This is a User Agreement (the “Agreement”) between the party identified in the Registration Form and as applicable its affiliates, employees, agents and related parties that use our products and services (collectively, the “User” or “you”) and Hedgebay Holdings LLC and its affiliates (including their respective officers, directors, employees, owners and authorized agents), as applicable, including but not limited to Hedgebay Securities LLC (collectively, “Hedgebay,” “we” or “us”), concerning your use of the Hedgebay.com website (including any successor or affiliated website, the “Site”) and the products and services (including transactions in connection therewith, collectively, “Services”) provided in connection thereto, pursuant to which the User is provided access to the Site.
The Site is not, and is not intended or required to be, a registered or regulated exchange or an Alternative Trading System subject to Regulation ATS. While the Site possesses certain electronic features such as a form of settlement tracking, participants and transactions are subject to third party approvals and authorized users of the Site, including but not limited to Hedgebay Securities, exercise discretion in facilitating purchaser/investor and seller interactions and effecting transactions.
Generally, the Site is a venue that may be used for primary or secondary transactions in private investments, including private investment funds, other pooled vehicles and private companies (each, an “Investment” and collectively, Investments”). Our Services are generally available only to sellers and purchasers/bidders/investors under certain applicable exemptions under U.S. and other applicable law as determined by us, including U.S. Persons. For purposes hereof, “U.S. Person” and “United States” generally have the meanings set forth on Schedule A attached hereto but we in our discretion can use other applicable definitions under U.S. law. You agree that you meet the criteria to be an “accredited investor” under Rule 501 under the U.S. Securities Act of 1933, as amended. If you do not qualify in all respects, please do not use our Services. Hedgebay may refuse, terminate or modify our Services to anyone at any time, in our sole discretion. You represent and warrant that the information you provide us in your Registration Form, the registration process or otherwise in connection with your use of the Site and our Services (including regarding eligibility standards) will not contain any material inaccuracies or material omissions and you will promptly notify us in accordance with paragraph Q of the foregoing, as well as of any other material changes or updates in your information. From time to time we may ask you to reconfirm or update information you have previously provided to us or through the Site or provide additional information and you agree to do so promptly in order to continue to use the Site and our Services. This includes that we may require you to provide additional and/or more detailed information to verify your or your owners’ identity when we deem it necessary or appropriate to do so, including in order to comply with applicable anti-money laundering laws. Purchasers and investors of an Investment must also meet the eligibility requirements of such Investment, which are established and determined in the discretion of such Investment. Depending upon the context used herein, the term “Investment” may refer to the issuer (such as a private fund or a private company”) and/or the units, shares or similar interests involved in an Investment and/or the transaction involving the purchase or sale of such units, shares or similar interests.
You agree that you are not precluded by law, obligation, contract or otherwise from investing in any Investment and are not a prohibited person identified on any list issued and maintained by OFAC or otherwise under any anti-money laundering, anti-bribery or criminal law or regulation. You agree to comply with all applicable U.S. and non-U.S. law, rules and regulations, including, without limitation, the anti-money laundering laws of the Bahamas and the laws applicable to any Investment and agree to promptly provide us with additional information for anti-money laundering and other regulatory or business purposes if we request it. If User is entering into this Agreement and/or provides us information on behalf of any other person(s), including any beneficial owner, User understands and acknowledges that the agreements and other provisions contained and made herein are made on behalf of such other person(s) and represents that User has authority to bind such other person(s). If any Investments will be or are held in the name of a bank or other institution and not in your name, you must have made or agree to make all necessary arrangements with the intended registered holder of such Investments, including notifying and obtaining the approval of any such registered holder for any transaction, funding any account you may have with the intended registered holder, and making such other arrangements as are necessary and appropriate under the circumstances. Users will be bound by their bids and offers and representations notwithstanding any such arrangements.
