZEN OR IN WHICH YOU ARE RESIDING OR DOMICILED.

12. Termination

These Terms are effective unless and until terminated by either You or SIMON. You may terminate these Terms at any time with notice to SIMON, whereupon You must immediately cease using or accessing the SIMON Platform, Content and/or any services provided through the SIMON Platform. SIMON may terminate the Terms, in SIMON’s sole discretion, at any time and deny You access to the SIMON Platform. Upon any termination of the Terms by either You or SIMON, or if You cease to be a client of SIMON, You must promptly destroy all reasonably accessible copies of Content downloaded or otherwise obtained from the SIMON Platform, whether made under the Terms or otherwise, except to the extent necessary to comply with any Applicable Laws and regulations. Notwithstanding any termination of these Terms, Sections 5 (Disclaimers and Limitation of Liability), 6 (IRS Circular 230 Disclosure), 7 (Your Representations, Warranties and Agreements), 10 (Platform Data and Other Data), and 11 (Use of the SIMON Platform Outside the United States) shall survive any such termination.

13. General

We may assign, transfer or sublicense any or all of our rights or these Supplemental Terms or delegate any of our obligations under these Supplemental Terms. Notices to You may be made via posting to this website, by email, or by regular mail in SIMON’s discretion. A printed version of this the Terms and any notice given in electronic form is admissible in judicial or administrative proceedings relating to the Terms to the same extent as in printed form. Except as otherwise agreed in writing, including in any Related Agreement, these Terms are the sole, final and entire agreement between You and SIMON relating to the SIMON Platform and Content and supersedes any and all prior or contemporaneous written or oral agreements or understandings between You and SIMON relating to the SIMON Platform and Content. SIMON may amend the Terms as set forth herein. You may not amend or modify the Terms.

14. Contact SIMON

If You have any questions about the Terms please contact Your SIMON salesperson.

EXHIBIT A
ADDITIONAL CONTRACT TERMS FOR THE CUSIP DATABASE

 

You agree and acknowledge that the CUSIP Database and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, CUSIP Global Services (“CGS”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to You in such materials or in any of the information contained therein. Any use by You outside of the clearing and settlement of transactions requires a license from CGS, along with an associated fee based on usage. You agree that misappropriation or misuse of such materials will cause serious damage to CGS and ABA, and that in such event money damages may not constitute sufficient compensation to CGS and ABA; consequently, You agree that in the event of any misappropriation or misuse, CGS and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CGS and ABA may be entitled.

You agree that You shall not publish or distribute in any medium the CUSIP Database or any information contained therein or summaries or subsets thereof to any person or entity except in connection with the normal clearing and settlement of security transactions. You further agree that the use of CUSIP numbers and descriptions is not intended to create or maintain, and does not serve the purpose of the creation or maintenance of, a master file or database of CUSIP descriptions or numbers for itself or any third party recipient of such service and is not intended to create and does not serve in any way as a substitute for the CUSIP MASTER TAPE, PRINT, DB, INTERNET, ELECTRONIC, CD-ROM Services and/or any other future services developed by CGS.

NEITHER CGS, ABA NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY YOU FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.

You agree that the foregoing terms and conditions shall survive any termination of its right of access to the materials identified above.

The following additional terms are required to be included in the Terms pursuant to our agreement with CGS. However, if You receive CGS Data (as hereafter defined) pursuant to an API through the SIMON Platform, the terms set forth below do not apply to You; and – if the authorized client or service provider on whose behalf You are accessing the SIMON Platform has a CGS License Agreement that permits broader rights than those granted below, then the terms of that CGS License Agreement – and not the terms set forth below – shall govern Your use of the CGS Data.

To the extent that You receive CUSIP standard numbers, CUSIP standard descriptions, CGS ISINs, CINS numbers and other information about financial instruments (“CGS Data”): (i) You must be issued a unique password; such password may not be shared or transferred; (ii) You may download CGS Data to a desktop/computing device used solely for your individual use and not for any centralized, interdepartmental or shared use; (iii) Once downloaded to Your desktop/computing device, the CGS Data must remain on Your desktop/computing device and may not be uploaded, copied, transferred to, stored or managed in any other desktop/computer device, including that of any other user, or any device, directory, database or other repository that is shared or can be accessed by others (e.g. the download functionality may not be used to populate master security databases); and – You may download CGS Data only as a convenience in connection with Your use of the SIMON Platform and not as an alternative to obtaining the CGS Data from and/or pursuant to an agreement with CGS.

