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Terms & Conditions

Use of all NYPPEX web sites (together as "Site" or "Website") is subject to the terms and conditions contained in the NYPPEX Agreement (the "Agreement") as set forth below. In continuing to access or use our Site, you agree to be bound by those terms and conditions, as amended from time to time. This is also where you will find posted updates to this Agreement in the future.

I. GENERAL PROVISIONS


CONSENTS


The Agreement, other online agreements, and our Website include important disclosures and regulatory information that are associated with the NYPPEX Services. From time to time, NYPPEX may ask you to review other important disclosures or agreements about a NYPPEX Service.

When you click "Continue", "Submit", "I Agree" or similar words as we may provide on any of these agreements, you will be consenting to their terms and conditions and you will also be providing your electronic signature that will affirm:


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You understand and intend that the Agreement is a legally binding agreement and the equivalent of a signed, written contract;

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You will use all NYPPEX Services, and our Website generally, in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions of the Agreement and any other applicable rules, guidelines or other conditions that govern the use of a particular NYPPEX Service as they may be amended by NYPPEX from time to time; and

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You understand, accept, and have received the Agreement and its terms and conditions, and acknowledge and demonstrate that you can access the Agreement. If you are entering into this Agreement as an employee or consultant of a company, then all provisions of this Agreement that apply to you shall be binding upon your company. You represent that you are authorized to enter into this Agreement on behalf of your company.

If you do not agree with the terms and conditions in the Agreement, please select "Cancel" and cease any use of the Website.

You should be aware, however, that the use of any NYPPEX Service, including our Website, is subject to the terms and conditions of the Agreement. Please carefully review the following terms and conditions.

SCOPE OF THE NYPPEX SERVICES


NYPPEX, LLC ("NYPPEX""we" or "us") operates the NYPPEX Services, either alone or in conjunction with its affiliates, agents and partners. The Agreement applies to NYPPEX's websites, other electronic channels as described below, and electronic content, services and tools. This includes investment tools, and other services or forums, as well as any features or content we may add in the future. We refer to all of the above as "NYPPEX Services." This Agreement applies to all NYPPEX Services regardless of the means by which you access such NYPPEX Services. NYPPEX Services may be offered on the NYPPEX.com domain as well as on other Internet domains operated by our agents or alliance partners. In addition, NYPPEX Services may be available through other computer, telephonic, e-mail or wireless services or systems, and any other computer, telephonic or wireless service or information system NYPPEX makes available to you, including successors to the systems described above.

We may also ask you to follow additional rules, guidelines or other conditions that govern the use of a particular NYPPEX Service ("Rules and Guidelines") at the time you register for or use that NYPPEX Service. The Agreement incorporates by reference the Rules and Guidelines of any NYPPEX Service for which you register.

REGISTRATION INFORMATION, PRIVACY AND PERSONALIZATION


When you register for a NYPPEX Service, we may ask you to give us certain identifying information ("Registration"). You agree to provide true, accurate, current and complete information about yourself. You also agree not to impersonate any person or entity, misrepresent any affiliation with another person, entity or association, use false headers or otherwise conceal your identity from NYPPEX for any purpose. We agree to treat with care the information you entrust to us, in accordance with the disclosures we give during the Registration process and in our Privacy Policy.

For your protection and the protection of our other customers and Website users, we ask you not to share your Registration information (including passwords, User Names, and screen names) with any other person for the purpose of facilitating their access and unauthorized use of NYPPEX Services. You alone are responsible for all transactions initiated, messages posted, statements made, or acts or omissions that occur within any NYPPEX Service through the use of your Registration information.

NYPPEX may offer you the opportunity to personalize a NYPPEX Service or your online experience. While certain personalization features can provide a more convenient way to access the data and features most relevant to you, be aware that "cookies" and other similar identification techniques are used to associate you with the computer or electronic device that you are using. For more information about these techniques, see "About Cookies." If you access NYPPEX from a public location or if you otherwise share a computer or electronic device, some personalization features could reveal non-public personal information about you to others. You alone are responsible for deciding whether a particular personalization feature is appropriate for you and for any consequences that result from your decision.

UNAUTHORIZED USE OF YOUR REGISTRATION


If you believe that someone has used your Registration information to access any NYPPEX Service without your authorization, please call NYPPEX immediately at 914-305-2800 x215 or by email at inquiries@nyppex.com.

NOTICES, COMMUNICATIONS, AND ELECTRONIC SIGNATURES


You agree to accept all communications from us regarding use of the NYPPEX Services at the addresses you provide during Registration. Please promptly update any changes to your registration information by emailing us at inquiries@nyppex.com. NYPPEX is entitled to rely on the e-mail address and mail address that you last provided to us. You agree to waive all claims resulting from failure to receive communications because of changes in your e-mail or mail address. From time-to-time we would like to send you information about NYPPEX products and services. If you register for a NYPPEX Service, you are granting NYPPEX permission to communicate with you by e-mail. You can opt not to receive such information from us in the future by following the instructions in any e-mail that we send to you.

You agree to be bound by any affirmation, assent or agreement you transmit through the NYPPEX Services you access by computer or other electronic device, including internet, telephonic and wireless devices, including but not limited to any consent you give to receive communications from us solely through electronic transmission. You agree that, when in the future you click on a "Submit" or "I agree" or other similarly worded "button" or entry field with your mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.

When NYPPEX provides names of Users of its market data and reports, the term User includes firms with personnel who have requested and received NYPPEX’s free secondary private market data and reports. Listing of these firms does not imply any endorsement of NYPPEX’s products or services.

USE OF NYPPEX SERVICES

The following requirements apply to your use of all NYPPEX Services:
You will not use any electronic communication feature of a NYPPEX Service for any purpose that is unlawful, tortuous, abusive, and intrusive on another's privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening or hateful. You will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights. You will not collect or store personal data about other users. You will not use any NYPPEX Service for any commercial purpose not expressly approved by NYPPEX in writing. You will not upload, post, e-mail or otherwise transmit any advertising or promotional materials, including without limitation, "junk mail," "surveys," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or unauthorized communication. You will not upload, post, e-mail or otherwise transmit any material that contains viruses or any other computer code, files or programs which might interrupt, limit or interfere with the functionality of any computer software or hardware or telecommunications equipment.

SECURITY OF DATA TRANSMISSIONS AND STORAGE


Electronic (including wired and wireless) communications through the NYPPEX Services may not be encrypted. You acknowledge that there is a risk that data, including e-mail, electronic and wireless communications and personal data, may be accessed by unauthorized third parties when communicated between you and NYPPEX or between you and other parties.

USE OF ACCESS DEVICES


With the exception of applications commonly known as Web Browser software, or other applications formally promoted, endorsed or approved by NYPPEX in writing, you agree not to use any software, program, application or any other device to access or log on to any NYPPEX Service, including NYPPEX's computer systems, Website or proprietary software or to automate the process of obtaining, downloading, transferring or transmitting any Market Information or any other content to or from any NYPPEX Service, including NYPPEX's computer systems, Website or proprietary software.

