Section 1 – SCOPE AND SITE STRUCTURE
1.1 Structure & Links
1.1.1 The Site. Through the Site, you can access and view investment information, which may include individual assets, portfolios of assets, limited partnership or similar interests in funds or assets, and other opportunities available for investment, together with related financial highlights, investment details, and other data and information provided, as the case may be, by third-parties or Users, either directly or as an agent, (collectively, “Third-Party Contributors” and “Third-Party Content”) or by Platform Operator or Gateway (”Platform Operator and Gateway Content”). All data, databases, graphics, research, information, opinions, statements, security identifiers, industry classifications, and other material (in any form or media) provided by Platform Operator, Gateway, any Third- Party Contributor, or any other third party (collectively, “Information Providers”) that is accessible or made available on or through the Site, including all Third-Party Content and Platform Operator and Gateway Content, will be collectively referred to in the Platform Guide as “Site Content.” Site Content will not include any Linked Site Content (as defined below). The Site, Site Content or any information provided in conjunction with them are for informational purposes only, and do not constitute, and should not be construed as a solicitation or offering of any investment or other transaction, an identification or offering of any securities for purchase, a recommendation to acquire or dispose of any investment, or the provision of any financial, tax, legal or other advice of any nature whatsoever. Platform Operator or Gateway does not execute nor facilitate execution of any transactions involving any securities on the Site.
1.1.2 The Linked Sites. Your use of the Site or Site Content may lead you, via a hyperlink or otherwise, to Web sites independently owned and operated by Third-Party Contributors or other third parties (collectively, the ”Linked Sites”). If you click-through to any Linked Site, either directly or indirectly through the Site, you acknowledge and agree that you will be subject to the terms and conditions of usage and privacy policies applicable to such Linked Sites, which are not controlled by Gateway or Platform Operator. All data, software, databases, graphics, research, information, opinions, statements, security identifiers, industry classifications, or any other material (in any form or media) that is accessible or made available on or through the Linked Sites will be collectively referred to in the Platform Guide as “Linked Site Content.”
1.2 Posted Guidelines. In addition to the Platform Guide, when using the Site, you will be subject to and agree to follow any posted guidelines or rules which may be posted from time to time on the Site, including without limitation any and all disclaimers and restrictions on use contained in any Site Content.
1.3 Status of the Site. The Site Content and the Linked Site Content do not constitute legal, financial, accounting, investment, tax, or other professional advice; you should consult with a financial advisor and legal and tax professionals to assist in conducting due diligence as may be appropriate prior to making any investment decision or hiring any investment manager in connection with Site Content. Platform Operator and Gateway will not have any liability to any person for any reliance on, interpretation or analysis of, or investment decisions, action, or inaction based upon information obtained from the Site.
1.4 Scope of Use.
1.4.1 Access. You agree to access and use the Site and all Site Content solely pursuant to your login information (username and password). You agree to notify us and change your password immediately, if your password is lost, stolen, or misused. You are responsible for all activity (including any unauthorized activity) attributable to your login information.
1.4.2 Obligations. You agree to access and use the Site and all Site Content (i) solely for your own personal use in connection with the lawful internal business purposes of your company; and (ii) in compliance with the Platform Guide, all restrictions which may be imposed by any Information Provider, Platform Operator and/or Gateway, and all applicable local and national laws and regulations.