You are hereby granted, subject to all of the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, license to (i) view the screens and materials on the Site and use our Services in connection therewith; (ii) reproduce, solely for purposes of downloading to your computer, one copy of such screens and materials; and (iii) print only a reasonable number of copies of such screens and materials as is necessary for your own investment analysis purposes, provided that you maintain all copyright trademark, and proprietary notices on any copies of such screens and materials that you make under this license. Any other use of the Site without our prior written consent is expressly prohibited. All rights in the Site are owned by us or our authorized agents, authorized Site users, vendors or other third parties. Except as specifically granted in this paragraph, no rights are granted with respect to the Site. Any and all rights with respect to the Site not granted in this paragraph are expressly reserved by us. By your use of the Site you acknowledge our ownership of such site and agree that you will not challenge such ownership. No act of downloading any portion of the Site will constitute a transfer of title. You may not decompile, reverse compile, reverse engineer, disassemble or otherwise reduce any portion of the Site to a human-perceivable form.
“Hedgebay” and “Hedgebay.com” (the “Marks”) are service marks of Hedgebay. Nothing in the Agreement will be construed as granting, by implication, estoppel or otherwise, any license or right to use the Marks or any other trademark, service mark, logo or image on the Site. All such trademark rights are expressly reserved by us.
Joining the Site is free, unless otherwise indicated, and from time to time Users may be offered additional Services for a fee (either directly through the Site or through an authorized Site user). Users are responsible for fees associated with Services purchased by them (including for consummated transactions in which they are involved through Hedgebay), notwithstanding their use or non-use of the Site. Unless otherwise stated, all fees payable for Services (and any related costs or charges) are quoted in U.S. Dollars. You are responsible for timely paying all applicable Service and third party fees, charges and costs, including but not limited to transaction charges, custody charges, taxes and any other costs you incur in effectuating transactions as a result of any bids or offers you make on the Site or through our Services. You agree that you will not circumvent or manipulate our Services or fee structure in any way, including without limitation by privately consummating transactions with counterparties discovered through the Site or our Services or otherwise known to you, or by otherwise disintermediating Hedgebay on any transaction or Service, and agree that fees due regarding a transaction will be due notwithstanding any changes discussed or agreed to separately between a purchaser and seller.
Transaction compensation is paid to Hedgebay Securities and other authorized Site users which are involved in Investments and transactions. See Section F. “The Site is Only a Venue; Transactions; Compensation; Hedgebay Securities; Hedgebay Partners UK Limited; Affiliates; Risks” below.
E. Modification of Services:
We may in our sole discretion add, delete, amend, modify, change or make unavailable some or all of our services at any time without prior notice.
F. The Site is Only a Venue; Transactions; Compensation; Hedgebay Securities; Hedgebay Partners UK Limited; Affiliates; Risks:
The Site primarily acts as the venue for primary and secondary transactions in Investments, whether individually or collectively, in postings, auctions, liquidity events or under other circumstances. Hedgebay does not provide recommendations, investment or any other advice to Users or any other party through the Site, and no information or material at the Site is to be relied upon for the purpose of making or communicating specific investment or other decisions, including the Hedgebay Pricing Service or similar Services. Hedgebay is not, does not and will not recommend, represent or vouch for any Investment that may appear in any of the listings on the Site or otherwise is involved in any transaction through Hedgebay. Hedgebay does not provide advisory services or due diligence services to or on behalf of any seller, purchaser, investor, or other party. You are responsible for any and all due diligence on any Investment; utilizing Hedgebay is not a substitute for an independent due diligence investigation by you or your professional advisers and/or consultants. We are not responsible for investment decisions made by you or any losses that you may incur. You authorize Hedgebay and its authorized Site users to contact any Investment or its authorized representatives or service providers in connection with any Investment or transaction through Hedgebay in which you are involved. Hedgebay shall not be liable for the act or omission of any counterparty, Investment or Investment representative, agent or service provider. Each Hedgebay-related entity, and each non-affiliated Site user, is a separate entity and is not responsible for the acts and omissions of any other Hedgebay-related entity, any non-affiliated Site user, or any other party. Hedgebay Holdings LLC may charge fees for Services offered by it, including through the Site, and may receive fees based on services to authorized Site users (including for permitting such affiliates and non-affiliated entities to use the Site), but does not receive compensation based on transactions or the value of Investments.
