Terms and Conditions

Platform Participation Agreement

By clicking ‘I Accept’ I agree to the below Terms and Conditions and attest that I am employed by a qualified institution buyer.

His Platform Participation Agreement (the “Agreement”) is entered into as of today by and between Financial Capital Network, Inc. (the “FCN”), having its main business address at 379 West Broadway, New York, NY 10012 and (the “Investor”)

Witnesseth:

WHEREAS, Investor or one of its affiliates manages and invests funds professionally.

WHEREAS, FCN provides a platform product known as “Hedge Fund Connect” (“Hedge Fund Connect”) which allows FCN to work as an intermediary on behalf investors such as Inventor and hedge funds to report certain information (the “Information”) regarding the Hedge Funds to specified employees of Investor (“Specified Recipients”)

WHEREAS, Investor desires to subscribe the Hedge Fund Connect to utilized the Information in its investment processes.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the promises and of the covenants and agreements herein contained, the parties hereto agree as follows:

1. Hedge Fund Connect Subscription

Investor hereby subscribes for participation in Hedge Fund Connect as an investor. The subscription to Hedge Fund Connect shall be governed by the terms of service attached hereto as Schedule A. Investor covenants and agrees to the terms set forth on Schedule A, which are incorporated herein.

In furtherance of the foregoing, each Specified Recipient shall have a unique user access name and password, which shall only be used during the Specified Recipient’s employment for the Investor. [The Investor shall provide to FCN a list on a monthly basis of any and all Specified Recipients]. The hereby acknowledges that they are a qualified institutional buyer.

2. Compensation

There shall be no subscription fee for the use of the Hedge Fund Connect by Investor hereunder. If a investment is made because of the platform the institutional investor acknowledges it to FCN.

3. Term of Agreement

Termination for Convenience. The term of this Agreement shall mean the period from the date hereof and shall continue indefinitely until terminated by either party hereto by written notice thereof to the other parties hereto sent not later than thirty (30) days prior to termination, or immediately if termination is for cause (as set forth below). Notwithstanding the foregoing, FCN may terminate this Agreement immediately in the event that its license agreement with MSCI terminates or as set forth in Schedule A hereto.{" "}
Termination for Cause. Either party may terminate this Agreement with immediate effect for Cause (as defined below). As used herein, the term “Cause” shall mean: (i) any act or omission by either party in the performance of its duties under this Agreement amounting to gross negligence, willful misconduct or fraud; or (ii) the entry by any court or regulatory or self-regulatory body of an order or decree as a result of which either party is effectively prohibited or enjoined from performing its responsibilities under this Agreement

4. Representations and Warranties of Investor

Investor represents and warrants to FCN that:

Investor is duly organized and validly existing as a limited liability company or limited partnership organized under the state laws of its organization and has the requisite power and authority to conduct its business.
To the best of Investor’s knowledge, information and belief, there are not any actions, suits or proceedings at law or in equity or by or before any court or governmental instrumentality or other agency now pending, or, threatened against Investor, which if determined adversely, would prevent Investor from entering into this Agreement.
This Agreement has been validly executed and delivered by Investor and is the legal, valid and binding agreement of Investor.
No consent, approval, authorization or order of any court, governmental agency, authority or body or any party to an agreement to which Investor is a party or by which Investor is bound is required in connection with the execution, delivery and performance of this Agreement by the Investor, except for those that have been obtained.
Investor understands and acknowledges that FCN or its affiliates may provide services, including private placement and investment banking services, to the hedge funds and other parties utilizing Hedge Fund Connect, and may charge and collect fees from such hedge funds based on investments made by the Investor or its affiliates into such hedge funds. Investor shall not attempt to circumvent or otherwise structure any such investment into any such hedge fund in way to avoid payment of such fees to FCN.
Investor understands and acknowledges that FCN has not and undertakes no obligations to verify the accuracy or sufficiency of the Information, and therefore, it not responsible in any way for the Information.

5. Representations and Warranties of FCN

FCN represents and warrants to Investor that:

The FCN is a corporation duly organized and validly existing under the laws of the State of Delaware.
To the best of FCN’s knowledge, information and belief, there are not any actions, suits or proceedings at law or in equity or by or before any court or governmental instrumentality or other agency now pending, or, threatened against FCN, which if determined adversely, would prevent FCN from entering into this Agreement
This Agreement has been duly authorized, validly executed and delivered on behalf of the FCN and is the valid and binding agreement of FCN enforceable in accordance with its terms.
No consent, approval, authorization or order of any court, governmental agency, authority or body or any party to an agreement to which Investor is a party or by which FCN is bound is required in connection with the execution, delivery and performance of this Agreement by FCN, except for those that have been obtained.

