Terms of service

Revision Date June 20, 2014

These Terms of Service govern your access to and use of the websites (the “SecondMarket Sites” or the “Sites”) of SecondMarket Holdings, Inc. and those of its subsidiaries and affiliates, including SecondMarket, Inc. (collectively, “SecondMarket”, “we”, “our”, or “us”), and your use of any of the services provided through these Sites. These Terms of Service and any additional terms and conditions, policies, agreements and disclosures to which you have agreed are hereafter referred to collectively as the “Agreement”. Please read these Terms of Service carefully.

Your use of a SecondMarket Site is governed by the version of the Terms of Service in effect on the date of use. SecondMarket may modify the Terms of Service at any time and without prior notice. By using and accessing any SecondMarket Site, you acknowledge and agree to review the most current version of these Terms of Service prior to each such use. Your continued use of and access to any of the SecondMarket Sites constitutes your acknowledgement of, and agreement to, the then current Terms of Service. Please also note that the terms and conditions of these Terms of Service are in addition to any other agreements between you and SecondMarket and/or its affiliates and agents, including any customer or account agreements, and any other agreements that govern your use of products, services, content, tools, and information available on the SecondMarket Sites.

SecondMarket reserves the right, in its sole discretion, without any obligation and without any notice requirement, to change, improve or correct the information, materials and descriptions on the SecondMarket Sites and/or to suspend and/or deny access to any SecondMarket Site for scheduled or unscheduled maintenance, upgrades, improvements or corrections. The information and materials on the SecondMarket Site may contain typographical errors or inaccuracies. Any dated information is published as of its date only, and SecondMarket does not undertake any obligation or responsibility to update or amend any such information. SecondMarket may discontinue or change any product or service described in or offered on SecondMarket Site at any time without prior notice. SecondMarket further reserves the right, in its sole discretion, to block or otherwise discontinue your access and use of SecondMarket Site at any time and for any reason. You agree that SecondMarket and its subsidiaries and affiliates will not be liable to you or to any third party for any such modification, suspension or discontinuance.

Authorized User

Some of our services, and certain pages of the SecondMarket Site, are available only to clients or users who have been authorized by us to access those services and web pages. Such authorization may require completion of an accredited investor questionnaire and satisfactory background information screening.

Unauthorized use of any SecondMarket Site and/or our systems, including, but not limited to, unauthorized entry into and/or any attempted access of SecondMarket’s systems and/or any restricted areas of any of the SecondMarket Site, misuse or sharing of passwords or misuse of any other information, is strictly prohibited. You may not use any SecondMarket Site in any manner that could damage, disable, overburden, or impair any SecondMarket Site or service or interfere with any other party’s use and enjoyment of any SecondMarket Site or service. You may not attempt to gain unauthorized access to any SecondMarket Site or service, computer systems or networks connected to any SecondMarket Site or service, through hacking, password mining or any other means. You may not screen-scrape, data scrape and/or use any automated means to acquire data and/or information from our Sites. You agree that you will not engage in any activities related to any SecondMarket Site that are contrary to these Terms of Service and/or any applicable laws or regulations. You agree to notify us immediately in the event that you learn or suspect that the security of your password may have been compromised. You further agree that you are responsible for any unauthorized use of your password that is made before you have notified us and we have had a reasonable opportunity to act on that notice. We reserve the right to suspend or cancel your password, even without receiving such notice from you, if we suspect that it is being used in an unauthorized or fraudulent manner.

Notwithstanding the above, you are responsible for monitoring your account and should promptly report any unauthorized or suspicious activity in your account to us at legal@secondmarket.com.

