1 . Introduction
1.1 By checking the corresponding checkbox on the Openstone platform available at https://www.openstone.com or any of its subdomains (the “Platform”) when creating an account, you are accepting these Terms of Service and thus agreeing that you will abide by these Terms of Service and any other terms displayed on the Platform (collectively, the “Agreement”). The Agreement is between Openstone SA (“we”, “our” or “Openstone”) and (a) you on your own behalf as an individual, and (b) the entity on whose behalf you are accessing and using the Platform and Services (as hereafter defined), whether as an employee, associated person, independent contractor, agent, or in a similar representative capacity ((a) and (b), collectively “you” and “yourself”), and governs your access to and use of the Platform and the services and applications offered by Openstone thereon (collectively, the “Services”). Openstone provides investment brokerage and permits qualified individuals to invest in private equity funds via the Platform.
OPENSTONE HAS THE RIGHT TO CHANGE THE PLATFORM, THE SERVICES AND/OR THIS AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE, WHETHER AS A RESULT OF CHANGES IN LAW, RULE, REGULATION OR POLICY OR OTHERWISE. THEREFORE, EACH TIME YOU ACCESS OR USE THE PLATFORM OR THE SERVICES, YOU SHOULD VISIT AND REVIEW THE THEN-CURRENT AGREEMENT. YOUR CONTINUED ACCESS AND/OR USE OF THE PLATFORM AND/OR THE SERVICES CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
1.2 Capitalized terms used herein are defined in Section 12 (Definitions) of these Terms of Service.
2. General Securities Laws Principles
2.1 The laws applicable to alternative investments are complicated and occasionally ambiguous. In general, they are designed to protect unsophisticated investors from making poor investment decisions. You qualify to invest with Openstone if you meet certain criteria based on the fit questionnaire we ask you to fill-up.
2.2 Due to the nature of the funds we offer, Openstone investments are available exclusively for investors that qualify based on applicable national securities laws and regulations governing these types of securities transactions that must be observed.
2.3 You must make your own assessment regarding regulatory requirements as may be applied to your activities on the Platform.
3. User Obligations
3.1 To Act Responsibly. You are undertaking to act responsibly – which means that, by entering into this Agreement with us, you are undertaking the following:
3.2 Requirements to Use the Services.
(a) That you have the right, power, authority, and capacity to enter into this Agreement on your own behalf or on behalf of any entity for whom you are acting and to abide by all of the terms and conditions contained herein, and that if any aspect of your use of the Services violates provisions of applicable laws, rules or regulations to which you are subject, you will promptly cease use of the Services and close your account;
(b) That you will not use a false name or use an email address owned or controlled by another person in connection with your use of the Services;
(c) That you are solely responsible for maintaining the confidentiality of your password;
(d) That you will update your registration information with Openstone as needed so that it remains true, correct and complete;
(e) That during the registration process on the Platform you agree to be bound by the terms and conditions of the Non-Disclosure Agreement, displayed on the Platform, by checking the corresponding box.
3.3 Requirements Related to Investments.
(a) That you will only invest in a Openstone fund or other financial product offered through the Platform after carefully reviewing and assessing the terms of the investment, including the related private placement memorandum, subscription agreement and organizational documents as well as all other related information and materials provided through the Platform;
(b) That you will use your own judgment before making any decision to invest;
(c) That you will obtain such professional advice as is appropriate to protect your interests, including legal, tax, accounting and other advice (i.e., consult with an attorney); and
(d) That you have reviewed and understand the discussion of risks made available with the investment documentation on the Platform, and that you are otherwise aware of the risks of making alternative investments.