6. Confidentiality

Without the written consent of any Party to this Agreement, no other party or any Affiliate (as defined below) of said party may disclose the confidential terms of this Agreement to any person or entity outside of its company (including outside service providers such as prime brokerage capital introduction teams, lawyers, accountants, other hedge fund Investors, other related outside marketing parties, with the exclusion of the direct service providers, lawyers and auditors of the Investor should there be specific information that they may need to know), or to any person or entity within its company not having a need to know for the purposes of using Hedge Fund Connect as contemplated by this Agreement.

The Parties acknowledge that the unauthorized disclosure of any Confidential Information to third parties, or unauthorized circumvention with respect to any Confidential Information, may result in significant damages to the Party providing Confidential Information. Each Party agrees to keep confidential all Confidential Information provided to it by the other Party, and not to use any such information for its own gain. For purposes of this Agreement, Confidential Information shall include non-public information provided through Hedge Fund Connect.

Each party will take all necessary actions to provide for the safekeeping of any confidential information, in whole or in part, to prevent distribution of the information to any third party without prior written consent of the other party. “Affiliate,” as used in this Agreement, means a person or persons who control, or are controlled by any other person, or are both under the common control of a third person.

The FCN and Investor each shall use its best efforts to safeguard the secrecy and confidentiality of all confidential and proprietary information of the other party and shall not disclose any of the foregoing to any third party except the following:

Information which at the time of disclosure is part of the public knowledge or literature and is readily accessible to such third party, provided that any combination of features shall not be deemed within exception merely because individual features are part of the public knowledge or literature and readily accessible to such third party, but only if the combination itself and its principle of operation are part of the public knowledge or literature and are readily accessible to such third party.
Information required by law or any regulatory requirement to be disclosed.
Information as permitted by the terms of this Agreement.

7. Indemnification

The Investor agrees to indemnify and hold harmless the FCN, its information providers, and any other third party involved in or related to the making or compiling of the Information or providing Hedge Fund Connect, their affiliates and subsidiaries and their respective directors, officers, employees and agents (each such person, including Advisor, an "Indemnified Party") from and against any losses, claims, damages and liabilities, joint or several (collectively, the "Damages"), to which such Indemnified Party may become subject in connection with or otherwise relating to or arising from (i) any transaction contemplated by this Agreement or (ii) arising in any manner out of the Investor’s or any third party's use of, or inability to use, the Hedge Fund Connect or any breach by the Investor of any provision contained in this Agreement and will reimburse each Indemnified Party for all out-of-pocket fees and expenses (including the fees and expenses of counsel) (collectively, "Expenses") as incurred in connection with investigating, preparing, pursuing or defending any threatened or pending claim, action, proceeding or investigation (collectively, the "Proceedings") arising therefrom, whether or not such Indemnified Party is a formal party to such Proceeding; provided, that the Investor will not be liable to any such Indemnified Party to the extent that any Damages are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Indemnified Party seeking indemnification hereunder. The Investor also agrees that no Indemnified Party will have any liability (whether direct or indirect, in contract, tort or otherwise) to the Investor, or any person asserting claims on behalf of the Investor arising out of or in connection with any transactions contemplated by this Agreement except to the extent that any Damages are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Indemnified Party.

Promptly after receipt by an Indemnified Party of notice of the commencement of an action or claim to which indemnification under this Section 7 may apply, the Indemnified Party shall notify the Investor in writing of commencement of such action or claim if a claim or indemnification in respect of such action or claim may be made against the Investor under this Section 7; but the omission so to notify the Investor shall not relieve it from any liability which the indemnifying party it may have to the Indemnified Party (except where such omission shall have materially prejudiced the indemnifying party) or otherwise. In case of any such action or claim shall be brought against an Indemnified Party and the Indemnified Party shall notify the Investor of the commencement of such action or claim, the Investor shall be entitled to participate in such action or claim and, to the extent that the Investor may desire, to assume the defense of such action or claim with counsel selected by the Investor and approved by the Indemnified Party. After notice from the Investor to the Indemnified Party of the Investor’s election so to assume the defense of such action or claim, the Investor shall not be liable to the Indemnified Party for any legal, accounting and other fees and expenses subsequently incurred by the Indemnified Party in connection with the defense of such action or claim other than reasonable costs of investigation, except as set forth in the following paragraph.

