1. Introduction. These Terms of Use (the “Terms”) set out the terms and conditions under which SecondRE Markets LLC (the “Firm”) will maintain the Customer’s account and govern the relationship between the Firm and the Customer, including with respect to Customer’s access to the Firm’s platform (the “Platform”) for facilitating the private placement of interests in real estate holdings held by special purpose vehicles (“Securities”) in the secondary market. In addition, affiliates of the Firm may also use the Platform to offer primary private placements of interests held by special purpose vehicles in real estate holdings to Customers. All capitalized terms are defined in “Definitions” below. By accessing and using the Platform, each Customer and any representative of the customer that may be authorized by the Customer (“Customer Representative” and together with Customers, the “Users”) agree to be bound by these Terms.
2. Amendment. The Firm may amend or repeal these Terms at any time and for any reason, and upon the effective date, such amendment or repeal will be binding on the Customer and all Users and, unless otherwise required by Applicable Law, all actions taken and any Transactions entered into after such effective date. The Firm will provide notice to each Customer of any material changes to these Terms prior to the effective date of such change, by notifying all Customers by email on or prior to the effective date of the change. Upon such notice, a Customer may terminate its Customer Agreement, effective the date of such change, by providing prompt written notice to the Firm.
3. Conflict. In the event of a conflict between any provision of these Terms and the terms of any other agreement between a User and the Firm, these Terms will prevail, unless expressly stated otherwise in such other agreement.
4. Customer Qualifications. Customer must, at all times when a Customer of the Firm: (a) be organized, resident or domiciled in the United States, or in another jurisdiction in which the Firm is authorized to provide services; (b) be (i) an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act, or (ii) a “qualified institutional buyer” as defined in Rule 144A of the Securities Act, or (iii) otherwise permitted by the laws of the jurisdiction in which the Customer is organized, resident or domiciled, to participate in the buying and selling of the Securities; (c) be using or intending to use the Platform to buy and sell Securities for the Customer’s own account and not be a FINRA-registered broker-dealer or any other person or entity in the business of, or with the purpose of, intermediating investment or financial transactions in exchange for compensation; (d) if a person, is at least 18 years of age; and (e) be in compliance with these Terms and Applicable Law in all material respects.
5. Platform Credentials. Customer may only access the Platform using the username and password, and any additional forms of authentication that may be required, provided by the Firm (the “Credentials”). The Customer is solely responsible for keeping the Credentials confidential and secure, and for ensuring that any Customer Representatives keep the Credentials confidential and secure. The Customer is responsible for all Orders, instructions and communications or other actions taken using the Customer’s Credentials or any of its Customer Representatives’ Credentials, or originating from the Customer’s account. If any of the Credentials are lost, stolen or compromised in any way, the Customer must notify the Firm as soon as practicable, so that the Firm can cancel the Credentials, but in the meantime the Customer is responsible for any actions taken using the Credentials, until the time of cancellation. Credentials are non-transferable, non-assignable and may not be sold or leased.
6. Active Securities. The Firm will determine in its sole discretion which securities may be traded or listed on the Platform at any given time (the “Active Securities”). The Firm may remove an Active Security from the Platform at any time and for any reason determined by the Firm in its sole discretion, and in the event that there are any pending Orders on the Active Security, these Orders will continue to be active until such time as they, by their own terms, expire.
7. Firm Representatives. The Customer acknowledges that the Firm’s registered representatives (“Firm Representatives”) are notified of all Orders made through the Platform, together with the terms thereof, and will receive copies of all communications that the Customer may post or receive through the Platform. Firm Representatives may communicate with Customer from time-to-time, including to remind Customer about the Terms of the Platform, or request updates on the status of Orders or other activities on the Platform. A Customer in receipt of such communications must make best efforts to respond to these communications within two (2) business days. The Customer acknowledges that submission, posting or provision of any information by a Firm Representative to a User, whether through the Platform or otherwise, is not a recommendation by the Firm that the User or Customer or any Person enter into any Transaction or that any Transaction or any Order is suitable for any User or Customer or any Person.
