LAST UPDATED: Feb 28, 2021

The www.icapitalnetwork.com website (the “Website” and together with the ICN Platform and Transfer Agent Platform, as applicable, the “Site”) is comprised of various web pages and subdomains operated by Institutional Capital Network, Inc. (together with its Affiliates, “ICN”), including www.icapitalnetwork.com and s.icapitalnetwork.com. The Site is offered to you conditioned on your acceptance, without modification, of the terms, conditions, and notices contained herein (these “Terms” or these “Terms of Use”). You should carefully review these Terms prior to your use of the Site and retain a copy of these Terms for your records. Your use of the Site constitutes your agreement to these Terms.

We reserve the right at any time to change the terms and conditions set forth in these Terms of Use or change the Site, including eliminating or discontinuing any features of functionality.

Any changes we make will be effective immediately upon the posting of new Terms of Use on the Site. Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms of Use.

The Site

The Site is offered and available to users who are 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 ICN 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.

The Site contains information on alternative investment funds that are exempt from registration under the U.S. Securities Act of 1933, as amended. It allows 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, consummate investments in such funds and receive reporting with respect to those investments. The Site further allows 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 PAFs (“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 and/or managed by an Affiliate of ICN, 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 by Transfer Agents and TA Users, the additional terms set forth in the Transfer Agent Addendum shall apply and are deemed a part of these Terms and incorporated herein. User and ICN hereby agree that ICN may from time to time provide additional terms and conditions.

Delegation

By delegating 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 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 the Terms of Use herein. You agree that ICN, its Affiliates and their respective directors, officers, agents, principals, members, partners, employees, and stockholders (collectively, the “ICN 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 attorney’s 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.

For Delegates

If you are acting as a Delegate, you represent and warrant to ICN that you are assuming responsibility for the actions you take on behalf of the account owner and agree to be bound by ICN’s Terms of Use. You agree that the ICN 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 attorney’s 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.

Confidentiality

All information obtained from the Site or information provided to any User by any representative of ICN, including, but not limited to, (a) trade secrets, and other non-public information of ICN’s business affairs, clients, investors and personnel; (b) the Terms (excluding the existence of the transactions contemplated hereby); (c) trading or investment strategies, methodologies and results; (d) risk management models; (e) business plans and strategies, and (f) pricing and other financial information is confidential in nature and may not be shared by any User with any other party or used for any purpose other than evaluation of the merits of an investment opportunity listed on the Site (such information, collectively, “Confidential Information”); provided that, (i) a User may share Confidential Information obtained from the Site with its Delegate, legal, tax or other professional advisors to the extent that such advisors have been notified of the confidential nature of the information and agree to maintain the confidentiality thereof, provided, however, that the foregoing does not extend the right under any circumstances to any User, Delegate or its representatives to share with anyone personally identifiable information of other Users, Delegates or their representatives obtained by accessing the Site, (ii) upon any request of a governmental, supervisory or regulatory body – routine or otherwise – User shall be permitted to disclose Confidential Information to such governmental, supervisory or regulatory body (a “Permitted Disclosure”); provided that, to the extent legally permitted, User provides notice of such request and disclosure to ICN and discloses only the specific Confidential Information as is required to be disclosed, and (iii) Confidential Information shall not include (x) information that was known to the User prior to the disclosure to the User and (y) information that is in the public domain at the time of disclosure to the User. ICN reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request (“Applicable Law”), or to edit or remove any information or materials on the Site, in whole or in part, in ICN’s sole discretion.

The User acknowledges that ICN will be irreparably harmed if the confidentiality obligations hereunder are not specifically enforced and that ICN would not have an adequate remedy at law in the event of an actual or threatened violation by the User of its confidentiality obligations hereunder. Therefore, User agrees and consents that, except in the context of a Permitted Disclosure, ICN shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violation or breaches by the User, without the posting of any bond, and such other relief as may be just and proper, including the right to recover all losses or damages suffered by ICN resulting from any such breach or threatened breach.

