CLIENT TERMS OF SERVICE
Last updated: 1 March 2020
In these Terms the terms with capital letter have the following meaning:
‘’Agreement’’ means these Terms of Service and any supplemental terms, together with each order form and any related amendments.
“Client” (‘’you’’) means a company agreeing to the terms of this Agreement;
‘’Order Form’’ means an order form signed by Client and any of Diligend companies pursuant to these T&Cs and any supplemental terms. It is a document containing details of the subscription and payment options.
“Diligend” (‘’we’’) means Diligend, Inc., our affiliates, or entities controlled by, under common control with, or that control Diligend companies;
“Solution” means a technology product or software feature, the Client is subscribed to and listed in the Order Form.
‘’Party’’ means, Client or the Diligend Company. ‘’Parties’’ means Client together with Diligend Company.
“Asset Manager” means a company which engages in the management of assets or funds;
“Website” means the website www.diligend.com.
“Services” means any and all services provided by Diligend on or through the Website or the Solution;
“Terms” means these Terms of Service as may be amended by Diligend from time to time;
“User” means anyone who may be registered, accessing or using the Solution via a unique username or using the Website;
“User Content” means any and all content that is submitted by the User, including, without limitation, documents, texts, graphics, images and other content that the User submits on the Website or Solution;
By accepting the Order Form, you agree to these Terms. If you do not agree to be bound by these Terms, you shall not use our Website, Solution or Services. Please read these Terms carefully.
CHANGES TO THE TERMS
We may review and change these Terms at any time. We will notify you by email if any change comes into effect.
DESCRIPTION OF SERVICES
Through our Website or the indicated internet address you can connect to our Solution on which registered Users can use our due diligence software solution providing support to the due diligence processes performed by institutional investors and investment consultants. The Solution is an online software on which Users may connect, request and collect information, participate in search process and submit information as well as using other available tools and features.
Diligend connects Users and provides software and technology tools to help them conducting their due diligence, the solution does not conduct any due diligence by itself. Through the Solution, Users enter into direct communication with each other, and Diligend is not and shall not be a party to any relationship between users .
DISCLAIMER OF USER CONTENT AND CLIENT ACTIVITIES
The Website is for general information only and does not constitute the provision of any financial or investment advice in connection with the Services contemplated by these Terms. Diligend is not acting as a financial entity or as an Asset Manager in the framework of any services performed by Users. Diligend does not recommend or endorse any User, and no User is authorized to act on behalf of Diligend for any purpose.
The information and materials contained on the Website is given for information purpose only. Individual legal, tax, financial, accounting or other professional advice from an independent qualified advisor should be obtained before relying on any User Content or other information received on or through the Website, Solution or use of the Services.
Diligend does not verify or claim the accuracy, completeness, reliability, timeliness of any information given by Asset Manager or other Users. Diligend shall not be liable for any loss or damage that anyone incurs as a result of any activity that you or anyone else engage in on or through the Website, the Solution or the use of the Services.
No representation, warranty or undertaking, express or implied, is made and no responsibility or liability is accepted by Diligend which may arise directly or indirectly as a result of any activity that you or anyone else engage in on or through the Website, Solution or use of the Services.
REPRESENTATIONS AND WARRANTIES
In order to have access to the Services, you represent and warrant that:
- you are a legal entity and you have all rights and qualifications necessary to use our Services;
- you are qualified professional institutional investor or investment consultant;
- you register your account for your personal use and you will not share your account with any third party
- you do not and will not perform any illegal activities on or through the Website or the Solution;
- you enter into these Terms voluntarily and based on your own independent judgment and on advice from an independent advisor as you have considered necessary;
- you will take sole responsibility for any activities performed with the use of our Website or Solution;
- you have full power, authority and capacity to comply with these Terms and obligations under these Terms;
- you have read and understood the content of these Terms in its absolute
If you wish to register an account on the Solution as a Client, you will be validated by our validation team and you will have to sign an Order Form and agree on these Terms. If you wish to become a Client, you agree to provide us, if requested, with any and all necessary information and documents, so that our Validation Team can verify your professional background and credentials.