All transactions are subject to confirmation by Hedgebay and applicable consents, which may include a form of “confirmation” (which does not constitute, and is not intended to be, a Rule 10b-10 confirmation). You agree to complete and furnish all necessary and appropriate documentation, and cooperate with your counterparties, the issuers and their agents and service providers and others, in order for the consummation of Investments and transactions to which you have agreed. Hedgebay, and its authorized Site users, are not responsible for the terms of any Investment or transaction or for any Investment or transaction that is not consummated for whatever reason. You agree to promptly notify Hedgebay upon completion of any settlement or closing condition or upon the settlement or closing date.
If counterparty is identified to a User, such User and each counterparty shall not solicit, directly or indirectly, solicit such, or the other, counterparty for the purpose of consummating a transaction without compensating Hedgebay therefor. User agrees that if it is a seller of any Investment, it shall own such Investment free and clear of any lien, security interest or any other encumbrance or restriction. All bids and offers are irrevocable and constitute your legally binding agreement to buy or sell the amount(s) indicated at the price(s) indicated, subject to any special terms applicable to the transaction as imposed by Hedgebay. Once agreed to, a transaction cannot be modified without the further acceptance of all parties and Hedgebay and if modified or divided among additional counterparties, the aggregate compensation will continue to be due to Hedgebay per the original acceptance (unless modified by Hedgebay) and each party to the transaction agrees to pay their proportionate amount of compensation to Hedgebay or otherwise divide up the compensation to Hedgebay as agreed to between them in order that the total compensation due to Hedgebay is paid by the parties to the transaction. See also Section L “Breach.” Hedgebay as used herein does not refer to Hedgebay Holdings LLC which does not receive compensation based on transactions. Transaction compensation is paid to Hedgebay Securities and other authorized Site users, which include affiliates of Hedgebay.
Hedgebay Securities; Hedgebay Partners UK Limited. While it does not own or maintain the Site, solely for purposes of certain applicable U.S. securities laws and regulations, and pursuant to an agreement with Hedgebay Holdings LLC, Hedgebay Securities LLC, an affiliated broker-dealer registered with the U.S. Securities and Exchange Commission and a member of FINRA, is responsible for certain aspects of the Site and utilizes the Site and assists in Site-related transactions (as well as transactions with Users and counterparties not utilizing the Site), including matching purchasers and sellers, effecting securities transactions related thereto, providing pricing services and receiving compensation for such activities. Hedgebay Securities and other affiliates and non-affiliated third parties, including other authorized Site users, may have similar arrangements and in such cases are compensated for providing transaction-related, Site-related or User-related services, including administrative services related to the Site, Investments or transactions. This includes Hedgebay Partners UK Limited, an affiliated entity which is regulated by the UK Financial Conduct Authority through its arrangement with Market Position Ltd. (“MPL”), a non-affiliated entity which is authorized and regulated by the UK Financial Conduct Authority, and other authorized Site users, which receive compensation based on transactions and Investments.
Sellers, purchasers, Investments and other parties involved in transactions, Investments or Services may be provided products and services by other Hedgebay affiliated entities, which may include banking, custodial and administrative services for a purchaser, seller and/or issuer or Investment. Such Hedgebay affiliated entities are separately compensated for such services which are in addition to any compensation earned by Hedgebay Securities LLC and Hedgebay Partners UK Limited for transactions or Investments or Site fees earned by Hedgebay Holdings LLC. You acknowledge that Hedgebay Securities and other affiliated and non-affiliated entities, including authorized Site users, may act as a sales agent, selling agent, placement agent, solicitor, pricing or valuation agent, matching agent or introducer (or in a similar capacity) or service provider for any of the Investments, sellers, and/or purchasers/investors, and may be separately compensated in such capacity. Such services and receipt of any of compensation in connection with the foregoing should not be construed as an endorsement of any Investment or third party by us.