Notwithstanding any provision of this Section 7 to the contrary, if any action or claim as to which indemnity is or may be available, an Indemnified Party shall determine that its interests are or may be adverse, in whole or in part, to the interest of the Investor or that there may be legal defenses available to the Indemnified Party which are or may be different from, in addition to, or inconsistent with the defenses available to the Investor, the Indemnified Party may retain its own counsel in connection with such action or claim, in which case the Investor shall be responsible for any and all legal, accounting or any other expenses reasonably incurred by or on behalf of Indemnified Party in connection with investigating or defending such action or claim. In the event such separate counsel is retained by the Indemnified Party, the legal fees for which Investor shall be responsible for such counsel shall be reasonable. In no event shall Investor be liable for the fees and expenses of more than one counsel for all Indemnified Parties in connection with separate but similar or related actions or claims in the same jurisdiction arising out of the same general allegations. The Investor shall not be liable for a settlement of any such action or claim effected without its written consent, but if any such action or claim shall be settled with the written consent of the Investor or if there shall be a final judgment for the plaintiff in any such action or claim, the Manger shall indemnify, hold harmless and defend an Indemnified Party from and against any loss, liability or expense in accordance with Section 7 by reason of such settlement or judgment.{" "}

Each of the parties to this Agreement understands that the obligations of each party pursuant to this Section 7 are separate and distinct.

The indemnities and obligations set forth in this Section 7 shall survive the termination of this Agreement and are in addition to any other obligations or liabilities the parties hereto may have.

8. Arbitration

The parties hereto agree that any action or proceeding arising directly, indirectly, or otherwise in connection with, out of, related to, or from this agreement, any breach hereof, or any transaction covered hereby, shall be resolved by arbitration, within the State of New York. Accordingly, the parties consent and submit to the jurisdiction of the federal and state courts and any applicable arbitral body located within the State of New York. The parties further agree that any such action or proceeding brought by either party to enforce any right, assert any claim, or obtain any relief whatsoever in connection with this agreement shall be brought by such party exclusively in the federal or state courts, or if appropriate before any applicable arbitral body, located within the State of New York.

9. Miscellaneous

Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the matters referred to herein, and no other agreement, verbal or otherwise, shall be binding as between the parties unless it is in writing and signed by the party against whom enforcement is sought.
Assignment. This Agreement may not otherwise be assigned by either party without the prior written consent of the other party. This Agreement shall inure to the benefit of the parties hereto and their respective successors and assigns. Investor may assign its rights and obligations hereunder to a third party in the event of a merger, consolidation or sale of Investor or substantially all of its assets.
Independent Contractor. FCN and Investor shall be deemed as independent contractors and unless otherwise expressly provided herein or with the prior written authorization of the other party, no party shall have authority to act for or represent any other party, its affiliates, officers, directors or employees in any way and shall not otherwise be deemed to be an agent of any other party. Nothing contained herein shall create or constitute among the Parties any partnership, joint venture, association, syndicate, unincorporated business, or other separate entity, nor shall this Agreement be deemed to confer on any of them any expense implied, or apparent authority to incur any obligation or liability on behalf of the other.
Amendment; Waiver. This Agreement may not be amended except by the written consent of both the FCN and Investor. No waiver of any provision of this Agreement may be implied from any course of dealing between the parties or from any failure by a party to assert its rights under this Agreement on any occasion or series of occasions.
Severability. If any provision of this Agreement, or the application of any provision to any person or circumstance, shall be held to be inconsistent with any law, ruling, rule or regulation, the remainder of this Agreement, or the application of the provision to persons or circumstances other than those as to which it is held inconsistent, shall not be affected thereby.
Severability. If any provision of this Agreement, or the application of any provision to any person or circumstance, shall be held to be inconsistent with any law, ruling, rule or regulation, the remainder of this Agreement, or the application of the provision to persons or circumstances other than those as to which it is held inconsistent, shall not be affected thereby. If to Investor:
[INVESTOR NAME]
[Address]
Attn:
If to Investor:
FCN
379 West Broadway
Governing Law. This Agreement shall be governed by and construed in accordance with New York (excluding the law thereof which requires the application of, or reference to, the law of any other jurisdiction).
Counterparts. This Agreement may be executed in one or more counterparts, all of which together shall constitute one original Agreement.
Headings. Headings to sections and subsections in this Agreement are for the convenience of the parties and do not form a part of or affect the meaning of this Agreement.
Attorneys’ Fees. In any litigation between the parties concerning this Agreement or its enforcement, the prevailing party or parties in such litigation shall be entitled to collect in such action from the non-prevailing party or parties all costs of such litigation, including reasonable attorneys’ fees at all levels of proceedings.
Survival. The parties agree that Sections 4, 5, 6, 7 and 9 shall survive the termination of this Agreement indefinitely. The respective indemnities, representations and warranties set forth in this Agreement shall survive any termination of this Agreement.
Binding Effect. This Agreement shall be binding upon Investor and FCN and their successors and assigns, and shall inure solely to the benefit of the Investor, FCN and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement, except as explicitly set forth herein including Schedule A hereto. This Agreement is not assignable by either party without the prior written consent of the other party, except as explicitly set forth herein.