8. Customer Representatives. Customer may, using the mechanisms provided by the Firm from time to time, appoint and authorize Customer Representatives to use the Platform on behalf of the Customer. The Firm reserves the right to require approval of some or all Customer Representatives in its sole discretion. The Customer is responsible for all actions taken by any Customer Representative on the Platform. A Customer Representative cannot be a FINRA-registered broker-dealer or any other person or entity in the business of, or with the purpose of, intermediating investment or financial transactions in exchange for compensation.
9. Matching Service & Placing Orders. Customer understands that the Platform is a matching service for buyers and sellers of Securities in the secondary market and that the Firm may also participate in some transactions as principal (and affiliates of the Firm may also undertake primary offerings of Securities on the Platform). Customers may participate in the Platform by placing Orders, which represent a serious, but not binding, intention and ability to complete a Transaction on the posted terms. Orders must include all pertinent details about the securities offered for sale such as price and lot size. By creating and posting the Order, the User is representing that (i) the Customer is permitted to rely upon the Exemptions, or one of them, to sell these securities, (ii) the Order is true and accurate in all respects, (iii) upon acceptance of an Order, the Customer stands ready to effectuate the transaction, and (iv), where posting a sell Order, the Customer owns or has the right to own or purchase the securities for re-sale.
10. Minimum Order Sizes. There is currently a $25,000 minimum order size requirement for the Platform, which may be changed from time to time at the Firm’s sole discretion, effective upon ten (10) day’s prior written notice.
11. Intermediated Orders. The Customer acknowledges that the Firm may from time-to-time post to the Platform Orders, on behalf of a Person who is not a Customer, or on behalf of an intermediary or broker who is acting on behalf of a Person who is not a Customer (“Intermediated User”), but only once the Firm has received representations from the Intermediated User that the Intermediated User (i) owns or has the right to own or purchase for resale, or represents someone else who does, (ii) is permitted to rely upon the Exemptions, or one of them, to transact in the Active Securities, (iii) stands ready, upon the acceptance of an Order, to effectuate the transaction, and (iv) any other conditions which the Firm finds reasonably necessary to impose.
12. Execution.
(a) Upon the matching of an Order, the Firm will contact the sponsor, the buyer and the seller off-Platform and present the terms of the Transaction, including lot size, price, conditions or trade restrictions, Transaction Fee payable, and any other pertinent details.
(b) Once the sponsor grants approval and the parties indicate that they wish to effectuate the Transaction, the Firm will send instructions for the Transaction to be cleared and settled by the escrow agent.
(c) Once the Firm receives confirmation of the completion of the Transaction from the escrow agent, the Firm will send a 10b-10 notice to such Customers confirming the terms of the Transaction and updating such parties’ records on the Platform.
Customer is solely responsible for, and the Firm is not obligated to participate in, the completion, execution, closing and settlement of their Transactions, and the transfer of the funds and the Active Securities.
13. Transaction Review. The Customer is responsible for reviewing all Orders submitted or posted through the Platform to ensure that they are accurate and complete. If a Customer believes that an Order was incorrectly displayed on the Platform or wants to dispute or object to any Order made through the Platform, the Customer may request review of the Order by submitting such objection in writing within seven (7) calendar days from the date on which that Order is posted to the Platform, after which time the Customer’s right to dispute or object to an Order is waived. If the Firm determines, based on its review of its records, that an error occurred, the Firm shall modify the Order as soon as practicable, and the Firm shall notify the applicable Customer of any such decision. Any conclusion by the Firm that an error did or did not occur along with any modification made by the Firm will be final and non-appealable.
14. Fees and Commissions.
(a) Upon completion of a secondary Transaction through the Platform, a Customer will be responsible for paying a fee to the Firm at the rate set out in the following table (the “Transaction Fee”).
Transaction Fee Schedule
Buyer 1%
Seller 3%
(b) The Transaction Fee is due and payable upon the closing of the relevant Transaction. All fees and other amounts payable by the Customer hereunder are exclusive of taxes and similar assessments. Without limiting the foregoing, the Customer is responsible for the payment of any sales, use, goods and services, value added, transfer, property and other taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, provincial or local governmental or Regulatory Authority on any amounts payable by the Customer in connection with the Customer’s use of the Platform, excluding any taxes imposed on the net income of the Firm. Transaction Fees for primary offerings will differ and be disclosed in the offering documents therefore.
