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Terms of Service

The following terms and conditions (this "Agreement") govern the use of the service ("Service") made available by Opto Investments, Inc. ("Opto") via and any successor or other related URLS. By clicking “I Agree” or by accessing or using the Service you (“You” or "Customer") agree to be bound by this Agreement. If You are employed by or acting on behalf of a company or other organization You represent and warrant that You have the authority to bind such company or organization to the terms of this Agreement and that the term “Customer” includes such company or organization.
Opto may modify the terms of this agreement from time to time and such modifications shall become binding upon being made available via the Service. If You do not agree to this Agreement or any modifications thereto, You are not authorized to use or access (or continue to use, access or participate in) the Service.
If You are a registered investment adviser (“RIA”) and have executed a Selected Registered Investment Adviser Agreement with Lonsdale Investment Management Inc. (the “Investment Adviser Agreement”), the terms of the Investment Adviser Agreement shall govern to the extent there is any conflict or inconsistency between this Agreement and the Investment Adviser Agreement.
Certain Definitions.  Capitalized terms used in this Agreement are defined in this section or in the section where they are first used.
“Content” means articles, Results and other content (excluding Offering Materials) made available via the Service.
“Offering Materials” means materials made available by Opto or its affiliates to an RIA pursuant to an Investment Adviser Agreement, and explicitly includes, for purposes of this Agreement, each Memorandum (including all exhibits, appendices and supplements thereto), any Supplemental Information, and any Underlying Fund Offering Materials (as defined in the Investment Adviser Agreement) provided in connection with the Memorandum.
“Results” means any output of the Service that is created as a result of a particular Customer’s use of the Service, such as reports, charts, analysis, data and sample recommendations. “Term” means the period from the date Customer first accesses the Service until the date Opto notifies Customer of the termination of this Agreement or terminates access to the Service.
Certain Limitations.  If You have not entered an Investment Adviser Agreement (whether or not You are an RIA), You may use the Service, including any Content and Results, solely (i) to test and evaluate the Service and (ii) if You are a client of an RIA that has executed an Investment Adviser Agreement (a “Client”), to access Offering Materials and Content that are made available by Your RIA for Your review via the Service. If You are an RIA, You represent and warrant that (i) You will provide Offering Materials to Clients only as permitted under the Investment Adviser Agreement and (ii) You have entered into an enforceable agreement with each Client (A) that imposes confidentiality obligations on such Client that are substantially identical to those imposed on You under the Investment Adviser Agreement and restricts such Client’s use and disclosure of the Offering Materials to uses and disclosures permitted under the Investment Adviser Agreement, and (B) that is otherwise consistent with the Investment Adviser Agreement (each, a “Client Agreement”). If You are a Client, You represent and warrant that You have executed a Client Agreement and will fully comply with its terms.

The Service

Access and Use. Subject to the terms and conditions of this Agreement, including the section entitled “Certain Limitations” above, Opto grants Customer a non-exclusive, non-transferable, non-sublicenseable right during the Term (i) to access and use the Service solely (A) to review the Offering Materials and (B) review Content solely in connection with the review of the Offering Materials and (ii) with respect to Customers that are RIAs that have executed an Investment Adviser Agreement (each, an “Approved RIA”), (A) to share Results and unmodified Content with such Approved RIA’s Clients using the feature of the Service that expressly enables such sharing, and (B) request that Opto provide credentials to Your Clients to enable them to access and use the Service in accordance with this Agreement. If You are an Approved RIA and You provide any Offering Materials or Content to any Clients via the Service, or request access to the Service for any Clients, You agree that You are responsible for ensuring that (y) You have a pre-existing substantive relationship with such Clients and that such Clients’ receipt of such Offering Materials and Content is not prohibited under the Investment Adviser Agreement and (z) such Clients’ use and disclosure of any Offering Materials and Content obtained via the Service is in compliance with the Client Agreement and this Agreement. All rights not specifically granted to Customer herein are retained by Opto and its licensors.