Once your account is approved, Diligend will send you an email confirming the account registration and emails to the authorized users with their log in details. Diligend may refuse to register you as a Clients for any reason.
You will provide full, accurate and true information, and update your information to keep your account accurate and correct.
You will be responsible for the security of your account access details on the Website or Solution and keep your password confidential. Even though Diligend uses modern security methods, Diligend cannot guarantee absolute security of your account. You shall be solely responsible for any actions (and their consequences) made through your account.
Client agrees that Diligend may use Client’s name and logo on its clients list and will do its best to serve as a reference for Diligend’s potential clients.
Each Party may terminate the subscription to the solution by giving notice to the other party if there is a breach of a provision of this agreement and the breaching party has failed to cure such breach within thirty(30) days of receiving notice of such breach.
Any payment due to Diligend shall be due and payable immediately in the event of termination of these Terms for any reason.
Upon termination or expiration of the Client subscription to the Solution, Client shall immediately cease use of such Solution provided under the Order Form.
All fees are separately agreed in the Order Form. All fees are agreed between Clients and Diligend on a confidential basis and cannot be disclosed to any third party without Diligend’s prior written approval.
Our Services are offered on an annual subscription basis, unless otherwise agreed between Diligend and the Client and reflected in the Order Form.
The Order Form includes also details about the Solution and a number of authorized named users who can exclusively use the Services. The Client cannot give access to users beyond the number of users included in the Order Form or share access. The price may also change after the initial term due to other circumstances, including, without limitation, number of modules requested.
The fee stated in the Order Form is for the initial term. The subscription is automatically renewed for the next renewal term unless cancelled by the Client. The fee for the renewal term can be changed by Diligend with thirty (30) days’ notification sent to the Client before the next billing cycle begins.
The Client may cancel the renewal of the subscription at least sixty (60) days before the end of the ongoing subscription cycle. To cancel the renewal, the Client shall notify Diligend in writing within the above- mentioned term.
All fees due under this agreement shall be paid in full by Client within the due date: fifteen (15) working days of the Order Form Effective Date. Any access to the Solution may be immediately revoked should a payment be missing or untimely. A late payment interest rate of the lesser of one and one-half percent (1.5%) per month, or the greatest amount available by law, will apply for any invoiced charge not paid by the due date.
All sales are final and non-cancellable. Notwithstanding early termination for breach, frustration of purpose, or any other reason, no refunds will be provided to Client or any Users.
The Client agrees to make payments via bank or wire transfer to the account specified by Diligend on the Invoice.
All payments are exclusive of taxes and any other charges. Client shall be responsible for payment of all taxes and any related interest and/or penalties resulting from any payments made hereunder.
Subject to compliance with these Terms, Diligend grants the Client a non-exclusive, non-transferable,
limited license to use the Website, Solution, Services, during the initial term as specified in the Order Form and any renewal term. If we have reasons to believe that you violate these Terms, we are entitled in our sole discretion to block, suspend or terminate the license and your access to the Solution and deny the use of any Services.
Each User assumes all responsibility for all documents, texts, data, graphics, images and other content that he or she submits on the Website (the “User Content”) or on the Solution. Each User agrees to be entirely responsible for all User Content that the User submits to the Website, Solution or shares with other Users.
Some of the User Content will not be visible to all Users and can be uploaded in a private mode and/or can be made available to selected Users only. Diligend, and/or any person or a legal entity designated by Diligend, will have the unlimited and exclusive rights to the public User Content including, without limitation, the rights to edit, modify, revise, augment, redevelop, excerpt, create derivative works from, release, publish, sell, distribute, sub-distribute, assign, license, sublicense, market, and otherwise exploit the User Content solely for the purpose of delivering technology solutions.
