Date posted: 12/07/07
In turn, you represent and warrant that you are authorized to execute this Agreement on behalf of your firm, corporation, organization or other entity and you intend for same to be legally bound by this Agreement.
1. SERVICES AND REGISTRATION
This Site provides a platform for connecting Funds (defined below) with investors, including providing investor information and profiles, Fund articles, industry updates, news, Fund manager profiles and interviews, service provider listings, fund profiles, fund update notification, fund ranking, fund manager blogging, video and posting, investor private messages, watch list management, conference listing and any other services which we may provide from time to time through the Site (collectively, the "services"
). However, if you are a Fund or service provider registering for the service provider membership ("Service Provider"
) on the Site, to access and use all of the features and/or Services on this Site, you are required to both register and pay a subscription fee, which you can do by visiting, for Funds, and for Service Providers, . Your registration is subject to our review and approval and we reserve the right not to approve, or withdraw our approval of, your registration for any reason or no reason.
In registering, you agree to provide, maintain, and update information that is true, accurate, current and complete about yourself (and your firm, if you represent a firm) when registering and on an ongoing basis. If, you do not provide such information, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and your use of this Site. During the registration process, you will designate a user name and password. You are responsible for maintaining the confidentiality of your user name, password and account information, and are responsible for all activities that occur and financial liabilities incurred under your user name and password, whether or not authorized by you. We will not be liable for any loss or damage arising from your failure to comply with this paragraph.
3. USE OF INFORMATION AND MATERIALS
The unauthorized use of the HedgeCo Site, including but not limited to, unauthorized access to the Site, other User's accounts, or other computers or websites connected or linked to this Site, and misuse of passwords, or misuse of any Content (defined below) posted on the Site is strictly prohibited. The User's eligibility for access to and use of the HedgeCo Site and Content (defined below) is subject to final determination and approval by HedgeCo.
You acknowledge and agree that any and all content, information, data, text, music, sound, graphics, software, code, video, audio, feedback, documentation, photographs, discussions, news, articles, messages, postings, listings, advertisements, marketing, and other materials, available, displayed on, posted to, transmitted or distributed through the Site by HedgeCo or Users, including in chat rooms and on discussion boards ("Content"
), are the sole responsibility of the person from which such Content originated and is viewed and used by you at your own risk. Under this Agreement, "Users"
mean you, investors, managers or representatives of Funds, Service Providers, members, customers, and any other persons visiting this Site. The views expressed by you and other Users of the Site or Services do not necessarily reflect the views of HedgeCo.
Use of the Internet is solely at your own risk and is subject to all applicable Laws (defined below). HedgeCo has attempted to create a secure and reliable Site, however, it is important to be aware that the confidentiality or privacy of any communication and Content transmitted to or from the Site and over the Internet cannot be guaranteed. In this regard, the User acknowledges and agrees that, to the extent the provision of Services through the Site is dependent on the use of the Internet, the provision of Services may be adversely affected by, among other risks, breaches in security, temporary loss of Services, delays in Services and/or inconsistent quality of Services, loss of data and/or business interruption, and uncertain legal, regulatory and tax issues concerning the use of the Internet, all of which risks are beyond HedgeCo's control. In the event of the occurrence of any such risk, HedgeCo shall not be liable for any losses, damages, costs or expenses of any nature incurred by the User or any other person in connection therewith.
HedgeCo assumes no responsibility for the transmission, deletion or failure to store Content or other information submitted by you or other Users to HedgeCo. Although certain portions of this Site may be restricted to only authorized persons, HedgeCo shall have no liability if unauthorized persons nevertheless obtain access.
5. GRANT OF LICENSE
) when using this Site, Services and Content.
You grant to us a worldwide, perpetual, irrevocable and royalty-free license (with the right to sublicense), to use, reproduce, adapt, transmit, translate, modify, upload, resell, copy, create derivative works from, publish, distribute and display Content provided, posted, uploaded, and transmitted to HedgeCo via the Site in any media now known or hereafter developed. By posting or transmitting Content on the Site or through any of the Services, you warrant and represent that you are the sole owner of such Content or have all rights necessary to post, display, transmit, upload, distribute, resell, copy, derivate works, or reproduce such Content and to grant the rights and licenses hereunder to us.
6. INTELLECTUAL PROPERTY RIGHTS
HedgeCo, its logos, and other trademarks, copyrights, patents and all other intellectual property rights ("Intellectual Property"
) included or displayed on the HedgeCo Site that identify HedgeCo services and products are owned by HedgeCo. The use of such Intellectual Property without the express written consent of HedgeCo is strictly prohibited. Copyright in the pages and in the screens of the Site, the design, layout and compilation of the Site, and in the Content therein, is proprietary material owned by HedgeCo unless otherwise indicated. The unauthorized use or misappropriation of any Content and Intellectual Property on the Site may violate numerous Laws, including, but not limited to, copyright, trademark, trade secret or patent Laws.
