Diligend’s General Terms and Conditions
Effective as of: 21 March 2019
Diligend’s General Terms and Conditions regulate the relationship between you and/or your company and Diligend, and cover your use and access to the Platform and/or the Website. By accessing and using the Platform, and/or Website, and using the Services, you acknowledge that you have read, understood, and agreed to be bound by Diligend’s General Terms and Conditions, as amended from time to time. If you do not agree with Diligend’s General Terms and Conditions, you must stop using or accessing the Platform and/or Services immediately. If you are using the Platform and/or Services on behalf of a third party including, but not limited to a business entity, you warrant that you are authorized and have the authority to bind that third party to Diligend’s General Terms and Conditions.
1.1 The following terms are used throughout Diligend’s General Terms and Conditions and have specific meanings.
a) “Account” means the account that the Users are required to register through the Platform to use the Services;
b) “Client” means an investment company, investment consultant, or any other company or individual that has a valid Subscription to the Platform;
c) “Content” means any content submitted, generated, featured, displayed through the Platform (including but not limited to, any data, any text, correspondence, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features, and other materials that are available on the Platform). The Content includes, without limitation, any User Content.
f) “Diligend”, “we” and “us” collectively mean Diligend Inc. as well as our affiliates, directors, subsidiaries, officers, and employees.
g) “Manager” means a company which has the activity of asset or fund investment management and which successfully completes the Account registration process for the purpose of connecting with the Clients through the Platform;
h) “Order Form” means a form signed by a Client setting out the particulars of the Services that the Client is subscribing to, as well as the corresponding fees and terms that will apply to such Services;
i) “Platform” means any online tool provided, processed and/or maintained by Diligend (including, but not limited to, Diligend’s Website, all subpages and subdomains, all Content, Services, and products available at or through the Platform located at https://www.diligend.com/ or any other related domain offering access to, or facilitating the provision of, the Services).
j) “Service Fee” means the amount set out in the Order Form and chargeable by the Diligend to the Clients in return for the Services;
k) “Services” means the online and/or offline services, provided by Diligend for the provision and use of the technology that Diligend has developed for collaboration, communication between the Clients and the Managers, including without limitation access to Diligend’s Website, online community, communication tools, questionnaire and document management tolls.
l) “Subscription” means the acceptance of an Order Form by a Client as evidenced by the payment of all or part of the Service Fee.
m) “Third Party Content” means any content that belongs to or originates from parties other than Diligend and the Users.
n) “US” means the United States of America.
o) “User Content” means any content, written or otherwise, created, submitted, generated, featured, displayed through the Platform (including but not limited to, any text, correspondence, charts and files) by the Users while using the Platform.
p) “User”, “you” and “your” collectively mean a person or company that has visited or is using the Platform and/or the Services. A User may be a Client, a Manager, or an individual appointed by a Client or Manager to use the Services on its behalf.
q) “Website” means www.diligend.com
2. About Diligend
2.1 Diligend is a platform for collaboration and communication between the Users. Diligend provides access to Diligend’s virtual community; easy collaboration through Diligend’s communication tools; and secure document management tools. Diligend does not act as a financial entity or as an asset manager, investor or investment consultant.
2.2 You understand and agree that Managers are not the employees or agents of Diligend and that any transaction and/or agreement entered into as a result of your use of the Services whether oral or written, is between the Client and the Manager only and Diligend is not a party thereto. Both the Clients and the Managers have complete discretion with regard to the terms of any agreement that they may enter into with each other. Notwithstanding Diligend’s General Terms and Conditions, the Clients may enter into agreements with Managers through or outside of the Platform which may be required by the Managers and which is a contractual relationship directly between the Client and the Manager. You acknowledge and agree that, in such an instance, Diligend shall not be a party to such agreement and shall not be responsible for performing the obligations of any such agreement between the Client and the Manager, and Diligend disclaims all liability arising from or related to any such agreement.
2.3 Managers understand and agree that the relationship between Diligend and Managers under Diligend’s General Terms and Conditions shall be that of an independent service provider relationship. Nothing contained in Diligend’s General Terms and Conditions shall be construed as creating a partnership, joint venture or agency relationship, or establishing an employment between the Managers and Diligend. You agree and understand that you are not authorized to make contracts in Diligend’s name, or to transact any business in the name of Diligend, or to assume or create any obligation or responsibility binding on Diligend in any matter whatsoever.
2.4 Diligend does not endorse any Manager over another to service a Client. While Diligend uses commercially reasonable efforts to confirm that Managers are licensed and maintain the required approvals, we do not make any warranty, guarantee, or representation as to the licensing, ability, competence, compliance, quality, or qualifications of any Manager. You agree and understand that it is your duty to inquire and evaluate the licensing, ability, competence, compliance, quality, or qualifications of any Manager.