3.4 General Requirements. In addition, you are undertaking not to:
(a) Violate this Agreement or any law, rule or regulation;
(b) Trick, defraud, deceive or mislead Openstone, such as by disguising the source of materials or other information you submit to the Services or using tools which anonymize your Internet protocol address to access the Services;
(c) Interfere with or disrupt (or attempt to interfere with or disrupt) access and enjoyment of the Platform or Services of other users or any host or network;
(d) Disparage, tarnish or otherwise harm Openstone, the Platform and/or the Services;
(e) Upload or transmit (or attempt to upload or transmit) to the Platform and/or the Services (i) any material that acts as a passive or active information collection or transmission mechanism, or (ii) any computer code designed to disable, disrupt, distort, harm or otherwise impede, in any manner (including aesthetically), the use or operation of any technology and/or to corrupt any data, including viruses, worms, Trojan horses, spyware, adware ransomware or any other malicious or invasive computer code;
(f) Reverse engineer, alter, modify, decompile, reverse assemble, disassemble, modify or attempt to discover, derive or copy or create any derivative works of any software, source code, structure, methods of, models or data with respect to the Platform or the Services, including all trade secrets therein;
(g) Access or search (or attempt to access or search) the Platform or Services by any means, such as any automated system or unauthorized script or software, other than currently available, published interfaces provide by Openstone, unless you have been specifically allowed to do so in a separate agreement with Openstone; for the avoidance of doubt, scraping the Platform or Services is expressly prohibited without the prior written consent of Openstone;
(h) Remove, obscure or change any copyright, trademark, logo, notices, instructions, warnings, labels, hyperlink or other proprietary rights notices contained in or on the Platform or Services or on any third party website and/or Openstone software on which Openstone code is embeddable or embedded on;
(i) Remove, obscure or change any notice, banner, advertisement or other branding on the Platform or the Services;
(j) Interfere with or circumvent any security feature of the Platform or the Services or any feature that restricts or enforces limitations on use of or access to the Platform or Services, such as probing or scanning the vulnerability of any system, network or breach;
(k) Make any false or fraudulent representations to Openstone in order to gain access to the Platform or Services;
(l) Distribute or cause the distribution of Sensitive Information;
(m) Sell access to the Platform or the Services or any part thereof other than through a mechanism approved by Openstone in writing;
(n) Expect Openstone to provide investment advice or recommend any investment;
(o) Treat any Content, email or other information you receive as a result of your access to or use of the Platform or the Services as a recommendation or representation of any kind by Openstone, any affiliate of Openstone or any employee, officer, director, representative or other agent of any of the foregoing (each a “Company Person”) on which you should rely unless such information has been expressly identified as created by a Company Person;
(p) Claim any ownership right in any material, software or intellectual property displayed on, published by or otherwise available through the Platform, including Content (other than Your Content);
(q) Copy or distribute Content (excluding Your Content) except as specifically allowed in this Agreement;
(r) Use any Content, or other information acquired from Company Persons, investors, or otherwise through your access to or use of the Platform or Services, for commercial or investment activity outside of the Services, without prior written approval from Openstone;
(s) Claim any right to access, view or alter any source code or object code of Openstone;
(t) Use the Platform to market services, particularly investment advisory services that might cause Openstone to have to register as an investment adviser with a local regulator; or
(u) Market competing services to persons you have identified through Openstone.
3.5 Openstone Employees and Affiliates. You understand that Company Persons may participate in the Services as investors, and that Openstone is not responsible for any of their activities, including statements or other information in any emails or other communications such individuals make in that capacity.
3.6 Confidentiality. By registering with Openstone, or otherwise using the Platform or the Services or viewing Content made available through the Platform or the Services in any way, you may be exposed to Sensitive Information. You shall maintain Sensitive Information in confidence. You may not distribute or republish, or permit or cause any third party to distribute or republish, any information you acquire through the Platform or the Services via an Internet website or otherwise, including Sensitive Information. You may not use Sensitive Information for any reason other than your evaluation of a particular investment opportunity unless approved in advance in writing by Openstone.
3.7 Other User Obligations.
3.8 This Agreement does not entitle you to any support, upgrades, updates, add-ons, patches, enhancements, or fixes for the Platform or the Services (collectively, “Updates”). Openstone, however, may occasionally provide automatic Updates to the Platform or the Services at its sole discretion (and without any advanced notification to you). Any such Updates for the Platform or the Services shall become part of the Platform or the Services, as applicable, and subject to this Agreement.
4. Privacy and Protection of Personal Information
4.1 Privacy Notice. Openstone values your privacy. Please review our Privacy Notice to learn more about how we collect and use information about you via the Services. The Privacy Notice explains how Openstone processes your personal information and protects your privacy when you access Openstone and use the Services.
4.2 Amendments to the Privacy Notice. We may amend the Privacy Notice at any time in our sole discretion, effective upon posting the amended Privacy Notice at the domain of https://www.openstone.com/privacy-terms/ where the prior version of the Privacy Notice was posted, or by communicating these changes through any written or other contact method we have established with you. Your use of the Platform or the Services following the date on which such amended Privacy Notice is published will constitute consent to such amendments to the extent they do not have retroactive applicability.
5. Ownership of Platform, Services and Content; Investor Questionnaire
5.1 All rights, title, and interests in and to the Platform, the Services and Content (other than Your Content) is and will remain the exclusive property of Openstone and its licensors. The Platform, the Services and Content are protected by copyright, trademark, and other laws of both the European Union as well as those of other countries. Except as expressly provided herein, nothing in this Agreement gives you a right to use the Openstone name or any of the Openstone trademarks, logos, domain names or other distinctive brand features.
5.2 Execution of the “Investor Questionnaire”. In accordance with applicable regulatory requirements, Openstone requires all new investors to undergo an appropriateness assessment either by way of completing an investor questionnaire on the Platform or participating in an appropriateness assessment process via a distribution partner, as applicable, both of which are designed to separate investors qualified to invest in Openstone funds or other financial products offered through the Platform from those that are not. Openstone and any distribution partner in this process rely on representations made by investors or distribution partners, as applicable.
6. Reservation of the Company’s Rights
• 6.1 Right to Control Content. Any Content on the Platform (including Your Content) may be deleted by Openstone at any time without notice to you.
• 6.2 Right to Terminate User Access. Openstone reserves the right to terminate your access to and use of the Platform and the Services without notice and, if you violate this Agreement, to pursue other remedies at law or in equity, provided that Openstone shall in such a case provide to a user who has invested in a fund or other financial product offered on the Platform all investor information that is required under applicable law via a durable medium.
