The following terms of service and financial services terms and conditions apply to our password-protected platform other than with respect to funds based in Luxembourg.

 

Terms of Service

LAST UPDATED: August 15, 2022

 

Thank you for your interest in Institutional Capital Network, Inc., and our affiliates and subsidiaries, including iCapital Securities, LLC, Axio Financial LLC and iCapital Advisors, LLC (collectively, “iCapital,” “we,” or “us”). iCapital owns, licenses, and operates certain websites, applications and platforms (each a “Site”) that are primarily intended to provide financial advisors, broker-dealers, wealth management organizations, certain investors and other investment professionals with the ability to access and use our financial products, tools, and services thereon (collectively, the “Financial Services”). By using the Site, you are entering into a legally binding agreement, and you hereby accept and agree to comply with these Terms of Service (“Terms”) . In the event of a conflict between the terms and conditions set forth in these Terms and any other terms, 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. 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 term “you” means the person using the Site. For purposes of these Terms, iCapital and you may each be referred to as a “party” or collectively as the “parties.”

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.

  1. General Information

Important information describing iCapital’s business operations, services, and fees can be found on the Security and Exchange Commission’s website. As required under the Investment Advisers Act of 1940, as amended, iCapital will provide its Form ADV disclosure brochure, which serves as the firm’s disclosure document, to all clients.

  1. 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. 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 are exempt from registration under the U.S. Securities Act of 1933, as amended. These Financial Services allow potential investors, including without limitation, institutions, pensions, foundations, endowments and high net- worth individuals, and financial advisors (“LP Users”), to review information on privately offered funds, to consummate investments in such funds, and to receive reporting with respect to those investments. These Financial Services further allow general partners or managers of private funds (“GP Users”) and transfer agent or administrator entities, or any other service providers engaged by GP Users or private asset 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 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, 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 a privately offered 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.

  1. Registration; Delegation

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 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 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, or any username or password assigned by iCapital to you.

3.2. Delegate Authorization. If you delegate authority to an individual (your “Delegate”) to act on behalf of your account on this Site, you represent you have the legal right to do so, and you assume responsibility for any actions taken by such Delegate, 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 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 Delegate’s actions on the Site or their use of your personal information.

3.3. Delegate Responsibility. If you are acting as a Delegate, you represent and warrant to iCapital that you are assuming responsibility for the actions you take on behalf of the account owner and agree to be bound 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.

  1. 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 acting on your behalf through the Site. As between iCapital and you, you own the User Data. You hereby grant to iCapital a worldwide, nonexclusive, transferable, sublicensable, royalty-free license to host, copy, transmit, display, and process the User Data as reasonably necessary for the purposes set forth in the iCapital Privacy Policy. 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 such Deidentified Data for any lawful purpose.

4.2. Privacy Notice. 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. 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 a Delegate, 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, and relevant to our relationship and only to the extent such disclosure will not violate any applicable law, statute, or regulation or infringe upon a person’s data privacy rights or privileges. 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, 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”), your 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 data (and not User Data).

  1. Data Providers; Subcontractors

5.1. Data Providers. Certain information on the Site has been provided by third-party data providers (“Data Providers”). Information obtained from a Data Provider is marked to indicate which Data Provider provided the relevant information. 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 Content (as defined below), (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 strictly confidential and not disclose any such data to any third party.

5.2. Subcontractors. iCapital may subcontract (whether under an existing or new contract between iCapital and a third party) any part of the Site, including the development, operation and maintenance of the Site and the collection, retention, and processing of User Data.

  1. Prohibited Activity; Acceptable Use

6.1.  General Restrictions. 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 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 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 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; (vi) mirror or frame the Site or any part of it on any other web site or web page; (vii) 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; (viii) use the Site for any purpose or in any manner that is prohibited by these Terms; (ix) use the Site in any manner that may violate patent, copyright, trademark, and other laws; and (x) use the Site for any purpose or in any manner that is unlawful.

6.2. Acceptable Use. Without limiting Section 6.1 of these Terms 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) infringes a third party’s intellectual property right(s); (v) uploads files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another person’s computer; (vi) downloads any file that you know, or reasonably should know, cannot be legally distributed in that way; (vii) 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; (viii) restricts or inhibits any other user of the Site from using and enjoying it; (ix) is legally actionable between private parties; and (x) 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 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.