ELECTRONIC COMMUNICATIONS


When you visit www.nyppex.com or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

MONITORING BY NYPPEX


NYPPEX, its affiliates and agents are entitled, but not obligated, to review or retain your Communications. We and our Third Party Service Providers may monitor your Communications to evaluate the quality of service you receive, your compliance with the Agreement, the security of the NYPPEX Services, or for other reasons. You agree that these monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which NYPPEX or its Third Party Service Providers monitor your Communications and enforce or fail to enforce the Rules and Guidelines of any NYPPEX Service and the terms of the Agreement. In no event will NYPPEX or its Third Party Service Providers be liable for any costs, damages, expenses or any other liabilities incurred by you as a result of any monitoring activities.

HYPERLINKS


NYPPEX may make available links from a NYPPEX Service to other, third party sites or electronic services providers that are not affiliated with NYPPEX. NYPPEX does not control these other sites or services, and NYPPEX makes no representations or endorsements whatsoever concerning those sites or services. The fact that NYPPEX has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners, or its providers. There are risks in using any information, software, service or product found on the Internet, and NYPPEX cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold NYPPEX liable for any loss or damage caused by use of or reliance on any content, goods or services available on other sites.

DISCLAIMERS OF WARRANTIES


ALTHOUGH NYPPEX TRIES TO PROVIDE ACCURATE AND TIMELY INFORMATION THROUGH ITS NYPPEX SERVICES, THERE MAY BE INADVERTENT TECHNICAL OR FACTUAL INACCURACIES AND TYPOGRAPHICAL ERRORS. NYPPEX RESERVES THE RIGHT TO MAKE CHANGES AND CORRECTIONS AT ANY TIME, WITHOUT NOTICE. THE INFORMATION PROVIDED THROUGH THE NYPPEX SERVICES IS PROVIDED "AS IS" AND "AS AVAILABLE." NYPPEX DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED IN THE NYPPEX SERVICES. NYPPEX PROVIDES NO GUARANTEE AGAINST THE POSSIBILITY OF DELETION, MIS-DELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. NYPPEX EXPRESSLY DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, ANY INFORMATION CONTAINED IN THE NYPPEX SERVICES. NYPPEX MAY CHANGE INFORMATION CONTAINED IN THE NYPPEX SERVICES AT ANY TIME AND MAKES NO COMMITMENT TO UPDATE THE INFORMATION CONTAINED IN THE NYPPEX SERVICES. YOU ASSUME THE ENTIRE RISK AS TO THE USE OF THE NYPPEX SERVICES.

FURTHER, NYPPEX MAKES NO WARRANTIES REGARDING THE NYPPEX SERVICES. NYPPEX AND ITS AFFILIATES AND AGENTS (INCLUDING THIRD PARTY SERVICE PROVIDERS) DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NYPPEX SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER ELECTRONIC SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NYPPEX OR THROUGH OR FROM THE NYPPEX SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

LIMITATION OF LIABILITY AND INDEMNIFICATION


YOU AGREE TO INDEMNIFY AND HOLD NYPPEX AND ITS AFFILIATES, AGENTS, EMPLOYEES, CONTRACTORS AND LICENSORS (INCLUDING THE THIRD PARTY SERVICE PROVIDERS) HARMLESS FROM ANY CLAIM, DEMAND, LOSS, COSTS OR EXPENSE, INCLUDING ATTORNEYS' FEES, MADE BY ANY PERSON ARISING OUT OF YOUR VIOLATION OF THIS AGREEMENT, STATE OR FEDERAL SECURITIES LAWS OR REGULATIONS, OR ANY OTHER PERSON'S RIGHTS, INCLUDING BUT NOT LIMITED TO INFRINGEMENT OF ANY COPYRIGHT OR VIOLATION OF ANY PROPRIETARY OR PRIVACY RIGHT.

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL NYPPEX OR ITS AFFILIATES, AGENTS, EMPLOYEES, OR LICENSORS (INCLUDING THIRD PARTY SERVICE PROVIDERS) BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, ANY NYPPEX SERVICE, EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

IN NO EVENT WILL NYPPEX OR ITS THIRD PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TORT, CONTRACT OR ANY OTHER LIABILITY ARISING IN CONNECTION WITH THE USE OF A NYPPEX SERVICE, OR RELIANCE ON ANY INFORMATION OR SERVICES PROVIDED BY NYPPEX. NYPPEX AND ITS THIRD PARTY SERVICE PROVIDERS WILL UNDER NO CIRCUMSTANCES BE LIABLE TO YOU AND/OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF NYPPEX OR ITS THIRD PARTY SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE NYPPEX SERVICES; (ii) THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER DATA, COMMUNICATIONS OR PERSONALIZATION SETTINGS; (iii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE NYPPEX SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANYONE ON THE NYPPEX SERVICES; (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY, EVEN IF THE THIRD PARTY HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR (vii) ANY OTHER MATTER RELATING TO THE NYPPEX SERVICES. YOU AGREE THAT YOU WILL NOT IN ANY WAY HOLD NYPPEX RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES (INCLUDING THIRD PARTY SERVICE PROVIDERS) IN CONNECTION WITH THE NYPPEX SERVICES.

Because some states prohibit the limitation of liability for consequential or incidental damages, in such states the limitation of liability only with respect to consequential or incidental damages] may not apply to you, and the respective liability of NYPPEX and its Third Party Service Providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those states.

In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liabilities or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of your remedies under this Agreement fail then you expressly agree that under no circumstances will the total, aggregate liability of NYPPEX and its Third Party Service Providers, employees, distributors, agents or affiliates, to you or any party claiming by or through you for any cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.

RESTRICTIONS ON USE


Except as otherwise permitted by NYPPEX, no materials from the NYPPEX Services or any site owned, operated, licensed or controlled by NYPPEX may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. You may download material displayed on the NYPPEX Services for non-commercial, personal use. If you do so, you agree to retain all copyright and other proprietary notices contained on the materials. You may not use, distribute, modify, transmit, or post the content of the NYPPEX Services for public or commercial purposes, including any text, ../images, audio, or video without NYPPEX's written permission.

TRADEMARKS AND COPYRIGHTS


The NYPPEX Services are owned by NYPPEX or its affiliates or agents (including the Third Party Service Providers) and are protected by United States copyright laws and international treaty provisions. All content, trademarks, services marks, trade names, logos, and icons are proprietary to NYPPEX or its affiliates, licensors or agents (including the Third Party Service Providers). Other third-party products and brand names may be trademarks or registered trademarks of their respective owners, and may not be affiliated with NYPPEX. Nothing contained in the NYPPEX Services should be construed as granting, by implication, estoppels, or otherwise, any license or right to use any trademark displayed on the NYPPEX Services without the written permission of NYPPEX or such third party that may own the trademarks displayed on the NYPPEX Services. Your use of the trademarks displayed on the NYPPEX Services, or any other content in the NYPPEX Services, except as provided herein, is strictly prohibited.

