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
4. Representations and Warranties of Investor
Investor represents and warrants to FCN that:
3. Term of Agreement
5. Representations and Warranties of FCN
FCN represents and warrants to Investor that:
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:
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
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
2. Disclosure Schedule
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.
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.