Disclaimer of Warranty and Limitation of Liability

THE INFORMATION, PRODUCTS AND SERVICES ON THE SECONDMARKET SITES ARE PROVIDED ON A STRICTLY “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS. SECONDMARKET DOES NOT PROVIDE ANY WARRANTIES (EITHER EXPRESS OR IMPLIED) WITH RESPECT TO THE INFORMATION AND/OR SERVICES PROVIDED ON ANY SECONDMARKET SITE AND/OR YOUR USE OF ANY SECONDMARKET SITE GENERALLY, FOR ANY PARTICULAR PURPOSE AND SECONDMARKET EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SECONDMARKET WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT COULD RESULT FROM INTERCEPTION BY THIRD PARTIES OF ANY INFORMATION OR SERVICES MADE AVAILABLE TO YOU VIA THIS WEBSITE. ALTHOUGH THE INFORMATION PROVIDED TO YOU ON THIS WEBSITE IS OBTAINED OR COMPILED FROM SOURCES WE BELIEVE TO BE RELIABLE, SECONDMARKET CANNOT AND DOES NOT GUARANTEE THE ACCURACY, VALIDITY, TIMELINESS, OR COMPLETENESS OF ANY INFORMATION OR DATA MADE AVAILABLE TO YOU FOR ANY PARTICULAR PURPOSE. NEITHER SECONDMARKET, NOR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS OR EMPLOYEES, NOR ANY THIRD PARTY PROVIDERS OF CONTENT, SOFTWARE AND/OR TECHNOLOGY (COLLECTIVELY, THE “SECONDMARKET PARTIES”), WILL BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSS OR DAMAGE THAT YOU INCUR IN THE EVENT OF ANY FAILURE OR INTERRUPTION OF ANY SECONDMARKET SITE, OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN MAKING ANY SECONDMARKET SITE, THE DATA CONTAINED THEREIN OR THE PRODUCTS OR SERVICES OFFERED THEREBY AVAILABLE TO YOU, OR FROM ANY OTHER CAUSE RELATING TO YOUR ACCESS TO, INABILITY TO ACCESS, OR USE OF ANY SECONDMARKET SITE OR THE MATERIALS CONTAINED THEREIN, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF SECONDMARKET OR OF ANY VENDOR PROVIDING SOFTWARE OR SERVICES.

IN NO EVENT WILL SECONDMARKET OR ANY SUCH PARTIES BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY OTHER DAMAGES OF ANY KIND EVEN IF SECONDMARKET OR ANY OTHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT A USER’S EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE. SECONDMARKET CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY SECONDMARKET SITE.

Proprietary Rights

All right, title and interest in the SecondMarket Sites and all content contained herein is the exclusive property of SecondMarket, except as otherwise stated. Unless otherwise specified, the SecondMarket Sites are for your personal and non-commercial use only. You may print, copy and download limited amounts of information and content from the SecondMarket Sites; provided that it is solely for your personal use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes in whole or in part any information, software, products or services obtained from any SecondMarket Sites, except for the purposes expressly provided herein, without SecondMarket’s’ prior written approval. If you copy or download any information or software from a SecondMarket Site, you agree that you will not remove or obscure any copyright or other notices or legends contained in any such information.

SecondMarket, the SecondMarket logo, and other SecondMarket trademarks and service marks referenced herein are trademarks and service marks of SecondMarket. The names of other companies and third-party products or services mentioned herein may be the trademarks or service marks of their respective owners. You are prohibited from using any marks for any purpose including, but not limited to use as metatags on other pages or sites on the Internet without the written permission of SecondMarket or the applicable third party rights holder.

SecondMarket Portal Product and User Submitted Information

As a user of the SecondMarket Sites, you may be permitted to post certain user submitted content on various portions of the SecondMarket Sites. In addition, you may have access to and use of an online document “portal” where you may post corporate updates and documents, and share information with other users (each such portal, a “SecondMarket Portal”). Users wishing to have access to and/or use of a SecondMarket Portal may be required to enter into a separate written agreement with SecondMarket governing access to that SecondMarket Portal. All users of a SecondMarket Portal shall comply with the terms and conditions of such separate agreement as well as the terms and conditions of this Agreement, when accessing and using a SecondMarket Portal. For the purposes of this Agreement, all content, information and materials posted, uploaded, submitted, published or otherwise displayed through a SecondMarket Site (including, without limitation, all such content, information and materials shared via a SecondMarket Portal) shall be referred to as “User Submitted Content”.