  1. Intellectual Property

7.1.      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 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. To the extent you create any derivatives to or of any Content, you hereby assigns 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.

7.2. Notice. Pursuant to Title 17, United States Code, Section 512(c)(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, 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).

  1. Other Representations, Warranties and Covenants

You hereby represent, warrant and covenant to iCapital that you, at all times, shall (i) 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.

  1. Securities Products

9.1. 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 laws, rules or regulations 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.

9.2. Private Securities. You understand that the Site contains information about private securities and 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 laws, statutes, and regulations, 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 security to fail to qualify for the exemption under Section 4(a)(2) of the U.S. Securities Act of 1933.

  1. Links to Third-Party Sites

10-.1. Linked Sites. The Site may contain links to other websites (“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”). 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.

10.2. 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).

  1. 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, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) your use of or inability to use the Site (other than to the extent resulting from iCapital’s gross negligence, fraud or willful misconduct), (ii) your unauthorized use of personal information derived from, or provided to, the Site, (iii) any act of negligence, willful misconduct, fraud or bad faith by you, (iv) your violation of these Terms or your violation of any rights of a third party, (v) your violation of any applicable laws, statutes, and regulations, (vi) your 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 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.

  1. Disclaimer; Limitation of Liability

12.1. GENERAL. BY USING THE SITE, 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 ARE AT YOUR SOLE DISCRETION AND RESPONSIBILITY. BY USING THE SITE, YOU EXPRESSLY AGREE THAT SUCH USE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SITE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.

12.2. NO 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 DELEGATES OR ANY PERSON USING YOUR, AN AUTHORIZED USER’S, OR DELEGATE’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.

12.3. NO WARRANTIES. YOU ACCEPT THAT, EXCEPT WHERE REQUIRED BY LAW, WE DO NOT GIVE ANY WARRANTIES WITH RESPECT TO THE SITE 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 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 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 IS ASSUMED BY YOU. NOTHING IN THIS CLAUSE EXCLUDES ANY STATUTORY WARRANTIES OR GUARANTEES THAT YOU MAY HAVE UNDER APPLICABLE LAWS.

12.4. 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).

  1. Geographic Restrictions

iCapital is based in the State of New York in the United States. We make no claims that the Site 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.

  1. 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, 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. Any attempt by a party to assign or transfer its rights or obligations under these Terms other than as permitted by this Section 14 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.

  1. 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. 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.

  1. Miscellaneous

iCapital reserves the right, in its sole discretion, to terminate your access to the Site or any portion thereof at any time, without notice, where it is reasonably necessary to do so to protect iCapital’s legitimate interests. 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. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF THESE TERMS CONTEMPLATED HEREBY OR THEREBY. 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. If any provision of these Terms is determined to be invalid or unenforceable pursuant to applicable laws, statutes, and regulations, such provision shall be deemed deleted from these Terms, but such deletion shall not affect the enforceability of any other provision in these Terms. These Terms, including any addenda hereto, as applicable, constitute the entire agreement between you and iCapital with respect to the Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and iCapital with respect to the Site.

Financial Services Terms and Conditions

LAST UPDATED: August 15, 2022

 

Thank you for your interest in Institutional Capital Network, Inc., and our affiliates and subsidiaries, including iCapital Securities, LLC, Axio Financial LLC and iCapital Advisors, LLC (collectively, “iCapital,” “we,” or “us”). iCapital owns, licenses, and operates certain websites, applications and platforms (each a “Site”) that are primarily intended to provide financial advisors, broker-dealers, wealth management organizations, certain investors and other investment professionals with the ability to access and use our financial products, tools, and services thereon (collectively, the “Financial Services”). These Financial Services Terms and Conditions (“Terms”) govern access to and use of the Financial Services by any individual or entity creating an account for the Financial Services (“Customer”). Customers may be referred to in these Terms as “you” and “your” as applicable, and Customer and iCapital may each be referred to as a “party” or collectively as the “parties”.