The Site, Content, Services and any necessary software used in connection with the Services or the software available for download on the Site ("software"
) contain proprietary and confidential information that is protected by applicable intellectual property and other Laws and, as between you and us, we own all right, title and interest in and to the Site, the Services, the Content (other than Content provided by you) and the Software. All design rights, databases and compilation and other intellectual property rights associated with this Site, in each case whether registered or unregistered, and related goodwill are proprietary to HedgeCo. You acknowledge and agree that use of all Software downloaded or otherwise accessed from the Site is subject to the license agreements that are displayed or referenced when you access such Software.
You may not sell, distribute or commercially exploit the database located on or the results of any database search performed on this Site. You may make a limited number of hard copies of any search output that does not contain a significant segment of a database, for your personal or internal business use only.
Nothing under this Agreement grants you any rights to the Site, Services, Content, Software or Intellectual Property, including intellectual or proprietary rights, except for the limited rights expressly granted in Section 5 hereof, and all rights not specifically granted in this Agreement are reserved by HedgeCo.
8. NO PROFESSIONAL ADVICE
HedgeCo is not a Broker/Dealer or registered investment advisor under United States federal securities Law or securities Laws of other jurisdictions, and does not advise individuals as to the advisability of investing in, purchasing or selling securities or other financial products or suitability of any investment manager. Nothing in the Site constitutes an offer or solicitation to buy or sell any securities. The Content on this Site has been prepared for informational purposes only and do not constitute legal, financial, accounting, investment, tax or other professional advice, and you should consult with a financial advisor and legal and tax professionals to assist in conducting due diligence as may be appropriate prior to making any investment decision or hiring any investment manager. HedgeCo shall not have any liability for any reliance on, interpretation or analysis of, or investment decisions, action or inaction based upon information obtained from the Content provided on the Site.
9. DEALINGS WITH OTHER USERS, SERVICE PROVIDERS AND ADVERTISERS
Your transactions, interactions, correspondence, and relationships with other Users of the Site or Services, including relying on the Content posted, provided or transmitted by another User or procuring the goods or services offered by another User, and any other terms or conditions associated with such matters, are solely between you and such other Users. YOU AGREE THAT HEDGECO IS NOT, AND CAN NOT, BE RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY CLAIMS, LIABILITIES, COSTS, EXPENSES, LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO ANY SUCH MATTERS AND TRANSACTIONS. HedgeCo is not directly or indirectly a party to, participant in and does not monitor, any such matters and transactions between Users of the Site or Services, and your involvement with any such matters is solely at your own risk.
The User represents and warrants that it will make its own evaluation of the creditworthiness, suitability, reliability, and desirability of each User or third party with which it enters into transactions or interacts with as a counterparty or agent, and that it is not relying, and will not rely, on HedgeCo for any information as to the creditworthiness, suitability, reliability, or desirability of any such User or third party.
10. TERMINATION OR SUSPENSION
11. NO UNLAWFUL OR PROHIBITED USE
12. USER CONDUCT
(A) You understand that all Content on the Site, whether publicly or privately posted or submitted, through e-mail services, discussion boards, chat areas, forums or other message or communication facilities designed to enable Users to communicate with other Users, are the sole responsibility of the person from which such Content originated. It is understood that you, and not HedgeCo, are entirely responsible for all Content that you upload, post, submit, e-mail or otherwise transmit to the Site. You agree not to post, submit, transmit, display, upload, distribute, or e-mail or otherwise submit on the Site:
1. Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, obscene, vulgar, libelous, slanderous, invasive of another's privacy, hateful, racial, ethnically or otherwise objectionable;
2. Content that is illegal, or advocates or intentionally enables illegal activity;
3. Content that may harm or harms a minor in any way;
4. Content that you do not have the rights, title or interest in to transmit under any and all Laws or under contractual or fiduciary relationships such as any confidential information learned of through an employment relationship;
5. Content that infringes any patent, copyright, trademark, trade secret or any other intellectual or proprietary rights, unless you own or control the rights thereto or have received all necessary consents to do the same;
6. Content that is or may be considered unsolicited or unauthorized advertising, promotional materials, "junk mail," "chain letters," or "pyramid schemes", "spam," "phishing," or any other form of solicitation;
7. Content that contains software, viruses, computer code, files or programs that are designed to destroy, limit, or interrupt the functionality of any computer software or hardware or telecommunications equipment;
8. Content that may be deemed to violate any applicable Laws, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, or any rules of any national or other securities exchange;
9. Content that is intended to or may be deemed to harass, stalk, or threaten another person or entity; and
10. Content that is deemed to create a false identity, or misrepresent your affiliation or relationship with a person or entity for the purpose of misleading others.