User agrees to hold any Confidential Information in strict confidence and not to disclose Confidential Information to third parties during its use of the Site and for a period of two (2) years following termination of this Agreement unless as otherwise permitted by the Terms.

Privacy

Your use of the Site is subject to ICN’s privacy policy (the “Privacy Policy”). Please review our Privacy Policy, which also governs the Site and informs Users of our data collection practices. Our Privacy Policy is available here. You should understand that information collected from Users in accessing the Site or subscribing for investments made available on the Site is not expected to be deleted or removed from ICN’s records and you should expect that such information may be held by ICN in perpetuity.

Electronic Communications

Visiting the Site or sending emails to ICN 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.

You are responsible for maintaining the confidentiality of your username and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. 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 ICN is not responsible for third party access to your account that results from theft or misappropriation of your account. ICN reserves the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.

Data Provided by Third Party Data Providers

Certain information on the Site has been provided by third party data providers, including without limitation, The Burgiss Group, LLC, Addepar, Inc., Orion Advisor Service, LLC,  and Preqin Ltd. (together with any other 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 of Use, you agree (1) to waive any claim against ICN and the Data Providers arising out of or related to the Content of the Site, (2) that you have no direct contractual privity with any Data Provider and that (3) you will treat all such data as strictly confidential and not disclose any such data to any third party.

No Unlawful or Prohibited Use

You are granted a non-exclusive, non-transferable, revocable license to access and use the Site strictly in accordance with these Terms of Use. As a condition of your use of the Site, you warrant to ICN that you will not use the Site for any purpose that is unlawful or prohibited by these Terms. Notwithstanding the generality of the foregoing, you may not: (a) access or use the Site for any illegitimate purpose, including without limitation any violation of the antifraud or registration provisions of the securities laws of the U.S. or any state therefore, or attempt to disrupt the operation of the Site in any manner, including through the use of methods such as denial of service attacks, flooding or spamming; (b) transmit, distribute, introduce or otherwise make available in any manner through the Site any computer virus, keyloggers, spyware, worms, Trojan horses, time bombs or other malicious or harmful code (collectively, “Harmful Code”); (c) use any robot, scraper or other means to access the Site; (d) use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use of the Site; (e) obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site or otherwise attempt to gain unauthorized access to any user accounts or computer systems or networks, through hacking, password mining or any other means.

YOU WILL NOT MODIFY, PUBLISH, TRANSMIT, REVERSE ENGINEER, PARTICIPATE IN THE TRANSFER OR SALE, CREATE DERIVATIVE WORKS, OR IN ANY WAY EXPLOIT ANY OF THE CONTENT IN WHOLE OR IN PART, FOUND ON THE SITE. YOUR USE OF THE SITE DOES NOT ENTITLE YOU TO USE THE CONTENT FOR ANY PURPOSE OTHER THAN, (A) WITH RESPECT TO LP USERS, FOR EVALUATING POTENTIAL OR CURRENT INVESTMENTS AND (B) WITH RESPECT TO GP USERS, FOR MAINTAINING THE CONTENT INCLUDED IN THE SITE WITH RESPECT TO YOUR FIRM. FURTHER, EACH LP USER AGREES THAT IT IS USING THE SITE SOLELY FOR THE PURPOSE OF EVALUATING OR MANAGING ITS PRIVATE INVESTMENT PORTFOLIO AND THAT IT IS NOT USING THE SITE IN ITS CAPACITY AS AN EMPLOYEE, AGENT OR REPRESENTATIVE OF AN ALTERNATIVE ASSET MANAGEMENT FIRM OR OTHER ENTITY SEEKING TO OBTAIN A COMPETITIVE ADVANTAGE BY ACCESSING CONTENT THAT DESCRIBES FUNDS MANAGED BY OTHER ALTERNATIVE ASSET MANAGEMENT FIRMS.