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 together with all applicable exhibits, Orders (as defined below), attachments, and addenda (the “Agreement”).  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 Agreement in relation to your use of the Financial Services. Our Terms of Service] (“End-User Terms”) and Privacy Policy are incorporated into and form part of this Agreement, and you acknowledge that such End-User Terms and Privacy Policy shall apply to your Authorized Users’ (as that term is defined in Section 2.5 herein) use of the Site and Financial Services.

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

We may revise these Terms 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 a “last updated” 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 the Terms.

  1. General Information

Important information describing iCapital’s business operations, services, and fees can be found on the Security and Exchange Commission’s website. As required under the Investment Advisers Act of 1940, as amended, iCapital will provide its Form ADV disclosure brochure, which serves as the firm’s disclosure document, to all clients.

  1. The Financial Services

2.1. Eligibility. You must be, and represent that you are, at least 18 years of age and competent to agree to this Agreement, including on behalf of your entity and Authorized Users.

2.2  Access to Financial Services. Subject to and conditioned upon your payment of all applicable fees and your compliance with the terms and conditions of this Agreement, iCapital agrees to make the Financial Services available to you on a subscription basis for your internal business or investment purposes only (e.g., no commercial resale or commercial redistribution of the Financial Services) during the Subscription Term (as defined below). Other than as expressly set forth in this Agreement, no license or other rights in or to the Financial Services 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, any of the Financial Services, or any portion thereof, in its sole discretion, and you acknowledge and agree that iCapital will not be liable for any of the foregoing. For purposes of this Agreement, “Subscription” means the access to the Financial Services acquired by Customer upon account creation,

2.3. Fund Services. We offer certain Financial Services that provide information on alternative investment funds that are exempt from registration under the U.S. Securities Act of 1933, as amended. Our Financial Services allow potential investors, including without limitation institutions, pensions, foundations, endowments and high net-worth individuals, and financial advisors (“LP Users”), to review information on privately offered funds, to consummate investments in such funds, and to receive reporting with respect to those investments. These Financial Services further allow general partners or managers of private funds (“GP Users”) and transfer agent or administrator entities, or any other service providers engaged by GP Users or private asset 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 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, 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 a privately offered 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.

2.4. Authorized Users.  For purposes of this Agreement, the term “Authorized Users” means you and your employees, consultants, contractors, and agents (i) who are authorized by you to access and use the Financial Services under the rights granted to you pursuant to this Agreement and (ii) for whom access to the Financial Services has been purchased hereunder. For the avoidance of doubt, “Authorized Users” include, but are not limited to, TA Users, GP Users, LP Users, and Transfer Agents, in each case, as applicable. Without limiting Section 8, you are responsible for your Authorized Users’ compliance with this Agreement.

  1. Registration; Delegation

3.1. Registration and Accounts. In order to access the Financial Services, 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 for an iCapital account, you hereby affirm that all information provided 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 us to maintain or improve the quality of the Financial Services, for issue resolution, or to promote and provide the 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, or any username or password assigned by iCapital to you.

3.2. Delegate Authorization. If you delegate authority to an individual (your “Delegate”) 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 Delegate, including all investor representations and warranties in any submitted response or document and any breaches of these Terms herein. You agree that iCapital, its affiliates 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 Delegate’s actions on the Site or their use of your personal information.

3.3 Delegate Responsibility. If you are acting as a Delegate, you represent and warrant to iCapital that you are assuming responsibility for the actions you take on behalf of the account owner and agree to be bound 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.

  1. Customer Data; Data Protection; Feedback

4.1. “Customer Data” means all information (i) collected through Customer’s use of the Site or Financial Services and/or (ii) provided by Customer or its affiliates or either of their Authorized Users. You acknowledge that you have all rights to provide the Customer Data to iCapital for the purposes set forth herein and you hereby grant to iCapital a worldwide, nonexclusive, transferable, sublicensable, royalty-free license to host, copy, transmit, display, and process the Customer Data as reasonably necessary to provide the Financial Services and monitor, modify, and improve (including develop) the Financial Services. For the avoidance of doubt, as part of our Financial Services, we share Customer Data (including personal information) with third-party organizations that are providing a common or related financial service directly to you. Customer Data shall not, unless otherwise required by law, be considered Confidential Information. You shall have sole responsibility for the accuracy, security, quality, and legality of the Customer Data; for the means by which you acquired such Customer Data; and, for the right to provide the Customer 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 Customer Data for the purposes contemplated in these Terms). You further grant iCapital the right to anonymize and aggregate Customer Data so that it does not identify you or any other person (“Deidentified Data”) and to use such Deidentified Data for any lawful purpose.