EXHIBIT B
ADDITIONAL CONTRACT TERMS FOR ANNUITY PRODUCTS

If You are authorized to access, view and transact in Annuity Products including third party illustration and e-application services and the databases, software, proprietary tools, hardware, and other technology used to provide such illustrations and e-application services (collectively, “ 3rd Party Annuity Technology”) therein, You agree to access and use the 3rd Party Annuity Technology solely for the purpose of managing forms development and other configurations data and process made available to You with the 3rd Party Annuity Technology. Notwithstanding the preceding sentence You may permit Your agents to access and use 3rd Party Annuity Technology for creating illustrations, forms developments, and the subsequent completion and submission of insurance application forms on behalf of individual consumers for the purchase of insurance products and services. You agree not to use the 3rd Party Annuity Technology for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking, business intelligence data mining or competitive purposes.

DATA PROTECTION ADDENDUM

LAST UPDATED: August 16, 2023

 

This Data Protection Addendum (“DPA”) amends, and forms part of, the iCapital Terms of Service between iCapital, acting on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its affiliates, and the applicable entity who transmits Personal Data subject to Data Protection Law (as those terms are defined below) to or through the Services (“Financial Professional”). iCapital and Financial Professional are collectively referred to as the “Parties” and each a “Party.”

Financial Professional and iCapital hereby agree to comply with this DPA, including the cross-border transfer terms herein.

1. Definitions

“Financial Professional Party Data” means personal data related to Financial Professional Authorized Users.

“Affiliate” of a Party means any entity that directly or indirectly now or hereafter controls, is controlled by, or is under common control with that Party.

“Data Protection Law” means, as and to the extent they apply to that Party, any applicable laws and regulations in relation to the privacy or processing of personal data relating to identifiable individuals that restrict the transfer of Personal Data to third countries, including but not limited to as may be applicable, as updated, amended, or replaced from time to time: (a) the EU General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); (b) equivalent requirements in the United Kingdom including the UK General Data Protection Regulation and the Data Protection Act 2018 (“UK Data Protection Law”), (c) the Swiss Federal Act on Data Protection (“FADP”); and (d) other national laws implementing, revising or replacing the GDPR, each as updated, amended or replaced from time to time.

“Personal Data” means information processed in furtherance of the Services that relates to an identified or identifiable individual.

“Investors” are those persons or entities that meet the following qualifications: (i) certain investors in accordance with legal requirement in various jurisdictions, (iii) a person with the requisite skill and expertise to adequately assess the risks of investing in the types of products offered through the Services, and (iv) such other suitability requirements as are mutually agreed to by the Parties.

“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which has not received an adequacy decision from the competent UK authority  (iii) where the FADP applies, a transfer of Personal Data to a country outside of Switzerland which has not received an adequacy decision from the competent Swiss authority.

“Third Country” means, (i) if the entity transferring Personal Data is established in the European Economic Area (“EEA”) or Switzerland, a jurisdiction outside the EEA or Switzerland that has not been deemed adequate for data protection purposes by the European Commission (in the case of the EEA) or Swiss authorities (in the case of Switzerland), or (ii) if the entity transferring data is established in the UK, a jurisdiction outside the UK that has not been deemed adequate for data protection purposes under UK law.

The terms “Data Controller,” “Data Processor,” “Data Subject,” “process,” “processing,” and “transfer” shall be interpreted in accordance with the applicable Data Protection Laws.

Any capitalized terms not defined herein shall have the meaning provided in the iCapital Terms of Service

2. Scope and Roles and Responsibilities

2.1. Scope of Personal Data Processed. The Parties acknowledge that, in order to perform the Services, each Party may make certain Personal Data available to the other Party. The relationship of the Parties with respect to such Personal Data is set forth herein.