Each User represents and warrants that: (i) he/she is the sole and exclusive owner of all User Content made available through the Website, Solution and Services; (ii) he/she has all rights, titles, licenses and permissions to grant the rights in such User Content, as provided in these Terms; (iii) the User Content made available by the User does not violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, and will not result in the violation of any applicable law or regulation; and (iv) the User Content made available by the User does not contain any viruses, worms, Trojan horses, or other malicious codes.
Each User shall take any and all necessary steps in order to protect its confidential and proprietary information. Under no circumstances shall we be liable for any loss or damage you or anyone else incurs as a result of any breach of confidential or proprietary information by any third party.
Diligend does not control the User Content. Diligend does not guarantee the accuracy, integrity or quality of any User Content. Diligend is not an owner of any User Content, unless otherwise directly stated by Diligend. As a result, we cannot guarantee that all information is accurate, complete and correct, nor can we be held liable for any errors, omission, interruptions, inaccurate, misleading or untrue information or non-delivery of information and/or services. Each User shall solely verify with whom they are dealing with.
Though Diligend does not verify the User Content, Diligend may (but is not obliged to) in its absolute discretion delete, amend, or otherwise preserve disclosure in order to: (a) comply with applicable laws and governmental decrees; (b) protect rights and property of Diligend, Users or any third party; or (c) respond to complaints that any User Content infringes any rights of third parties.
By submitting the User Content, you grant Diligend the right to use, copy, manipulate, create derivative works, create and use anonymous/ aggregate data as necessary out of the User Content solely for the purpose of delivering the Solution or Services.
INTELLECTUAL PROPERTY RIGHTS OF DILIGEND
The intellectual property contained in the Website, Solution and Services (and any derivative works based on them) is confidential and/or proprietary information of Diligend, our affiliates or its licensors and is protected by copyright and other intellectual property rights. All title, ownership and intellectual property rights on the Website, Solution and Services shall remain with Diligend, our affiliates or licensors, as the case may be. All rights not otherwise claimed under the Terms or by Diligend are hereby reserved.
You further acknowledge and agree that the Website, Solution and Services are protected by copyrights, trademarks (whether registered or being under registration), service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Diligend or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Services, Solution or the Website, in whole or in part. Without limiting the foregoing, any reproduction, redistribution, reverse engineering or decompilation of the Services, Solution or the Website is expressly prohibited by law, and may result in severe civil and criminal penalties.
‘’Confidential Information’’ shall mean any and all proprietary and confidential data or information of a Party or any of its affiliates exchanged between Diligend and the Client in connection with the provision or use of Solution and Services.
The Confidential Information shall include, without limitation, all forms and types of financial, business, technical, economic, competitively sensitive information, personal information of the disclosing party, proposals, patterns, plans, compilations, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints (including, without limitation, diagrams, explanation, examples, analogies), designs, prototypes, processes, procedures, codes, software, marketing plans, financial plans, financial analysis, business plans, strategies, or names of customers or any other documentation, password and server logins, data or material related to disclosing party’s business and/or technologies.
The receiving Party’s obligations shall not apply with respect to Confidential Information which the receiving Party can prove: (a) was known to receiving Party before receipt from a disclosing Party; (b) is or becomes a matter of public knowledge through no fault of receiving Party; (c) is rightfully received by receiving Party from a third party which owes no obligation of confidentiality to the disclosing Party; or (d) is independently developed by the receiving Party without use of any Confidential Information of the disclosing Party.
Each Party agrees that each receiving Party will treat and regard each item constituting the disclosing Party’s Confidentiality Information as strictly confidential and wholly owned by the disclosing Party and will not, without prior written consent of the disclosing Party, for any reason, communicate to any third party, use, sell, lend, lease, distribute, license, give, transfer, assign, show, disclose, reproduce, copy or misappropriate, or permit to its employees or agents to do any of the above with respect to all or any part of the disclosing Party’s Confidential Information, except a) as required by regulatory, judicial, or governmental action b) as necessary for Diligend to deliver the solution or c) as otherwise expressed within this agreement.