1.4.3 Restrictions on Use. Except as may be otherwise specifically authorized in a signed writing by Platform Operator and Gateway, you will not (i) directly or indirectly grant anyone else access to, or permit anyone else to access or use, the Site or any Site Content or Linked Site Content other than, if applicable, your employees and agents that you authorize to access Information and transmit proposed indications of interest or orders with respect to potential transactions to Platform Operator on behalf of you or your employer; (ii) copy, display, publish, republish, upload, distribute, transfer, sell, assign, rent, timeshare, or sub-license any Site Content, Linked Site Content or access thereto; (iii) resell or otherwise distribute your Log-In Credentials (as defined below) displayed on the Orderbook; (iv) alter, modify, delete, adapt, translate, disassemble, decompile, or reverse engineer or otherwise attempt to discern the source code, algorithms, software design or architecture of, or modify, adapt, translate or reproduce the Site Content or Linked Site Content, or any part thereof, including any software or any product or service identifications, author attributions, copyright notices, disclosures, disclaimers, trade names, trademarks, or proprietary restrictions in such Site Content or Linked Site Content or any associated documentation; (v) create a separate database of any Site Content or Linked Site Content or merge any part of the Site Content or Linked Site Content with or into other software, or create derivative works based upon the Site Content or Linked Site Content; (vi) post any Site Content or Linked Site Content on any intranet, extranet, or other application, system, or location; (vii) use any Site Content or Linked Site Content to construct or facilitate the construction of any products or services that compete with the Site or the Site Content; (vii) use information which you have received through access to the Site or Linked Site Content as to the workings of the Site for any purpose whatsoever (other than use of the Site), including without limitation to competition with the Site; or (viii) take or authorize any action that could detrimentally interfere with the proper workings of the Site or any Linked Site. When you use the Site and any Linked Site, you will be permitted to view such Information as is permitted by Platform Operator, Gateway and the Information Provider. Only Platform Operator or one of its authorized registered representatives may place an indication of interest or order, on your behalf, if and when such indication of interest or order is approved by Platform Operator.
1.4.4 Entitlement Rights. Please note that you may not be able to gain access to all Site Content. Your entitlement to Site Content may be limited by (i) applicable laws and regulations (including securities laws), (ii) Gateway and/or Platform Operator, and/or (iii) internal policies and practices of the applicable Information Provider, in each case as may be amended from time to time at any time. Such restrictions are maintained via an entitlement system which controls your ability to view particular items of Site Content. Platform Operator and Gateway disclaim any and all liability associated with entitlement decisions made by them or by Information Providers.
1.5 Intellectual Property and Proprietary Rights. You agree that any and all Site Content, including as it is constructed, compiled, prepared, selected and arranged by the Information Providers, (i) may constitute valuable proprietary information and commercial property of the Information Providers, (ii) may be protected by Hong Kong SAR and international intellectual property laws, including copyright, trademark, trade secret, or patent law, and (iii) constitutes an expenditure of substantial time, effort, and money by the Information Providers. You acknowledge that, other than a right to use the Site and the Site Content as contemplated by the Platform Guide, neither Platform Operator, Gateway, nor any other Information Provider by giving you access to the Site and the Site Content is granting you any proprietary rights in the Site, any Site Content, or any associated trademarks or other intellectual property subsisting in or available through any of the foregoing.
1.6 Registration and Access Data; Authorized Customer Delegees
1.6.1 Registration Data and Access Data. In consideration of your use of the Site, you and/or your employer agree to (i) provide true, accurate, current and complete registration data and access data to Platform Operator and Gateway and the other applicable Information Providers, and (ii) maintain and promptly update the registration data and access data, or similar information provided directly to any Information Provider, and to keep the same true, accurate, current, and complete.
1.6.2 Authorized Customer Representatives. If you are a customer of Platform Operator, you shall designate to Platform Operator and Gateway such of your delegees (“Authorized Customer Representative”) you wish to have access to the Site and shall promptly notify Platform Operator and Gateway of all additions and deletions to your list of Authorized Customer Representative.