4.2. Privacy Notice. The parties each acknowledge and agree that Customer 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. Each of iCapital and Customer hereby agree to the terms of the Data Protection Addendum attached hereto as Exhibit A. 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 a Delegate, 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. Customer Data Obligations. You are permitted, and hereby agree, to only provide Customer Data to iCapital if such Customer Data is accurate, reliable, and relevant to our relationship and only to the extent such disclosure will not violate any applicable law, statute, or regulation or infringe upon a person’s data privacy rights or privileges. IF YOU PROVIDE CUSTOMER 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 CUSTOMER DATA (INCLUDING PERSONAL INFORMATION THEREIN) AND THAT ICAPITAL’S USE AND PROCESSING OF CUSTOMER 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, HARM, OR DAMAGES THAT MAY ARISE FROM YOUR PROVISION OF CUSTOMER 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 Service (“Feedback”), your 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 data (and not Customer Data).

  1. Confidential Information

5.1. Definition. During the course of performance under this Agreement, 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, this Agreement, the Financial Services, Order(s), Customer Data, and each party’s business plans, trading or investment strategies, methodologies and results; risk management models; business plans and strategies, 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 know-how. Confidential Information will not include any information that: (a) is or becomes generally known to the public without violation of this Agreement by either party; (b) is obtained by the receiving party from a source other than the disclosing party without obligation of confidentiality, including to either party; (c) is independently developed by the receiving party without reference to the other party’s Confidential Data; or (d) is Aggregate Data.

5.2. Obligations.  During and after the Subscription Term, 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 Delegate or legal, tax or other professional advisor if such third party 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) and 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

5.3. Confidentiality Period; Remedies. The confidentiality obligations will survive the termination of this Agreement. 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..

  1. Orders; Payments

6.1. Order Form. In order to access some of the Financial Services on the Site, you may be required to execute an order form, purchase agreement, or other process set forth by iCapital that regulates access to a Service (an “Order”). An Order may be accepted via an electronic acceptance process via the Site. Unless specified otherwise on an applicable Order, all payments and fees owed by you to iCapital for use of the Site or a Service (“Fees”) shall be payable in advance either annually, quarterly or monthly. The Order shall set forth the term in which access and use of the Site or Service is granted to Customer and its Authorized Users (“Subscription Term”), and if no such timeframe is memorialized on the Order, then the default Subscription Term shall be twelve (12) months.

6.2. Payment. Unless otherwise set forth on an Order, you shall pay all Fees via credit card or such other payment method available on the site such as ACH.  You hereby authorize iCapital to charge your credit card or bank account for all Fees payable during the Subscription Term. You further authorize iCapital to use a third party to process payments and consent to the disclosure of your payment information to such third party. You will keep your contact information, billing information and credit card information (where applicable) up to date.  Except as otherwise provided herein or on an Order or required by law, Fees are non-refundable, non-cancellable and not subject to set-off. All Fees shall be paid in U.S. dollars ($). If any Fees (except with respect to charges then under reasonable and good faith dispute) remain unpaid by their due date, in addition to any other rights or remedies it may have under these Terms or by matter of law, (i) iCapital reserves the right to suspend the Financial Services upon ten (10) days written notice to you until such amounts are paid in full, and (ii) any such unpaid Fees may accrue, at iCapital’s discretion, interest at the rate of the lesser of one and one-half (1.5%) percent of the outstanding balance per month or the maximum rate permitted by law from the date such Fees were due until the date paid. Further, you shall be responsible for all costs and expenses associated with iCapital’s collection of such Fees, including reasonable attorneys’ fees iCapital may incur in connection with such collection efforts. Suspension of the Financial Services under this section shall not release your payment obligations under these Terms.

6.3. Limited Features. You agree that your subscription to the Financial Services is limited to the features and functions described in the Order and is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by iCapital with respect to future functionality or features.