2.5 Although Diligend requires Managers to carry business and/or professional liability insurance, Diligend does not warrant or guarantee that Managers are covered by business and/or professional liability insurance and Diligend makes no warranty or guarantee with respect to the sufficiency of such business and/or professional liability insurance.
2.6 Although Diligend requires the Managers to provide accurate information, we do not confirm any Manager’ profile or any Manager’s purported identity. The Clients agree to independently research and evaluate any Manager.
2.7 Users agree that Diligend has the right to modify, suspend or terminate any Services or products available through the Website or Platform, at any time for any reason with or without notice to the Users.
3. Changes to Diligend’s General Terms and Conditions
3.1 The Users agree that we may, at our sole discretion, change or modify Diligend’s General Terms and Conditions at any time. Although we will use our best endeavors to notify the Users of any amendment to Diligend’s General Terms and Conditions, we will not be required to provide the Users with prior notification of such amendments or changes to Diligend’s General Terms and Conditions and the User’s continued use of the Platform or Services shall constitute their acceptance of such amendments or changes to Diligend’s General Terms and Conditions.
3.2 Upon any amendment or change to Diligend’s General Terms and Conditions, we will publish the amended Diligend’s General Terms and Conditions on the dedicated link available at our Platform. The Users’ continued use of the Platform and/or the Service after the publication date of a revised version of Diligend’s General Terms and Conditions constitutes their acceptance of its terms.
3.3 The Users agree and undertake to review Diligend’s General Terms and Conditions each time they visit our Platform and/or prior to their use of any Services. If the Users do not agree to Diligend’s General Terms and Conditions, as updated from time to time, the Users undertake to cease using the Platform and/or Services immediately.
4. Eligibility and Account Registration
4.1 If you would like to use our Services, you must create a personalized Account which includes a unique username and a password to access the Service for each User. Each User is responsible for maintaining the security of its Account and for all activities that occur under the Account and any other actions taken in connection with the Account. You undertake to provide accurate and complete information and keep your Account information and your Account updated. You agree to notify Diligend immediately of any unauthorized use of Account, or any other breaches of security. We will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your computer, mobile device, or other computing device and/or Account.
4.2 If you wish to use our Services as a Manager, your Account registration will have to be validated by our validation team. The Managers agree to provide us, if requested, with any and all necessary information and documents, so that our validation team can verify the Manager’s professional background and credentials. Once a Manager Account is approved, we will send that Manager an email confirming the Account registration. We may refuse to register you as a Manager at our sole discretion.
4.3 Upon approval of a Manager’s Account, the Manager shall have free access to the Clients and the Clients’ questionnaires. Those questionnaires can be public questionnaires with a deadline that has not passed yet or private questionnaires generated by the Clients through Diligend which are visible and accessible only to the Managers that have been directly invited. The Managers can decide either to participate or refuse to participate in a questionnaire.
4.4 If a Manager decides to participate, such Manager will be responsible to respond to different questions raised by the Clients through the Platform. It is the Manager’s responsibility to make sure that the responses are correct and are submitted in a timely manner. The Managers cannot modify their responses to the Client’s questionnaires once they are submitted.
4.5 The answers and any information submitted in the questionnaires are visible and accessible only to the manager’s users and the Client that generated and published the questionnaire on the Platform.
4.6 We reserve the right to suspend or terminate any Account at any time, including if any User Content or information provided during the Account registration process or thereafter proves to be inaccurate, false or misleading or to reclaim any username that you create through the Services that violates this Agreement.
5. Manager Responsibilities and Undertakings
5.1 By using or accessing the Platform, the Managers warrant and acknowledge that (i) they have the authority to validly enter into and/or be bound by Diligend’s General Terms and Conditions; (ii) they are lawfully licensed in the jurisdiction in which they conduct business and/or they are established and that they are and hold all approvals necessary for the provision of their services, and that their license and such approvals are valid and up to date.
5.2 In the event the license of a Manager provided to Diligend is amended, the Manager undertakes to provide Diligend with such amended license immediately. In case of any license suspension or non-compliance with any government approval that is required for the performance of the services provided by a Manager, such Manager undertakes to immediately cease from using the Platform and promptly notify Diligend of such suspension and/or non-compliance.
5.3 The Managers shall solely be responsible for any actions or omissions attributed to the Manager as a result of the Manager’s use of the Platform. At no point shall Diligend be held liable for the delay in, delivery, timeliness, correctness, availability or quality or performance of a Manager or accuracy or correctness of any information provided by the Manager to the Clients.
