ALTCESS DIRECT FUNDING INVESTMENT WEBSITE TERMS OF SERVICE AGREEMENT
These Terms were last amended as of: JANUARY 2018
1. Consent to Electronic Communications. ADF may be required by law to send communications to you that pertain to the Website and your use thereof. By using the Website or ADF Content, you consent to receive these communications electronically (e.g., via email, through the ADF website or via the Website).
2. Rights to Access and Use the Website and Content. Subject to the terms and conditions of this Agreement, ADF grants you permission to access and use the Website and ADF Content on any electronic device ("Device") that you own or control. Any updates to, supplements to or replacements of the Website or ADF Content is governed by this Agreement unless separate terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
3. Content Disclaimer This website is intended to provide general information regarding us, our products and services, and other financial information which may be of interest to you. It is not intended to provide exhaustive treatment of any subject dealt with. The information on this website including all research, opinions or other content is not intended to and does not constitute financial, accounting, tax, legal, investment, consulting or other professional advice or services. Before making any decision or taking any action which might affect your personal finances or business you should take appropriate advice from a suitably qualified person. The website may include technical, typographical or other inaccuracies and you are urged to contact us to confirm all information contained on this website before placing any reliance on it. Changes are periodically made to the information on this website and these changes will be incorporated in new editions of this website. We reserve the right to alter or amend any criteria or information set out in this website without notice. If the website contains statements or information which relate to projections, plans or objectives or future economic performance you should be aware that these projections are only predictions and that actual events or results may differ materially. Past performance of any investment or security is not necessarily an indication of future performance. Value of investments may go up as well as down.
4. Ownership of the Website. The Website and ADF Content are made available, but not sold, to you. The Website and ADF Content are the valuable property of ADF and its licensors and is protected by copyright and other intellectual property laws and treaties. ADF, and its licensors, own all right, title and interest in and to the Website and ADF Content, including all copyright and other intellectual property rights therein. ADF reserves all rights not expressly granted to you.
6. No Advice. The website content is not suitable for any particular purpose whatsoever, other than as a general reference, and we may not have necessarily disclosed all risks relating to the website content or its subject matter. The fact that we have made the website content available to you is neither a recommendation that you enter into a particular transaction or a representation that any service described on this website is suitable or appropriate for you.
7. No Warranty. To the fullest extend permitted by applicable law, you acknowledge that (a) the website may contain bugs, errors and defects; (b) use of the website and ADF content is at your sole risk; and (c) the entire risk as to satisfactory quality, performance and accuracy of the website and ADF content is solely with you, and (d) ADF content may be incomplete or inaccurate, may contain errors or may have become out of date. Accordingly, the website and all ADF content are provided "as is," "as available," with all faults, defects and errors and without warranty of any kind. ADF disclaims all warranties (express and implied and arising by law or otherwise) regarding the website and all ADF content and its performance or suitability for your intended use, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, completeness, accuracy or currentness of ADF content and non-infringement. ADF shall have no liability of any kind for the use of, or inability to use, the website or ADF content or for any loss of data. ADF does not represent or warrant that the website or ADF content will be delivered free of any interruptions, delays, omissions or errors (collectively, "faults") or in a secure manner or that any faults will be corrected. No oral or written information or advice given by ADF or its authorized representatives shall create any warranty. In the event that the website or ADF content is defective, you assume the entire cost of all necessary servicing, repair or correction.
8. Important Disclosures.
· The Website is not intended to be and does not constitute an offer to sell any securities or a solicitation of any offer to purchase any securities. Such an offer or solicitation may be made only by the confidential private placement memorandum or similar offering document of the applicable investment fund (the "Fund"). If you are considering whether to invest in the Fund you should rely not on the information available on this website, but instead on the information in the private placement memorandum or similar offering document, subject to the disclosures contained therein, which private placement memorandum or similar offering documents may be requested from ADF. It should not be assumed that any investments discussed in any ADF Content will be profitable. ADF Content should not be considered investment advice or a recommendation of any particular account or strategy. An investment in any Fund is only suitable for "Sophisticated Investors" as defined in the applicable private placement memorandum or similar offering documents. All views, opinions and estimates in any ADF Content may change at any time without notice to you.