  1. Data Providers; Subcontractors

7.1. Data Providers. Certain information on the Site or in the Financial Services has been provided by third-party data providers (“Data Providers”). Information obtained from a Data Provider is marked to indicate which Data Provider provided the relevant information. 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 Content (as defined below), (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 that is marked as confidential or reasonably understood to be confidential given the nature of the information and data as Confidential Information of iCapital.

7.2. Subcontractors. iCapital may subcontract (whether under an existing or new contract between iCapital and a third party) any part of the Financial Services provided hereunder, including the development, operation and maintenance of the Site and the collection, retention, and processing of Customer Data.

  1. Customer Responsibilities

You shall, and shall cause each of your Authorized Users to, abide by the terms of this Agreement, including the End-User Terms. You agree that you will use the Financial Services, and require your Authorized Users to use the Financial Services, only in accordance with applicable laws and government regulations. 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 the Agreement or any applicable Order. iCapital may investigate and take any (or no) action that it believes is appropriate for violation of this Agreement, 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.

  1. Intellectual Property

9.1.      Intellectual Property Rights. All content (except Customer 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 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. To the extent you create any derivatives to or of any Content, you hereby assigns 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.

9.2. DMCA Notice. Pursuant to Title 17, United States Code, Section 512(c)(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, 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).

  1. Other Representations, Warranties and Covenants

10.1. General Obligations. You hereby represent, warrant and covenant to iCapital that you, at all times, shall (i) 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 to conduct business in accordance with such Terms; (ii) continue to be duly authorized and empowered under all applicable laws, statutes, and regulations to engage in the activities contemplated by these Terms; (iii) maintain such books and records as are required by applicable laws, statutes, and regulations in connection with these Terms; and (iv) make all disclosures that are required by applicable laws, statutes, and regulations in connection with these Terms.

10.2. Transfer Agent Warranty. Transfer Agent hereby represents, warrants and covenants to iCapital as follows: (i) Transfer Agent has a pre-existing contractual relationship with all applicable sponsors of each private asset fund to be accessed through the Financial Services and is authorized to provide the Transfer Agent Services with respect to each such private asset fund; (ii) Transfer Agent agrees that no iCapital Parties shall have any responsibility or liability to Transfer Agent 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 private asset fund; and (iii) Transfer Agent will advise iCapital promptly of: (a) the receipt by Transfer Agent of any communication specifically with respect to the offering of any private asset fund 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 private asset fund) or commencement of any lawsuit, proceeding or investigation to which Transfer Agent is (or is threatened to be if such threat is reasonably likely to have a material adverse effect on a private asset fund) a party specifically with respect to the offering of any private asset fund interests.

10.3. 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 private asset fund, 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.

  1. Securities Products

11.1. 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 laws, rules or regulations 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.

11.2. Private Securities. You understand that the Site contains information about private securities and 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 laws, statutes, and regulations, 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 U.S. Securities Act of 1933 or the Investment Company Act of 1940.

 Links to Third-Party Sites

12.1. Linked Sites. The Site may contain links to other websites (“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”). 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.

12.2. 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).

  1. 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, 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 violation of these Terms or your violation of any rights of a third party, (v) your violation of any applicable laws, statutes, and regulations, (vi) your or your Authorized Users’ provision or use of Customer 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.

  1. 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. NO 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 DELEGATES OR ANY PERSON USING YOUR, AN AUTHORIZED USER’S, OR DELEGATE’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.

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 AND FINANCIAL SERVICES 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 CUSTOMER 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).

  1. Geographic Restrictions

iCapital is based in the State of New York in the United States. 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.

  1. Publicity
  • Marks.  The trademarks, trade names, service marks, and logos, whether or not registered (“Marks”) of iCapital and Customer 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 consents 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 show iCapital Marks 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.

  1. Minimum System Requirements; Software and Licensing

17.1. 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.

17.2 Enabling Software. Some portions of the Site may require you to use or install additional software provided by iCapital or a third party (“Enabling Software”), and you agree to use and/or install such Enabling Software only in connection with use of the Financial Services and in accordance with this Agreement. Such Enabling Software is provided “AS IS” and without any warranty of any kind. Additional terms and conditions may apply to such Enabling Software.