Images displayed through the NYPPEX Services are either the property of, or used with permission by, NYPPEX. You are prohibited from using or authorizing the use of these ../images unless specifically permitted under the Agreement. Any unauthorized use of the ../images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes. Pursuant to Section 512(c)(2) of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, NYPPEX has designated an agent to receive notifications of claimed infringement, as described within our Copyright Policy. (See Copyright Policy.)

MODIFICATIONS, SUSPENSIONS AND TERMINATIONS OF NYPPEX SERVICES


NYPPEX reserves the right to modify or discontinue temporarily or permanently, a NYPPEX Service (or any part thereof) with or without notice. You agree that NYPPEX will not be liable to you or to any third party for any modification, suspension or discontinuance of a NYPPEX Service. Please keep in mind that extended periods of inactivity may also result in your enrollment in a NYPPEX Service being canceled. The license granted under the Agreement will terminate if NYPPEX believes that any information provided by you, including your e-mail address, is no longer current or accurate, or if you fail to otherwise comply with any term or condition of the Agreement and all Rules and Guidelines for each NYPPEX Service. Upon such violation, you agree to terminate access to the NYPPEX Services.

AGREEMENT TO NOT DISCLOSE NON-PUBLIC INFORMATION

You and any persons and other entities affiliated with you (together as "you") agree to keep confidential all non-public information you learn at NYPPEX including but not limited to a) information regarding private company and fund issuers such as quarterly and annual reports, private placement memorandums, operating agreements, financials, strategies, customers, investors; b) information regarding NYPPEX such as its methods and means of doing business, forms, procedures, volume of transactions and prices; c) the existence and prices of private offerings of restricted interests including the issuer’s identity, offer or bid prices, historical prices, etc. d) private market quotes on restricted interests of private companies and fund issuers (together as "Confidential Information"), whether learned in writing, from the Site, or verbally from a source currently or previously affiliated with NYPPEX, their agents or their representatives for a period of three (3) years from the date an Applicants membership commences at NYPPEX.

Confidential Information does not include any information which (a) at the time disclosed or obtained is in the public domain, (b) after being disclosed or obtained becomes part of the public domain through no act, omission or fault by you or your directors, officers, employees, contractors, agents or representatives; (c) prior to disclosure to you, was already in your possession as evidenced by written records kept in the ordinary course of business by you or (d) is required to be disclosed by applicable laws or regulations or by valid subpoena or order of court of competent jurisdiction.

You agree that your consideration is the opportunity to achieve your investment objectives and other good and valuable property the sufficiency and receipt of which are hereby acknowledged and agreed is fair in exchange for being provided access to the Confidential Information. Provided that you will first provide a written copy of this Non Disclosure Agreement text to any of your advisors, prior to your disclosing of any Confidential Information to such advisors, and not with standing anything herein to the contrary, you may consult such advisors regarding a prospective buy or sell decision of a specific restricted interest.

You represent that your sole intent in evaluating the Confidential Information is to make an independent evaluation of the merits of buying, selling or permitting private transfers of restricted interests and not to directly compete with NYPPEX or any private company or fund issuer whose restricted interests are bid or offered at NYPPEX. Nothing in this Non Disclosure Agreement shall obligate any party including company or fund issuers and NYPPEX to propose, discuss, negotiate, enter into or consummate any particular transaction.

Your consideration is the right to access the Confidential Information to help you achieve your investment objectives. Online transmission is not guaranteed to be secure.

GOVERNING LAW AND JURSIDICTION


Industry regulations require that the following disclosures appear in conjunction with the arbitration agreement that immediately follows:


a.   


Arbitration is final and binding on the parties.

b.   

The parties are waiving their right to seek remedies in court, including the right to jury trial.

c.   

Pre-arbitration discovery shall be for one (1) day which is more limited than and different from court proceedings. The arbitrator’s award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.

d.   

The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.

e.   

No person shall bring a punitive or certified class action to arbitration, nor seek to enforce any predispute arbitration agreement against any person who has initiated in court a punitive class action; who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the punitive class action until; (i) the class certification is denied: (ii) the class is decertified; or (iii) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this agreement except to the extent stated herein.


Any and all disputes, controversies or claims arising out of or relating to (together as "Controversies") this Agreement and all future agreements you may enter into with NYPPEX, FINRA otherwise indicated on such other agreement, shall be finally and exclusively settled by FINRA arbitration. Such arbitration shall be commenced within one year after the party requesting arbitration obtains knowledge of the cause of action forming the basis of the controversy or claim accrued. In any arbitration and subject to the ultimate discretion of the presiding arbitrator, each side will be limited to a maximum of one (1) day of argument (including rebuttal), and the parties agree in good faith to minimize discovery burdens (e.g., confine the scope to actual areas in dispute and limit the topics and number of pages on which information is requested to matters directly relevant). The arbitration hearing shall solely be conducted at the FINRA regional office responsible for the NYPPEX office in which the customer’s new account and/or membership was opened. Any judgment or settlement shall be kept confidential from public records unless after a period of 90 days from the award date, the prevailing party determines that it must enter the award in a court of the jurisdiction of the losing party in order to collect on the judgment or settlement amount. Each party shall pay its own legal expenses, subject to the Indemnification provision contained herein. You hereby expressly waive any rights you may have to bring a claim against NYPPEX and its parties for any reason.

If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

II. TRANSACTION SERVICES


The following terms and conditions set forth in this Agreement, together with the account agreement to which these terms and conditions are incorporated in full by reference therein shall constitute a legally binding contract between NYPPEX and you with respect to your use of the transaction services and other Services described in the account agreement.

OTHER AGREEMENTS OR DISCLOSURES


NYPPEX may revise the Agreement at any time, and you agree to be bound by future revisions. It is your responsibility to visit the Terms of Use link at the bottom of the NYPPEX.com home page periodically to review the most current terms and conditions. If you have an account with NYPPEX, your customer relationship with NYPPEX is also governed by your account agreements. If there is any conflict between (1) the Agreement and (2) your account agreements, then your account agreements will govern. NYPPEX may also offer other services from time to time that are governed by different or additional terms and conditions. NYPPEX Services are subject to any disclosures or disclaimers found within the NYPPEX Services.

Actual and indicated prices and other data relating to secondary and new issue private transactions with or provided to NYPPEX (collectively, “NYPPEX Data”), shall be the property of NYPPEX. Notwithstanding any confidentiality restrictions or other agreements to the contrary, NYPPEX may use, sell and distribute any NYPPEX Data at its discretion. All data, reports and other information provided by NYPPEX are made available on an “AS IS” basis without any warranty, and should not form a material part of any decision to buy or sell securities. NYPPEX will have no liability with respect to any such data, reports or other information or the use thereof."