15. Suitability. The Customer acknowledges and agrees that its use of the Platform is self-directed, that the Customer is solely responsible for all Orders placed through the Platform, and that all Orders entered by Customer or on Customer’s behalf are unsolicited and based on Customer’s own investment decisions. The Customer agrees that the Firm does not provide any investment, legal, tax or accounting advice. The Customer also acknowledges that if the Firm provides research materials, analysis on pricing, news, or other information, these materials are intended for informational and educational purposes only and do not constitute a recommendation to enter into any Transactions or to engage in any investment strategies. The Customer acknowledges that such information and analysis made available by the Firm is general in nature, and not tailored to the Customer’s personal financial circumstances or investment objectives.
It is the Customer’s sole responsibility to determine the suitability of Customer’s investments including those matched through the Platform. The Firm has no responsibility for such determinations and the Firm will have no liability or responsibility whatsoever for the results of the Customer’s investment strategies, Transactions or decisions.
The submission or posting of any information to or on the Platform by the Firm or any other Person is not a recommendation by the Firm that any Person enter into any particular Transaction or that any Transaction is suitable or appropriate for any Person.
16. Risks of Trading in Securities. Customer acknowledges that investing in Securities is highly speculative involving a high degree of risk, and that such securities may be illiquid and that there is no guarantee that a market will be available for them. Accordingly, investment in the Securities is appropriate only for those investors who can tolerate a high degree of risk, can withstand a total loss of investment, and do not require liquidity of their investment. Each investment carries its own specific risks and Customer understands that Customer must complete his or her independent due diligence regarding a given investment, including obtaining additional information about the company, opinions, financial projections and legal or other investment advice. The Customer understands that inherent, actual or potential conflicts of interest may exist between Customers and the Firm and hereby waives any and all such conflicts of interest.
The Firm has no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of any counterparty to a Transaction or to advise or opine on any related solvency issues. The Customer is responsible for making its own independent investigation and appraisal of any Transaction and the Firm will have no responsibility or liability with respect thereto.
The Firm is not responsible for and does not guarantee performance of any Transaction initiated or effected through the Firm or the Platform.
17. Market Data. The Firm may make certain Market Data available to Customer. Customer acknowledges that the Firm has a proprietary interest in the Market Data to the extent that such data originates from the Platform, or that a third party has a proprietary interest in the Market Data to the extent that it is provided by a third party under contract to the Firm. Customer is permitted to access and use the Market Data only for its individual use and at Customer’s own risk, and shall not furnish it to any other entity or person, or reproduce, circulate, distribute, store, create derivative works from it or otherwise commercially exploit it, except with the Firm’s express written consent.
Customer understands that where Market Data is provided, neither the Firm nor the third party furnishing the Market Data to the Firm, guarantees the timeliness, sequence, accuracy, completeness, reliability or content of the Market Data or warrants that the provision of such Market Data will be uninterrupted or error-free. The Customer understands that the methodologies used in determining such Market Data may change at any time. Neither the Firm nor any third party that furnishes Market Data to the Firm by contract or otherwise will be liable to the Customer for any Losses or other consequences arising from its use of or reliance on Market Data.
Customer acknowledges that the Market Data may include data provided to the Platform by the Customer, or generated by the Customer’s use of the Platform, including for example data about bid and ask prices, and transaction prices and volumes, provided however that the Firm may only do so in an aggregated and anonymized way and in accordance with the Privacy Policy.
18. Suspension, Limitation or Termination of Access to the Platform. The Firm may suspend, limit or terminate a User’s Credentials and/or any access of a Customer or Customer Representative to the Platform, effective immediately (i) if the Firm suspects, in its sole discretion, that the User is in violation of these Terms or any other agreement between the parties or any Applicable Laws or regulations including rules regarding anti-money laundering and any rules governing Customer’s right to trade in Securities; (ii) Customer’s account is subject to any pending litigation, investigation or government proceeding or the Firm believes there is some unusual activity in the account or suspects, in its sole discretion, that Customer’s account or Credentials are being used in an authorized or inappropriate manner; (iii) upon the occurrence of any event that would prevent the Firm from facilitating Transactions on the Platform, including, without limitation, any loss or potential loss of regulatory authorization or licence, or any change in Applicable Law or regulations, (iv) if the Firm determines, in its sole discretion, that the security or normal operation of any part of the systems or services of the Platform (or services, equipment, or facilities used to support such systems or services), has been compromised and cannot be promptly cured; or (v) in any other situation where the Firm, in its sole discretion, deems such suspension, limitation or termination necessary for its own protection or the protection of the Customer. The Firm will notify Customer of any such action, if legally permitted.