17.3. Third-Party Products. You acknowledge that use of certain Financial Services may require the installation of certain software components that are owned or licensed by iCapital from a third party (collectively, “Third-Party Products”). Any use of Third-Party Products by you shall be solely governed by the terms and conditions of the applicable Third-Party Product license and not by the terms of this Agreement.  Any such Third-Party Products license terms shall be set forth in the readme or about files of the Financial Services or otherwise made available by iCapital. You hereby agree to comply with any additional terms and conditions applicable to your use of the Third-Party Products.

  1. Insurance

During the term of this Agreement, 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) Worker’s 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 Agreement, 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 Agreement.

  1. Assignment

Neither party may assign this Agreement or otherwise transfer any right or obligation under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety to an acquirer of all or substantially all of the assets or equity of such party to which this Agreement relates, 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. Any attempt by a party to assign or transfer its rights or obligations under this Agreement other than as permitted by this Section 19 shall be void and of no effect. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.

  1. Communications; Notice

Visiting the Site or sending emails to iCapital constitutes electronic communications. We may send you electronic communications with respect to the Financial Services, 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. All notices and communications with respect to this Agreement shall be sent to iCapital at the following: iCapital Network, Inc., ATTN: LEGAL, 60 East 42nd Street, 26th Floor, New York, New York 10165.

  1. Miscellaneous

iCapital reserves the right, in its sole discretion, to terminate your access to the Site and a Service or any portion thereof at any time, without notice, where it is reasonably necessary to do so to protect iCapital’s legitimate interests. To the maximum extent permitted by law, this Agreement is 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. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF THESE TERMS CONTEMPLATED HEREBY OR THEREBY. You agree that no joint venture, partnership, employment, or agency relationship exists between you and iCapital as a result of this Agreement or use of the Site. If any provision of these Terms is determined to be invalid or unenforceable pursuant to applicable laws, statutes, and regulations, such provision shall be deemed deleted from these Terms, but such deletion shall not affect the enforceability of any other provision in these Terms. This Agreement constitutes the entire agreement between you and iCapital with respect to the Site and Financial Services and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and iCapital with respect to the Site and Financial Services.

 

EXHIBIT A

Data Protection Addendum

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 Customer (“iCapital”) is an independent data controller, which means we determine the purpose and means of processing information related to identified or identifiable individuals (“Personal Data”). iCapital is based in the United States, and the Personal Data that we collect and process may be retained and stored in the United States. iCapital uses service providers that store Personal Data on our behalf in the United States and in other Third Countries.

If you (i) are an independent data controller and subject to the European Union (EU) General Data Protection Regulation (GDPR), Swiss data protection law, the United Kingdom GDPR (UK GDPR), or the Data Protection Law (as defined below) of another jurisdiction that regulates cross-border transfers of Personal Data, and (ii) disclose by transmission or otherwise make personal information available to iCapital in connection with the Services, then you and iCapital hereby agree to comply with this Data Protection Addendum (“DPA”), including the cross-border transfer terms herein. In the event of a conflict between this Exhibit A and the applicable services agreement entered into between you and iCapital, the terms and conditions set forth in this Exhibit A (including, as applicable, the EU Standard Contractual Clauses, and the Swiss and UK Addenda thereto) shall supersede and control with respect to such conflict.

For purposes of this Exhibit A, the term “Customer” shall mean the applicable entity who subscribes, or otherwise accesses the Services and furnishes iCapital, either directly or indirectly, personal data in connection with the operation and use of the Services. “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. “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, 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. For purposes of this Exhibit A, iCapital and Customer may each be referred to as a “party” and collectively as the “parties.”