Restrictions and Prohibitions. Except as otherwise specifically permitted in this Agreement, Customer shall not: (i) use the Service or any Offering Materials or Content obtained via the Service for any purpose other than the uses permitted under this Agreement, (ii) permit any third party to access or use the Service, including any Offering Materials or Content; (iii) copy, modify, create derivative works of the Service; (iv) derive or attempt to derive the internal structure or operations of all or any portion of the Service or permit any third party to do so; or (v) publish, disclose, or make available any performance metrics or outcomes of the use of the Service (including Results).
Certain Third Party Data.  Certain data provided by Opto in connection with the Service are licensed to Opto by third parties pursuant to agreements between Opto and such third parties (such data, “Third Party Data”). Third Party Data may be subject to restrictions or other terms in addition to those set forth in this Agreement, which terms shall be specified on the Service or otherwise provided by Opto to Customer (“Additional Terms”). Customer agrees to comply with all such Additional Terms.
Third Party Services. The Service may contain links to or references to third-party websites or services (“Third Party Services”). Customer’s access to and use of any Third Party Services is subject exclusively to the terms and conditions applicable to such Third Party Services as provided by the owner or operator of such Third Party Services. Customer agrees that Opto shall have no obligation, responsibility or liability arising from or related to any Third Party Services.
Customer Data. Opto and its licensors may use data Customer makes available to Opto in connection with the Service and other data created by Customer’s use of the Service to make the Service available under this Agreement and to develop and augment Opto products and services. Opto may disclose such data to third parties solely in anonymized and aggregated form.
Passwords. Opto may provide Customer passwords and other credentials related to the access and use of the Service. Customer shall maintain the confidentiality of any such passwords and credentials and shall not disclose or otherwise share such passwords or credentials with any individuals that are not Customer’s employees authorized to use the Service. Customer is responsible for any activity that occurs using passwords or credentials provided by Opto.
No Obligation.  Opto has no obligation under this Agreement to: (i) facilitate, enable or provide any opportunities to invest or interact with any fund managers or other third parties displayed via the Service; (ii) correct any bugs, defects or errors in the Service or otherwise to support or maintain the Service; (iii) create, distribute or otherwise offer any updates or upgrades to the Service; or (iv) offer any future versions of the Service (if any) to Customer under any discounted pricing schedules or special terms.  Customer agrees that future versions of the Service may require the payment of fees and may contain functions and functionality and perform in a manner significantly different from the Service.
Ownership and Feedback.  Opto and its licensors own and shall retain all intellectual property rights and other rights in and to the Service, including any Results, and any Commercial Release that Opto creates, and any changes, modifications or corrections to the Service. Customer may report or otherwise disclose orally or in writing errors, problems, defects, or suggestions for changes and improvements to the Service (collectively, “Feedback”) to Opto. Customer hereby grants to Opto a royalty-free, perpetual, irrevocable, sublicenseable, transferable license to exercise all intellectual property rights in the Feedback and otherwise exploit the Feedback for any purpose.
Term and Termination.  This Agreement shall be effective during the Term. Upon expiration or earlier termination of this Agreement for any reason, Customer agrees to return or destroy all of the Content, Results, data, reports and other information and deliverables made available to Customer hereunder (excluding any Content shared with third parties as permitted under this Agreement) within ten (10) days of such expiration or termination. The provisions of this Agreement titled Restrictions and Prohibitions, Certain Third Party Data, Customer Data, No Obligation, Ownership and Feedback, No Warranties or Reliance, Limitation of Liability, Confidential Information, and General will survive the expiration or earlier termination of this Agreement.
No Warranties or Reliance. Service, including all Results and Content, and any and all other material provided by Opto to Customer under this Agreement are provided to Customer “AS IS” without warranty of any kind. Opto and its licensors and suppliers hereby disclaim any and all warranties, express, implied, or statutory with respect to the Service, including but not limited to any implied warranties of merchantability, non-infringement, title or fitness for a particular use or purpose. Neither Opto nor its licensors or suppliers warrant that the Service will function without interruption or that it is error-free.  Customer bears the entire risk as to the operation of the Service.