2.2. Financial Professional Party Data. The Parties acknowledge and agree that the Financial Professional Party Data Financial Professional may make available to iCapital contains Personal Data relating to Financial Professional’s employees, agents, and contractors who use, or otherwise are involved in, fund management related to the Services (collectively, the “Financial Professional Authorized Users”). Each Party acknowledges and agrees that (i) iCapital processes Financial Professional Party Data in furtherance of the Services, and (ii) iCapital independently determines the purposes and means of any processing of Financial Professional Party Data that is required to provide the Services. Therefore, each Party further acknowledges and agrees that iCapital is an independent data controller with respect to any and all Financial Professional Party Data that it collects, transfers, or otherwise processes pursuant to the Services.

2.3. Investor Personal Data. The Parties acknowledge and agree that iCapital is the Data Controller of Personal Data related to Investors (“Investor Personal Data”). The Parties acknowledge that Investors may contact Financial Professional about the Services. In such circumstances, Financial Professional acts as a Data Processor of such Investor Personal Data on behalf of iCapital, and shall process such Investor Personal Data in accordance with the obligations set forth in Section 3.2 herein.

2.4. Other. To the extent the Parties process Personal Data in furtherance of the Services other than in the circumstances set forth above, the Parties shall act as independent Data Controllers.

3. Compliance; Party Obligations

Each Party shall be individually and separately responsible for complying with its obligations that apply to it (whether as a Data Controller or Data Processor) pursuant to Data Protection Law.

3.1. Data Controller. Where a Party acts as a Data Controller of Personal Data processed under the iCapital Terms of Service, it shall:

(a) limit the collection, transfer, and processing of Personal Data to what is reasonably necessary to provide or receive the Services, as applicable, or as otherwise agreed to, in writing, by the Parties;

(b) ensure that it has an appropriate legal basis for the collection, transfer, and processing of Personal Data; and

(c) in the case of Financial Professional Party Data and if required by an applicable Data Protection Law, obtain the necessary consent from the relevant Financial Professional Authorized User for such collection, transfer, and processing.

3.2. Financial Professional Acting as a Data Processor. Where Financial Professional acts as a Data Processor of Investor Personal Data, it shall:

(a) process Investor Personal Data solely: (i) to fulfill its obligations to iCapital under the Services, including this DPA; (ii) on iCapital’s behalf; and (iii) in compliance with Data Protection Law;

(b) ensure that the persons it authorizes to process the Investor Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c) taking into account the nature of the processing, assist iCapital by implementing appropriate technical and organizational measures, including but not limited to facilitation by support staff to ensure that iCapital may at any time respond to request(s) from data subjects exercising their rights under Data Protection Law. Any such data subject request received by Financial Professional will be referred to iCapital promptly;

(d) provide reasonable assistance to and cooperation with iCapital for iCapital’s consultation with regulatory authorities in relation to the processing or proposed processing of Investor Personal Data, and promptly notify iCapital of (i) any third-party complaints regarding the processing of Investor Personal Data; or (ii) any government requests for access to or information about Financial Professional’s processing of Investor Personal Data on iCapital’s behalf, unless prohibited by Data Protection Law. Financial Professional will provide iCapital with reasonable cooperation and assistance in relation to any such request. If Financial Professional is prohibited by applicable Data Protection Law from disclosing the details of a government request to iCapital, Financial Professional shall inform iCapital that it can no longer comply with iCapital’s instructions under this DPA without providing more details and await iCapital’s further instructions. Financial Professional shall use all reasonable and available legal mechanisms to challenge any demands for data access through national security process that it receives, as well as any non-disclosure provisions attached thereto;

(e) provide reasonable assistance to and cooperation with iCapital for iCapital’s performance of a data protection impact assessment of processing or proposed processing of Investor Personal Data, when required by applicable Data Protection Law, and at iCapital’s reasonable expense; and

(f) promptly notify iCapital if it determines that (i) it can no longer meet its obligations under this DPA or applicable Data Protection Law; or (ii) in its opinion, an instruction from iCapital infringes applicable Data Protection Law.

3.3. Non-U.S. Investor Privacy Notice. Where Financial Professional transfers Investor Personal Data to iCapital for iCapital to process as a Data Controller, Financial Professional shall provide the Investor with the Non-U.S. Investor Privacy Notice attached hereto as Exhibit B.

4. Information Security

4.1. Controls. Each Party shall implement and maintain appropriate technical, physical, and administrative security controls to protect and safeguard the Personal Data under its control against accidental, unauthorized or unlawful access, use, disclosure, loss, destruction, or damage.