Intellectual Property

All content included on the Site, such as text, graphics, logos, images, as well as the compilation thereof, all ICN marks associated with the site, all data collected by ICN, the computer programs developed by ICN or its personnel, all other ICN 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 (collectively, “Content”), is the property of ICN, the Data Providers or other third parties with whom ICN does business and is protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto. To the extent that User creates any derivatives to or of any Content, User hereby assigns to ICN 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 ICN property is granted, transferred or otherwise provided by these Terms.

No Misleading Submission or Material Omission

By registering with or using the Site, you hereby affirm that all information provided to ICN 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 ICN.

Representations, Warranties and Covenants of User

User hereby represents, warrants and covenants to ICN as follows:

  • User at all times continues to 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;
  • User is and, at all times during its use of the Site, shall continue to be, duly authorized and empowered under all Applicable Laws and (to the extent applicable) provide the services and engage in the activities contemplated by these Terms;
  • User shall maintain such books and records as are required by Applicable Law in connection with these Terms; and
  • User shall make all disclosures that are required by Applicable Law in connection with these Terms.

Securities Products

None of the information contained in the Site constitutes a recommendation, solicitation or offer by ICN 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 user’s investment requirements or financial situation. The information and 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 ICN 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.

You understand that the Site contains information about private securities and you will not solicit any offer to buy or offer to sell or make available interests or shares in any security (i) (1) in any manner which would be inconsistent with applicable laws and regulations, or with the procedures for solicitations contemplated in the confidential offering memorandum of that applicable security (2) 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 Securities Act.

Links to Third Party Sites/Third Party Services

The Site may contain links to other websites (“Linked Sites”). Linked Sites are not under the control of ICN and ICN is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. ICN is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by ICN of the site or any association with its operators.

Third Party Accounts

You may be able to connect your ICN account to third party accounts. By connecting your ICN account to your third party account, you acknowledge and agree that you are consenting to the continuous release of information about you to others (in accordance with your privacy settings on those third party sites). If you do not want information about you to be shared in this manner, do not use this feature.

Indemnification

You agree to indemnify, defend and hold harmless ICN, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (a) your use of or inability to use the Site, (b) your unauthorized use of personally identifiable information of other Users, Delegates or their representatives obtained by accessing the Site, (c) any act of gross negligence, willful misconduct, fraud or bad faith by you or Users, (d) your violation of these Terms of Use or your violation of any rights of a third party, or (e) your violation of any applicable laws, rules or regulations. ICN 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 ICN in asserting any available defenses.

Disclaimer; Limitation of Liability

BY USING THE SITE, YOU AGREE THAT THE CONTENT CONTAINED HEREIN IS ONLY FOR YOUR GENERAL INFORMATION AND USE AND IS NOT INTENDED AS A RECOMMENDATION OF ANY SECURITY OR FUND DESCRIBED HEREIN, 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 ICN OR ANY OF ITS EMPLOYEES AND IS NOT INTENDED TO BE RELIED UPON BY USERS 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. THE SITE AND RELATED SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.

YOU AGREE THAT ICN 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 USERS OR DELEGATES OR ANY PERSON USING A USER’S OR DELEGATE’S LOGIN CREDENTIALS. ICN CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR MISUSE OF ANY OF ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SITE.

YOU ACCEPT THAT WE DO NOT GIVE ANY WARRANTIES IN RESPECT OF THE SITE. ICN 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.

In addition to but separate from the above specific exclusion and to the full extent allowed by applicable law, you also agree that we 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, ICN 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 ICN (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).

Geographic Restrictions

The owner of the Site is based in the State of New York in the United States. We provide the Site for intended use by persons located in the United States. We make no claims that the Site or any of its content is accessible 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.

Publicity

User shall not, nor shall any of its respective Affiliates or agents, without the prior written approval of ICN, (a) name or show ICN as a client, business partner or otherwise in any advertising or marketing materials or other text, audio, visual or electronic media for public distribution, or (b) 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 ICN.

Minimum System Requirements

User will not be provided any copies of any software or a copy of the Site. User shall bear its 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 the User’s authorized use of the Site, User shall be required to maintain minimum system levels as may be set forth by ICN from time to time.

Miscellaneous

ICN reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice.