In witness whereof, this Agreement has been executed as of the date recorded and your IP address.{" "}

Schedule A

Hedge Fund Connect Subscription Terms

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General Terms and Conditions

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1. Use of Product

FCN hereby grants to the Investor a nonexclusive, nontransferable license for the product known as Hedge Fund Connect (the “Product”), on the terms set forth herein.
Investor hereby agrees that the information provided via the Product (“Information”) shall be used solely on an internal use basis. For the avoidance of doubt, Investor shall not use the Information or the Product for any other purpose, and shall not distribute the Information or the Product to any third party. Investor shall be responsible for ensuring that its Specified Recipients do not further distribute or disseminate the Information.
Investor shall not use or permit anyone else to use the Information or Product in connection with the creating, managing, advising, writing, trading, marketing or promotion of any securities or financial instruments or products, including, but not limited to, funds, synthetic or derivative securities (e.g., options, warrants, swaps, and futures), whether listed on an exchange or traded over the counter or on a private-placement basis or otherwise or to create any indices (custom or otherwise).

2. Disclosure Schedule

To the extent available, Investor shall identify the Specified Recipients via appropriate functionality in the Product. If such functionality is unavailable, Investor shall submit the names of Specified Recipients by written notice (which may be by electronic means) in a timely manner to FCN, either directly or through a designated third party.

3. Ownership of Product.

Investor shall treat the Product as proprietary to MSCI, Inc. (“MSCI”) and FCN. Investor acknowledges that, as between MSCI and Investor, MSCI anf FCN are the sole and exclusive owner of the Product and any trade secrets, copyrights, trademarks and other intellectual property rights in or to the Products.

4. Termination by MSCI.

MSCI and FCN may, in its sole and absolute discretion and at any time, terminate the Investor’s right to receive and/or use the Product.

5. Use of the Product

Investor shall not (i) copy any component of the Product, (ii) alter, modify or adapt any component of the Product, including, but not limited to, translating, decompiling, disassembling, reverse engineering or creating derivative works, or (iii) make any component of the Product available to any other person or organization (including, without limitation, the Investor’s present and future parents, subsidiaries or affiliates) directly or indirectly, for any of the foregoing or for any other use, including, without limitation, by loan, rental, service bureau, external time sharing or similar arrangement. The Product shall be the then current version of the Hedge Fund Connect. The Product is provided on an “as-is” basis by FCN.

6. Indemnity

In addition to any indemnity obligation contained in the Agreement, Investor assumes the entire risk of using the Services and will defend, indemnify, save and hold harmless FCN, MSCI and their respective affiliates and representatives (the “MSCI Indemnitees”) from any and all from any and all direct damages, costs or expenses, including reasonable attorney’s fees resulting from Investor’s use of the Information, the Product, or other data or services hereunder.

7. Limitation on Liability; Disclaimer.

Limitation on Liability. INVESTOR ASSUMES THE ENTIRE RISK OF ANY USE INVESTOR MAY MAKE OF THE PRODUCT. EXCEPT FOR THE BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 6 OF THE AGREEMENT BY EITHER PARTY, WHICH SHALL BE RESTRICTED TO LIABILITY FOR DIRECT DAMAGES BUT SHALL NOT BE SUBJECT TO FINANCIAL LIMIT, IN NO EVENT SHALL EITHER FCN, ITS INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED OR RELATED TO THE MAKING OR COMPILIING OF THE PRODUCT, BE LIABLE TO INVESTOR, ANY FUND OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY INVESTOR, ANY FUND OR ANY OTHER THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Disclaimer. THE INFORMATION, THE PRODUCT, AND ANY AND ALL OTHER INFORMATION PROVIDED OR PRODUCED PURSUANT TO THIS AGREEMENT BY EITHER PARTY IS PROVIDED OR PRODUCED BY THE RELEVANT PARTY “AS IS.”. FCN, ITS INFORMATION PROVIDERS, AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE PRODUCT MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). FCN, ITS INFORMATION PROVIDERS AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE SERVICES EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE

8. Third Party Beneficiary.

Investor acknowledges and understands that certain portions of the Product includes and/or incorporates certain services and products provided to FCN by MSCI or its affiliates. Accordingly, Investor acknowledges and agrees that MSCI is an intended third-party beneficiary of this Agreement, including this indemnity provisions included in this Schedule A, solely to the extent such provisions apply to the Product, and MSCI may enforce such provisions against Investor as if MSCI were a direct party hereto.