4.2. Notification. With respect to Personal Data for which the Parties act as independent Data Controllers, each Party shall be independently responsible for notifying data subjects and regulatory authorities of a data breach affecting the confidentiality, integrity, or availability of Personal Data (“Personal Data Breach”) within its custody and control, or within the custody and control of a processor, provided that each Party shall provide commercially reasonable assistance to the other in order to facilitate the data breach notifications described in this paragraph.

4.3. Financial Professional Notifications. With respect to Personal Data for which Financial Professional acts as a Processor to iCapital, Financial Professional shall notify iCapital without undue delay (and in call cases within 48 hours) of any Personal Data Breach of Financial Professional Authorized User Personal Data or Investor Personal Data in its custody or control (or within the custody and control of a subprocessor) and will assist iCapital with its Personal Data Breach-related obligations, including without limitation, by:

(i) taking commercially reasonable steps to mitigate the effects of the Personal Data Breach and reduce the risk to Financial Professional Authorized User Personal Data and/or Investors whose Personal Data was involved; and

(ii) providing iCapital with the following information, to the extent known:

a. the nature of the Personal Data Breach, including, where possible, how the Personal Data Breach occurred, the categories and approximate number of data subjects concerned, and the categories and approximate number of Financial Professional Authorized User Personal Data and/or Investor Personal Data records concerned;

b. the likely consequences of the Personal Data Breach; and

c. measures taken or proposed to be taken by the party to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.

5. Mutual Assistance; Records of Processing

Each Party shall provide commercially reasonable assistance to the other Party to assist the other Party to comply with privacy requests, data protection impact assessments, and consultations with regulatory and supervisory authorities with respect to Personal Data. Each Party shall, to the extent required by applicable Data Protection Law, maintain complete and accurate records of its processing activities. Each Party shall provide the other Party with contact details of at least one employee who will serve as the point of contact and responsible manager for all issues arising out of the processing of Personal Data.

6. Cross-Border Data Transfers

Each Party shall protect all Personal Data it receives from a third country in a manner no less stringent than required by applicable law of the country in which the Personal Data originated. To the extent Personal Data originates in the EEA, Switzerland, or the UK via a Restricted Transfer, the Parties shall comply with the following:

6.1. European Transfers. In the event Financial Professional exports to iCapital any Personal Data from the EEA, the Parties shall comply with the standard contractual clauses adopted by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 for the transfer of personal data to Third Countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“EU Standard Contractual Clauses”), which are hereby incorporated into, and form an integral part of, this DPA, subject to the following: (i) the EU Standard Contractual Clauses shall be governed by the Module One clauses (Transfer controller to controller) or, in the case of Investor Personal Data, the Module Four clauses (Transfer processor controller), and Financial Professional shall be the data exporter and iCapital shall be the data importer; (ii) Clause 7 (Optional – Docking Clause) of the EU Standard Contractual Clauses shall be deemed incorporated herein and applicable to the Parties and third parties; (iii) for purposes of Clause 11 (Redress) of the EU Standard Contractual Clauses, the Parties agree that the optional wording shall not be incorporated therein; (iv) for purposes of Clause 13 of the EU Standard Contractual Clauses (Supervision), the competent supervisory authority shall be the Irish Data Protection Authority; (v) for purposes of Clause 17 (Governing law) of the EU Standard Contractual Clauses, the Parties agree that the EU Standard Contractual Clauses shall be governed by the law of Ireland and Clause 17, “Option 1” shall apply accordingly; (vi) for purposes of Clause 18 (Choice of forum and jurisdiction) of the EU Standard Contractual Clauses, the Parties agree that any dispute arising from the EU Standard Contractual Clauses shall be resolved by the Courts of Ireland, and Clause 18(b) shall apply accordingly; (vii) Annex A-I of Exhibit A of this DPA shall be incorporated into Annex I of the EU Standard Contractual Clauses; and (viii) Annex A-II of Exhibit A of this DPA shall be incorporated into Annex II of the EU Standard Contractual Clauses.