Through his ownership of Hedgebay Holdings LLC and other Hedgebay affiliates, Jared Herman, an indirect owner and a registered person with, and President of, Hedgebay Securities, indirectly shares in the revenue earned by Hedgebay Holdings LLC and such other affiliates. Individuals registered with Hedgebay Securities, including Jared Herman receive a portion of the transaction compensation and other fees earned by Hedgebay Securities. Other registered persons and/or indirect owners of Hedgebay Securities are also owners of Hedgebay Holdings LLC and/or other Hedgebay affiliates and indirectly share in the revenue earned by Hedgebay Holdings LLC and such other affiliates. Individual officers, directors, registered persons and employees of one or more Hedgebay entities may be direct or indirect owners of one or more Hedgebay entities and therefore will benefit by revenue received by the Hedgebay entities in which they are owners, in addition to compensation (including salary and bonus) they receive as an officer, director, registered person and/or employee. Hedgebay and its affiliates and their respective principals, owners, registered persons, agents, officers, directors and employees may directly (or indirectly through an entity they own) purchase or sell interests in Investments and therefore may directly or indirectly be a counterparty on an Investment or transaction. While Hedgebay Securities and Hedgebay Partners UK Limited will endeavor to handle these and other conflicts of interest in good faith and in a manner that it deems to be fair and equitable under the circumstances, there can be no assurance that this may be the case in a particular circumstance or on an overall basis and therefore such parties may receive or be deemed to receive more favorable treatment, benefits, pricing and/or information than unaffiliated third parties.
Transactions between affiliates entities are generally not arms-length and Hedgebay has an incentive to work with, use or permit the use of its affiliates or related parties over non-affiliates or to suggest or promote the use of its affiliates in connection with the Site, transactions or Investments over non-affiliates. Similarly, such Hedgebay affiliates or related parties have an incentive to use or to suggest or promote the use of the Site or products and services of Hedgebay Securities LLC, Hedgebay Partners UK Limited and Hedgebay Holdings LLC in connection with their services and/or the Site, transactions or Investments.
If you meet the definition of an “Institutional Account” as defined by FINRA Rule 4512(c) (a bank, savings and loan association, insurance company, registered investment company, an SEC or state registered investment adviser or any other person (whether a natural person, corporation, partnership, trust or otherwise) with total assets of at least $50 million, whether invested for such person’s own account or under management for others), you represent and warrant that (i) unless you have otherwise notified us in writing, you are capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies involving a security or securities, and (ii) you will exercise independent judgment in evaluating any recommendations (if any) from Hedgebay.
Investments involve risk and are speculative. The Site does not contain all risks regarding Investments or primary or secondary markets or transactions or liquidity. A party should request or obtain such information from the applicable issuer. No representation or assurance is made that Hedgebay’s services or experience will be successful, that such transactions and Investments will be a benefit/advantage and not result in a loss to any particular purchaser, that Hedgebay’s electronic features will expedite any particular transaction or minimize the costs related thereto or that liquidity, the goal of more favorable pricing or a party’s investment objectives will or are likely to be achieved or be successful. No judgment, representation or warranty, express or implied, is made with respect to the accuracy, completeness, timeliness, or suitability of any information regarding an Investment or any other content on the Site. Past results, performance and transactions are not indicative of future results, performance or transactions.