NYPPEX'S LICENSE TO YOU


NYPPEX grants you a single, non-exclusive, non-transferable and limited personal license to access and use the NYPPEX Services. This license is conditioned on your continued compliance with the terms and conditions in the Agreement.

This Site and any portion hereof may not be reproduced, duplicated, copied, downloaded, sold, resold, visited, or otherwise exploited for any commercial purpose without the express written consent of "NYPPEX". You may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including ../images, text, page layout and form) of NYPPEX and/or its affiliates without the express written consent of NYPPEX. You may not use any meta tags or any other "hidden text" utilizing NYPPEX's name or Marks without the express written consent of "NYPPEX". Any unauthorized use terminates the license granted by NYPPEX.

YOUR LICENSE TO NYPPEX


Unless otherwise indicated for a particular NYPPEX Service, any communications or material of any kind that you e-mail, post or otherwise transmit through the NYPPEX Services, including data, questions, comments, or suggestions (your "Communications") will be treated as non-confidential and non-proprietary. You hereby grant a license to NYPPEX to reproduce, disclose, transmit, publish, broadcast, or post your Communications either on the NYPPEX Website or elsewhere with no liability or obligation to you. NYPPEX is free to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information.

USE OF THIRD PARTY SERVICE PROVIDERS


NYPPEX may use third party service providers to assist in providing certain NYPPEX Services with or without notice to you (each, a "Third Party Service Provider"). NYPPEX may also change Third Party Service Providers or may itself provide a NYPPEX Service without the assistance of such third party. You consent and authorize NYPPEX to delegate the authorizations you provide to NYPPEX to its Third Party Service Provider(s) as NYPPEX deems necessary or desirable to provide the applicable NYPPEX Service to you. You agree that the terms and conditions of the Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such Third Party Service Providers and such Third Party Service Providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. You also agree that all references to "NYPPEX" within the Agreement and any incorporated terms are also deemed to include, where applicable, NYPPEX's agents, such as the Third Party Service Providers.

To protect the privacy and security of your personal information, Third Party Service Providers will only be authorized to use or maintain your personal information only in accordance with NYPPEX's privacy policy.

MARKET INFORMATION


We may make available to you through one or more NYPPEX Services a broad range of financial information that we obtain from Third Party Service Providers or us. This includes financial market data, quotes, news, analyst opinions, and research reports. Collectively, we refer to this as "Market Information." NYPPEX does not endorse or approve Market Information, and we make it available to you only as a service and convenience. NYPPEX and our Third Party Service Providers do not (1) guarantee the accuracy, timeliness, completeness or correct sequencing of Market Information, or (2) warrant any results from your use or reliance on Market Information. Market Information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Neither NYPPEX nor the Third Party Service Providers are obligated to update any information or opinions contained in any Market Information, and we may discontinue offering Market Information at any time without notice. You agree that neither NYPPEX nor the Third Party Service Providers will be liable to you in any way for the termination, interruption, delay, or inaccuracy of any Market Information. You will maintain the confidentiality of the Market Information and will not redistribute or facilitate the redistribution of Market Information, nor will you provide access to Market Information to anyone who is not authorized by NYPPEX to receive Market Information. If you are a securities broker, dealer, banker, or investment advisor, you agree not to use Market Information provided by NYPPEX for any purpose related to your business. Market Information may be incomplete or condensed and is subject to change without notice. As a condition to receiving access to any Market Information, NYPPEX shall be permitted to display your company’s name and logo in listings of Market Information users on NYPPEX’s Website and in NYPPEX’s other marketing materials.

SUITABILITY AND DUE DILIGENCE


NYPPEX has policies and procedures for performing due diligence and for evaluating investor suitability.

In general, NYPPEX performs due diligence at a level it deems reasonable for secondary and new issue private transactions and new issue public transactions. (together as "Transactions")

NYPPEX also evaluates and communicates guidelines to its personnel for investor suitability and strategy eligible for each type of Transaction.

NYPPEX has trained its client relationship managers to also preform due diligence and to evaluate investment suitability and strategy for each prospective client on a transaction by transaction basis.

However our ability to evaluate investment suitability and strategy is based on the level of detailed financial information provided to NYPPEX by each client.

Therefore, clients are responsible to provide accurate and complete financial information to NYPPEX in order for us to make an accurate evaluation of whether or not a transaction is suitable for you.


NO SOLICITATION


Nothing contained at NYPPEX is a solicitation of (i) any buy or sell transaction in any securities or (ii) service(s) in any jurisdiction where the offer or sale is not qualified or exempt from regulation. Sales and offers to sell may be made only by the issuer's private placement memorandum ("PPM") or prospectus and only in jurisdictions where permissible.

You assume full responsibility for all conclusions you derive from any information at NYPPEX, and neither we nor our agents shall have any liability with respect thereto. The foregoing applies to all forms of such information, including the issuer's PPM or prospectus, research reports or analysis, and investment-related information, whether accessed from us, through our Website, by reviewing a non-electronic copy, or verbally communicated, and whether such information is prepared by NYPPEX or a third party.

Securities mentioned at NYPPEX may not be suitable for all investors. We provide such information without regard to your investment objectives or financial circumstances and we do not represent that this information is appropriate to your situation. You must review this information with due regard for your personal circumstances and evaluate the information independently, or with advice from your professional advisors. Our furnishing to you of this information is not an expression of our endorsement, recommendation, advice or judgment as to the quality, soundness and/or and appropriateness of either the Information, or the parties that have prepared it. You must determine if this information is appropriate for you.

Although we may furnish information either verbally or in writing, such information is subject to the disclosures in the issuer's private placement memorandum or prospectus, and you agree to make your independent purchase decision only based on the issuer's private placement memorandum or prospectus and without reliance on our Information.

NYPPEX hereby expressly disclaims any and all warranties, guaranties, conditions, covenants, and representations relating to this information, whether express or implied (in law or in fact), oral or written, or from a course of dealing or usage of trade. Information is provided with all faults and the entire risk as to satisfactory quality, performance, and accuracy regarding the information is with you. NYPPEX shall not have any responsibility and/or liability for any loss, cost, claim or damage (including but not limited to direct, indirect, or consequential damages or lost profits) arising out of or otherwise relating to your access to any of this information, any use thereof or any omission or failure of any of this Information and its content. NYPPEX, its affiliated companies and their respective employees, contractors, and agents may have positions and/or engage in transactions in the security(s) referred to herein during such period while you are evaluating, selling, or buying such security(s); and such positions or transactions may be adverse to your objectives.

DISCLOSURE OF POTENTIAL RELATIONSHIPS


NYPPEX and/or its employees or directors as well as its affiliates, consultants and Third Party Service Providers may have clients with positions in securities or companies referenced in Market Information and may, as principal or agent, buy from or sell to customers. From time to time, NYPPEX may perform investment banking or other services for, or solicit such services from, companies mentioned in Market Information. From time to time, NYPPEX or a Third Party Service Provider may be unable to provide Market Information with respect to certain companies with which NYPPEX or the Third Party Service Provider or their affiliates have certain business relationships.