5.4 The Managers shall abide by all US local and federal laws, rules, and regulations as amended from time to time. Diligend disclaims all responsibility for the Manager’s non-compliance with these laws and regulations.
6. User Conduct Restrictions
6.1 The Users agree that they will not, under any circumstances, transmit any Content (including software, text, images, or other information) that (i) is unlawful or promotes unlawful activity; (ii) defames, harasses, abuses, threatens, or incites violence towards any individual or group; (iii) is political, pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (iv) is spam, constitutes unauthorized or unsolicited advertising, any other form of unauthorized solicitation; (v) contains or installs any viruses, worms, malware, Trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; (vi) infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights; (vii) impersonates any person or entity, including any of our employees or representatives; or (viii) violates the privacy of any third party.
6.2 By accessing or using the Platform and/or Services, you represent and warrant that your use of the Service will be solely for lawful purposes that are permitted by Diligend’s General Terms and Conditions. You undertake not to:
i. use the Website or Platform to perform criminal activity of any kind;
ii. damage, disable, overburden or impair the Website or Platform, or interfere with any other party’s use and enjoyment of the Website or Platform;
iii. attempt to gain unauthorized access to Services, computer systems or networks connected to the Services, by any means;
iv. reproduce, duplicate, copy, sell, resell or exploit any portion of the Website or Service, use of the Website or Service, or access to the Website or Service without the express written permission by Diligend;
v. violate third party rights, including, without limitation, Diligend or other Users and/or cause harm in any way;
vi. collect and store personal information of other Users without their proper authorization.
6.3 You represent and acknowledge that you are over the age of 18. Diligend does not target any Content to children or teenagers under 18, and we do not permit any Users under 18 to use our Service. Please immediately cease from using the Platform if you are under this legal age.
6.4 At our discretion, we, (or technology we employ), may monitor and/or record your general interactions with the Service. However, any liability, loss or damage that occurs as a result of any User interactions is solely your responsibility, as further described in clauses 12 and 13 of Diligend’s General Terms and Conditions.
6.5 We have the right to, in our sole discretion, determine whether or not any User conduct is appropriate and complies with Diligend’s General Terms and Conditions.
7. User Content
7.1 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. The Users agree that we are not responsible for any display or misuse of any User Content. Users are solely responsible for the content of, and any harm resulting from, any User Content that they submit, post, upload, link to or otherwise make available while using the Service. You acknowledge that any liability, loss or damage that occurs as a result of any such User Content is solely your responsibility. You further undertake and agree to indemnify and hold us (and any third party) harmless from any liability, loss or damage that may occur as a result of any such User Content.
7.2 Diligend does not control and/or verify any User Content submitted through the Platform. 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 a User Content 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 a User Content. Each User shall solely verify with whom they are dealing with.
7.3 Any Content posted on the Platform is provided for informational purposes only, with no assurance that such Content is true, correct, or accurate. The Content does not constitute the provision of any financial or investment advice.
7.4 Users represent and warrant that they have the right to post all User Content they submit. Specifically, Users warrant that they have fully complied with any third-party licenses relating to User Content (if applicable), and have taken all steps necessary to pass through to end users any required terms.
7.5 Users agree and acknowledge that Diligend has the right to, in its sole discretion, view and monitor any User Content, and to determine whether or not any User Content is appropriate and complies with Diligend’s General Terms and Conditions, or refuse or remove any User Content that, in Diligend’s reasonable opinion, violates any Diligend policy or is in any way harmful, inappropriate, or objectionable. Users further agree that Diligend has the right to make formatting, edits and other changes to the User Content or the manner any User Content is displayed on the Platform.
7.6 Except for Content that originates from Diligend, we do not claim ownership of any User Content that you post, upload or link to. You retain all ownership of, control of, and responsibility for the User Content you post. By posting any public Content including without limitation photos, company logos and reviews via the Platform, you however expressly grant Diligend and our successors a worldwide, sub-licenseable, fully-paid and royalty-free, and non-exclusive license to use, reproduce, display, modify, adapt, distribute, and perform the Content in connection with Diligend’s business purpose. This license does not grant Diligend the right to sell User Content or otherwise outside of our Platform.
7.7 Each Manager and Client understands and agrees that each User acting on its behalf shall take any and all necessary steps in order to protect its confidential and proprietary information. Users shall not be bound by any confidentiality obligations in relation to any information that is made available to them by other Users through the Platform, unless a written confidentiality undertaking has been executed between such Users. 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 a User or third party.
