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OPTIMA FUND MANAGEMENT ONLINE USER AGREEMENT
Please read this Agreement and our Privacy Policy carefully- they include disclaimers of liability and other matters of interest to our users. As used in this Agreement, the words “you” and “your” mean the Optima Fund Management customer or all Optima Fund Management customers if this is a joint account. The words “Optima” and “our” means Optima Fund Management.
What this Agreement Covers.
This Agreement between you and Optima governs your use of Optima’s virtual safe and electronic service that permits Optima’s customers to access certain account information through the use of personal computers or similar access devices (the “Service”). Access to the Service is provided through the World Wide Web.
Accepting this Agreement.
You understand that by replying to this email indicating “I agree” in the body of the email, you have agreed to the terms and conditions of this Agreement. You agree to use the Service solely as provided in this Agreement.
Optima Disclaimer
This website does not constitute an offer to sell or buy any securities and may not be used or relied upon in connection with any offer or sale of securities. It does not constitute a solicitation of clients and may not be used or relied upon in connection with any solicitation of clients. An offer or solicitation will be made only through a final private placement memorandum and subscription agreement to a particular fund, and will be subject to the terms and conditions contained in such documents, including the qualifications necessary to become an investor. These documents also describe the risks of investing in any of the funds. The information set forth in this website does not purport to be complete. While Optima Fund Management uses reasonable efforts to update the information on this site, Optima Fund Management makes no representations or warranties as to the accuracy, reliability or completeness of any information at this site. Any contents at this site are subject to change without notice. Optima Fund Management has not reviewed any of the sites linked to this site, and is not responsible for the content of off-site pages or any other site linked or linking to the site. Your linking to any off-site pages or other sites is at your own risk.
General
Optima Fund Management owns and maintains this site. Nothing at this site shall be construed as granting by implication, estoppels or otherwise, any license or right to use any image, trademark, logo or service mark at the site. No act of downloading or otherwise copying from this site will transfer title to any software or material at this site to you. Anything that you transmit to this site becomes the property of Optima Fund Management, may be used by Optima Fund Management for any lawful purpose, and is further subject to disclosure as deemed appropriate by Optima Find Management, including to any legal or regulatory authority to which Optima Fund Management is subject
Optima Fund Management reserves all rights with respect to copyright and trademark ownership of all material at this site, and will enforce such rights to the full extent of the law.
This site is for your personal and non-commercial use. You may not modify copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, product or services obtained from this site.
You acknowledge and agree that to the extent necessary, it is your responsibility to: (1) provide all equipment, including a computer and modem, necessary for you to establish a connection to the Internet and (2) provide for your own connection to the Internet and pay any telephone service fees associated with such connection.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between you and Optima, and this Agreement shall not be construed to create any obligation by Optima to any non-party to this Agreement.
The failure of Optima to require your performance of any provision hereof shall not affect the full right to require such performance at anytime thereafter; nor shall the waiver by Optima of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. Optima will amend or replace such provision with one that is valid and enforceable and which achieve to the extent possible, the original objectives and intent of Optima as reflected in the original provision.
Changes in the Services and the Terms of this Agreement
You agree that Optima may suspend, cancel, or modify the Service, at any time, for any reason. Similarly, you agree, during the term of the Agreement that Optima may (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the Service on our web site, or upon transmission to you at the e-mail address or postal address by United States mail) provided by you to Optima. Your continued use of the Service shall constitute your acceptance of this Agreement with the new modifications. If you do not agree to any of such changes, you must cease use of the Service. You acknowledge and agree that such termination of use will be your exclusive remedy and our sole liability if you do not wish to abide by any changes to this Agreement or the Service.
No employee, contractor, agent or representative of Optima is authorized to alter or amend the terms and conditions of this Agreement except by means of a written document signed by you and an authorized officer of Optima.
Your Representations
You hereby represent and warrant that (i) if you are a U.S. Person, you are an “accredited investor” as defined in the U.S. Securities Act of 1933, as amended (the “Securities Act’) if representing yourself, or if you representing an entity, the entity is an “accredited investor” as defined in the Securities Act; or (ii) if you are not a U.S. Person, you are neither a citizen nor a resident of the United States if representing yourself, or if you representing an entity, that entity is neither organized nor established in the Untied States and the majority of the beneficial interests of the entity are not owned by United States persons.
You understand that should your status as an “Accredited Investor” change you agree to notify Optima immediately of such change.