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 ICN as a result of this agreement or use of the Site.

For purposes of these Terms, “Affiliates” shall mean, with respect to a party, any business entity now or hereafter controlled by, controlling or under common control with such party, but not including pooled investment vehicles advised or administered by such party.  For purposes of this definition, control exists when an entity owns or controls directly or indirectly greater than fifty percent (50%) of the outstanding equity representing the right to vote for the election of directors or other managing authority of another entity.

If any provision of these Terms is determined to be invalid or unenforceable pursuant to applicable law, such provision shall be deemed deleted from these Terms, but such deletion shall not affect the enforceability of any other provision in these Terms.

These Terms, including any addenda hereto, as applicable, constitute the entire agreement between the User and ICN with respect to the Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the User and ICN with respect to the Site.

Contact Us

ICN welcomes your questions or comments regarding the Terms:

iCapital Network, Inc.
60 East 42nd Street, 26th Floor
New York, New York 10165

Transfer Agent Addendum (as applicable)

Overview

In addition to Terms of Use, the following terms (the “TA Terms”) shall apply, as applicable, in addition to the Terms to any Transfer Agent accessing or otherwise using the Site for the purpose of providing any services in respect to a PAF or in any way (which expressly includes ICN’s alternative investments platform (the “ICN Platform”) and white-label technology versions thereof (each a “Transfer Agent Platform). Specifically, the TA Terms apply to any Transfer Agent accessing and using ICN’s white-labeled alternative investment platform, software, and services through which TA Users will gain access to a Transfer Agent Platform for the purpose of performing transfer agent related services with respect to certain privately offered funds sponsored by ICN, one of its Affiliates or third parties (such funds, “PAFs”). For the avoidance of doubt, the above Terms are incorporated into the TA Terms and shall apply to the fullest extent to the Transfer Agent and TA Users.

Transfer Agent Services

ICN will grant those TA Users indicated by Transfer Agent in writing with access to the Transfer Agent Platform, including the custom workflows and investor reporting available through the Transfer Agent Platform; provided that Transfer Agent shall notify ICN immediately in writing if a TA User should have its access to the ICN Platform revoked, including, but not limited to, as a result of such TA User no longer being associated with Transfer Agent (a “Revoked User”).

The Transfer Agent Platform will provide access to those PAFs for which Transfer Agent has been appointed as transfer agent by the applicable sponsor(s) as confirmed in writing to ICN.

By using the Transfer Agent Platform, Transfer Agent acknowledges and agrees that ICN is not acting as a broker-dealer nor is ICN making any recommendations with respect to any PAF. As such, ICN and its Affiliates do not have certain regulatory requirements, including any requirements arising under Regulation Best Interest.

The Transfer Agent Platform

ICN shall make available the Transfer Agent Platform that TA Users can utilize to provide transfer agent related services with respect to the PAFs (“Transfer Agent Services”) and, after the date on which the Transfer Agent Platform is first made available to TA Users, maintain and host (or arrange for the hosting of) the Transfer Agent Platform.

ICN shall provide training resources (e.g., videos, documentation, online training and training collateral) for TA Users, Transfer Agent executive management personnel, Transfer Agent research and product-area personnel, and all supporting Transfer Agent operations personnel, in each case as designated by Transfer Agent, regarding the operation and functionality of the Transfer Agent Platform.

Transfer Agent hereby grants to ICN a non-exclusive, non-transferable (except as expressly provided pursuant to these TA Terms), worldwide, royalty-free, limited license (with no right to sublicense), subject to the other terms and conditions hereof, to display and use Transfer Agent’s trademarks on the Transfer Agent Platform and in connection with ICN’s use and maintenance of the Transfer Agent Platform and ICN Platform.

ICN shall make the Transfer Agent Platform generally available to Transfer Agent and TA Users, subject to scheduled maintenance and system upgrade periods (“Scheduled Downtime”), Force Majeure events, and as otherwise determined in the sole discretion of ICN.  In the event that the Transfer Agent Platform is not functioning in accordance with its specifications (a “Platform Issue”), Transfer Agent may report such Platform Issue to ICN along with a description of the severity of such Platform Issue, in which case ICN shall respond to such Platform issue in such a manner as it sees fit.