8. Third Party Content
8.1 By using the Service, the Users will be able to access the Third-Party Content. The Users acknowledge all responsibility for and assume all risk for their use of the Third-Party Content.
8.2 As part of the Service, Diligend may provide you with convenient links to third party platform(s) as well as other forms of Third-Party Content. We have no control over third party platforms or content or the promotions, materials, information, goods or services available on them. We are not responsible for any Third-Party Content accessed through our Platform. If you decide to leave the Platform and access Third Party Content, you do so at your own risk and you should be aware that Diligend’s General Terms and Conditions and other policies no longer govern.
8.3 This Agreement does not authorize you to distribute, publicly display, publicly perform, make available, alter, or otherwise use any Third-Party Content.
9. Intellectual Property
9.1 The Users agree and acknowledge that Diligend retains ownership of all intellectual property rights of any kind related to the Platform and Service, including applicable copyrights, patents, trademarks and other proprietary rights. Other trademarks, service marks, graphics and logos used in connection with the Platform and the Service may be the trademarks of other third parties. Diligend’s General Terms and Conditions do not transfer from us to you any Diligend or third-party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with us. We reserve all rights that are not expressly granted to you under Diligend’s General Terms and Conditions.
9.2 Specifically, Diligend, Diligend.com, and all other trademarks that appear, are displayed, or are used on the Platform from time to time or as part of the Service are registered trademarks of Diligend, and may not be copied, downloaded, reproduced, used, modified, or distributed in any way without prior written permission from Diligend.
9.3 Except as expressly permitted by applicable law or as authorized by Diligend, you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Services or the Website, in whole or in part. Without limiting the foregoing, any reproduction, redistribution, reverse engineering or decompilation of the Services or the Website is expressly prohibited and may result in civil and criminal penalties.
9.4 Subject to compliance with Diligend’s General Terms and Conditions, Diligend grants the User a non-exclusive, non-transferable, limited license to use the Website, Platform, Services, access to general functions and information on the Website, Platform and Services within the limits set forth herein. If we have reasons to believe that the User violated Diligend’s General Terms and Conditions, we are entitled, in our sole discretion, to block, suspend or terminate your access to the Website or deny the use of any Services.
9.5 If you believe that any material located on or linked to by Diligend violates your copyright, please notify us. We will terminate a User’s access to and use of the Platform if, under appropriate circumstances, the User is determined to be a repeat infringer of the copyrights or other intellectual property rights of Diligend or others without necessary rights and permissions.
10. Email Communications
We use email and electronic means to stay in touch with the Users. For contractual purposes, the Users (i) consent to receive communications from Diligend in an electronic form via the email address they have submitted or via the Platform; and (ii) agree that Diligend’s General Terms and Conditions, all agreements, notices, disclosures, and other communications that Diligend provides to them electronically satisfy any legal requirement that such communications would satisfy if it were in a physical writing or traditional mailing; and (iii) without prejudice to clause no.10(i) and no.10(ii), Users undertake to comply with clause no. 15.5 for any notification purposes.
11.1 If you wish to terminate your relationship with Diligend, you may simply discontinue using Diligend and/or not to renew your Subscription, if applicable. If you wish to delete your Account, please contact Diligend at email@example.com or via the Platform. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, and we will delete your full profile to the extent possible (if applicable).
11.2 Diligend may terminate your access to all or any part of the Platform at any time, with or without notice, effective immediately if we believe that you have breached Diligend’s General Terms and Conditions.
11.3 All provisions of Diligend’s General Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
12. Disclaimer of Warranties
12.1 Diligend makes no representation or warranty to the Users that the information we provide or that is provided through the Service is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, that the Service will function in an uninterrupted manner or be secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. The Users undertake to assume full responsibility and risk of loss resulting from their use of information, content or other material obtained from other Users or Service.
12.2 The Users are solely responsible for all of their communications and interactions with each other, as applicable, and with other persons with whom you communicate or interact as a result of your use of the Services. You understand that Diligend is not required to screen or inquire into the background of any User, nor does Diligend make any attempt to verify the statements of Users. Diligend has no control over and does not guarantee the existence, quality, correctness, or legality of any service provided by a Manager; the truth or accuracy of any Manager’s data; or that the Manager will be available at any particular time. Diligend does not warrant or guarantee that any Manager service offered outside the Platform will meet a Client’s requirements. You agree to take reasonable precautions in all communications and interactions with Users, and with other persons with whom you communicate or interact as a result of your use of the Services, particularly if you decide to communicate via other means than the Services or to meet in person.