Bids on the Site supplied by you or given by telephone or email to Hedgebay by you indicate your binding intention to purchase the Investment you are bidding for. All bids are therefore binding unless retracted, cancelled or modified prior to acceptance. As a bidder, if your bid is accepted by the counterparty/seller, you are obligated and agree to complete the transaction. Bids, once accepted, are not able to be retracted, cancelled or modified. Transactions and the agreement of the parties is generally evidenced by a form of confirmation. This form of confirmation shall constitute a binding agreement between the parties, in accordance with the terms hereof and thereof, obligates the parties to complete the transaction, and cannot be retracted, cancelled or modified.
Offers on the Site supplied by you or given by telephone or email to Hedgebay by you indicate your binding intention to sell the Investment you are offering. All offers are therefore binding unless retracted, cancelled or modified prior to acceptance. If you accept a bid to your offer then you are obligated and agree to complete the transaction. Offers and bids, once accepted, are not able to be retracted, cancelled or modified. Transactions and the agreement of the parties is generally evidenced by a form of confirmation. This form of confirmation shall constitute a binding agreement between the parties, in accordance with the terms hereof and thereof, obligates the parties to complete the transaction, and cannot be retracted, cancelled or modified.
From time to time, other websites may provide hypertext links (“Links”) to the Site. No such Links shall imply any relationship or connection between us and the operator of the website containing the Links to the Site. We shall have no liability to you arising out of your use of any website that provides Links to the Site. We have not reviewed the content of any site owned by a third party that may be linked to the Site and exercise no control over such sites. We have no responsibility for the content, privacy practices or any other element of any such websites, even if the site of an affiliate—only such affiliate is responsible for such content and site. No judgment, representation or warranty, express or implied, is made with respect to the accuracy, timeliness, or suitability of the content or services of any website to which the Site may link, including information on such website regarding us. If we provide access to other websites, unless expressly set forth otherwise, we are not recommending or endorsing the purchase or sale of any security issued by, or financial or other services provided, issued or endorsed by, such website’s sponsoring organization or its affiliates or such website’s advertisers. Your use of such third party or other sites is at your own risk based upon such due diligence as you have determined is appropriate.
(a) “Confidential Material” shall mean any information disclosed to the User in connection with its membership to the Site, including, without limitation, the user identification number and the password to the Site that is issued to the User and any information that relates to or involves any of the Investments, including information relating to an Investment’s performance. From time to time, you agree that prior to receiving Investment information you may be required by an issuer, its agents or Hedgebay to sign a non-disclosure agreement and you agree to sign such agreement prior to receiving such information.
(b) The User shall not have any obligation to preserve the confidentiality of any Confidential Material (i) which is already in its lawful possession without any obligation of confidentiality, (ii) which is or becomes generally available to the public other than as a result of an unauthorized disclosure by the User, (iii) which becomes available to the User from a source other than the Site, or other than any other communication from Hedgebay, without any obligation of confidentiality, (iv) between the User and the applicable Investment or Investment agent and counterparty with respect solely to Confidential Information regarding the transaction involving such party and such counterparty, respectively, or (v) which is required to be disclosed by applicable law or legal process or pursuant to any legal, governmental, regulatory or self-regulatory requests for information or documents (in such event the requested party shall promptly notify Hedgebay in writing prior to such disclosure in order to give Hedgebay an opportunity to object or limit such disclosure and the requested party shall disclose only such information as its counsel, in a written opinion, shall disclose only that portion of the requested information which, in the written opinion of the requested party’s counsel, is legally required to be disclosed.).
(c) The User acknowledges that the Confidential Material is of a proprietary and confidential nature and that damage to Hedgebay and/or the Investments and/or their agents could result if it is disclosed to any third party. The User hereby agrees that the Confidential Material will be used solely for the purpose of assisting the User in its evaluation as to whether to purchase or sell any Investment. The User agrees that, except as required by law, the Confidential Material will be kept confidential by the User and will not be disclosed in any manner whatsoever, except that the User may disclose all or portions of the Confidential Material to its directors, officers, employees, authorized agents, affiliates, representatives and advisors (collectively the “Representatives”) who need to know such information for the purpose of evaluating an Investment. The User shall inform its Representatives of the confidential nature of the Confidential Material and shall direct its Representatives to treat such information confidentially and otherwise to comply with the terms of this Agreement. The User agrees that it will maintain a complete and accurate record of all persons to whom the Confidential Material is given. In any event, the User shall be responsible for any breach of this Agreement by any of its Representatives and the User will, at its sole expense, use its best efforts (including, but not limited to, court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Material.