1.7 Log-In Credentials; Security.
1.7.1 Log-In Credentials. Gateway shall provide separate log-in credentials (a “Log-In Credential”) to you if you are designated by notice from Platform Operator to Gateway and approved by Platform Operator and Gateway to access the Site. The Log-In Credential will permit you to access and use the Orderbook. Platform Operator and you shall keep your Log-In Credential strictly confidential using at least the same degree of care that Platform Operator uses to protect its own confidential information, but in no even less than the industry- recommended degree of care for such credentials. Each Log-In Credential may only be used by you. Upon the request of Platform Operator or a customer of Platform Operator by whom you are employed or engaged to terminate a Log-In Credential provided to you, Gateway shall effect such request as soon as reasonably practicable after receipt thereof. In the event your Log-In Credential is lost, stolen or compromised, you shall be responsible for notifying Platform Operator and Gateway of the same, and Gateway shall cancel any such lost, stolen or compromised Log-In Credential as soon as practicable after receipt of such notice. You shall remain responsible for any actions taken through the use of your Log-In Credential until your Log-In Credential is cancelled.
1.7.2 Authorized Access. Your Log-In Credential shall be limited to your use only. If you are a Customer of Platform Operator, you must, through Platform Operator, obtain a separate Log-In Credential for each of your Authorized Customer Delegees you wish to authorize to enter into legally binding Transactions on your behalf. You assume full responsibility for any use, unauthorized use or misuse of the Site and the Linked Sites by any of your officers, directors, employees, agents and Authorized Customer Delegees, or by any other persons through your facilities, and you acknowledge and agree that any breach by such persons of any of your obligations in respect of the Site and the Linked Sites shall constitute a breach of such obligations by you. Customers of Platform Operator shall monitor each of their Authorized Customer Delegee’s access to and use of the Site and the Linked Sites and shall ensure that such Authorized Customer Delegees abide by and comply with all applicable laws and the Platform Guide and your obligations hereunder. If you are a customer of Platform Operator, you are solely responsible for all acts or omissions of your Authorized Customer Delegees and of any person using the Orderbook through Log-In Credentials on your behalf. Without limitation of the foregoing or any other provision of the Platform Guide, if you are a customer of Platform Operator, you agree to be bound by the terms of all indications of interest or orders placed on or through the Site by Platform Operator at your request or the request of any of your Authorized Customer Delegees.
1.8 User Provided Content. All Site Content (other than the Platform Operator and Gateway Content and Linked Site Content), including comments, questions, and opinions uploaded, expressed, or submitted to a message board, blog, or other publicly available section of the Site (including password-protected areas) and all responses thereto are solely the opinions and responsibility of the person or entity submitting them and not Platform Operator and Gateway. You understand and acknowledge that you are responsible for whatever content you submit and that you, not Platform Operator or Gateway, have full responsibility for such content, including its legality, reliability, and appropriateness. Under no circumstances may you submit information that you know, or have reason to believe, is false or intentionally misleading. By uploading or otherwise transmitting material to any area of the Site, you warrant that the material is your own or is in the public domain or otherwise free of proprietary or other restrictions and that you have the right to post it to the Site. You grant to Platform Operator and Gateway the perpetual, irrevocable, transferable, worldwide, royalty-free right and license to use all content you upload or otherwise transmit to the Site in any manner Platform Operator and Gateway may choose in connection with the Site. Platform Operator and Gateway reserve the right, but do not assume any responsibility, to remove any material posted on the Site which Platform Operator and Gateway, in their sole discretion, deem inconsistent with the foregoing commitments, including without limitation any material as to which Platform Operator or Gateway has been notified, or have reason to believe, constitutes a copyright infringement. Platform Operator and Gateway can neither review all material before it is posted on the Site nor ensure prompt removal of objectionable material after it has been posted. Accordingly, Platform Operator and Gateway will have no liability for any action or inaction regarding or otherwise involving Third-Party Content.
1.9 Right to Terminate User Access. Platform Operator and Gateway reserve the right to limit, restrict, and terminate your access to and use of the Site at any time, in whole or in part, with or without cause in its sole discretion and without notice. No Information Provider, Platform Operator or Gateway will have any liability in connection with such limitation, restriction, or termination of your access to or use of the Site.