You are solely responsible for all User Submitted Content that you post, upload, submit, publish or otherwise display through a SecondMarket Site. You expressly acknowledge and agree that all User Submitted Content will:

  • Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;
  • Not contain any content that is inaccurate, harassing, libelous, abusive, obscene, discriminatory or otherwise objectionable;
  • Not promote or solicit the purchase or sale of any product, security or investment unless such communication is expressly permissible under the Securities Act of 1933;
  • Not contain any software viruses, worms or other programs that may interfere with the functionality of the SecondMarket Sites or any of them or of any user of any of the SecondMarket Sites;
  • Not infringe any intellectual property or other proprietary rights of any party;
  • Not contain any information that you do not have a right to upload under any law or under contractual or fiduciary relationships;
  • Not pose or create a privacy or security risk to any person;
  • Not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • Further or promote any criminal activity or enterprise or provide instructional information about illegal activities; and/or
  • Contain material that, in the sole judgment of SecondMarket, is objectionable or restricts or inhibits any other person from using or enjoying the SecondMarket Sites and/or which may expose SecondMarket or its users to any harm or liability of any type.

SecondMarket reserves the right to investigate and take appropriate legal action against anyone who, in SecondMarket’s sole discretion, violates the terms of this Agreement regarding User Submitted Content, including without limitation, by removing the offending User Submitted Content from the SecondMarket Site, suspending or terminating the account of such violators and reporting you to the law enforcement authorities without notice.

Use of Links

The SecondMarket Sites may contain links to third party websites and/or services (each, a “Third Party Site”). These links are provided only as a convenience. The inclusion of any link is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by SecondMarket of any information contained in any Third Party Site. In no event shall SecondMarket be responsible for the information contained on any Third Party Site and/or your use of or inability to use such site. You should also be aware that the terms and conditions and privacy policy of each Third Party Site will be different from those applicable to your use of the SecondMarket Sites. You should contact the operator of the applicable Third Party Site for any information regarding that site’s terms and conditions and/or privacy policy.

Third Party Content

Certain portions of the SecondMarket Sites may contain unedited or third party content, including, without limitation, User Submitted Content. All User Submitted Content and all other postings, messages, text, images, links to third-party websites or other materials published on or otherwise made available by parties other than SecondMarket (such content, the “Third Party Content”) are the sole responsibility of the person(s) who originated such Third Party Content and SecondMarket may not monitor and does not control such Third Party Content, though SecondMarket reserves the right at all times (but will not have an obligation) to remove any Third Party Content. By using this Third Party Content, you agree to not rely on the Third Party Content and understand that you may be exposed to Third Party Content that is, without limitation, inaccurate, inappropriate, misleading, unlawful, offensive or otherwise objectionable, and that SecondMarket makes no representations or warranties regarding the Third Party Content and is not responsible or liable in any manner for the Third Party Content or the conduct, whether online or offline, of any user. Your use of such Third Party Content may be subject to the terms of service or user agreement of such Third Party Content provider.

Claims of Copyright Infringement

Copyright Complaints: SecondMarket respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify SecondMarket in accordance with the procedure set forth below.

SecondMarket will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be sent to:

General Counsel, SecondMarket Holdings, Inc. 636 Avenue of the Americas, 6th Floor New York, New York 10011 legal@secondmarket.com

To be effective, the notification must be in writing and contain the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the SecondMarket Site, with enough detail that we may find it on the SecondMarket Site;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
  • a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Securities Products

None of the information contained in the publicly accessible portions of the SecondMarket Sites constitutes a recommendation, solicitation or offer by SecondMarket Holdings or its affiliates to buy or sell any securities, futures, options or other financial instruments or other assets or provide any investment advice or service. The information contained in the SecondMarket Sites has been prepared without reference to any particular user’s investment requirements or financial situation. The information and services provided on the SecondMarket Sites are not provided to, and may not be used by, any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or regulatory or self-regulatory organization or clearing organization or where SecondMarket is not authorized to provide such information or services. Some products and services described in the SecondMarket Sites may not be available in all jurisdictions or to all clients.

Indemnity and Release

You agree to release, indemnify and hold SecondMarket harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the SecondMarket Sites. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Choice of Law

The Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of laws provisions. Unless otherwise agreed in writing by you and us, any dispute arising out of or relating to the Agreement, or the breach hereof, shall be finally resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, or such arbitration body as required by law, rule or regulation, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language before a single arbitrator in the City of New York, New York. Such arbitration must be commenced within one (1) year after the claim or cause of action arises. If for any reason any provision of this Agreement, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between us and you with respect to this site and it supersedes all prior or contemporaneous communications, agreements and understandings between SecondMarket and you with respect to the subject matter hereof. A printed version of this Agreement shall be admissible in judicial or administrative proceedings.

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