(d) The User understands and agrees that money damages would not be an adequate remedy for any breach of this Agreement, including this Section J and that Hedgebay shall be entitled to equitable relief, including injunctions and specific performance, if the User or its Representatives breach or threaten to breach any provision of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach or threatened breach by the User or its Representatives of this Agreement but shall be in addition to all other remedies available at law or equity to Hedgebay. The User further agrees to waive any requirement for the posting of a bond in connection with any such equitable relief. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that the User has breached this Agreement, then the User shall be liable and pay to Hedgebay the reasonable legal fees Hedgebay incurred in connection with such litigation, including any appeal therefrom.
You agree to use the Site only for lawful purposes and for its purposes as intended by us and to comply with applicable law in connection with any Investment or transaction you are involved in through Hedgebay. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You may not take any action which imposes an unreasonable or disproportionately large load on Site infrastructure. You agree that you will not introduce any viruses, bug, worm, trojan horses or other harmful computer code through your use of the Site. You may not disclose or share your password to any third parties or use your password for any unauthorized purpose and we will have no liability to you from your disclosure of your password to any third party. You are solely responsible for any and all activity that takes place under your login information, whether or not authorized by you. You will promptly notify us of any unauthorized use of your password. You agree to notify us immediately (i) in the event of the loss or theft of their login information, (ii) if you believe the confidentiality of your login information has been compromised in any way, or (iii) in the event you learn of the possible or actual unauthorized use of your login information. We reserve the right to revoke your login information at any time, for any reason, without prior notice.
In the event we are unable to verify or authenticate any information you provide to us or if you breach this Agreement by (i) retracting your bid and failing to complete a transaction after your bid is accepted by a seller, (ii) retracting your offer and failing to complete a transaction after your offer is accepted by a purchaser, or (iii) otherwise failing to comply with any other terms of this Agreement, including by modifying the terms of a transaction once accepted, then in addition to any and all remedies we may have and exercise against you in law, equity, contract, tort or otherwise, including to receive compensation for completed transactions, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your membership, any of your current bids or offers, and any other information you place on the Site.
You agree to indemnity and hold harmless Hedgebay (including, without limitation, Hedgebay Securities) and its affiliates, and each of their respective employees, officers, directors, principals, members, partners, shareholders and authorized agents from and against any and all losses, damages, claims, costs and fees (including reasonable attorney’s fees) arising out of or related to (i) your breach of this Agreement, (ii) the use of a password obtained from you or any of your agents or employees with or without your consent and (iii) your use of the Site and our Services (collectively, “Claims”).
N. No Warranty:
THE SITE IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS OR CURRENTINESS OF ANY OF THE MATERIALS ON THE SITE. WE SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE WILL BE ERROR FREE, VIRUS FREE OR CONTINUALLY AVAILABLE. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OUR SERVICES, AND OPERATION OF THE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. IF YOU ARE A PURCHASER OR A BIDDER, WE DO NOT WARRANT THE PERFORMANCE OF ANY SELLER OR OFFEREE, AND IF YOU ARE A SELLER OR OFFEREE, WE DO NOT WARRANT THE PERFORMANCE OF ANY PURCHASER OR BIDDER.