We may receive compensation from a trade counterparty or the issuer of the security(s) for serving in the capacity of broker/dealer, advisor, board member, or in other similar positions. Any use, disclosure, or distribution of any part of this information is a violation of this Agreement and is strictly prohibited.

When securities are offered, it is through NYPPEX, LLC, member FINRA, SIPC.

DISCLOSURE OF POTENTIAL CONFLICTS OF INTEREST


When a customer enters a buy order or sell order to NYPPEX, the customer is agreeing to accept certain risks of all potential conflicts of interest including but not limited to NYPPEX and its affiliated funds and companies (the "Affiliates"). NYPPEX will disclose to a customer when an Affiliate is acting as the counterparty to a prospective trade, and the customer shall have 48 hours to provide written notice to NYPPEX to not accept such trade (by email at inquiries@nyppex.com).

Lack of a customer’s written notice within 48 hours of NYPPEX’s notice to customer that an Affiliate is the counterparty, such shall constitute acceptance of the trade by the customer, and the customer waives any right to dispute the trade thereafter for any reason. For such affiliated transactions, you agree that NYPPEX and its Affiliates may earn their customary fees, commissions and profits as solely determined by such parties. NYPPEX believes it is in the long-term best interests of its customers, shareholders, and employees to sponsor certain Affiliates and attempt to make available a comprehensive menu of private liquidity services and private offerings, to help develop a more efficient and orderly private market.

NOTE: A key aspect of NYPPEX’ ability to act as a principal and to provide other products and services to its customers is the result of its integrated business model. We believe our integrated business model with Affiliates offer strategic benefits to our customers including efficient access to secondary private market liquidity, deal flow and market data. However, it also carries the risk for potential conflicts of interest as certain principals of NYPPEX also serve in management capacities with its affiliates (“Affiliates”). NYPPEX and its Affiliates include ACP Investment Group, LLC, an investment advisor (“ACP”), which offers similar services to their respective customers.

NYPPEX has developed and shares common ownership with Affiliates that provide these products and services. As an example, ACP provides secondary private market liquidity as principal which benefits NYPPEX customers that seek to quickly sell alternative assets in a fair and ethical manner.

In providing services to NYPPEX, our Affiliates are permitted to charge their standard fees. We endeavor to have such fees periodically reviewed by an outside regulatory consultant in order to determine whether the fees are fair and reasonable. Since certain NYPPEX employees are also employed by Affiliates, when products and services are conducted between NYPPEX and such Affiliates, as a result of the fees generated, those employees may benefit as will common ownership. Principals of NYPPEX may also benefit from these arrangements through their common ownership of ACP and the Affiliates.

NYPPEX maintains a Code of Conduct which states the policies and procedures to be followed when products and services are provided to NYPPEX from Affiliates. In addition, Affiliates maintain their own Code of Conduct which states their policies and procedures when products and services are provided to NYPPEX.
The independent auditor for NYPPEX and each Affiliate has been informed of and is knowledgeable of the nature of products and services provided to NYPPEX.

The NYPPEX Finance and Audit Committee as well as the NYPPEX Legal and Compliance Committee periodically review (a) that the products and services provided to NYPPEX by Affiliates were at arm’s length (i.e. that the parties acted in their self interest, and that fees and terms were deemed to be fair and equitable to each party), (b) the fees charged to NYPPEX were fair and reasonable, (c) the compensation paid to employees was fair and reasonable. The NYPPEX Finance and Audit Committee and the NYPPEX Legal and Compliance Committee will notify NYPPEX management and its independent auditor of any concerns and recommendations.

The principal shareholder of NYPPEX Holdings, LLC, the parent of NYPPEX, LLC, is Institutional Internet Ventures, LLC, a Delaware limited liability company and the principal shareholder of ACP Investment Group, LLC is Institutional Technology Ventures, LLC, a Delaware limited liability company; each of which are controlled by NYPPEX’s Managing Member.

ACCREDITED INVESTOR STATUS


You hereby represent and warrant to NYPPEX, that you or the entity you are representing for membership at NYPPEX (the "Applicant"), is an Accredited Investor as defined under Section 4(2) of the Securities Act of 1933 as summarized below.


1.   

Financial Resources, Experience, Suitability. The Applicant has (a) the financial ability to bear the economic risk of investments in restricted securities of private companies, private equity (and other) partnerships, and hedge funds (together as "Restricted Securities") and has adequate means to provide for the Applicant’s current needs and contingencies including sufficient liquidity; (b) the financial sophistication and experience with Restricted Securities to make an intelligent, independent evaluation of the risks involved when considering to sell and buy Restricted Securities and (c) concluded that whenever Applicant does sell or buy a Restricted Security through NYPPEX, that such transaction meets the investment objectives and is suitable for the Applicant.

2.   

For Natural Persons. If the Applicant is a natural person, the Applicant meets one or more of the following criteria: 


(a)   

Applicant has a net worth individually or jointly with the Applicant's spouse that exceeds one million dollars ($1,000,000) (excluding the value of the Applicant's primary residence) at the time of the purchase of a security; or

(b)   

Applicant had annual income in excess of two hundred thousand dollars ($200,000) in each of the last two years and reasonably expects that the Subscriber's income will exceed two hundred thousand dollars ($200,000) in the current year; or

(c)   

Applicant had annual income jointly with the Subscriber's spouse in excess of three hundred thousand dollars ($300,000) in each of the previous two years and reasonably expects to have joint income in excess of three hundred thousand dollars ($300,000) in the current year.

3.   

For Entities. If the Applicant is not a natural person, the Applicant is one of the following entities: 


(d)   

Applicant is a bank as defined in Section 3(a)(2) of the Securities Act or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity;

(e)   

Applicant is a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended;

(f)   

Applicant is an insurance company as defined in Section 2(13) of the Securities Act;

(g)   

Applicant is an investment company registered under the Investment Company Act;

(h)   

Applicant is a business development company as defined in Section 2(a)(48) of the Investment Company Act;

(i)   

Applicant is a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958, as amended;

(j)   

Applicant is a plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, which plan has total assets in excess of five million dollars ($5,000,000);

(k)   

Applicant is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and (a) the investment decision is made by a plan fiduciary, as defined in Section 3(21) of ERISA, that is either a bank, savings and loan association, insurance company or registered investment adviser, (b) the employee benefit plan has total assets in excess of five million dollars ($5,000,000), or (c) if a self-directed plan, investment decisions are made solely by persons that are accredited investors;

(l)   

Applicant is a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as amended (the "Investment Advisers Act");

(m)   

Applicant is an organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), as a corporation, a Massachusetts or similar business trust, or a Company not formed for the specific purpose of acquiring the Security, with total assets in excess of five million dollars ($5,000,000);

(n)   

Applicant is a trust, with total assets in excess of five million dollars ($5,000,000), not formed for the specific purpose of acquiring the Security, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D promulgated under the Securities Act; or

(o)   

Applicant is a corporation, Company, limited liability company, trust, estate or other entity, each of the equity owners of which meets the requirements of Section 2.4.2 (if a natural person) or at least one of the above categories in this Section 2.4.3 (if an entity).