13. Release and Indemnification
13.1 You agree to indemnify and hold harmless Diligend from and against any and all claims, demands, actions, losses, damages, assessments, charges, liabilities, costs and expenses (including without limitation lawyers’ fees, penalties, interests or loss of profits) made by a User or any third party and which may at any time be suffered or incurred by, or be assessed against, Diligend, directly or indirectly, as a result of (i) your use of the Platform and the Service or your violation of Diligend’s General Terms and Conditions or any contractual relationship (or as a result of the termination of such contractual relationship) between you and another User; (ii) any damage, loss of profit, loss of property or loss of business reputation, or otherwise that may be caused by you as a result of your use of any Service; (iii) the quality, accuracy, timeliness, reliability, performance of a Manager; (iv) errors, mistakes, or inaccuracies of your User Content, and/or information available on or through the Platform, or (v) your unauthorized access to or use of our servers and/or any and all personal information stored therein, and/or any interruption or cessation of transmission to or from our servers, and/or any bugs, viruses, trojan horses, or the like, which may be transmitted by you to or through the Platform, and/or (vi) failure or delay in the execution of any transactions through the Platform and/or the Services or, (vii) dispute, conflict or disagreement between Users in connection with any Service or information (vii) failure to ensure that the Manager is lawfully licensed and/or maintains the required approvals to perform its services in jurisdiction in which the Manager is established or conducts business..
13.2 If you have a dispute with one or more Users, you release Diligend from any and all claims, demands and damages (actual and consequential) or losses of every kind and nature, arising out of such disputes.
13.3 You agree that in no event will Diligend be liable, responsible or otherwise, to you or to third parties for any damages or losses that may arise from (i) the failure, interruption or disruption of any service to maintain your access to the Platform or the Services, regardless of whether the service is provided by Diligend or a third party or (ii) the quality, accuracy, timeliness, speed, reliability, performance of a Manager and/or the Platform, completeness or delays, breach, omissions, or interruptions in the delivery of any Service, or (iii) errors, mistakes, or inaccuracies of any Content and/or information available on or through the Platform, or (iv) any unauthorized access to or use of our servers and/or any and all personal information stored therein, and/or any interruption or cessation of transmission to or from our servers, and/or any bugs, viruses, trojan horses, or the like, which may be transmitted to or through the Platform by any third party, and/or (v) any failure or delay in the execution of any transactions through the Platform and/or the Services or, (vi) any dispute, conflict or disagreement between Users in connection with any Services, (vii) any damage, loss of profit, loss of property or loss of business reputation, or otherwise that may be caused by you as a result of your use of any Service.
14. Force Majeure
We will not be liable for any delay, interruption or failure in the provisioning of Services if caused by acts of God, declared or undeclared war, fire, flood, storm, slide, earthquake, power failure, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labor disputes, or other similar events beyond our control that may prevent or delay service provisioning.
15.1 Governing Law: Diligend’s General Terms and Conditions between you and Diligend and any access to or use of the Platform or the Service are governed by the laws of Delaware and the federal laws of the US. Any dispute which may arise between the Users and Diligend pertaining to the implementation or interpretation of Diligend’s General Terms and Conditions shall be amicably settled, failing which the courts of Delaware shall be the competent authority to settle the same.
15.2 Severability: If any part of Diligend’s General Terms and Conditions is held invalid or unenforceable, that part of Diligend’s General Terms and Conditions will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of Diligend to enforce any provision of Diligend’s General Terms and Conditions will not be considered a waiver of our right to enforce such provision. Our rights under Diligend’s General Terms and Conditions will survive any termination of Diligend’s General Terms and Conditions.
15.4 Notices to Users: Reports, statements, notices and any other communications may be transmitted by Diligend to Users via the email address specified by them in their Account. All communications and notices shall be deemed to be duly served by Diligend to a User when electronically sent by Diligend to the User to the email address specified in the User’s Account and/or the Order Form.
15.5 Notices to Diligend: Reports, statements, notices and any other communications may be transmitted by the User to Diligend at firstname.lastname@example.org.All communications and notices shall be deemed to be received or served (as applicable) to Diligend when electrotonically received by Diligend at email@example.com
15.6 Headings: The headings and captions in Diligend’s General Terms and Conditions are for convenience only and in no way define or describe the scope or content of any provision of Diligend’s General Terms and Conditions.
15.7 Gender Neutral: Wherever used herein and required by the context, the singular number shall include the plural, the plural shall include the singular number, and the use of either gender shall include both genders and the words “hereof” and “herein” and “hereafter” shall refer to the entire agreement and not to any provision or section.