(B) You agree you will not, and will not assist or permit others to:
1. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Site or Services;
2. Frame the Site, place pop-up windows on any page of the Site, or otherwise change the display or compilation of the Site or its pages;
3. Interfere with or disrupt the Site or Services or servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Service;
4. Collect or store personally identifiable information about other Users; or
5. Modify, create derivative works of, reverse engineer, disassemble, decompile this Site or any Software, or technology on this Site or redistribute or sell any section thereof.
13. INVESTMENTS AND 30-DAY WAITING PERIOD
(A) For Users who transact or intend to transact with Funds listed on the Site, the following shall apply:
1. Investments in Funds are speculative and involve a high degree of risk. You could lose all or a substantial amount of your investment. You should carefully read a Fund's offering materials and related information for specific risk and other important information regarding an investment in that Fund before investing. The Site does not list, and does not purport to list, the risk factors associated with an investment in any of the Funds listed on the Site. If you are an investor and prior to making any investment decision or hiring any investment manager, you should consult with a professional financial, legal, and tax advisor to assist in due diligence to determine the appropriateness of the risk associated with a particular investment. In no event shall HedgeCo be responsible or liable for any damage or lost opportunities, or lost profits or revenues resulting from use of the Site, Services and Content.
2. By accessing the password-protected area of the Site, you agree not to invest in any posted Fund or alternative investment vehicle (other than Funds or alternative investment vehicles in which you or your affiliates are already invested, have already been solicited for or are already actively considering an investment in) for thirty (30) days after the approval of your application and confirmation of your status as a qualified client. The managing members of HedgeCo who are registered representatives with an affiliate registered FINRA broker/dealer, may have a marketing relationship and/or an economic interest in the general partner and/or investment manager of one or more posted Funds on the Site. If such a relationship exists, it will be explained through an interstitial that will appear before any User is provided access to that Fund's information. To request more information regarding such a relationship, please contact Evan Rapoport at email@example.com or 561-835-8690.
3. Additionally, by accessing the password-protected area of the Site, you agree to immediately contact HedgeCo if there is any change in your status as an "accredited Investor," "qualified purchaser" or "qualified client" under Regulation D promulgated under the Securities Act of 1933. For individuals such changes may include, for example, a registered User's net worth (either solely or jointly with his or her spouse) declining below $1,000,000 in the case of "accredited investors," (or $1,500,000 for "qualified clients"), or an expectation that income for the next twelve months may total less than $200,000, or an expectation that the registered User's combined income with his or her spouse may total less than $300,000 in the next twelve months. All registered Users, including individuals and entities, should communicate with their legal advisors if they believe that their investor status has changed.
4. You acknowledge and agree that Funds: (i) often engage in leveraging and other speculative investment practices that may increase the risk of investment loss; (ii) can be highly illiquid; (iii) are not required to provide periodic pricing or valuation information to investors; (iv) may involve complex tax structures and delays in distributing important tax information; (v) are not subject to the same regulatory requirements as mutual funds; and (vi) often charge high fees.
(B) For Users who transact or intend to transact with Funds and Service Providers listed on the Site, the following shall apply:
1. Certain Funds subscribe to the HedgeCo Premium Hedge Fund membership ("Premium Hedge Fund") and certain Service Providers subscribe to the Service Provider membership on the Site (collectively "Paying Members"). HedgeCo or a HedgeCo affiliate may receive fees from Paying Members for their membership subscription, or may otherwise waive such fees in the event of a business relationship between the Paying Members and HedgeCo or a HedgeCo affiliate. One or more qualified HedgeCo affiliates may receive compensation from certain Premium Hedge Funds for investments made in such Funds by registered Users of the Site or by other investors. One or more qualified HedgeCo affiliates may receive compensation from certain Service Providers for advertising, promotional activities, and listings on or through the Site. Categorization of a Fund or Service Provider as a Paying Member does not imply sponsorship, endorsement, or approval of such by HedgeCo or any of its affiliates. HedgeCo and its affiliates do not perform and has not performed any prior or ongoing due diligence, analysis, or conducted any other investigation of any Paying Members in connection with such arrangements or the presentation of such Fund's or Service Provider's Content on the Site. HedgeCo and its affiliates make no guarantee whatsoever that any Content appearing on the Site, and representations made by the Paying Members that appear on the Site, are accurate, complete, reliable, adequate or current.