(p)   

Applicant is a partnership, corporation, limited liability company or business trust that has total assets of at least $5 million and was not formed for the purpose of investing in the Company.

(q)   

Applicant is a self-directed employee benefit plan whose investment decisions are made solely by persons who meet either of the criteria for Individual Investors.

4.   

Suitability in Other Jurisdictions. The Applicant meets any additional or different suitability standards imposed by the jurisdiction of the Applicant’s primary residence (if a Natural Person) or registration (if an Entity).


IMPORTANT DISCLOSURE ABOUT RESTRICTED SECURITIES


RESTRICTED SECURITIES IN PRIVATE COMPANIES, PRIVATE EQUITY (AND OTHER) PARTNERSHIPS, AND HEDGE FUNDS TRADED AT NYPPEX HAVE NOT BEEN REGISTERED WITH OR QUALIFIED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES REGULATORY AUTHORITY. THE RESTRICTED SECURITIES ARE BEING PURCHASED OR SOLD IN RELIANCE UPON EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS. RESTRICTED SECURITIES CANNOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE RESTRICTIONS ON TRANSFERABILITY CONTAINED IN THE OPERATING AGREEMENT OF THE ISSUER AND APPLICABLE FEDERAL AND STATE SECURITIES LAWS.

III. DATA, VALUATION AND PORTFOLIO ANALYTICS


The following terms and conditions set forth in this Agreement, together with the Order Form to which these Terms and Conditions are incorporated in full by reference therein shall, upon acceptance of the Order Form by NYPPEX, constitute a legally binding contract between NYPPEX and the you (the “Subscriber”) with respect to your use of the market data and/or analytic products and Services described on the Order Form. 

RESTRICTIONS


 (a)       Subscriber may use the Services only in respect of the funds then-currently maintained in its portfolio.  Subscriber shall not maintain hypothetical or dummy portfolios for the purpose of gaining access to Service Data in connection with any fund.

(b)        Subscriber’s license hereunder to use the Services is limited to use by the number of “Users” identified on the Order Form (the “Users”) (or if no Users are identified on the Order Form, then Subscriber’s license is limited to use by one (1) User.  Subscriber shall ensure that only the named User(s) identified on the Order Form may access the Services and/or review or retrieve any data obtained through the Services (the “Service Data”).  Any changes to the Users shall be subject to the prior, written approval of NYPPEX, such approval not to be unreasonably withheld.

(c)        Unless Subscriber and NYPPEX agree otherwise in a separate, written agreement, Subscriber shall not:  (A) combine the Service Data with any other data or run the Service Data through any analytic or calculator for the purpose of creating any derived data based in whole or in part on the Service Data (“Derived Data”) or (B) use the Service Data in any (1) non-user-based, non-display application, including without limitation any “black box” type application or automated algorithmic trading application; or (2) application that creates or distributes Derived Data (e.g., index calculation, portfolio valuation or pricing engines).

(d)        The Services are solely and exclusively for use by Subscriber and may not be used for any illegal purpose or in any manner not expressly permitted by, or inconsistent with, this Agreement.  Subscriber agrees to use the Services solely for its internal use and benefit and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity.  Subscriber shall not use the Services in any way not specifically authorized by NYPPEX or distribute, publish, copy, broadcast, reproduce, port, access, use or otherwise route the Services to any party or person.  Each time Subscriber uses the Services, Subscriber shall be deemed to represent, warrant and covenant to NYPPEX and its affiliates that:  (A) it has all requisite regulatory and legal authority to enter into and be bound by this Agreement; (B) its use of the Services complies with all applicable laws, rules and regulations and (C) its use of the Services will not cause NYPPEX or any affiliate of NYPPEX to be in violation of any law, rule or regulation.

(e)        Subscriber shall not: (A) use, or assist any other person or party to use, the Services in any way to improve data, products or services which Subscriber sells or derives commercial value from; (B) store all or any part of the Services in databases for access by any third-party or (C) distribute any database services containing all or part of the Services.

LIMITATION ON SERVICES


Notwithstanding anything to the contrary, Subscriber understands that Service Data may not be available for particular funds or securities and that NYPPEX shall determine in its sole discretion whether to provide or calculate the Service Data.

THIRD PERSON SERVICES

The Services may include content or services provided by and/or sourced from third parties (such third-party providers, “Third Person Sources” and such content or services, “Third Person Source Services”). Third Person Source Services are not owned, controlled, operated, managed, monitored, endorsed, or overseen by NYPPEX and/or its affiliates.  Subscriber is solely responsible for entering into agreements, paying any fees in connection with Third Person Source Services (“Third Person Source Fees”) and satisfying all other requirements of such Third Person Sources.  Subscriber acknowledges that it may be required to provide written proof thereof to NYPPEX and/or its affiliates.  Subscriber understands that failure to pay (or other breach by Subscriber) of a Third Person Source agreement between Subscriber and the Third Person Source may cause use of Services that relate or depend on the Third Person Source to be suspended, cancelled, or terminated.  Subscriber agrees that NYPPEX and its affiliates are not liable and it is not a breach by NYPPEX and/or its affiliates to effect any suspension, cancellation, or termination of any Third Person Source Services when directed to do so by the Third Person Source, regardless of whether the Third Person Source was justified or correct in giving such instruction to NYPPEX and/or its affiliates.  Subscriber understands that loss of a Third Person Source Service may cause the Services or the use of Services that relate or depend on the Third Person Source Service, to be degraded in quality, suspended, cancelled, or terminated.  In some cases, the Third Person Source may designate NYPPEX and/or its affiliates as its third party collector of Third Person Source Fees.  Third Person Source Fees are subject to change without notice from NYPPEX.  To the extent the provisions of Subscriber’s agreement with a Third Person Source conflict with the provisions of this Agreement, the provisions of this Agreement apply as between NYPPEX and/or its affiliates and Subscriber; the provisions of the Third Person Source agreement apply as between the Third Person Source and Subscriber.  Third Person Sources shall be included in the term “NYPPEX” in Sections 5(a), 5(c), 6 and 8 and shall be third-party beneficiaries of such paragraphs.

ACKNOWLEDGMENT OF NYPPEX RIGHTS


Subscriber acknowledges that the Services were developed, compiled, prepared, revised, selected and arranged by NYPPEX and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money and constitute valuable industrial and intellectual property and trade secrets of NYPPEX and such others.  Subscriber agrees to protect the proprietary rights of NYPPEX and all others having rights in the Services during and after the Term.  Subscriber acknowledges and agrees that it has no ownership rights in and to the Services and that no such rights are granted under this Agreement.  Subscriber shall honor and comply with all written requests made by NYPPEX or its suppliers to protect their and others’ contractual, statutory and common law rights in the Services with the same degree of care used to protect its own proprietary rights, which in no event shall be less than reasonable efforts.  Subscriber agrees to notify NYPPEX in writing promptly upon becoming aware of any unauthorized access or use by any party or of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory or common law rights.