6.2. Swiss Transfers. In the event Financial Professional exports to iCapital any Personal Data from Switzerland, the Parties shall comply with the EU Standard Contractual Clauses, as set forth in Section 6.1 herein, subject to the following: (i) references to “Regulation (EU) 2016/679” or “that Regulation” in the EU Standard Contractual Clauses are to be understood as references to the Swiss Federal Act on Data Protection (FADP); (ii) references to specific Article(s) of “Regulation (EU) 2016/679” are to be understood as references to the equivalent Article or provision of the Swiss FADP; (iii) the term “member state” in the EU Standard Contractual Clauses shall not be interpreted in such a manner as to exclude data subjects in Switzerland from enforcing their rights in Switzerland, in accordance with Clause 18(c), provided Switzerland is their habitual residence; (iv) the “competent supervisory authority” under Part C of Annex II of the EU Standard Contractual Clauses is the Swiss Federal Data Protection and Information Commissioner; (v) the applicable law for contractual claims under Clause 17 in the EU Standard Contractual Clauses is Swiss law; and (vi) in relation to Clause 18(a), any disputes arising from the EU Standard Contractual Clauses shall be resolved by the courts of Switzerland.

6.3. UK Transfers. In the event Financial Professional exports to iCapital any Personal Data from the United Kingdom, the Parties shall comply with the EU Standard Contractual Clauses, as updated and amended by the International Data Transfer Addendum to the EU Standard Contractual Clauses (B.1.0) issued by the UK Information Commissioner’s Office under S119A(1) Data Protection Act 2018, in force 21 March 2022 (“UK Addendum”), provided that the UK Addendum 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 UK Addendum, 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 UK data transfers, in the event of a conflict between the EU Standard Contractual Clauses and the UK Addendum, the terms and hierarchy set forth in the UK Addendum shall supersede and control with respect to such UK data transfers only. In the event that the version of the UK Addendum 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.

6.4. Onward Transfers. iCapital shall not transfer such Personal Data from the EEA, Switzerland, or the United Kingdom to any Third Country, except to the extent such transfer is in accordance with an applicable Data Protection Law.

EXHIBIT A
ANNEX A-I (DATA PROCESSING ACTIVITIES)

A. List of parties:

 

Name (Data Exporter) Financial Professional
Address As set forth in the order or other contracting terms governing the use of the Services.
Contact person’s name, position and contact details As set forth in the order or other contracting terms governing the use of the Services.
Activities relevant to the data transferred Set forth below
Signature and date As of the first day using the Services
Role (controller / processor) Data Controller; Data Processor

 

Name (Data Importer) Institutional Capital Network, Inc., acting on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Affiliates that provide Services to Financial Professional.
Address 60 East 42nd Street, New York, NY 10165 USA.
Contact person’s name, position and contact details [email protected]
Activities relevant to the data transferred Set forth below
Signature and date As of the first day of providing the Services to Financial Professional
Role (controller / processor) Data Controller

 

B. Description of Transfer: Unless otherwise set forth in a statement of work, order, or similar documentation, the description of the Personal Data transferred is as follows:

Categories of Data Subjects: For Controller to Controller Transfers: Financial Professional Authorized Users For Processor to Controller Transfers: Investors (as that term is defined in the DPA).

Categories of Personal Data transferred: For Personal Data of Financial Professional Authorized Users: contact data; professional information; nationality, place and date of birth, and passport number; persistent identifiers; records of the Services obtained; tax information. For Qualified Investor Personal Data: contact data and information provided by the Qualified Investor in relation to their inquiry.

Sensitive data transferred: None.

The frequency of transfer: Continuous and for so long as Financial Professional uses the Services.

Nature of Processing: For Controller to Controller Transfers: To enable Financial Professional Authorized Users to access and use the Services. For Processor to Controller Transfers: To facilitate resolution of inquiries and requests from Qualified Investors.

Purpose of the data transfer and further processing: For Controller to Controller Transfers: To enable Financial Professional Authorized User to access and use the Services, and to enable iCapital to maintain and support the Services. For Processor to Controller Transfers: To enable iCapital to provide assistance in resolving inquiries and requests from Qualified Investors.

The period for which Personal Data will be retained: For the duration of the provision of Services and for the termination and transition period thereafter.

Subprocessor transfers: Not applicable.

C. Competent Supervisory Authority: The competent supervisory authority in accordance with Clause 13 of the EU Standard Contractual Clauses is the supervisory authority of Ireland, which is the Data Protection Commission.