• 6.3 Right to Refuse or Cancel Registration. Openstone may refuse registration of or cancel your user account in its discretion for any reason or for no reason. In addition, Openstone reserves the right at all times (but will not have an obligation) to remove or refuse to transmit, communicate or distribute any Content with respect to the Services and to terminate users and/or reclaim usernames.
• 6.4 Openstone also reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (a) satisfy any applicable law, rule, regulation, legal process or governmental request, (b) enforce this Agreement (including investigation of potential violations hereof), (c) detect, prevent or otherwise address fraud, security or technical issues, (d) respond to user support requests, and/or (e) protect the rights, property or safety of Openstone, its users and the public.
7. Scope of Openstone’s Obligations
• 7.1 Introductions. We are not obligated to introduce you to anyone connected to Openstone feeder funds or other financial products offered on the Platform, including fund managers, fund analysts, or other investors.
• 7.2 No Recommendations. We do not guarantee the accuracy of information provided by funds, their managers or other financial products offered on the Platform or otherwise.
• 7.3 Verifying Advertisement Accuracy. The Services may contain or deliver advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion is accurate and complies with applicable laws, rules and regulations. We are not responsible for any such compliance or any error, inaccuracy or problem in any advertiser’s or sponsor’s Content.
8. Term and Termination
• 8.1 Unless terminated by Openstone, this Agreement will remain in full force and effect while you access or use the Platform or any of the Services.
• 8.2 You may terminate this Agreement at any time by requesting Openstone to delete your account by contacting firstname.lastname@example.org. Openstone may terminate this Agreement at any time, particularly if you are suspected of violating any provision of this Agreement.
• 8.3 Upon termination of this Agreement for any reason, you shall destroy and remove from all computers, and other storage media all copies of any intellectual property owned by Openstone or any other user of the Services that you acquired via use of the Platform or the Services. Additionally, any provision which by their nature should survive the termination of this Agreement shall survive termination, including, without limitation, Sections the following provisions shall survive any termination of this Agreement: Sections 3.4(d), 3.4(u), 3.6, 4, 5.1, 6, 7, 8.3, 9, 10, and 11.
9. Disclaimers, Limitations, Waivers of Liability
• 9.1 In case of willful misconduct, Openstone shall be liable according to the statutory provisions of applicable law.
• 9.2 In case of gross negligence, Openstone shall be liable according to the statutory provisions of applicable law.
• 9.3 In case of ordinary negligence, Openstone shall – provided that the standard of liability is not limited according to statutory provisions of applicable law (such as any limitation to the duty of care observed in own affairs) – only be liable for breach of material contractual obligations (material contractual obligations are obligations the breach of which endangers the purpose of the agreement and the fulfilment of which the investor generally relies and may reasonably rely on); in this case Openstone’s liability shall be limited to the typical damages that were reasonably foreseeable.
• 9.4 The aforementioned limitations of Section 9.3 do not apply to damages resulting from injury to life, body or health and the assumption of a guarantee for the condition of goods and/or work or fraudulent concealment of defects by Openstone.
• 9.5 The aforementioned limitations of liability shall, subject to the provisions of Section 9.4(a), apply to any liability claims for whatever legal reason but in particular due to impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations in contractual negotiations and tort, as far as such claims are subject to fault, and (b) any breach of duty by vicarious agents or any other person for whose conduct Openstone can be held liable according to the statutory provisions of applicable law.
• 9.6 Openstone is not responsible for any technical malfunction or other problems of any telephone, network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or media players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to your or to any other person’s computer, mobile phone or other hardware or software, related to or resulting from using or downloading materials in connection with the web and/or in connection with the Platform or the Services, including any mobile software. Under no circumstances will Openstone be responsible for any loss or damage, including any loss or damage to any Content or personal injury or death, resulting from anyone’s use of the Platform, the Services, any Content or third party applications, software or Content posted on or through the Platform or the Services or transmitted to users or any interactions between users of the Platform or the Services, whether online or offline.
• 9.7 We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Platform, the Services or any Content thereon or any Content you receive as a result of your relationship with Openstone. Openstone will not be responsible or liable for any harm to your computer system, loss of data or other harm that results from your access to or use of, or inability to access or use, the Platform or the Services or any Content. Openstone has no responsibility or liability for the deletion of, or the failure to store, transmit or distribute any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure or errorfree basis. No advice or information, whether oral or written, obtained from Openstone or through the Platform or the Services, will create any warranty not expressly made herein. The Platform, the Services and Content are provided on an AS-IS, WHERE IS, AS AVAILABLE basis at your sole risk.
• You will defend, indemnify and hold Openstone and its affiliates harmless from and against any and all suits, claims, losses, liabilities, damages, judgments, costs and expenses (including attorneys' fees) arising from your (a) use of or access to, or inability to use or access, the Platform, any Content or any Services, (b) violation of any of the terms of this Agreement, and/or (c) Your Content.