Section 2 – INDEMNIFICATION
2.1 Indemnification. You agree, at your own cost and expense, to indemnify and hold harmless each of Platform Operator and Gateway and their officers, directors, agents, employees, owners, and consultants from and against all claims, losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs, as incurred,
- (i) by you or any third party (including without limitation other Users) arising in any manner out of your use of, or inability to use, the Site, any Linked Site, any Site Content, any Linked Site Content, or any Web site, data, software, or information accessed or obtained from any of the foregoing;
- (ii) by Platform Operator or Gateway arising in any manner in connection with any nonperformance by you of any provision of the Platform Guide (including the provision of any Site Content to any person who is not a User permitted to receive such Site Content); or
- (iii) by you arising in any manner out of any claim that Platform Operator and Gateway’s use of the Third-Party Content or Linked Sites infringes the intellectual property rights of any other person.
Section 3 – DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
3.1 Disclaimers; Site, Site Content and Linked Site Content. The Site Content and the Linked Site Content are provided to facilitate identification of investment opportunities by sophisticated investors and to provide a vehicle for access to related information, and are not a confirmation of any opinion or information contained therein. Neither Gateway nor Platform Operator make any representation or warranty as to the contents of any Linked Site or any Site Content provided by a third party. The Site Content and Linked Site Content generally speak only as of the date issued. You should not rely on the Site Content and Linked Site Content as expressing the applicable Information Provider’s current opinion or as representing current information. The Site Content and Linked Site Content may contain or provide credit, quality, risk and other ratings, research and generalized investment opinions obtained from various sources. You agree that such Site Content and Linked Site Content
- (i) are impersonal in nature and subject to change or withdrawal without notice,
- (ii) do not constitute legal, accounting, tax or investment advice,
- (iii) do not take into account your investment objectives, financial situation or particular needs,
- (iv) do not constitute a solicitation or recommendation for the purchase, sale, or holding of any financial instrument or product, or a representation that any investment strategy or product is suitable for you,
- (v) are meant to be reviewed in their entirety, including any footnotes, legal disclaimers, restrictions, or disclosures, and any copyright or proprietary notices, and
- (vi) are provided for informational purposes only.
You also agree that (m) any disclaimers, restrictions, disclosure, or hedge clauses in such Site Content and Linked Site Content apply to any partial document or material in the same manner as they do the whole and will be deemed incorporated in the portion of any Site Content or Linked Site Content that you consult or download, (n) hypothetical or projected performance results (where permitted to be shown) have inherent limitations, with results that may under- or over-compensate for the impact, if any, of any number of market, political, and economic factors, and (o) no representation is being made that any reliance on any such Site Content or Linked Site Content will or is likely to achieve profits or losses or any particular results of any kind. You further agree that (x) no Information Provider is under any obligation to provide such Site Content or Linked Site Content to you, (y) if you receive such Site Content through the Site (or Linked Site Content through any Linked Sites) or other means, you may not receive such content at the same time as other customers of the applicable Information Provider or its affiliates, and (z) no Information Provider or its affiliates is under an obligation through the Site to undertake, and may without notice choose not to undertake, to advise you of changes in the Site Content made available through the Site (or any Linked Site Content made available through any Linked Site) or otherwise provided to you.