ANNEX A-II (SECURITY CONTROLS)

 

iCapital shall apply at all times the following security measures to safeguard Personal Data subject to a Restricted Transfer (referred to as “Personal Data” for purposes of this Annex A-II):

1. Administrative Measures. iCapital shall implement and maintain policies and procedures governing the conditions and circumstances in which iCapital personnel may access Personal Data. Prior to providing any of its personnel access to information systems that retain or transmit Personal Data (“Information Systems”), iCapital shall undertake commercially reasonable measures to identify the reliability of such personnel, and provide appropriate information security and privacy training to such personnel.

2. Physical Security; Business Continuity. iCapital shall establish, implement, and maintain appropriate physical security measures designed to protect Information Systems.

3. Access Controls. iCapital shall promptly terminate its personnel’s access to Personal Data when such access is no longer required.

4. Account Management. iCapital will use reasonable measures to manage the creation, use, and deletion of all account credentials used to access an Information System.

5. System Maintenance; Segmentation. iCapital shall, from time to time, use vulnerability scanning tools to periodically scan Information Systems, use patch management and software update tools for Information Systems, and prioritize and remediate vulnerabilities by severity.

6. Security Testing. iCapital shall, at least annually, undertake internal and external scanning and testing to assess any vulnerabilities to an Information System. Such scanning and testing shall be conducted by iCapital or by any external qualified, credentialed, and industry-recognized auditor or consultant.

7. Remediation. iCapital shall remedy vulnerabilities identified during any security testing in a commercially reasonable manner and timeframe based on severity.

8. Incident Response Plans. iCapital shall establish, implement, and maintain a written incident response plan (“IRP”) to identify, remediate, respond to, and recover from, a security event involving the confidentiality, integrity, or availability of Personal Data (“Security Event”). The IRP shall include: (i) the designation of a senior employee who shall be responsible for establishing, implementing, and maintaining the IRP, (ii) the identification of internal and external resources to assist in addressing a Security Event, (iii) processes and programs to contain and remediate the impact of a Security Event and to recover to a normal state of business operations, and (iv) processes to convene, when appropriate, a post-Security Event review to assess the effectiveness and efficiency of identifying, remediating, responding to, and recovering from, a Security Event.

EXHIBIT B
NON-U.S. INVESTOR PRIVACY NOTICE

 

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”) are providing you this privacy notice in accordance with Article 14 of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter the “GDPR”) because your investment advisor has provided your information to iCapital in connection with your investment or prospective investment in an iCapital product.

1. The Data Controller of your Personal Data is iCapital.

2. The contact information for matters concerning data protection is 60 East 42nd Street, New York, NY 10165 USA.

3. The purposes for processing personal data and our legal bases for doing so are: (i) to fulfill a contract with you, including to facilitate your investments; (ii) in furtherance of our legitimate interests, including to provide investor support, secure our services, verify your identity, and collect payments owed to us; (iii) to comply with our legal obligations, such as to verify your identity to comply with anti-money-laundering laws and export restrictions; and (iv) Your consent, where legally permitted.

4. The categories of personal data we collect include name, contact place and date of birth, passport number, tax information, bank account details, source of funds, and details related to your investment activities.

5. The recipients of your personal data include (i) our subsidiaries and affiliates, (ii) our service providers, such as cloud hosting providers and background check providers, (iii) sponsors of funds in which you choose to invest or in which you have expressed an interest in investing; (iv) third parties, governmental agencies, and law enforcement agencies to comply with our legal obligations or valid judicial process in the EEA, UK or Switzerland; (v) to third parties in connection with an actual or prospective business transaction to acquire all or part of our assets; and (vi) to other parties where we have your consent to do so or as otherwise permitted by law.

6. We will retain your personal data for as long as reasonably necessary to provide you the services and comply with our legal obligations in your jurisdiction related to retention of financial information.

7. You have the following rights under applicable data protection law: (i) right to access your personal data; (ii) right to request rectification of inaccurate data we hold about you; (iii) right to request erasure of your personal data; (iv) right to object to processing of your personal data; (v) right to request that we restrict processing of personal data that you believe to be unlawful; and (vi) right to data portability.

8. You may lodge a complaint with:

a. Our data protection officer, whose contact information is as follows:

Institutional Capital Network, Inc.
Attn: Ian Polonsky
60 East 42nd Street, 26th Floor, New York, NY 10165
[email protected]

b. The local supervisory authority for data protection in your jurisdiction.