For purposes of this representation, “U.S. Person” is (1) a natural person who is a citizen of or resident in the United States; (ii) a partnership or corporation organized or incorporated under the laws of the United States or any political subdivision thereof; (iii) an estate the income of which ins included in gross income for United States federal income tax purposes regardless of its source; (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and once or more United States persons have the authority to control all substantial decisions of the trust; (v) an agency or branch of a foreign entity located in the United States; (vi) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person; (vii) a discretionary account of similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated, or (if an individual) resident in the United States; or (viii) a partnership or corporation if (A) organized or incorporated under the laws of any foreign jurisdiction; and (B) formed by one or more of the above and/or one or more natural persons resident in the U.S. principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by “accredited investors: (as defined in Rule 501(a) of the Securities Act) who are not natural persons, estates or trusts.
User Name and Password
You confirm that the user name and password you are using in connection with the Service will be sent to you by Optima. Such user name and password are the means through which you access the Service. You acknowledge and agree that it is your responsibility to safeguard the user name and password you select from any unauthorized use. IN NO EVENT WILL OPTIMA BE LIABLE FOR THE UNAUTHORIZED USE OR MISUSE OF YOUR USER NAME OR PASSWORD. You represent and warrant that any information that you download from the Service will not be distributed to any other person without Optima’s prior written consent.
Confidentiality
The Service includes information provided by Optima and in some cases by third parties. All information provided via the Service is confidential. You agree to respect the confidential nature of information provided as part of the Service and to take normal and reasonable precautions to maintain such confidentiality so that none of the confidential information will be divulged to any other party without Optima’s prior written consent, except as may be required by law or regulation.
System Performance Degradation
Optima depends on its own and third party computer systems to operate the Service. Occasionally, these computer systems are subjected to exceptional volumes of incoming service requests, electronic mail messages that may result in significant degradation of system processing and response time. Regardless of the reason, in those instances when there is system performance degradation, Optima reserves the right, in its sole discretion, to filter or block electronic traffic originating from identified sources of high volume traffic. Optima will attempt to selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. Optima further reserves the right to permanently filter or block repeated sources of high volume of electronic traffic.
Limitation of Liability
YOU AGREE THAT OPTIMA FUND MANAGEMENT WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) USE OF THIS WEBSITE, (b) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, OR (c) EVENTS BEYOND OPTIMA FUND MANAGEMENTS REASONABLE CONTROL. OPTIMA FUND MANAGEMENT ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INDCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDED LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF OPTIMA FUND MANAGEMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME SATES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF LIABILITY FOR CONSEQUENTIAL ORINCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Representations and Warranties
THE SERVICE IS PROVIDED TO YOU AS IS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OF THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE.
Governing Law; Forum Selection
Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of New York, as if the Agreement was a contract wholly entered into and wholly performed within the State of New York. Any action to enforce this Agreement or any matter relating to your use of the Service shall be brought exclusively in the United States District Court for the Southern District of New York, or if there is no jurisdiction in such court, then in a state court in New York County without giving effect to choice of law principles.
Notices
You agree that, unless other instructions are posted on Optima’s web site, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail, return receipt requested, or by Federal Express or other recognized overnight delivery service to each of the parties in accordance with the most current contact information you have provided to us, and the contact information for Optima posted on Optima’s web site. All notices shall be effective upon receipt, except email and fax notices shall be effective upon transmission.
Privacy is fundamental to our relationship with our investors and clients.
Optima Privacy Policy
We are committed to maintaining the confidentiality, integrity, and security of your personal information. Internal policies have been developed to protect this confidentiality, while allowing us to serve your needs as an investor or client. We do not disclose nonpublic personal information about our investors, clients or former investors or former clients to third parties other than as described below. We collect information about you (such as your name, address, birth date, social security number, assets and income) and your transactions with us (such as investments, withdrawals, performance and account balances) from our discussions with you and from documents that you may deliver to us.
In order to provide you with such services, we may provide your personal information to our affiliates and to firms that assist us in servicing your account and that have a need for such information, such as a broker, custodian, lawyer, accountant or other service provider and as permitted by law. We require third party service providers and financial institutions with whom we have relationships to protect the confidentiality of your information and to use the information only for the purposes for which we disclose the information to them. We maintain physical, electronic and procedural safeguards designed to protect the nonpublic personal information we obtain about you.
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