O. Limit of Liability:
IN NO EVENT SHALL WE AND EACH OF OUR AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, PRINCIPALS, MEMBERS, PARTNERS, SHAREHOLDERS, AND AUTHORIZED AGENTS (COLLECTIVELY, “WE AND OUR AFFILIATES”) BE LIABLE TO YOU OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, HOWEVER ARISING, EVEN IF ANY OF US ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES (BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OR DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT OF THE LAW); IN ANY CIRCUMSTANCE, YOU AGREE THAT THE LIABILITY ARISING OUT OF THIS AGREEMENT, IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO US IN CONNECTION WITH THE SERVICES OR TRANSACTION GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL WE AND OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES ARISING OUT OF THE FAILURE OF ANY PURCHASER, INVESTOR, BIDDER, SELLER OR OFFEREE TO FULLY PERFORM ITS OBLIGATIONS.
You and Hedgebay (including Hedgebay Securities) and each of our affiliates, and authorized Site users are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notices shall be given by email to firstname.lastname@example.org (in the case of Hedgebay) or to the email address you provide to Hedgebay during the registration process (in your case), or such other address as the party shall specify in writing. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid or otherwise that the email has not been delivered. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Hedgebay during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
R. Governing Law:
This Agreement has been made in and will be construed and enforced in accordance with the laws of the Commonwealth of the Bahamas without giving effect to the principles of conflicts of laws thereof. You irrevocably 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 exclusively within the Commonwealth of the Bahamas. Accordingly, you irrevocably consent and submit to the exclusive jurisdiction and venue of the courts located within the Commonwealth of the Bahamas and may not claim that any such suit, action or proceedings has been brought in an inconvenient forum. Accordingly, you waive all defenses of lack of jurisdiction, venue, or forum non conveniens. You hereby further irrevocably consent to the service of process out of any of the aforesaid courts, in any such suit, action or proceeding, by the mailing of copies thereof, by certified or registered mail, return receipt requested, addressed to you. Nothing contained herein shall affect the right of Hedgebay or any of its authorized Site users to commence any action, suit or proceeding or otherwise to proceed against you in any other jurisdiction or to service of process upon you in any manner permitted by any applicable law in any relevant jurisdiction.
S. Hedgebay Liquidity and Other Events:
Hedgebay may work together with certain issuers and their agents to conduct “liquidity events, “auctions” or other events to facilitate transactions in Investments more generally sponsored or managed by such parties or otherwise offer Investments. If you participate in such an event, you agree to comply with all instructions and other terms given to you by Hedgebay and the relevant issuer and its agents with respect thereto; such instructions and other terms being incorporated by reference herein and made a part hereof.
I. “U.S. Person” means:
1. Any individual who is a citizen or resident of the United States.
2. Any a corporation, partnership or other entity created or organized in, or under the laws of, or doing business in, the United States.
3. Any estate of which any executor or administrator is a U.S. Person and that is subject to United States federal income taxation without regard to the source of its income.
4. Any trust of which any trustee is a U.S. Person and that is subject to United States federal income taxation without regard to the source of its income.
5. Any entity not described in 2. above as to which any person or entity described in 1., 2., 3. or 4. above is, directly or indirectly, a shareholder, beneficiary, fiduciary, grantor or partner, unless the Board of Directors determines that the Rules under Part 4 of the Regulations of the U.S. Commodity Futures Trading Commission would not consider such an entity to be a U.S. Person.
6. Any agency or branch of a foreign entity located in the United States.
7. Any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person.
8. Any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States.
9. Any partnership or corporation if: (a) organized or incorporated under the laws of any foreign jurisdiction; and (b) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a)) who are not natural persons, estates or trusts.
II. By way of example and illustration, and not limitation, the following are not U.S. Persons:
1. Any discretionary account or similar account (other than an estate or trust) held for the benefit or account of a non-U.S. Person by a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States.
2. Any estate of which any professional fiduciary acting as executor or administrator is a U.S. Person if: (a) an executor or administrator of the estate who is not a U.S. Person has sole or shared investment discretion with respect to the assets of the estate; and (b) the estate is governed by foreign law.
Updated November 2018