GOVERNMENTAL RESTRICTIONS

Notwithstanding any other provision of this Agreement, NYPPEX does not represent that the Services are appropriate or available for use in any particular location or for any or all purposes.  Subscriber shall not distribute, redistribute, or otherwise transfer the Services (i) into (or to a national or resident of or to the government of) any country with respect to which the United States maintains trade sanctions prohibiting the shipment or provision of services, goods, technology or software; or (ii) to anyone on or acting on behalf of or owned or controlled by an entity on the Specially Designated Nations and Blocked Persons List maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (the “SDN List”) or the U.S. Commerce Department’s Denied Persons List or Entities List (collectively with the SDN List, the “U.S. Prohibited Party Lists”).  Each time Subscriber uses the Services, Subscriber shall be deemed to represent, warrant and covenant to NYPPEX and its affiliates that neither Subscriber nor any recipient of such Services is (x) located in or a national or resident of or the government of any country that is subject to U.S. trade sanctions or (y) on any U.S. Prohibited Party List or acting on behalf of or owned or controlled by any person or entity on any such list.

SECONDARY TRANSACTIONS 

If Subscriber desires to enter into secondary transactions using the Secondary Transfer Service, then Subscriber will be required to enter into one or more separate agreements with NYPPEX and/or its affiliates as they may require from time to time regarding the fees and other terms and conditions that apply to the Secondary Transfer Service.  Subscriber hereby agrees that NYPPEX shall own and have the right to use all data regarding any such secondary transactions.

OTHER NYPPEX PRODUCTS AND SERVICES 

If Subscriber desires to use any other data or analytic products or services offered by NYPPEX or its affiliates (other than the Services provided under this Agreement), then Subscriber will be required to enter into an additional Order Form with NYPPEX covering the fees, subscription term and any additional terms applicable to such other products and services.  Such additional Order Form, if accepted by NYPPEX, will be subject to these Terms and Conditions and will become part of this Agreement.

LIABILITY, WARRANTIES, REMEDIES AND INDEMNIFICATION.   

(a)        NYPPEX AND ITS AFFILIATES MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE ATTAINED BY SUBSCRIBER OR OTHERS FROM THE USE OF THE SERVICES, AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.  NYPPEX, its affiliates, its suppliers, and its third party agents shall have no responsibility or liability, contingent or otherwise, for any injury or damages, whether caused by the negligence of NYPPEX, its employees, subcontractors, agents, equipment vendors or otherwise, arising in connection with the Services or this Agreement, and shall not be liable for any lost profits, losses, punitive, incidental or consequential damages or any claim against Subscriber by any other party arising in connection with the Services or this Agreement.  NYPPEX, its affiliates and its suppliers do not guarantee the correctness or completeness of any information furnished in connection with the Services.  All prices, data and other information are not warranted as to completeness or accuracy and are subject to change without notice due to changes in market conditions and other factors.  Any comments or statements made as part of the Services do not necessarily reflect those of NYPPEX or its affiliates.  NYPPEX and its affiliates shall not be responsible for or have any liability for any injuries or damages caused by errors, inaccuracies, omissions or any other failure in, or delays or interruptions of, the Services, from whatever cause.  Subscriber is solely responsible for the selection of and use or intended use of the Services, the accuracy and adequacy of the Services and information used by it and the resultant output thereof.  Subscriber shall indemnify NYPPEX, its affiliates and its and their respective agents, employees, directors, officers, members, partners, owners and contractors (“NYPPEX Indemnified Parties”) and hold them harmless and at Subscriber’s expense defend NYPPEX Indemnified Parties against any loss, claim, demand or expense (including reasonable attorneys’ fees) arising in connection with (x) the use of the Services by Subscriber and/or (z) Subscriber’s breach of this Agreement.  NYPPEX and its affiliates are not responsible for the reliability or continued availability of the telephone lines and communications equipment used by Subscriber in accessing the Services.  To the extent permitted by law, it is agreed that the liability of NYPPEX and its affiliates hereunder for damages, regardless of the form of the action, shall not exceed the Subscription Fees paid under this Agreement by Subscriber for the Services during the six calendar months preceding the alleged injury or damage, and that this shall be Subscriber’s exclusive remedy.  No party shall be liable to the other for any default resulting from force majeure, which shall be deemed to include any circumstances beyond the reasonable control of the party or parties affected.  No action, regardless of form, arising out of or pertaining to the Services may be brought by Subscriber more than one (1) year after the cause of action has accrued. NYPPEX and its affiliates shall not be liable for any claim or demand against Subscriber by a third party. 

(b)        Notwithstanding any limitations contained in the section (a) above to the contrary, but subject to the limitations in this section (b), NYPPEX agrees to indemnify Subscriber and hold it harmless and at NYPPEX’s expense defend Subscriber against any third-party claim that the Services provided by NYPPEX hereunder infringe any copyright, trademark or other contractual, statutory or common law rights of a third party; provided that (i) Subscriber promptly notifies NYPPEX in writing of the claim, (ii) NYPPEX shall have sole control of the settlement and defense of any action to which this indemnity relates, (iii) Subscriber cooperates in every reasonable way to facilitate such defense, and (iv) if Subscriber becomes aware of any suspected infringement by a third party of any proprietary rights of NYPPEX, Subscriber shall promptly notify NYPPEX of such activities.  Notwithstanding anything to the contrary in this section (b), NYPPEX shall not indemnify Subscriber for any claim to the extent it arises from: (x) any additions, changes or modifications made to the Services by Subscriber or (y) any use of the Services other than expressly permitted by this Agreement.