· Any ADF Content or other communication provided by ADF is intended to be generalized information about ADF. ADF, its employees and other agents are prohibited from providing, and do not provide, personalized tax, investment, legal or other business and professional advice to any taxpayer (other than ADF), including without limitation to any individual potential or current investor in any Fund. No ADF Content or other communication by ADF, its employees and other agents is intended or written to be used by any such taxpayer for the purpose of avoiding tax penalties. All such taxpayers are strongly advised to seek advice from an independent tax advisor based on such taxpayer's particular circumstances.
· Past performance is no indication of future results. The Website and ADF Content may contain statements, projections, opinions, pro forma financial information, estimates, other forward-looking information and information of a general economic or industry nature which constitute forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts. Those statements can be identified by the use of words including but not limited to "believe," "expect," "plan," "may," "will," "should," "anticipate" or similar statements or the negative of these words. Forward-looking statements include but are not limited to statements made as to future operations, costs, capital expenditures, cash flow, improvements in infrastructure, distribution and replenishment systems and operating efficiencies, sales and earnings estimates or trends and expansion plans and projections. These forward-looking statements are based on our expectations as of the date such forward-looking statements are made. Such forward-looking statements are not to be viewed as fact or as a guarantee of performance or achievement of any particular results, and are made subject to numerous assumptions, risks, uncertainties and other factors. Known and unknown internal and external risks and uncertainties may cause the actual results to be materially different from those expressed in or implied by the forward-looking statements. ADF undertakes no obligation to update forward-looking statements to reflect events or circumstances that occur after the date the statements were made.
9. Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless ADF and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the "ADF Parties") from all ADF Parties’ or any third party’s claims of any kind, whether in tort, contract or otherwise (collectively, "Claims"), including damages to property or personal injury, that arise from or relate to your access or use of the Website or ADF Content. In the event of any Claim that the Website, or your use thereof, infringes any intellectual property rights of a third party, you agree to contact ADF promptly and directly. You will cooperate with the ADF Parties in defending such Claims. ADF Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any indemnities set forth in any other written agreement between you and ADF.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ADF OR ANY OF THE ADF PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR ACCESS OR USE OF THE WEBSITE OR ADF CONTENT (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY ADF CONTENT OR OTHER INFORMATION OBTAINED FROM ADF, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ADF'S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ADF AND THE ADF PARTIES (JOINTLY), WHETHER IN CONTRACT ARISING OUT OF OR IN ANY WAY RELATED TO THE WEBSITE OR ADF CONTENT EXCEED TEN DOLLARS ($10.00).
11. No Export. You may not use or otherwise export or re-export the Website or ADF Content, except as authorized by United States law and the laws of the jurisdiction in which the Website or any ADF content was obtained. In particular, but without limitation, the Website and the ADF Content may not be exported or re-exported to (a) any U.S. embargoed countries; or (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.
13. Legal Compliance. By accessing and using the Website or ADF Content, you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You will comply with all applicable laws, rules and regulations, including, but not limited to, U.S. export control laws.
14. Term; Termination. This Agreement will begin from the date you first access or use the Website and will continue until terminated by ADF. This Agreement may be terminated by you at any time by discontinuing your use and access to the Website and destroying all information and materials obtained by you or on your behalf from the Website and all related documentation and all copies and installations thereof.
15. Governing Law; Arbitration. This Agreement will be governed and construed under the laws of the State of Delaware without regard to conflicts of law provisions. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by and in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. The number of arbitrators shall be one. The place of arbitration shall be Wilmington, Delaware. If any arbitration claim is necessary to enforce or interpret the terms of the Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
16. Severability. If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be interpreted to mean its maximum enforceable effect pursuant to applicable law so as to effect the intent of this Agreement, and will otherwise be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement.
17. Contact. If you have any questions or concerns regarding the Website, ADF Content or this Agreement, please contact ADF at:
Altcess Direct Funding, Inc.