  1. Roles and Responsibilities. Customer acknowledges and agrees that, in order to perform the Services, Customer may transfer to iCapital, and iCapital may collect and retain, certain Personal Data with respect to Customer’s employees, agents, clients, customers, and contractors who use, or otherwise are involved in, fund management related to the Services (“Customer Personal Data”). Each party acknowledges and agrees that (i) iCapital processes Customer Personal Data as reasonably required to provide the Services, and (ii) iCapital independently determines the purposes and means of any processing of Customer Personal Data that is required to provide the Services. Therefore, each party further acknowledges and agrees that it is an independent data controller with respect to any and all Customer Personal Data that it collects, transfers, or otherwise processes pursuant to the Services. Customer shall not (and shall ensure its employees, agencies, and contractors do not) provide iCapital, or input into the Services, any sensitive or special categories of Personal Data.
  1. Compliance; Notice and Consent. Each party shall be individually and separately responsible for complying with its obligations that apply to it (whether as a data controller or otherwise) pursuant to any applicable data protection law, statute, or regulation (collectively, “Data Protection Law”). Each party shall limit the collection, transfer, and processing of Customer 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. Each party shall ensure that it has the necessary and appropriate legal basis for the collection, transfer, and processing of Customer Personal Data and, if required by an applicable Data Protection Law, it has obtained the necessary consent for such collection, transfer, and processing.
  1. Information Security. Each party shall implement and maintain appropriate technical, physical, and administrative security controls to protect and safeguard Customer Personal Data against accidental, unauthorized or unlawful access, use, disclosure, loss, destruction, or damage. Each party shall be independently responsible for notifying data subjects and regulatory authorities of a data breach affecting the confidentiality, integrity, or availability of Customer Personal Data within its custody and control, or within the custody and control of a subprocessor, provided that each party shall provide commercially reasonable assistance to the other in order to facilitate the data breach notifications described in this paragraph.
  1. 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 Customer 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 Customer Personal Data.
  1. Cross-Border Data Transfers. iCapital shall protect all Customer 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 Customer Personal Data originated. To the extent Customer Personal Data originates in the EEA, Switzerland, or the UK, the parties shall comply with the following:

5.1. European Transfers. In the event Customer exports to iCapital any Customer 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) in all applicable instances, and the Customer 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 this DPA shall be incorporated into Annex I of the EU Standard Contractual Clauses; and (viii) Annex A-II of this DPA shall be incorporated into Annex II of the EU Standard Contractual Clauses.

5.2. Swiss Transfers. In the event Customer exports to iCapital any Customer Personal Data from Switzerland, the parties shall comply with the EU Standard Contractual Clauses, as set forth in Section 5.1, 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.

5.3. UK Transfers. In the event Customer exports to iCapital any Customer 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 5.1 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 Agreement 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 Customer, upon providing reasonable notice of the same to Customer in writing.

5.4. Onward Transfers. iCapital shall not transfer such Customer 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.

 

Annex A-I (Data Processing Activities)

  1. List of parties:

 

Name (Data Exporter) Customer
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

 

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 Customer.
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 Customer
Role (controller / processor) Data Controller

 

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

(i) Categories of Data Subjects: Customer’s employees, agents, clients, customers, and contractors who use, or otherwise are involved in, fund management related to the Services.

(ii) Categories of Personal Data transferred: contact data; professional information; nationality, place and date of birth, and passport number; persistent identifiers; records of the Services obtained; tax information, bank account details, source of funds, and details related to investment activities..

(iii) Sensitive data transferred: None.

(iv) The frequency of transfer: Continuous and for so long as Customer uses the Services.

(v) Nature of Processing: To enable Customer to access and use the Services.

(vi) Purpose of the data transfer and further processing: To enable Customer to access and use the Services, and to enable iCapital to maintain and support the Services.

(vii) 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.

(viii) 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 Customer Personal Data:

  1. Administrative Measures. iCapital shall implement and maintain policies and procedures governing the conditions and circumstances in which iCapital personnel may access Customer Personal Data. Prior to providing any of its personnel access to information systems that retain or transmit Customer 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.
  1. Physical Security; Business Continuity. iCapital shall establish, implement, and maintain appropriate physical security measures designed to protect Information Systems.
  1. Access Controls. iCapital shall promptly terminate its personnel’s access to Customer Personal Data when such access is no longer required.
  1. Account Management. iCapital will use reasonable measures to manage the creation, use, and deletion of all account credentials used to access an Information System.
  1. 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.
  1. 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.
  1. Remediation. iCapital shall remedy vulnerabilities identified during any security testing in a commercially reasonable manner and timeframe based on severity. iCapital will provide Customer with any report or assessment (or summaries thereof) resulting from the scanning and testing described herein.
  1. 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 Customer 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.