14. NATURE OF THE CONTENT
HedgeCo compiles Content provided to it by the Users. HedgeCo has no obligation to verify, monitor, screen, remove, edit, update, or keep current the communication and Content on the Site. However, HedgeCo reserves the right to review or screen Content posted to the Site and to remove, edit, or refuse to post any Content.
15. LINKS TO THIRD PARTY SITES
17. DISCLAIMERS OF WARRANTIES
THIS SITE IS INTENDED TO BE A GENERAL INFORMATION RESOURCE ONLY AND YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE CONTENT CONTAINED IN THE HEDGECO SITE, INCLUDING LINKS OR OTHER ITEMS ARE PROVIDED "AS IS" AND "AS AVAILABLE". HEDGECO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FREEDOM FROM COMPUTER VIRUS. HEDGECO DOES NOT WARRANT THE ACCURACY, RELIABILITY, CURRENCY, ADEQUACY OR COMPLETENESS OF THE CONTENT AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE CONTENT.
HEDGECO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, (A) THAT THE SERVICE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS, (B) THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR-FREE, ACCURATE OR RELIABLE, OR (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE OR THE SERVICES. CHANGES ARE PERIODICALLY MADE TO THE SITE AND TO THE CONTENT CONTAINED THEREIN. HEDGECO MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITE AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. NO ADVICE, RECOMMENDATION, OPINION, OR INFORMATION OF ANY KIND, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM HEDGECO OR THROUGH THE SERVICES OR SITE CREATES ANY REPRESENTATION OR WARRANTY.
18. LIMITATION OF LIABILITY
(A) IN NO EVENT SHALL HEDGECO OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ITS INFORMATION PROVIDERS BE LIABLE FOR:
1. IN THE CASE OF ALL USERS, ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS (WHETHER BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY) IRRESPECTIVE OF WHETHER HEDGECO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE;
3. IN THE CASE OF USERS WHO ARE PAYING MEMBERS, HEDGECO'S MAXIMUM LIABILITY TO THE PAYING MEMBER WITH RESPECT TO ALL CLAIMS, ACTIONS OR DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT, SHALL BE LIMITED TO ONE HUNDRED ($100) DOLLARS.
(B) SOME JURISDICTIONS MAY RESTRICT THE LIMITATIONS OF LIABILITY UNDER THIS SECTION.
This Site is not intended for children under the age of 13. If you are under 13 years of age, please do not use or access this Site at any time or any manner. By using this Site, you affirm that you are over the age of 13. HedgeCo does not seek through this Site to gather personal information from or about persons under the age of 13.
You acknowledge and agree that any and all comments, suggestions or feedback (collectively, "Feedback") you choose to provide to HedgoCo regarding the Site or Services may be used by HedgeCo, at its discretion, in any manner, without liability or obligation (including, without limitation, monetary compensation) to you. You agree and hereby assign to HedgeCo all rights, title and interest, worldwide, including, without limitation, all intellectual property rights, in and to such Feedback.
22. COPYRIGHT AGENT
If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information in writing to the Copyright Agent named below:
1. Information reasonably sufficient to permit us to contact you, such as your name, address, telephone number and email address;
2. Identify the copyrighted work that you claim has been infringed, or if multiple copyrighted works at the Site are covered by the notice, identify a representative list of such works;
3. Identify the material that you claim is infringing, or the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. A statement by you that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the Law;
5. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed; and
6. A statement by you, made under penalty of perjury, that the information provided in the notice is accurate and that you are authorized to act on behalf of the owner of the copyright that is allegedly infringed.
Our Copyright Agent is: firstname.lastname@example.org
23. INTERNATIONAL USE
We control and operate the Site from our offices in the State of New York, United States of America. We do not make any representations or warrant that the Services or Content on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so on their own initiative.
You agree to comply with all local Laws applicable to (a) your access to and use of the Site, Content, and the Services, (b) your online conduct, (c) Content provided by you, and (d) your transmission of technical data exported from the United States or the country in which you reside. Access to this Site from jurisdictions or territories where the Contents of this Site are illegal or penalized is prohibited. HedgeCo has no obligation to provide access to the Site and Services and reserves the right to not approve the registration application of a User accessing the Site from such jurisdictions or territories.
26. GOVERNING LAW
All applicable Federal laws of the United States or America and the laws of the State of New York shall govern use of this Site and Agreement. You and HedgeCo agree to submit to the personal and exclusive jurisdiction of the courts located within the Southern District of New York located in the borough of Manhattan in the City of New York, or if such court does not have jurisdiction, the Supreme Court of the State of New York, New York County, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby.
28. ENTIRE AGREEMENT