ICN will use commercially reasonable efforts to ensure that Scheduled Downtime does not occur during the hours of 6 a.m. to 9 p.m. Eastern Standard Time, Monday through Friday, excluding United States national holidays (“Business Hours”) or total more than ten (10) hours per month.

ICN may subcontract (whether under an existing or new contract between ICN and a third party) any part of the services provided hereunder, including the development, operation and maintenance of the Transfer Agent Platform.

Transfer Agent Use of Transfer Agent Platform

TA Users will have access to the Transfer Agent Platform for the purpose of providing Transfer Agent Services.

Fees

Should Transfer Agent request additional features or support with respect to the Transfer Agent Platform, the parties shall negotiate the scope of such services and any fees and expenses associated therewith.

All costs and expenses incidental to the providing of Transfer Agent Services, including any regulatory filing costs and brokerage fees, and the fees of third-party service providers engaged by the PAFs, Transfer Agent or ICN with respect to the services described herein, including without limitation the costs and fees of legal counsel, the administrator, auditor and any tax preparer to the PAFs or Transfer Agent, shall be, as between ICN and Transfer Agent, borne by Transfer Agent.

Representations, Warranties and Covenants of the Transfer Agent

Transfer Agent hereby represents, warrants and covenants to ICN as follows:

  • Transfer Agent has a pre-existing contractual relationship with all applicable sponsors of each PAF to be accessed through the Transfer Agent Platform and is authorized to provide the Transfer Agent Services with respect to each such PAF. Transfer Agent agrees that none of ICN, its Affiliates, any PAF or their respective directors, officers, agents, principals, members, partners, employees, and stockholders 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 PAF;
  • Transfer Agent will advise ICN promptly of: (i) the receipt by Transfer Agent of any communication specifically with respect to the offering of any PAF interests from the SEC, any state securities commissioner or any other regulatory authority in any other jurisdiction; and (ii) the threat (if such threat is reasonably likely to have a material adverse effect on a PAF) 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 PAF) a party specifically with respect to the offering of any PAF interests;
  • Transfer Agent acknowledges that ICN does not intend to act as a fiduciary under Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to any Investor’s decision to purchase, hold, or withdraw from, a particular PAF;
  • There are no material suits, actions, claims or proceedings pending or, to its 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 Transfer Agent, or any of its key employees, is a party, or to which any material portion of its assets is subject, which, in each case, would be reasonably expected to have a material adverse effect on its ability to perform its services hereunder; and
  • It shall not appoint any sub-agent to perform any of its obligations under these TA Terms or conduct any of the activities of Transfer Agent contemplated under these TA Terms.

Disclaimer of Warranties

ICN DOES NOT WARRANT THAT ACCESS TO THE TRANSFER AGENT PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES ICN, ITS AFFILIATES, OR ANY PERSON ASSOCIATED WITH ICN OR ITS AFFILIATES, MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE TRANSFER AGENT PLATFORM, THAT DEFECTS WILL BE CORRECTED, THAT THE TRANSFER AGENT PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE TRANSFER AGENT PLATFORM OR ITEMS OBTAINED THROUGH THE TRANSFER AGENT PLATFORM WILL OTHERWISE MEET TRANSFER AGENT’S OR OTHER’S NEEDS OR EXPECTATIONS.

TRANSFER AGENT IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY TRANSFER AGENT PLATFORM’S PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE TRANSFER AGENT PLATFORM FOR ANY RECONSTRUCTION OF ANY LOST DATA. ICN WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT TRANSFER AGENT’S OR TA USER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO USE OF THE TRANSFER AGENT PLATFORM OR OTHER PROPRIETARY MATERIAL DUE TO USE OF THE TRANSFER AGENT PLATFORM OR ITEMS OBTAINED THROUGH THE TRANSFER AGENT PLATFORM OR TO DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ANY WEBSITE LINKED TO IT.