The suspension, limitation or termination of a Customer’s account or access to the Platform does not relieve that Customer of its obligations (i) arising from or relating to its use of the Platform prior to such termination, (ii) in connection with any pending Transaction or Order, or (iii) to pay any fees, costs, commissions, or charges incurred prior to such termination. A User’s obligations pursuant to Chapters 4, 5 and 6 of this Rulebook will survive the termination of a User’s Credentials, Customer Agreement or other access privileges.
19. Customer Conduct on the Platform. In connection with its use of the Platform and with respect to each Order posted or Transaction effected through the Platform, or any communications made through the Platform, Users shall (i) observe high standards of fair dealing and just and equitable principles of trade; (ii) not manipulate or attempt to manipulate the market; (iii) not knowingly make, or cause to be made, Orders, or engage in any communication, other than in good faith for the purpose of executing bona fide Transactions and to convey accurate and complete information regarding such Orders, or the securities that are the subject thereof; (iv) not make any fraudulent or misleading communications, or knowing misstatement of a material fact or engage in any fraudulent act or any scheme to defraud, deceive, trick or mislead; (v) cooperate promptly and fully with the Firm in any investigation or inquiry by the Firm with respect to Customer’s use of the Platform and any Order posted or Transaction effected through the Platform; and (vi) provide to the Firm such information as the Firm may reasonably request in order for the Firm to (a) satisfy the Firm’s obligation to conduct a reasonable inquiry under Section 4(a)(3) of the Securities Act, Section 4(a)(4) of the Securities Act and/or any other applicable Exemptions; (b) conduct due diligence on the Customer including, but not limited to, customer identification information reasonably necessary to perform due diligence for anti-money laundering purposes, (c) complete any onboarding the Firm determines is reasonable in order to permit the Customer continued access to the Platform, (d) comply with any other regulatory or compliance obligations applicable to the Firm, and (e) ensure that the Customer is in compliance with these Terms and any other agreement between the parties.
20. Restrictions on Use of Platform. Users shall not at any time, directly or indirectly, (i) use the Platform or the Software for any purposes other than in connection with the purpose intended hereunder, and specifically to post Orders, communicate with, and initiate Transactions in Securities; (ii) copy any portion of the Platform or the Software; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discern the source code, algorithms, software design or architecture of the Platform or the Software in whole or in part; (iv) modify, adapt, translate or reproduce the Software, merge any part of the Software with or into other software, or create derivative works based upon the Software; (v) use the Platform or the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right of any Person including the Firm and its affiliates, or that violates Applicable Laws or regulations; (vi) take or authorize any action that could detrimentally interfere with the operation of the Platform; (vii) knowingly introduce or permit the introduction of any viruses or other software routines or hardware components designed to permit unauthorized access or to disable, erase, or otherwise harm the Platform; (viii) access or use the Platform or the Software for the purpose of benchmarking or competitive analysis of the Software; developing, using or providing a competing software product or service; or any other purpose that is to the Firm’s detriment or commercial disadvantage; ) links to materials or other content, directly or indirectly, to which you do not have a right to link or which we determine in our sole discretion is not appropriate to be linked to from the Platform; (ix) is not consistent with the purpose of and the services offered by the Platform, including but not limited to seeking to gather information about specific real estate assets offered on the Platform to utilize, discuss, and/or comment on it off of the Platform; or (x) violates, or encourages others to violate these Terms or any ancillary terms and conditions to which your use of the Platform is subject (or engages in any other activity deemed by us to be in conflict with these Terms or any such ancillary terms and conditions), or violates or encourages others to violate any Applicable Law.
21. Non-Circumvention. The Customer hereby is prohibited from engaging/transacting with any Issuer Company or other Customer outside of the Platform regarding a specific offering that appeared on the Platform. Pursuant to the terms of this Agreement to which you are bound, selling Customers are prohibited from offering/transacting to sell any interests that they post on the Platform outside thereof for as long as the said interests are listed on the Platform.
22. Customer Account Information. The Customer hereby certifies that information contained in the Customer’s application and any other document that the Customer has or will in the future provide to the Firm in connection with the Customer’s account is complete, true and correct and is Customer’s property. The Firm may take steps to confirm or verify information provided by the Customer and may restrict Customer’s access to the account or take such other action that the Firm deems necessary pending such confirmation. The Customer must advise the Firm of any changes to any Customer information submitted to the Firm at any time, including any identifying or contact information or other relevant information, and must do so promptly, but in no case later than ten (10) calendar days after the information changes.
The Customer understands that the Firm may use information submitted in the Customer application to verify the Customer’s identity and perform requisite background checks required by Applicable Law and regulations and any other procedures it deems reasonable.
The Firm is entitled to rely upon and assume the accuracy and completeness of all information provided by the Customer without independent investigation, and the Firm is not responsible for verifying the adequacy, accuracy or completeness thereof for any purpose.
The Customer agrees to use the services of the escrow agent designated by the Firm to effect all Transactions. The Customer acknowledges that any information it provides to the Firm may also be shared with the escrow agent, or vise-a-versa.
23. Access to Platform and Downtime. The Customer understands that the Firm will use commercially reasonable efforts to provide the Customer with a reliable and secure Platform. From time to time, interruptions, errors or other deficiencies in service may occur due to a variety of factors, some of which are outside of the Firm’s control, and part or all of the Platform may be periodically unavailable during scheduled maintenance or unscheduled downtime (collectively “Downtime”). During periods of Downtime, the Customer may have difficulty accessing the Platform, placing Orders or concluding Transactions with counter-parties. Customer understands that following Downtime, when services resume, the prevailing market conditions may differ from those prior to such Downtime, and agrees that the Firm is not liable to the Customer for any inconvenience or Losses incurred by the Customer as a result of such Downtime.
24. Modifications to Platform. The Firm has the sole discretion and control over, and the right to modify at any time, the functionality, configuration, appearance and content of the Platform, including without limitation: (i) the selection of Active Securities available on the Platform; (ii) the parameters and protocols by which Orders are placed or otherwise processed by the Platform; and (iii) the availability of the Platform with respect to particular Transactions at any particular times or locations.
25. SPIC Protection. The Firm is a member of the Securities Investor Protection Corporation (“SIPC”).
26. FINRA BrokerCheck. The FINRA BrokerCheck Program allows investors to learn about the professional background, business practices and conduct of FINRA member firms and their associated Persons. As part of this Customer has access to the FINRA BrokerCheck hotline at 800.289.9999; the website is FINRA.org. An investor brochure that includes information describing FINRA BrokerCheck is also available on the FINRA website or upon request.
27. Confidentiality. Users shall maintain Firm Confidential Information in confidence and not disclose such information to third parties or use such information for any purpose whatsoever other than in connection with the purposes intended hereunder, and specifically to post Orders and initiate Transactions in Securities.
The Firm and its Affiliates may use User Data pertaining to each User in any manner, media and jurisdiction for the benefit of the Firm and/or its Affiliates but subject to the Privacy Policy, and to disclose and display User Data pertaining to Users, in any manner, media and jurisdiction solely on an aggregated or anonymized basis. Except as permitted by these Terms, or with a Customer’s prior written consent (as applicable), or as may be requested or required to be disclosed by Applicable Law or in connection with any Legal Process, the Firm shall not otherwise disclose User Data.
Notwithstanding any other provision of these Terms, the Firm’s and each User’s obligations under this section shall not apply to information or data that: (i) is or becomes publicly available other than by reason of disclosure by the receiving party in violation of its confidentiality obligations contained herein; (ii) was within the receiving party’s possession prior to it being furnished by the disclosing party; (iii) becomes available to the receiving party from a source not known or reasonably believed by the receiving part to be in breach of an obligation of confidentiality to the disclosing party; (iv) is independently developed by the receiving party without reference to the Confidential Information; or (v) is requested or required to be disclosed by Applicable Law or in connection with any Legal Process.
28. Arbitration Agreement and Disclosure.
These Terms contain a pre-dispute arbitration clause. By assenting to these Terms the parties agree as follows:
• All parties to these Terms are giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.
• Arbitration awards are generally final and binding; a party’s ability to have a court reverse or modify an arbitration award is very limited.
• The ability of the parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings.
• The arbitrators do not have to explain the reason(s) for their award unless, in an eligible case, a joint request for an explained decision has been submitted by all parties to the panel at least 20 days prior to the first scheduled hearing date.
• The panel of arbitrators may include a minority of arbitrators who were or are affiliated with the securities industry.
• The rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court.
• The rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into these Terms.
Any dispute arising out of or relating to these Terms, or any alleged breach thereof, must be settled by binding and non-appealable arbitration to be administered by the FINRA dispute resolution process in New York, New York, in accordance with its rules then in effect, and judgment upon the award may be entered in any court having jurisdiction over the parties in the state or federal courts of New York, and the parties hereby consent to personal jurisdiction and the exclusive venue of such courts.
No Person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any Person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (A) the class certification is denied, or (B) the class is decertified; or (C) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate will not constitute a waiver of any rights under these Terms except to the extent stated herein.
29. Limitation of Liability.
(a) Neither the Firm, nor its Affiliates, nor any of their respective officers, directors, employees, members, equityholders, agents, consultants or service providers (each, a “Covered Party”) will be liable to any Person for any Losses arising out of or in connection with:
(i) any failure, malfunction, delay, omission, suspension, error, inaccuracy, interruption, termination, or any other event in connection with the furnishing, performance, operation, maintenance, use of or inability to use, or the unintended and unforeseen results obtained by any Person resulting from such use, of all or any part of any of the systems and services of the Firm, or services equipment or facilities used to support such systems and services;
(ii) the failure of any connection or communication service to provide or maintain access to the Platform, or for any interruption or disruption of access to the Platform; or
(iii) any errors or inaccuracies in information provided by the Firm or any Affiliate or their respective representatives or agents, or any of the Firm’s systems, services or facilities; or
(iv) any failure of customer, client or counterparty to perform its obligations with respect to any Transaction; or
(v) any failure to maintain the Platform or to supply any corrections, updates or releases in connection therewith; or
(vi) any alteration, unauthorized access to or unauthorized use of any of the Firm’s systems, services, equipment or facilities by any Person.
(b) The foregoing limitation of liability will apply whether a claim is based on breach of contract, tort, including without limitation, negligence, strict liability, negligent misrepresentation, restitution, breach of statutory duty, breach of warranty or otherwise and whether the claim is brought directly or as a third-party claim.
(c) Notwithstanding the foregoing, the Firm may assume responsibility for direct, out-of-pocket losses directly caused by the gross negligence, fraud or willful misconduct of a Covered Party. The Firm’s total combined aggregate liabilities to any Person and such Person’s owners, managers, directors, officers, employees, contractors, agents and other representatives, and their respective Affiliates, shall not in such circumstances exceed US$10,000.
(d) Under no circumstances will the Firm be liable for any indirect, special, incidental, consequential, exemplary loss or punitive damages of any kind, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties or otherwise, including, without limitation, any loss of revenue, loss of actual or anticipated profits, trading losses, loss of opportunity, loss of market share, loss of goodwill, loss of reputation or loss of, damage to or corruption of data, cost of substitute products or cost of capital, loss of opportunity or loss of use however suffered or incurred, regardless of whether the Firm has been advised of the possibility of such damages or whether such damages otherwise could have been foreseen or prevented.
30. No Warranties. Customer understands and agrees that Customer’s use of the Platform or any other services provided by the Firm or any of its Affiliates is at Customer’s sole risk and is provided on an “as is” and “as available” basis. Neither the Firm nor any of its Affiliates or third parties make any representations, either express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. In no event will the Firm or any third party be liable for direct, indirect, incidental or consequential damages resulting from any defect in or use of the Platform or any services provided by the Firm.
31. Indemnification. Customer shall defend, indemnify and hold harmless the Firm and its Affiliates, and their respective officers, directors, employees, members, equityholders and agents (each, a “Firm Indemnitee”) from and against all Losses arising out of or relating to (a) Customer’s use of the Platform, (b) any Transaction effected through the Platform; or (c) Customer’s violation of Applicable Law or of these Terms; provided, in each case, that such Losses do not result from a Firm Indemnitee’s fraud, gross negligence or willful misconduct.
32. Miscellaneous.
(a) Governing Law. These Terms and the Customer Agreement will be governed by and construed in accordance with the laws of New York State, without regard to its conflicts of laws principles.
(b) Headings. The heading of each provision in these Terms and in the Customer Agreement is for descriptive purposes only and shall not be used to construe or interpret any of the provisions of the Terms or be deemed to modify or qualify any of the rights or obligations set forth herein.
(c) Binding Effect; Assignment. These Terms, the Customer Agreement, and all the terms thereof will be binding on Customer’s heirs, assigns, executors, successors and administrators. Customer may not assign these Terms or the Customer Agreement or any of Customer’s rights or obligations hereunder without first obtaining the Firm’s consent in writing. The Firm may assign these Terms, the Customer Agreement and any additional agreements between the parties and the rights and obligations hereunder and thereunder in whole or in part to a successor entity or Affiliate without Customer’s prior written consent.
(d) Severability. If any provisions or conditions of these Terms or the Customer Agreement are or become or are held to be invalid, void or unenforceable by reason of any law, rule, administrative or judicial decision, that determination will not affect the validity of the remaining provisions of these Terms or the Customer Agreement.
(e) Extension or Waiver. The Firm may, in its sole discretion, waive or extend the time period for performing any act or acts designated by these Terms or the Customer Agreement, but only to the extent that such waiver or extension is not inconsistent with Applicable Law.
(f) Entire Agreement. These Terms, together with the Customer Agreement, and any addenda, disclosures and policies attached or incorporated by reference hereto, contains the entire agreement between the Firm and the Customer concerning the subject matter of the Terms, and supersedes all prior agreements, communications or proposals, whether electronic, oral or written, between the Firm and the Customer.
(g) Notices. Any notices required by these Terms or the Customer Agreement may be transmitted by electronic mail or posted on the Firm’s website. The Firm will provide email notification to Customers alerting them of postings on its website. The Customer hereby agrees to receive electronically all documents, communications, notices, contracts, and agreements, including any IRS Form 1099 or other tax forms, schedules or information statements, including corrections of such documents, required to be provided pursuant to the U.S. Internal Revenue Service rules and regulations (collectively, “IRS Forms”) and which may be provided electronically arising from or relating to his/her/its registration as a Customer, Transaction, or use of the Platform (each, a “Disclosure”). The decision to do business with the Frim electronically is yours, and this section informs you of your rights concerning Disclosures. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any Transactions to which such Disclosures relate, whether between you and the Firm or between you and any Issuer Company and/or any other Customer thereof. Your consent will remain in effect for so long as you are a Customer and, if you are no longer a Customer, will continue until such a time as all Disclosures relevant to transactions that occurred while you were a Customer have been made. Furthermore, you also expressly consent to receiving calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, marketing partners, agents and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers).
(h) No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and SecondRE by these Terms or as a result of your use of the Platform or your engaging in any Transaction.
(i) Force Majeure. Notwithstanding any other provision of these Terms, the Firm shall not be liable for any failure or delay in the performance of any of its obligations or obligated to compensate any Person for Losses occasioned by any delay or failure of performance, to the extent such delay or failure is due to causes beyond the Firm’s reasonable control (as determined by the Firm in its sole discretion), including but not limited to the following events (each, a “Force Majeure Event”): industrial disputes of any nature, work stoppages, civil disobedience, riots, rebellions, accidents, explosions, acts of God, bomb threats, war, acts of a public enemy, embargo or other action of a Regulatory Authority, interruptions or imperfections of telecommunications, electrical failures, sabotage, terrorism, pestilence, pandemic, lightning or electromagnetic disturbances, brown-outs or black-outs, earthquakes, storms, floods, fires or other casualty, or the imposition of any new Applicable Law or the change of any Applicable Law (including the manner in which such laws are applied). In the event of a Force Majeure Event, the Firm shall give notice to the Customer, and the Firm shall take commercially reasonable measures in order to mitigate the impact of such Force Majeure Event.