3.2 Information “As Is” and “As Available”. THE SITE, THE SITE CONTENT AND THE LINKED SITE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT, OR ANY WEB SITE, DATA, SOFTWARE, OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING IS AT YOUR OWN RISK. PLATFORM OPERATOR AND GATEWAY CANNOT AND DO NOT GUARANTEE OR MAKE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY, VALIDITY, SEQUENCE, TIMELINESS, COMPLETENESS, OR CONTINUED AVAILABILITY OF THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT, OR ANY WEB SITE, DATA, SOFTWARE, OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING. IN NO EVENT WILL PLATFORM OPERATOR OR GATEWAY BE LIABLE FOR ANY DECISION MADE OR ACTION OR INACTION TAKEN BY YOU IN RELIANCE ON THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT, OR ANY WEB SITE, DATA, SOFTWARE, OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING. PLATFORM OPERATOR AND GATEWAY FURTHER EXPLICITLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ASSUME THE ENTIRE RISK OF ANY USE YOU MAY MAKE OF THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT, OR ANY WEB SITE, DATA, SOFTWARE, OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING. PLATFORM OPERATOR AND GATEWAY WILL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGES OR LOSS (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, AND ANY AND ALL OTHER FORMS OF DAMAGES OR LOSSES REGARDLESS OF THE FORM OF THE ACTION OR THE BASIS OF THE CLAIM) CAUSED OR ALLEGED TO BE CAUSED IN CONNECTION WITH YOUR USE OF THE SITE, ANY LINKED SITE, ANY SITE CONTENT, ANY LINKED SITE CONTENT OR ANY WEB SITE, DATA, SOFTWARE OR INFORMATION ACCESSED OR OBTAINED FROM ANY OF THE FOREGOING, WHETHER OR NOT FORESEEABLE AND EVEN IF ANY INFORMATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. PLATFORM OPERATOR AND GATEWAY USE ADVISORS AND CONSULTANTS WHO ASSIST WITH THE PRESENTATION OF THE SITE AND SITE CONTENT AND WHO MAY RECEIVE PERFORMANCE BASED COMPENSATION IF THEY ARE MEMBERS IN GOOD STANDING OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY.
Section 4 – TERMINATION
4.1 Term of Agreement. The Platform Guide shall be binding and have a perpetual term unless and until your access to the Site has been terminated in accordance with this Section 4.
4.2 Early Termination. Your access to the Site and any Linked Site may be terminated by you, Platform Operator or Gateway:
- (i) upon notice, in the event of any action, application or proceeding taken in respect of the bankruptcy or insolvency of you, Platform Operator or Gateway,
- (ii) upon notice, in the event you, Platform Operator or Gateway has materially breached any provision of the Platform Guide and has failed to cure such breach within five (5) days after written notice of such breach; or
- (iii) with or without cause, upon ten (10) days’ prior notice to you or Platform Operator and Gateway, as the case may be, for any reason and without any liability to the other Party (except as provided in Section 4.4).
4.3 Additional Termination Rights of Gateway. In addition to its other rights and remedies hereunder, Gateway shall have the right to terminate your access to the Site by notice to you:
- (i) upon the occurrence of any event which would prevent Gateway from providing the Site to authorized users generally, including, without limitation, any loss or potential loss of regulatory authorization or license by Gateway, any change in applicable law affecting the Site or interpretation by any regulatory authority, or any determination by Gateway to cease providing the Site;
- (ii) if Gateway determines, in its sole discretion, that the you or any of your officers, directors, employees or agents (including any Authorized Customer Delegee) may have violated the Platform Guide or any applicable law in connection with their use of the Site or any Linked Site; or
- (iii) if Gateway determines, in its sole discretion, that the security or normal operation of any part of the Site has been compromised and cannot be promptly cured. In the event that Gateway exercises its rights to terminate this Agreement under this Section 4.3, it shall do so without any liability to you as a result of such termination.
4.4 Effect of Termination. Termination of your access to the Site shall not terminate or otherwise modify your obligations with respect to any liability or matter arising, or if you a customer of Platform Operator, of any obligation for a transaction executed on your behalf on the Orderbook prior to such termination. In addition, Sections 2, 3 and 5 shall survive any termination of your access to the Site (as well as any provision which expressly survives termination or by its nature would be understood to survive termination) and shall continue to apply to you, Platform Operator and Gateway. For the avoidance of doubt, although the representations, warranties, covenants and obligations set forth in this Agreement shall only apply during the period you are authorized to access the Site (as set forth therein), termination of your access shall not terminate or otherwise modify Platform Operator’s or Gateway’s rights under the Platform Guide to seek damages or other remedies for breaches of such representations, warranties, covenants and obligations set forth in Section 5 during the period of your access to the. Upon termination of your access to the Site, you shall immediately cease all use of the Site.