Without limiting the foregoing, the Service is provided for information purposes and does not constitute and should not be construed as a solicitation or offer or recommendation to acquire or dispose of any investment or to engage in any other transaction. Nothing in the Service constitutes, and should not be construed as, the provision of investment, legal, tax or other advice of any nature whatsoever. Customers that are not RIAs should obtain relevant and specific independent professional advice before making any investment or other decision.
Customer hereby agrees that it will not hold Opto or any of its licensors or suppliers responsible in law or equity for any decisions of whatsoever nature which Customer or any of its clients or other third parties make or refrain from making following use of the Service. Opto makes no representation, undertaking or warranty that the information or opinions contained in the Service are accurate, reliable, up-to-date or complete. Neither Opto nor any third party providing any data that is part of the Service guarantees the accuracy of the data, or the underlying data or any projections based thereon. The information contained in the Service are provided solely for the Permitted Use.
Limitation Of Liability.  In no event will Opto or its licensors or suppliers be liable for any damages, including loss of profits or data, whether in contract or tort (including negligence), including direct, consequential, special, exemplary, incidental and indirect damages, arising out of or in connection with this Agreement, or Customer’s use of, or the results obtained from, the Service, Documentation, or any other material provided by Opto to Customer under this Agreement.  In the event that any liability is imposed on Opto or its licensors or suppliers for any reason whatsoever hereunder, the aggregate amounts payable by Opto or its licensors or suppliers shall not exceed an amount equal to the greater of (i) $500 or (ii) the fees paid by customer to Opto in connection with the Service.  Customer acknowledges and agrees that the disclaimer of warranties, limitations on liability and limited remedies contained in this Agreement are fundamental parts of the basis of Opto’s bargain hereunder, and Opto would not provide the Service to Customer absent such limitations.
Confidential Information. The term “Confidential Information” means the Service, the specifications of the Service, the Offering Materials and the Content provided or disclosed by Opto to Customer hereunder. Except as expressly permitted under this Agreement, Customer will not disclose Confidential Information to third parties and will take all precautions to protect such Confidential Information as Customer employs with respect to its confidential materials of a similar nature, but in no case less than reasonable precautions. Customer may not use or reproduce the Confidential Information for any purpose other than as permitted in this Agreement. Customer may disclose Confidential Information to Customer’s employees or agents who are required to have access to such information for purposes of this Agreement and who have agreed in writing to maintain such information in confidence in accordance with terms substantially similar to, and no less restrictive than, those imposed on Customer under this section. Customer will notify Opto in writing immediately if it becomes aware of or suspects that the Confidential Information has been used or disclosed other than in accordance with this Agreement. Upon termination of this Agreement, or upon written request of Opto, Customer shall promptly return to Opto all documents and other tangible materials representing Opto’s Confidential Information and all copies thereof.
General.  This Agreement will be governed by and construed in accordance with the laws of the State of New York. The parties exclude the application of the United Nations Convention on the International Sale of Goods and the application of the Uniform Computer Information Transactions Act. The parties consent to the personal jurisdiction and venue of the federal and state courts sitting in New York, New York. Customer acknowledges that its breach of this Agreement will cause irreparable harm to Opto for which monetary relief would be insufficient, and hereby agrees that Opto will be entitled to injunctive relief as well as such further relief as may be granted by a court of competent jurisdiction in the event of breach or threatened breach of this Agreement. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Opto. Any attempted or purported assignment or delegation by Customer in violation of the previous sentence will be null and void.  Customer will not export, directly or indirectly, the Service or any technical data of Opto to any country for which the U.S. Government requires an export license or other governmental approval without first obtaining such license or approval.  If any provision of this Agreement will be held invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in full force and effect, and the provision or portion thereof affected will be construed so as to be enforceable to the maximum extent permissible by law.  All waivers of rights or obligations under this Agreement must be in writing.  This Agreement may only be amended by a written document signed by both parties.  This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between them.  Customer will permit Opto or its representatives to review Customer’s relevant records and inspect Customer’s facilities solely to ensure compliance with this Agreement.  Opto will give Customer reasonable advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with  Customer’s normal operations.

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