(c)        NYPPEX and its affiliates shall not be construed as providing investment advice or investment recommendations through the Services.  No aspect of the Services is based on the consideration of Subscriber’s individual circumstances.  NYPPEX and its affiliates do not express an opinion on the future or expected value of any security or other interest and do not explicitly or implicitly recommend or suggest an investment strategy of any kind.  The Services are based on estimates and certain assumptions which may prove to be incorrect.  The Services are not and shall not be construed as recommendations to buy, sell, hold, subscribe for, underwrite or enter into any other transaction involving a particular security or other interest, nor are they nor shall they be construed as advice on the merits of buying, selling, holding, subscribing for underwriting, or entering into any other transaction involving an investment.  No part of the Services should form a material part of any recipient’s investment decisions.  All information in the Services must be verified by the recipient. The securities that may be referenced in the Services are more fully described in documents prepared by the issuers, which any recipient of the Services (or any information contained therein) is strongly urged to request and review.  The Services are not and shall not be construed as tax, legal, financial or accounting advice or as a service designed to facilitate Subscriber’s compliance with its tax, accounting, financial or other legal obligations.  The Services are not intended as an offer or solicitation for the purchase or sale of any financial instrument or as an official confirmation of any transaction.  NYPPEX and/or its affiliates may have sell or buy orders, positions and/or engage in transactions in the security(s) referred to in the Services during such period while Subscriber is evaluating, selling, or buying such security(s); and such positions or transactions may be adverse to Subscriber’s objectives.  Holding, selling, or buying the securities referred to herein may involve a high degree of risk such as market illiquidity, the loss of capital, and wide fluctuations in historical prices and transaction prices that may occur simultaneously between specific buyers and sellers depending on the unique situations and circumstances of each party and the markets.  NYPPEX and/or its affiliates may be acting in the capacity of secondary agent, analyst or have other affiliations with the seller(s), buyer(s) or the issuers of the securities.  NYPPEX and/or its affiliates may deal as a principal in transactions involving the securities referred to herein, as options or other instruments related thereto, including transactions which may be contrary to any information contained herein.  Therefore, there are conflicts of interest risks that the recipient of information contained in these Services understands and accepts.  NYPPEX and/or its affiliates seek to do business with and may receive compensation from prospective sellers, buyers and the issuers of the securities referenced in the Services.

ACCESS AND AUDIT


NYPPEX and its affiliates shall have the right at any time to monitor, either physically or electronically, Subscriber’s use of the Services.  Subscriber shall allow NYPPEX and its affiliates access to any of its premises, computers (including, but not limited to, hardware, software and network services) and personnel at all reasonable times for the purposes of such monitoring; provided that NYPPEX shall audit Subscriber no more than once during any 12 month period unless NYPPEX has reason to believe that Subscriber is in breach of this Agreement.  Upon the request of NYPPEX or an affiliate of NYPPEX, Subscriber shall make a management employee available to assist NYPPEX or an affiliate of NYPPEX in such monitoring.  Upon the request of NYPPEX or an affiliate of NYPPEX, Subscriber shall once a year and at the end of the Term provide to NYPPEX a certificate signed by Subscriber’s external or internal auditors or such other authorized person acceptable to NYPPEX confirming that Subscriber is in compliance with the terms of this Agreement.
CONFIDENTIALITY
Subscriber agrees to keep confidential and not to use, disclose or distribute (in each case, except as expressly permitted in this Agreement) any (i) services, software, materials and information contained in the Services or (ii) any other materials or information provided by NYPPEX and/or its affiliates which is marked as “Proprietary” or “Confidential” (together, the “Confidential Information”).  Confidential Information shall not include information that is: (1) at the time of disclosure by NYPPEX or its affiliates, then already in the possession of Subscriber (as evidenced by written records kept by Subscriber in the ordinary course of business) while not under a duty of non-disclosure; (2) in or becomes part of the public domain through no fault of Subscriber; or (3) developed by or on behalf of the Subscriber independent of any Confidential Information.  Subscriber shall, to the extent legally permissible, provide NYPPEX with prompt notice of any request for Confidential Information pursuant to (i) applicable law or regulation, (ii) the valid order of a court or other governmental entity, (iii) legal process or (iv) applicable listing or quotation requirements of any exchange or quotation system (such requested information being referred to herein as “Legally Required Disclosure”).  Within a reasonable time of the receipt of such notice, NYPPEX may seek an appropriate protective order or remedy with respect to such Legally Required Disclosure.  If such order or remedy is not obtained, any Legally Required Disclosure made by Subscriber shall not be deemed to violate this Agreement, provided that the Receiving Party complied with the notice requirements of this Section.

MISCELLANEOUS


(a)        NYPPEX shall be permitted to display Subscriber’s company name and logo in NYPPEX’s customer list, on its Website and in its other marketing materials.

(b)        In the event of a breach or threatened breach of any of the provisions of this Agreement by Subscriber or any of its employees, representatives or affiliates, NYPPEX shall be entitled to injunctive relief to enforce the provisions hereof, but nothing herein shall preclude NYPPEX from pursuing any action or other remedy for any breach or threatened breach of this Agreement, all of which shall be cumulative.  In the event NYPPEX prevails in any such action, NYPPEX shall be entitled to recover from Subscriber all reasonable costs, expenses and attorneys’ fees incurred in connection therewith.

(c)        Subscriber accepts that NYPPEX and/or its affiliates reserve(s) the right to adjust any NYPPEX mechanism to
disable Subscriber’s electronic requests or to cease providing the Services to Subscriber in order to protect the integrity of NYPPEX’s and/or its affiliates’ network(s) where its operation might be affected by the provision of Services to Subscriber under this Agreement.

(d)        NYPPEX and its affiliates shall have the right at any time or from time to time to change the technical specifications of any aspect of the Services and, in such instance, Subscriber shall take all reasonable steps to maintain compatibility of the Services.

(e)        Subscriber shall not assign this Agreement or the rights hereunder without the consent of NYPPEX.   Any purported assignment by Subscriber of this Agreement or the rights hereunder that is not in compliance with this section

(f) shall be deemed null and void.  Furthermore, NYPPEX shall have the right to terminate this Agreement at any time following a “change of control” of Subscriber (whether by asset sale, merger or otherwise).  NYPPEX shall have the right to assign this Agreement or all or any portion of the rights hereunder to any affiliate of NYPPEX or in connection with any sale of all or substantially all of the assets used to perform the applicable Services, in each case without the consent of Subscriber.

Subscriber acknowledges and agrees that NYPPEX may delegate certain of its responsibilities, obligations and duties under or in connection with this Agreement to a third party or an affiliate of NYPPEX, which may discharge those responsibilities, obligations and duties on behalf of NYPPEX.  To the extent any Services are provided to Subscriber by an affiliate of NYPPEX, such affiliate shall be solely responsible for any obligations in relation to the provision of such Services and shall be deemed NYPPEX under this Agreement, with respect to such Services.

(g)        This Agreement and any modifications, waivers or notifications relating thereto may be executed and delivered by facsimile, electronic mail, or other electronic means.  Any such facsimile, electronic mail transmission, or communication via such electronic means shall constitute the final agreement of the parties and conclusive proof of such agreement. Any such facsimile, electronic mail transmission, or communication via such electronic means shall be deemed to be in writing.

(h)        NYPPEX and Subscriber intend this Agreement to be a valid legal instrument, and no provision of this Agreement which shall be deemed unenforceable shall in any way invalidate any other provisions of this Agreement, all of which remain in full force and effect.  The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.

(i)         This Agreement is made and entered into in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts-of-law provisions thereof. 

IV. YOUR ELECTRONIC SIGNATURE


As noted above in the Consent section of the General Provisions, your use of the Website or NYPPEX Services or by clicking "Continue" or "Submit", you will be signing this Agreement as a whole with a binding electronic signature, and you acknowledge that you have read and understood this Agreement’s terms and conditions.