Section 5 – REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties.
5.1.1 General Representations. You represent and warrant to Platform Operator and Gateway that: (i) you have the power and authority to accept and agree to the Platform Guide and fulfill your obligations hereunder; (ii) upon your acceptance of the Platform Guide will constitute your legal, valid and binding obligation, enforceable against you in accordance with their terms; and (iii) your acceptance of the Platform Guide will not violate any applicable laws, or any agreement by which you are bound or by which any of your assets are affected.
5.1.2 Representations, Warranties and Agreements. You represent and warrant to, and agree with Platform Operator and Gateway (which representations, warranties and agreements shall be deemed repeated each time you access or use the Site), that:
- (i) You are in compliance with all applicable laws in all material respects;
- (ii) all information provided by you in writing to Platform Operator and Gateway (including all information contained in applications, questionnaires and information forms, and including information delivered via electronic means) is true and accurate in all material respects;
- (iii) if you are a customer of Platform Operator, you satisfactorily meet any eligibility criteria or other requirements contained in the Platform Guide and are able to effect settlement of transactions effected on your behalf in accordance with the Platform Guide;
- (iv) you have all Intellectual Property Rights (as defined in the Platform Guide) in and to any information submitted by you to the Site and its use of any software or equipment to access the Site (other than software or equipment provided by Platform Operator or Gateway) does not violate any third party’s Intellectual Property Rights;
- (v) if you are a Customer of Platform Operator, you are authorized to enter into the transactions entered into on your behalf through the Site, and each of such transactions, as confirmed by the Site, is your legal, valid and binding obligation, enforceable against you in accordance with its terms and the Platform Guide;
- (vi) If you are a customer of Platform Operator, alone or together with your Authorized Customer Delegee, you possess the sophistication, experience, knowledge and expertise in financial and business matters to make your own investment decisions and to properly assess the merits, risks and suitability of investing in, and entering into transactions on the Site;
- (vii) If you are a customer of Platform Operator, alone or together with your Authorized Customer Delegee, you are (x) capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies involving a security or securities and (y) will exercise independent judgment in evaluating the merits of all potential transactions;
- (viii) you acknowledge, agree and understand that (x) all transactions entered into on the Site are unsolicited transactions, (y) no such transaction will be solicited or recommended by Platform Operator or Gateway and (z) your decision to enter into any transaction on the Site will be based on your own research and information, or on research and information obtained from a source other than the Site, Platform Operator or Gateway, and neither Platform Operator, Gateway nor any of their respective representatives will have any input into your decision to enter into such transaction;
- (ix) If you are a customer of Platform Operator, you are and will continue to be a professional investor as defined in the Securities and Futures Ordinance (Cap.571) of Hong Kong and any rules made under that Ordinance, subject to the right of Platform Operator to impose higher accreditation standards to comply with suitability requirements;
- (x) you shall comply with all applicable laws related to anti-money laundering and sanctions and (y) if you are a Customer of Platform Operator, you shall ensure that you and your Authorized Customer Delegees follow such applicable laws with respect to your and their use of and access to the Site.
You shall notify Platform Operator and Gateway promptly in the event any of the foregoing representations and warranties become untrue at any time during the term of this Agreement.
5.1.3 Role of Gateway. You acknowledge and agree that, notwithstanding anything to the contrary herein:
- (i) Gateway shall not, directly or indirectly, be a principal to any transaction on the Site or be responsible for, or otherwise guarantee, performance of any transaction entered into by you, and you shall proceed solely against the counterparty in that transaction, and not against Gateway, to collect or recover any amounts owed to you or to enforce any of its rights in connection with, or as a result of, such transaction;
- (ii) neither the relationship between you and Gateway, nor the services provided by Gateway, nor any other aspect of the Platform Guide shall give rise to any fiduciary duties on the part of Gateway;
- (iii) Platform Operator and Gateway may receive fees from subscribers to the Site representing both the buyer and seller in respect of a transaction effected through the Site; and
- (iv) if you are a customer of Platform Operator, the submission or posting of any Information to or on the Site by Platform Operator, Gateway or any authorized user of the Site shall not be deemed a recommendation by Gateway or such authorized user that you enter into any particular transaction or that any particular transaction is suitable or appropriate for you.