The receiving Party may retain, but not use, a copy of the disclosing Party’s Confidential Information as necessary for maintaining its internal business records, for audit or legal purposes, or as required by applicable law after termination or expiration of this agreement. As such Confidential Information so retained shall remain subject to the terms of this Agreement.
NO WARRANTIES; LIMITATION OF LIABILITY
Client acknowledge and agree that all access and use of the Website, Solution and Services is at its own risk. Without prejudice to the generality of the foregoing, Diligend will not be liable if the Website, Solution or Services are inaccessible or unavailable in whole or in part due to periods of downtime, or for any reason beyond our reasonable control, or because we are carrying out maintenance, upgrades, developments or the like.
All Services are provided “as is” and “as available”. Under no circumstances shall Diligend be liable for any errors or omissions in the Services or User Content. Diligend makes no representations or warranties of any kind, either express or implied, as to the operation of this Website, Solution or the Services, User Content or other materials included on this Website, Solution or Services. Diligend does not warrant or make any representations regarding suitability, availability, accuracy, reliability, completeness, timeliness, or regulatory compliance of any material or information of any kind contained within the Website, Solution, Services or User Content. We cannot ensure that the Services, User Content, and other information provided on the Website or Solution are accurate, correct, reliable, exhaustive or complete on every subject.
Under no circumstances shall Diligend, including its subsidiaries, affiliates, officers, agents, licensors, employees, partners, licensors or others involved in creating, sponsoring, promoting or otherwise making available the Website, Solution, its content and Services, be liable to any person or entity whatsoever for any direct, indirect, incidental, consequential or punitive damages or any damages or losses whatsoever.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, DILIGEND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEBSITE, SERVICES AND SOLUTION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGES THAT YOU HAVE NOT RELIED ON ANY WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THESE TERMS. DILIGEND DOES NOT WARRANT THAT THE USE OR OPERATION OF THE WEBSITE, SERVICES AND SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY
DILIGEND’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUND THAT DILIGEND HAS RECEIVED FROM CLIENT FOR THE CURRENT TERM. IN NO EVENT WILL VENDOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE LIABILITIES LIMITED IN THIS SECTION APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF DILIGEND IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of limitation of liability, Diligend’s liability will be reformed and limited to the maximum extent permissible under the law. For the avoidance of doubt, Diligend’s liability limits and other rights set forth apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
Client agrees to indemnify, defend and hold harmless Diligend and its subsidiaries, affiliates, officers, agents, licensors, employees, partners, independent contractors, or consultants from and against any and all claims, allegations, damages, losses or liabilities, including reasonable attorneys’ fees and expenses, due to or arising out or relating to a) Client’s breach of the representations and warranties made by Client in this agreement, b) any violations of a third party’s intellectual property rights caused by an information or data provided by the Client to Diligend or within the solution, c) any including personal information of third parties provided by the Client. d) that use of the System through Client’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; or (e) injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Client or of any of its agents, contractors, or employees.
INTERNATIONAL USE OF WEBSITE, SOLUTION AND SERVICES
Diligend makes no representation that the Website, Solution and Services are appropriate or available for use in certain locations. If you access the Website or Solution and use the Services, you do so at your own initiative and are responsible for compliance with local applicable laws and regulations.
Diligend shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.
CHOICE OF LAW AND JURISDICTION
These Terms shall be interpreted, construed, and enforced in accordance with the laws of the State of Delaware, USA without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York, New York. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
No joint venture, partnership, employment, or agency relationship exists between you and Diligend as a result of these Terms.
No waiver by either party of any default by the other in the performance of any provisions of these Terms shall operate as a waiver of any continuing or future default, whether of a like or different character. This Client may not assign this Agreement.
Any notice or other communication to be given to us under these Terms shall be in writing in the English language unless otherwise agreed between Diligend and the User. Any notice or other communication from Users shall take effect only when received by us unless such notice or another communication is contrary to these Terms.
These Terms in combination with the Order Form, constitute the entire agreement between you and Diligend with respect to your use of the Solution and Services and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.