Indemnification

In addition to those indemnification requirements set forth in the Terms of Use, Transfer Agent shall also defend, indemnify and hold harmless the ICN Parties from and against any losses arising out of any claim (a) by any client of Transfer Agent with respect to any PAF arising out of Transfer Agent’s actions as contemplated herein, or (b) by any person or entity for any reason, directly or indirectly arising out of the Transfer Agent’s failure to immediately notify ICN in writing to revoke a Revoked User’s access to the ICN Platform and/or Transfer Agent Platform.

Information

Transfer Agent and ICN acknowledge and agree that, in connection with the services described herein, Transfer Agent may provide to ICN via a secure electronic data feed or otherwise certain information in respect of Investors, including the Investors’ full legal names, addresses, and wire instruction information, as well as other data and information and data in connection with the Transfer Agent Services (collectively, “Information”) in order to facilitate ICN’s servicing of the Investors’ investment in one or more PAFs and otherwise in connection with the use of the Transfer Agent Platform and the provision of the Transfer Agent Services. Transfer Agent hereby represents and warrants that all Information provided to ICN will be accurate and complete in all respects and Transfer Agent hereby agrees to provide to ICN via secure electronic data feed or as otherwise directed by ICN accurate and complete updates to such Information immediately upon any change to any such Information. ICN may rely on such Information, including any updates thereto, without any question or investigation of its own. To the fullest extent permitted by Applicable Law, Transfer Agent shall indemnify and defend the ICN Parties in connection with, and shall hold the ICN Parties harmless from, any losses to which an ICN Party may become subject in connection with or arising out of ICN’s reliance upon any Information.

Insurance

During the Transfer Agent’s authorized use of the Transfer Agent Platform, Transfer Agent 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 services are to be performed.  This insurance shall include without limitation the following types and amounts of coverage:  (a) Worker’s Compensation and related insurance as prescribed by the law of each state in which work is performed; (b) Employer’s Liability Insurance with limits of at least one million ($1,000,000) for each occurrence; (c) 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; (d) 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; (e) Cyber/Privacy Liability Insurance covering for 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); (f) Umbrella (Excess) Liability Insurance providing excess coverage to the primary insurance coverage described in subparagraph (c) above with limits of at least three million dollars ($3,000,000); and (g) 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.

Continuing Agreement; Termination

These TA Terms shall continue in full force and effect until terminated.

Either party may terminate these TA Terms on sixty (60) days’ prior written notice to the other party for convenience. Additionally, either party may terminate these TA Terms immediately for any of the following with respect to the other party: (a) gross negligence (as search term is defined under Delaware law), willful misconduct or bad faith in connection with its duties under these Terms; (b) a material violation of these Terms or Applicable Law, which if capable of being cured, is not cured within thirty (30) days following notice from the other party describing such violation; or (c) the filing any proceeding in bankruptcy in which party is named debtor.

Upon successful termination, each of the parties will be released from any and all liability to the other parties hereunder; provided that the provisions that by their nature are intended to survive termination or expiration of these TA Terms shall so survive, including the following sections: Representations, Warranties and Covenants of Transfer Agent, Disclaimer of Warranties, Confidentiality, Indemnification, Limitation of Liability, Ownership of ICN Property, Insurance, Continuing Agreement; Termination, Governing Law; Venue; Waiver of Jury Trial, Notices, Assignment, Entire Agreement, and Miscellaneous.

The termination of these TA Terms will not terminate ICN’s (or its Affiliate’s or a sponsor’s) role as the general partner, administrator or manager of any PAF. Any such termination would be affected pursuant to the organizational or other operating agreements of such PAF.

Assignment

Transfer Agent may not, without the prior written consent of ICN, assign or transfer all or any part of these TA Terms to any third party, except for assignments or transfers by reason of acquisition or merger or otherwise.  Any assignment in contravention of this provision shall be null and void.  These TA Terms shall be binding on all permitted assignees and successors in interest.