Section 6 – NONDISCLOSURE
6.1 Nondisclosure of Confidential Information. You agree to use reasonable care, but in no event less than the same degree of care that you use to protect your own confidential and proprietary information of similar importance, and to prevent the unauthorized use, disclosure, publication or dissemination of proprietary, non-public, confidential information (“Confidential Information”) of any Information Provider. You agree to accept an Information Provider’s Confidential Information for the sole purpose of evaluation in connection with your business discussions with Platform Operator. You agree not to disclose or use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Platform Operator in each instance. You may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that you first take, if permitted to do so by the judicial or governmental authority with jurisdiction, reasonable steps to give the Information Provider sufficient prior notice in order to contest such request, requirement or order by notifying the Information Provider of such request. You may only disclose Confidential Information to your employees or agents with a need to know for the sole purpose of evaluation in connection with your business discussions with Platform Operator and, in the case of agents, only to the extent that the agent has signed a non-disclosure and non-circumvention agreement at least as restrictive as this Agreement. Information will not be deemed Confidential Information of an Information Provider that
- (i) is already in your possession prior to disclosure by such Information Provider,
- (ii) that is or becomes generally available in the public domain other than as a result of unauthorized disclosure by you or your employees or agents, or
- (iii) is acquired by a third party not in violation of an obligation of secrecy to such Information Provider.
Section 7 – MISCELLANEOUS
7.1 Bids, Offers and Firm Orders. “Bids” and “Offers” on the Site represent non-binding indications of interest submitted by Gateway, Platform Operator or one of their respective authorized registered representatives on behalf of their clients (unless such bids/offers are noted as “firm”). A “firm” bid or offer (each, a “Firm Order”) obligates the customer of Gateway or Platform Operator submitting the Firm Order (a) successfully complete the onboarding process of Gateway or Platform Operator and (b) pay commissions or subject to break-fees on introduction of a counter-party accepting the terms of their Firm Order, which means these orders represent a higher level of commitment to transact. Bid and Offers may be for any class of equity security of an issuer and may be for blocks of shares held, exercisable, or held or to be held in special purpose vehicles. Rights of holders of the securities will vary, and transactions may be subject to transfer restrictions, including a right of first refusal by the issuer or others. Some issuers may restrict transfers in their securities to certain classes of investor. Specific information on a given ticket, not shown on the Site, is available from Platform Operator through the “contact a representative” function.
7.3 Changes. Platform Operator and Gateway may change the terms of the Platform Guide at any time. The most up-to-date version of the Platform Guide will be available on the Site. You agree that your continued use of the Site will constitute acceptance of any new or modified version of the Platform Guide. If you do not agree with any such amendment, your sole remedy will be to terminate your access to the Site in accordance with Section 4.
7.4 Severability. If any term or other provision of the Platform Guide is invalid, illegal or unenforceable in a jurisdiction, all other terms and provisions of the Platform Guide will nevertheless remain in full force and effect in such jurisdiction so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party and such invalidity, illegality, or unenforceability in such jurisdiction will not have any effect in any other jurisdiction.
7.5 Governing Law and Arbitration. This Agreement shall be governed by the laws of the Hong Kong SAR, without regard to its conflicts of laws principles. The parties shall attempt to resolve any disputes under this Agreement in an amicable manner by mediation. Thereafter, any unresolved dispute arising out of or relating to this Agreement shall be settled by binding and non-appealable arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) in Hong Kong, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the parties in Hong Kong SAR and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts