Defined terms are capitalized and used throughout these Terms of Service.
Platform and Online Services - Terms and Conditions
The Trustee makes available the Platform, all information and other content available on the Platform ("Platform Content") and all functionalities and modules of the Platform and services available through the Platform (collectively, the "Online Service") to Sub-Trust Participants pursuant to the terms and conditions and agreement set forth herein and any terms and conditions incorporated herein by reference (collectively, these "Terms of Service"), which is a legally binding agreement between the Trustee and You. These Terms of Service must be read, understood and accepted by You without modification or reservation or qualification prior to accessing or using the Platform or utilizing any Online Services. These Terms of Service are in addition to those entered into in connection with the Application or any other agreement if entered into between You and the Trustee with respect to matters outside the scope of accessing or using the Platform or utilizing any Online Services. With respect to accessing or using the Platform or utilizing any Online Services, these Terms of Service constitute the entire agreement between You and the Trustee regarding, and shall govern, the use of the Platform, Online Services and Platform Content, superseding any prior version of these Terms of Service. In the event of conflict between these Terms of Service and those of another agreement in respect of the use of the Platform, Online Services and Platform Content, these Terms of Service shall prevail.
Access to the Platform is restricted to Sub-Trust Participants and their authorized agents. If you are not a Sub-Trust Participant or a person authorized by the Sub-Trust Participant to access or use the Platform or utilize the Online Services on behalf of or for the benefit of such Sub-Trust Participant, then you are not authorized to access or use the Platform and you are instructed to immediately discontinue any access or use of the Platform or utilization of the Online Services.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. YOU MAY ACCEPT THESE TERMS OF SERVICE DURING THE ACCOUNT REGISTRATION PROCESS OR LOGIN PROCESS, WHICH CONTAIN THE EXPRESS ACKNOWLEDGEMENT THAT YOU HAVE READ AND AGREE TO THESE TERMS OF SERVICE. YOU MAY ALSO ACCEPT THESE TERMS OF SERVICE THROUGH YOUR ACTIONS OR BY SIGNING A DOCUMENT WHICH CONFIRMS ACCEPTANCE OF THESE TERMS OF SERVICE (INCLUDING, WITHOUT LIMITATION, BY SIGNING AN AGREEMENT WITH THE TRUSTEE WHICH INCORPORATES THESE TERMS OF SERVICE BY REFERENCE). ACCESSING OR USING THE PLATFORM OR THE ONLINE SERVICES CONSTITUTES YOUR AGREEMENT BY YOUR ACTIONS TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT EXPRESSLY AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF SERVICE, THEN PLEASE DO NOT ACCESS OR USE THE PLATFORM OR ACCEPT THE ONLINE SERVICES. IF THERE IS ANYTHING YOU DO NOT UNDERSTAND IN THESE TERMS OF SERVICE, DO NOT ACCEPT IT. INSTEAD, ASK THE TRUSTEE TO EXPLAIN TO YOU WHAT THE TRUSTEE FEELS THE LANGUAGE MEANS OR ASK YOUR LAWYER OR A LAWYER YOU RETAIN TO ASSIST YOU IN UNDERSTANDING ANY PART OF THESE TERMS OF SERVICE YOU FEEL YOU DO NOT UNDERSTAND. THESE TERMS OF SERVICE WERE LAST UPDATED ON SEPTEMBER 20, 2023.
You understand that the Trustee may amend these Terms of Service from time to time on a prospective basis without prior notice to You. A link to these Terms of Service is presented each time You log into the Platform and, by completing the login process, You accept any amendments made since your last acceptance of these Terms of Service, effective upon completing the login process. Accordingly, You should review these Terms of Service each time You elect to log in to the Platform. The Trustee may elect to provide you with e-mail, text or other notice of any amendment these Terms of Service (and may summarize any such amendment), but neither the failure to provide, nor any inaccuracy in, any such notice shall affect Your acceptance of the modified Terms of Service by logging into the Platform.
IN THE EVENT THAT YOU DO NOT AGREE TO ANY CHANGE TO THESE TERMS OF SERVICE, YOU MAY REFUSE SUCH CHANGE BY DISCONTINUING ALL ACCESS TO THE PLATFORM AND CEASING ALL USE OF ONLINE SERVICES. IF YOU CONTINUE TO ACCESS THE PLATFORM OR USE THE ONLINE SERVICES IN ANY MANNER AFTER SUCH CHANGE BECOMES EFFECTIVE, SUCH ACCESS OR USE CONSTITUTES YOUR ACCEPTANCE OF THE MODIFIED TERMS OF SERVICE.
Now therefore, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
| 1 | Definitions and Interpretation | ||||||||||||
| 1.1 | Definitions. The following words and phrases have the meanings set forth below unless the context indicates otherwise: | ||||||||||||
| "Application" means the application to form a Sub-Trust which may be accepted by the Trustee. | |||||||||||||
| "Axonic" means Axonic International LLC and its affiliates. | |||||||||||||
| "Axonic International Master Trust" means the master trust established pursuant to the Declaration of Trust dated 16 August 2023 made by Fiduchi Trustees Limited. | |||||||||||||
| "Confidential Information" means all confidential information (howsoever recorded, preserved or disclosed) disclosed to You, in connection with this Platform at any time, including business strategies, business arrangements, computer and network operations, functions and systems architecture, any technical, financial or commercial information, or any information that would be regarded as confidential by a reasonable person; provided that, notwithstanding the foregoing, said definition excludes any information that: (i) is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party or its representatives in breach of these Terms of Service or of any other undertaking of confidentiality addressed to the Party to whom the information relates (except that any compilation of public information in a form not publicly known shall nevertheless be treated as Confidential Information); (ii) the Disclosing Party agrees in writing is not Confidential Information or may be disclosed without restriction; or (iii) was available to or becomes available the Receiving Party on a non-confidential basis from a source other than the Disclosing Party. | |||||||||||||
| "Disclosing Party" means a Party to these Terms of Service which discloses directly or indirectly Confidential Information to the other Party. | |||||||||||||
| "Intellectual Property" means all current and future legal or equitable interests in copyrights, database rights, confidential information, logos, trademarks, patents, designs or other intellectual property rights. | |||||||||||||
| "Investment Plans" means the various guaranteed index and fixed rate investment plans and/or other investments made available to the Sub-Trust Participant from time to time by the Trustee in which Sub-Trust funds may be invested. | |||||||||||||
| "Party" means You or the Trustee, as the case may be. | |||||||||||||
| "Password" means the secret code set and maintained by each User, which together with the User ID allows the User to access the Platform. | |||||||||||||
| "Platform" means the technology (including but not limited to, the computer software and hardware, online access to websites, webpages, webchat facility, computer software or hardware) operated by the Trustee or its Service Providers which enables You to conduct various Transactions including but not limited to view, read, enter, update details and material information, complete and submit forms for Transactions, print documents and information related to Your Sub-Trust, review Your selection of Investment Plans and make changes to Your Investment Plans, and where the context permits, the access to and use thereof. | |||||||||||||
| "Privacy Notice" means the privacy notice incorporated into the Application or any subsequent privacy notice in effect between the Sub-Trust Participant and the Trustee. | |||||||||||||
| "Sub-Trust" means a sub-trust of the Axonic International Master Trust established by the Trustee pursuant to an approved Application. | |||||||||||||
| "Sub-Trust Participant" means a person making an Application to the Trustee and who is approved for a Sub-Trust by the Trustee. | |||||||||||||
| "Receiving Party" means a Party to these Terms of Service that receives Confidential Information directly or indirectly from a Disclosing Party. | |||||||||||||
| "Service Provider" means any third-party service provider that the Trustee may make use of in order to provide and maintain the Platform or the Online Services. | |||||||||||||
| "Transaction" means any enquiry, election or other transaction initiated (whether or not concluded) by a User through the Platform, including but not limited to making, changing or reversing any Investment Plans, viewing Investment Plans, generating reports, statements or any other instruction as provided by the User through such Platform. | |||||||||||||
| "Trustee" means the trustee for the time being of the Axonic International Master Trust and of Your Sub-Trust. | |||||||||||||
| "Vendor Parties" means the Trustee, its Service Providers, and Axonic, and in each case their respective directors, officers, shareholders, members, managers, partners, employees, contractors, licensors, consultants, suppliers, vendors, partners, agents and representatives. | |||||||||||||
| "User ID" means the unique identification code as assigned or chosen by a User to identify himself or herself as the person accessing the Platform or initiating or authorizing Transactions. | |||||||||||||
| "User" means any person accessing or using the Platform or using the Online Services, including You and other users of the Platform or Online Services. | |||||||||||||
| "You" means the Sub-Trust Participant accessing the Platform, together with any person authorized by the Sub-Trust Participant to access or use the Platform or utilize the Online Services on behalf of or for the benefit of such Sub-Trust Participant; and the word 'Your' will be construed accordingly. | |||||||||||||
| 1.2 | References to Persons or Parties. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns. A reference to any 'Party' shall include that Party's personal representatives, successors or permitted assigns. | ||||||||||||
| 1.3 | References to Documents. A reference to a document is a reference to that document as varied, amended, extended, supplemented or novated (in each case, other than in breach of the provisions of these Terms of Service) and shall include any document which is supplemental to or expresses to be collateral with or is entered into pursuant to, or in accordance with the terms of these Terms of Service. Any amendments, modifications, addendums to these Terms of Service shall form an integral part of these Terms of Service and shall be construed herewith. | ||||||||||||
| 1.4 | References to Laws and Regulations. A reference to a 'law' or 'regulation' shall be construed as encompassing any laws, regulations, decrees, rules or guidelines issued by a relevant governmental body, department, agency or regulatory body (together with all amendments thereto from time to time) as may apply to the subject matter of these Terms of Service. | ||||||||||||
| 1.5 | Interpretation of Certain Terms. Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other genders. Unless the context requires otherwise, the word "or" shall include both the conjunctive and disjunctive. Whenever the words "include," "includes," "including" or derivative or similar words are used in this Agreement, they shall be deemed to be followed by the words "without limitation." | ||||||||||||
| 1.6 | Headings. The headings in these Terms of Service are inserted as a matter of convenience only, and do not define, limit, or describe the scope of these Terms of Service or the intent of the provisions hereof. | ||||||||||||
| 2 | General Access and Use of Platform | ||||||||||||
| 2.1 | Use of Platform. The Platform is deemed to be in use and accessed by You when it is loaded or continues to be loaded in temporary or permanent memory of Your computer or similar system or in the internet browser thereof. | ||||||||||||
| 2.2 | Equipment Required to Access Platform. You will be responsible for providing and maintaining the communications equipment (including personal computers and modems) and telephone or alternative services required at Your end for accessing and using the Platform, and for all communications service fees and charges incurred by You in accessing or availing the Platform. | ||||||||||||
| 2.3 | Duty to Seek Support. Should You require any further clarification or support at any stage when using the Platform including engaging in any Transaction, You are instructed not to proceed and to contact the support/contact numbers of the Trustee or its Service Providers for further assistance. | ||||||||||||
| 2.4 | Submission of Information by You. In consideration for access to the Platform and for Your use of the Platform, You agree to provide true, accurate, and current and complete information and data and all other information as prompted or required by the Platform. If You provide any information that is untrue, inaccurate, not current or incomplete, or not kept current, or if the Trustee or its Service Providers has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Trustee has the right to suspend or terminate Your access to the Platform (or any portion thereof). If any detail mentioned or declared to the Trustee or its Service Providers through the Platform is found to be fraudulent or unfounded, the Trustee reserves the right to cause a forfeiture of any benefits payable under the Sub-Trust or consider the Sub-Trust as void or void ab-initio at the Trustee's sole discretion without recourse by the Sub-Trust Participant. | ||||||||||||
| 2.5 | Verification of Information. You fully authorize, in accordance with the Privacy Notice, the Trustee to use any of its approved verification providers to make references and inquiries about or related to You from any source of information, or any person or entity nominated herein and to use or transfer any personal data to its Service Providers/third parties as may be required by them to perform their obligations. You further agree that the Trustee or its Service Providers may contact You any time (including electronically through email, short messaging service (sms) or telephone) for seeking any additional information or for providing any additional information whether or not related to the Sub-Trust. | ||||||||||||
| 2.6 | Availability and Maintenance of Platform. You may not have access to the Platform or Online Services at all times during the date; there will be some planned or unexpected shutdowns during operating and non-operating hours. You acknowledge that such shutdowns may result in either partial or no access to the Online Services. The Trustee reserves the right to record in its information systems or those of its Service Providers all data concerning any communication or action relating to any Transactions. The Trustee will use reasonable efforts to cause Transactions to be executed promptly after these are received from You and accepted by the Platform but does not guarantee any indicated turnaround time. | ||||||||||||
| 2.7 | Third-Party Links and Websites. Any third-party links or pointers to external websites maintained by others are "third-party sites" and are meant for convenience only. Neither the Trustee nor its Service Providers has any control over such sites and resources and is not responsible for the availability of such external sites or resources and does not endorse and assumes no responsibility or liability for any content, advertising, products or materials on or available from such sites or resources. The Trustee assumes no responsibility or liability, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such site or resource. In no event will the Trustee or its Service Providers be liable to any party for any direct, indirect, special or other consequential damages for any use of this website, or any other hyperlinked website, including, without limitation, any lost profits, business interruption, loss of programs or other data on Your information handling system or otherwise, even if we are expressly advised of the possibility of such damages. If You find anything inappropriate on any third-party site, please inform us immediately. | ||||||||||||
| 3 | Transactions | ||||||||||||
| 3.1 | Authorization to Act on Transactions. You hereby irrevocably authorize the Trustee and, to the extent applicable, its Service Providers to accept and act upon Transactions and You will be bound by all such instructions and Transactions initiated or concluded by You or on your behalf through the Platform. Any Transactions initiated using Your User ID and Password shall be deemed to be that of and initiated by You and neither the Trustee nor its Service Providers shall be responsible for any misuse of the Platform or the Online Services. | ||||||||||||
| 3.2 | Cut-Off Times for Transactions. You accept that there may be cut-off times for actioning a request and all requests received after an applicable cut-off time will be deemed to have been received on the following business day. You agree that neither the Trustee nor its Service Providers shall under any circumstances be liable for any loss or damage arising from requests or Transactions submitted after the cut-off times. | ||||||||||||
| 3.3 | Timing of Transactions. You accept that any Transaction will only be completed as and when the process is successfully concluded and thereafter acknowledged and that the Trustee makes no commitment as to how long any such process may take. You understand that any Transaction you undertake will only be completed when you have received acknowledgement of completion via the Platform. | ||||||||||||
| 3.4 | Transaction Risk. You hereby undertake to have clearly understood and to be in agreement that:
| ||||||||||||
| 3.5 | Evidence of Transactions. The Trustee's records of Transactions maintained through the Platform or otherwise shall be accepted as conclusive and binding evidence of such Transaction for all purposes. More particularly, the record of the Trustee generated by a Transaction, including the recording of the time of the Transaction, shall be conclusive proof of the genuineness and accuracy of the Transaction. | ||||||||||||
| 3.6 | Currency. Unless otherwise mentioned, all amounts and charges displayed on the Platform are in US Dollars. | ||||||||||||
| 4 | Electronic Communications | ||||||||||||
| 4.1 | Manner of Communication. Communications may be posted on the pages of the Platform, or delivered to the e-mail address provided by You or sent to you by sms messages (or other messaging technology, either now in existence or developed in the future). The Platform and the Online Services are electronic, internet-based and sms-based services. | ||||||||||||
| 4.2 | Effectiveness of Electronic Communications. All communications in either electronic or paper format will be considered to be "in writing". Any electronic communication (including sms and e-mails) will be deemed to have been received by You when the Platform sends it to You, irrespective of whether You received the communication. | ||||||||||||
| 4.3 | Upkeep of Contact Information. In order to access and retain communications, You must maintain a valid e-mail account and e-mail software capable of reading e-mails. You agree to promptly update your User records, including if Your e-mail address, mobile number or other information changes. You must immediately notify the Trustee of any loss, theft or hacking of any of Your communications accounts (including your mobile account or email account) and You shall from the time of notification stop such utilizing that communication account. | ||||||||||||
| 4.4 | Consent to Messages. As part of the Online Services, You hereby give your unconditional consent to the Trustee or its Service Providers to contact You and to send to You sms notifications on your mobile/landline telephone/emails. You agree to receive any number of sms notifications at any time and during any time within the day or night. You understand and acknowledge that charges for receiving such notifications will be completely borne by You which may include mobile roaming charges or other additional charges if any are charged by the service operator. | ||||||||||||
| 4.5 | Your Assumption of Responsibility for Electronic Communications. There are risks associated with utilizing internet and sms-based services, of which you are hereby advised and cautioned. Neither the Trustee nor its Service Providers shall be responsible for any network failure by a network provider or any transmission error of any failure of such notification not being received by You. The Trustee accepts no liability for any loss or damage arising directly or indirectly from actions taken or not taken by You or any third party in reliance on material or information contained in a message sent to You electronically. Without limitation to the foregoing, neither the Trustee nor its Service Providers will in any way be responsible or liable for any loss, damage or other consequence arising from: (a) non-delivery of any notification for any reason including as a result of Your mobile telephone or other communication device being switched off, lost, or stolen; or (b) delivery of an electronic notification to a party other than You if the communication device (including a mobile telephone or the SIM card) is not in Your possession or control for any reason whatsoever (whether with or without Your consent). You hereby agree to fully indemnify the Trustee and its Service Providers against any and all actions, proceedings, liability, costs, charges, losses or damages (including legal costs) it or they may suffer in connection with the provisions of electronic notification or as a result of any Transaction over a network in connection with such electronic notifications. | ||||||||||||
| 5 | Your User ID and Password | ||||||||||||
| 5.1 | Protection of User ID and Password. You confirm and agree that the Sub-Trust Participant will be the sole and exclusive owner and the Sub-Trust Participant and his or her duly authorized agents is the only authorized user of Your User ID and the Your Password and You accept sole responsibility for use, confidentiality and protection of the User ID and the Password as well as for all Transactions initiated through Your User ID and Password. You shall ensure that Your Password is not revealed to any third party or recorded in any written or electronic form. You agree not to disclose Your Password to, and to diligently safeguard from disclosure or use by, any person, including the Trustee. You shall also diligently safeguard any other authentication methods or devices (such as two factor authentication applications). You are hereby advised to remember Your User ID and Password, to destroy any notification containing your Password as soon as You receive it and to not write down or record Your Password. | ||||||||||||
| 5.2 | Responsibility for Platform Actions under User ID and Password. Any actions on the Platform (including Transactions) initiated or authorized by using Your User ID and Password shall be deemed to be that of and initiated by You and neither the Trustee nor its Service Providers shall be responsible for any use or misuse of the Platform or the Online Services occurring under Your User ID and Password. It is Your responsibility to ensure that no unauthorized person has access to your Password or to Your computer or other devices unattended whilst accessing the Platform. If third parties gain access to the Platform or any of the Online Services offered as part of the Platform using Your User ID and Password or through Your computer or other devices, You shall be deemed to be responsible and You hereby agree to fully indemnify and hold harmless the Trustee and its Service Providers against any liability, costs or damages arising out of claims or suits by or against such third parties based upon or relating to such access and misuse. | ||||||||||||
| 5.3 | Notification Following Loss of Password. You shall immediately notify the Trustee in writing if You become aware of any loss, theft or unauthorised use of Your User ID or Password, or any receipt by You of confirmation of any Transaction which the Sub-Trust Participant did not initiate or authorise, or any inaccurate information having been entered or of which You become aware in relation to any Sub-Trust. If You fail to notify the Trustee immediately upon learning when any of the above matters occur, neither the Trustee, nor its Service Providers nor any of their respective officers, directors, employees, advisors, affiliates or subsidiaries will have any responsibility or liability to You or to any other person. | ||||||||||||
| 6 | Restrictions on Use of Platform | ||||||||||||
| 6.1 | Prohibited Usage of Platform. You shall not (a) use the Platform or Online Services for any illegal purpose, (b) use, transfer, distribute or dispose of the Platform, the Platform Content or the Online Services in any manner that could compete or conflict with the business interest of the Trustee or otherwise compromise or imperil the interests of the Trustee, (c) reverse engineer, decompile, disassemble, copy, reproduce, distribute, modify, transmit, perform, publish or create derivative works from or (except as expressly authorized in these Terms of Service) in any way exploit the Platform, (d) modify, rent, lease, loan, sell, distribute or create derivative works based on the Platform or any Platform Content, in whole or in part, (e) create a database in electronic or structured manual form by systematically downloading and storing the entire Platform or part thereof save and except such information as relates or concerns You, (f) rent, lease, sell, sublicense, or lend Your access to the Platform, (g) cache or permit caching by any person, (h) engage in any act or omission that violates the Trustee's or its Service Providers' Intellectual Property rights, (i) engage in any fraudulent, abusive or illegal activity, including any communication or solicitation designed or intended to fraudulently obtain the Password or any private information of any other User, (j) use the Platform to violate the security of any computer or computer network, crack passwords or security encryption codes, transfer or store illegal material including threatening or obscene material or engage in any kind of illegal activity; (k) impersonate any person while using the Platform (including impersonating any person in any effort to obtain the User ID or Password of another User), or (l) run mail lists or any form of auto-responder, or spam on the Platform or any processes that are run or are activated while You are not logged on or engage in any virus attack or denial of service attach or engage in any activity designed or intended to interfere with the working of Platform for any duration of time. | ||||||||||||
| 6.2 | Notice of Unauthorized Use of Platform. You agree to notify the Trustee in writing promptly upon becoming aware of any unauthorized access or use of the Platform by any person or of any claim that the Platform infringes upon any Intellectual Property, or contractual, statutory or common law rights. | ||||||||||||
| 6.3 | Improper Material. You hereby accept and agree that neither the Trustee nor its Service Providers is under any obligation with respect to, and assumes no responsibility for, any defamatory, libelous, slanderous, falsehood, obscene, pornographic, profane or any dangerous content posted on or through the Platform by You or any other person. If the Platform allows you to post or transmit any messages, information or materials, You hereby understand and undertake not to post or transmit any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, profane or hate material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. You acknowledge and agree that the Trustee and its Service Providers may cooperate fully with any law enforcement authorities or court order requesting or directing them to disclose the identity of anyone posting any such messages, information or materials. | ||||||||||||
| 6.4 | The Trustee reserves the right to use security components that may permit digital Platform Content to be protected (including, by way of example and not limitation, digital watermark technology), and You agree that use of protected Platform Content is subject to usage guidelines established by the Trustee or any other Service Provider supplying the Platform Content. You shall not attempt to override, remove, circumvent, disable, damage or otherwise interfere with any security-related components or features of the Platform, or components or features that enforce limitations on the use of the Platform or any Platform Content. | ||||||||||||
| 7 | Disclaimer of Warranties and Limitations of Liability; Relationship of the Parties | ||||||||||||
| 7.1 | Acknowledgements. You irrevocably and unconditionally acknowledge, accept and agree that any Transaction or instruction made or given through the Platform or Online Services will be entirely at Your own risk and responsibility. You also acknowledge, accept and agree that all security procedures used and implemented by the Trustee are reasonable and adequate. You further agree that the Online Services are provided exclusively for Your benefit and neither the Trustee nor its Service Providers shall be held liable in any manner or form, for any loss or damage (including any partial, incomplete, late or failed transfer, remittances to any payee, beneficiary or other person) that may arise or be incurred directly or indirectly by reason of (a) Your inability to access or utilize the Platform or Online Services for any reason, including any technical, communication or network malfunction or breakdown; (b) the Trustee or its Service Providers carrying out Your Transactions or instructions, or (c) any reasons beyond the reasonable control of the Trustee. | ||||||||||||
| 7.2 | Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, THE USE OF THE PLATFORM, ONLINE SERVICES AND PLATFORM CONTENT ARE AT YOUR SOLE RISK. THE PLATFORM, ONLINE SERVICES AND PLATFORM CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THE TRUSTEE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PLATFORM, ONLINE SERVICES AND PLATFORM CONTENT, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITATION TO THE FOREGOING, SUBJECT TO ANY SEPARATE AND EXPRESS CONTRACTUAL PROMISES MADE BY TRUSTEE IN A SEPARATE AGREEMENT (IF ANY), TRUSTEE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES THAT (A) THE PLATFORM, ONLINE SERVICES OR PLATFORM CONTENT WILL MEET YOUR REQUIREMENTS; (B) THE PLATFORM, ONLINE SERVICES OR PLATFORM CONTENT SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE PLATFORM, ONLINE SERVICES OR PLATFORM CONTENT WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY SERVICES, ANY INFORMATION OR OTHER MATERIAL WHICH MAY BE OBTAINED THROUGH THE PLATFORM, ONLINE SERVICES OR PLATFORM CONTENT WILL MEET YOUR EXPECTATIONS; AND (E) ANY ERRORS CONTAINED IN THE PLATFORM SHALL BE CORRECTED. SUBJECT TO ANY SEPARATE AND EXPRESS CONTRACTUAL PROMISES MADE BY TRUSTEE IN A SEPARATE AGREEMENT (IF ANY), ANY PLATFORM CONTENT ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED BY WAY OF THE PLATFORM SHALL BE ACCESSED IN YOUR SOLE DISCRETION AND AT YOUR SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER AND/OR INTERNET ACCESS, DOWNLOADING AND/OR DISPLAYING, OR FOR ANY LOSS OF DATA THAT COULD RESULT FROM THE DOWNLOAD OF ANY SUCH PLATFORM CONTENT. | ||||||||||||
| 7.3 | Exclusion of Certain Liabilities. Under no circumstances, including but not limited to negligence, shall the Vendor Parties be liable to You for any direct, indirect, incidental, special or consequential damages or any damages whatsoever including punitive or exemplary damages (including, but not limited to, damages caused by any virus, personal injury, loss of profits, data or other intangible, business interruption, loss of privacy, or any other pecuniary loss), arising out of or in any way connected with the use, delivery or performance of the Platform or Online Services, with the delay or inability to use the Platform or any links or items on the Platform (including to the extent arising from interruption, suspension or termination of the Platform, whether such interruption, suspension or termination was justified or not, negligent or intentional, inadvertent or advertent), the provision of or failure to provide Online Services, or for the Platform Content, or otherwise arising out of the use of the Platform, whether based on contract, tort, strict liability or otherwise. Under no circumstances, including but not limited to negligence, shall the Vendor Parties be liable to You for cost of procurement of substitute goods and repair and correction services or resulting from the use of this Platform or obtained or messages received or transactions entered into through or from the Platform or resulting from unauthorized access to or alteration of Your transmissions or data, even if the Trustee or its Service Providers have been advised of the possibility of such damages. WITHOUT LIMITATION TO THE FOREGOING, YOU EXPLICITLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT THE VENDOR PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES WHICH MAY BE RELATED TO THE LOSS OF ANY PROFITS, GOODWILL, USE, DATA AND/OR OTHER INTANGIBLE LOSSES, EVEN THOUGH THE VENDOR PARTIES MAY HAVE BEEN ADVISED OF SUCH POSSIBILITY THAT SAID DAMAGES MAY OCCUR. | ||||||||||||
| 7.4 | Limit of Liability. IN ADDITION, THE LIABILITY OF THE VENDOR PARTIES TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF $1,000 OR THE AMOUNT YOU HAVE PAID TO TRUSTEE IN FEES DURING THE TWELVE MONTHS BEFORE THE ACTION GIVING RISE TO LIABILITY. | ||||||||||||
| 7.5 | Relationship of the Parties. You represent and agree that neither the Trustee nor Axonic is acting as Your investment advisor, financial or tax advisor, estate planning advisor or other advisor or fiduciary. | ||||||||||||
| 8 | Indemnity | ||||||||||||
| The Platform, Platform Content and Online Services are provided entirely at Your risk. You agree to indemnify, defend and hold harmless the Vendor Parties from and against any liability, loss, cost, claim, demand or other harm of any kind, including reasonable attorneys' fees, incurred or suffered by the Vendor Parties and arising out of or in connection with (a) Your use of the Platform or the Online Services or the use of the Platform or Online Services by any person who uses the Platform or Online Services while logged on under our User ID and Password; (b) any Transaction, instruction, license or authorization provided by You under or pursuant to these Terms of Service or provided by any person who uses the Platform or Online Services while logged on under our User ID and Password; (c) Your violation of these Terms of Service; (d) Your infringement of any Intellectual Property or other right of any person; or (e) your violation of any laws or of any rights of a third party. | |||||||||||||
| 9 | Intellectual Property | ||||||||||||
| 9.1 | Ownership of Platform Content. As between the Trustee and You, the Platform, the Online Services and all information, text, software, data, graphics, photographs, music, video, messages, tags or any other Platform Content made available through the Platform or Online Services, and all Intellectual Property rights therein, are and shall remain the sole property of the Trustee and You hereby assign, convey and transfer to the Trustee any rights you may acquire therein. The Platform and the Platform Content may be protected by copyrights, trademarks, patents or other Intellectual Property rights and laws. | ||||||||||||
| 9.2 | User Feedback. The Trustee may provide mechanisms for You to contribute feedback to the Platform or Online Services. If and to the extent that You submit any feedback, ideas, documents, suggestions and/or proposals concerning the Platform or the Online Services ("Contributions"), You agree that: (a) the Trustee is granted a worldwide, fully-paid, royalty-free, irrevocable, transferrable and fully-sublicensable, non-exclusive right and license to use, copy, reproduce, distribute, publish, modify, adapt or otherwise create derivative works from and otherwise exploit and utilize in any manner all such Contributions, (b) the Trustee is under no obligation to either compensate or provide any form of reimbursement in any manner or nature for any such Contribution nor is the Trustee under any obligation to ensure or maintain the confidentiality of any Contribution; and (c) the Trustee shall accordingly be entitled to make use of and/or disclose any such Contributions in any such manner as it may see fit. You further represent and warrant that Your Contributions do not contain any type of confidential or proprietary information and are not subject to any proprietary rights of any third party. | ||||||||||||
| 10 | Confidentiality | ||||||||||||
| 10.1 | Restrictions on Use and Disclosure of Confidential Information. The Receiving Party shall not at any time without the prior written consent of the Disclosing Party: (a) utilise, copy employ or use in any manner any of the Confidential Information otherwise than in furtherance of its obligations under these Terms of Service; (b) disclose any of the Confidential Information to any third party, other than to any of the Receiving Party's representatives who are reasonably required in the course of their duties to receive and acquire the same and who are made aware of the confidentiality provisions contained in these Terms of Service. The Receiving Party shall be primarily liable for any breach of these provisions by any of its representatives; or (c) make any copies of the Confidential Information or reproduce it in any form except for the purpose of utilising the same for furtherance of obligations under these Terms of Service or supplying the same to those whom disclosure is permitted in accordance with these Terms of Service. | ||||||||||||
| 10.2 | The Receiving Party shall use the same precautions to maintain the confidentiality of Confidential Information as it uses to maintain the confidentiality of its own confidential information, but not less than reasonable precautions to maintain the confidentiality of Confidential Information. | ||||||||||||
| 10.3 | Required Disclosure. Notwithstanding anything to the contrary herein, the Receiving Party may disclose Confidential Information to the extent required by law or to the extent legally compelled by any court, regulatory authority or other governmental authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it promptly gives the Disclosing Party notice of such required disclosure and, to the extent that such disclosure is compelled by any a court or other regulatory or governmental authority, cooperates (at Disclosing Party's request and expense) with any efforts by Disclosing Party to quash or otherwise eliminate such legal requirement to disclose such Confidential Information. | ||||||||||||
| 11 | Termination | ||||||||||||
| 11.1 | Termination or Discontinuance of Access to Platform. The Trustee reserves the right, in its sole discretion, to discontinue the Platform or any of the Online Services, or suspend or terminate Your access to or use of the Platform or any of the Online Services, in each case with immediate effect without giving any prior notice to You. | ||||||||||||
| 11.2 | Suspension of Access to Platform. Without limiting any other right or remedy that the Trustee may have under these Terms of Service or otherwise, should a need arise, the Trustee reserves the right to suspend or terminate Your access to or ability to use the Platform or Online Services, immediately and without prior notice to You. In the event of any suspension, You may request reinstatement of Your access to the Platform by contacting the Trustee. The Trustee reserves the right in its sole discretion to grant or deny Your reinstatement request for the Platform or the Online Services. | ||||||||||||
| 12 | General | ||||||||||||
| 12.1 | Governing Law. These Terms of Service and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Bailiwick of Jersey. | ||||||||||||
| 12.2 | Dispute Resolution. Each of the Parties will submit to the non-exclusive jurisdiction of the courts of the Bailiwick of Jersey. | ||||||||||||
| 12.3 | Waiver. No failure or delay in exercising or enforcing any right or provision of these Terms of Service shall constitute a waiver of such right or provision. The waiver by any Party of any part of these Terms of Service or a breach of any provision of these Terms of Service shall not operate or be construed as a waiver of any subsequent breach. | ||||||||||||
| 12.4 | No Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries to these Terms of Service, except that Axonic is a third-party beneficiary of Your obligations, representations, undertakings and indemnities. | ||||||||||||
| 12.5 | Assignment. The Trustee may at any time assign the Trustee's rights under these Terms of Service or any part hereof. You may not sell or assign any of your rights under these Terms of Service or any part hereof, either voluntarily or by operation of law, without the prior written consent of the Trustee. Subject to the foregoing, these Terms of Service shall be binding upon the Trustee, you and the Trustee's and your respective legal representatives, successors and assigns. | ||||||||||||
| 12.6 | Severability. To the extent that any section or other portion of these Terms of Service is prohibited by, or is invalid under any applicable law, all other terms or provisions of these Terms of Service shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. |