33. Definitions. Unless otherwise specifically provided in these Terms or the context otherwise requires, the Terms defined in this section have the meanings specified herein for all purposes of the Terms.
“Active Securities” has the meaning set forth in Section 6.
“Affiliate” means a Person who, directly or indirectly, controls, is controlled by, or is under common control with, such other Person.
“Applicable Law” means, with respect to any Person, any statute, law, regulation, rule or ordinance of any Regulatory Authority applicable to such Person, including the Exchange Act, the Securities Act, SEC Regulations and guidance thereunder, the FINRA Rules, and, to the extent applicable to such Person, similar foreign laws or regulations.
“Covered Party” has the meaning set forth in Section 28.
“Credentials” means the login information, username, access code, password, and any other credentials that the Firm provides to a User, or that the Platform generates for a User, and that enable a User to access the Platform.
“Customer” means an entity or individual that has entered into a Customer Agreement with the Firm. Each Term applicable to a Customer shall also apply to such Customer’s Customer Representatives, officers, directors, employees, members and agents.
“Customer Agreement” means the agreement entered into between a Customer and the Firm relating to such Customer’s access to and use of the Platform.
“Customer Representative” has the meaning set forth in Section 1.
“Downtime” has the meaning set forth in Section 22.
“Exemption” means applicable federal or state resale exemptions from registrations for the Active Securities, such as Section 4(1)(a) or Section 4(a)(7) of the Securities Act, Rule 144 or Rule 144S under the Securities Act, or the “Section 4(a)(11/2) exemption” developed through case law and interpretations.
“Firm” has the meaning set forth in Section 1.
“Firm Confidential Information” means any confidential, non-public or proprietary information, content or data concerning any aspect of the business or affairs of the Firm or the Platform or contained in, displayed on, generated by, derived from, received through, or related to the Platform (other than, with respect to each Person, such Person’s User Data).
“Firm Indemnitee” has the meaning set forth in Section 30.
“Firm Representative” has the meaning set forth in Section 7.
“Force Majeure Event” has the meaning in Section 31(h).
“Intermediated User” has the meaning set forth in Section 11.
“Legal Process” means any legal, judicial, administrative, or regulatory process or proceeding, by a Regulatory Authority having jurisdiction over the receiving party or any of its Affiliates; provided that the receiving party provides advance notice of the impending disclosure (to the extent practicable, legally advisable and permitted by law or the rules governing the process requiring such disclosure), to enable the disclosing party, at the disclosing party’s sole expense, to seek a protective order or otherwise prevent such disclosure.
“Market Data” means all data distributed and/or displayed by the Firm relating to transactions in Securities.
“Order” means a function by which a Customer may place a buy or sell offer on the Platform.
“Person” means any individual, partnership, corporation, association, trust, limited liability company, joint venture, unincorporated organization or other entity.
“Platform” has the meaning set forth in Section 1.
“Privacy Policy” means the privacy policy of the Firm located at www.secondre.com.
“Regulatory Authority” means any domestic or other foreign government (or political subdivision), governmental or regulatory authority, agency, court, commission or other governmental or regulatory entity (including any self-regulatory authority or self-regulatory organization) with the authority or jurisdiction over the trading of securities or Persons engaged in such trading, or over any other activities contemplated hereunder.
“Securities” has the meaning set forth in Section 1.
“Software” means the executable, object code version of the Platform made available to Customers and Customer representatives pursuant to the Customer Agreement.
“Term” or “Terms” means any Term adopted or amended, from time to time, by the Firm related to or in respect of Transactions or the operation of the business conducted on the Platform or otherwise pursuant to these Terms.
“Transaction” means a potential private placement of securities in the secondary market, which Customer and/or Intermediated User and/or the Firm and any counterparty may consummate from time to time through the Platform. In certain circumstances, “Transaction” may also mean a primary private placement of securities by an affiliate(s) of the Firm.
“Transaction Fee” has the meaning set forth in Section 14.
“Users” has the meaning set forth in Section 1.
“User Data” means with respect to any Person, such Person’s proprietary data or personal information, including such Person’s Orders and Transactions initiated or effected through the Platform, and other proprietary information or data entered into the Platform.
