TERMS OF USE

Last Updated: 1 November 2018

The following terms of use (the “Terms of Use”) form an agreement between PE Gate Partners (“PE Gate”, “us”, “we”, “our”) with each Member, Investee Company and Professional (each as defined below) in respect of access to and use of: (a) our website located at www.pe-gate.com (“Website”); (b) our secure online portal (the GATE) available at https://icx.efrontcloud.com/pegate/login.aspx which provides a private communications and reporting system for our members (“Members”) to help them track the performance of their private investment portfolios, manage financial reports and communicate with entities in respect of which investment opportunities are made available through the GATE (“Investee Companies”) and their representatives (“Professionals”); and (c) any other services provided by PE Gate, as described on the Website from time to time (collectively, the “Platform”). The term “you” refers to the person (e.g. the Member or Professional) or entity on whose behalf you are accessing or otherwise using the Platform, (“use” or “using” in these Terms of Use will mean any of the foregoing). 

Any agreement entered into between a Member or a Professional and: (1) an Investee Company; (2) a Professional; and/or (3) PE Gate through the GATE is separate and apart from these Terms of Use.

The Platform is provided solely to: (1) assist you to store and manage information,  including documents, records and files about your private investments (2) view a dashboard reflecting the financial information with regards to your private investments, based on information provided by you  and (3) facilitate communications between PE Gate, Members, Investee Companies, target companies, Member portfolio companies and Professionals, including communications regarding investment opportunities, transactions, performance and related matters (collectively, the “Permitted Use”).

BY USING THE PLATFORM, YOU: (A) REPRESENT AND WARRANT THAT: (I) YOU HAVE REACHED THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, (II) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS, AND (III) ALL INFORMATION SUPPLIED BY YOU TO US IS TRUE, ACCURATE, CURRENT AND COMPLETE; AND (B) AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH THE SECTION BELOW TITLED “CHANGES TO THESE TERMS OF USE AND PLATFORM”. IF YOU ARE USING THE PLATFORM ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE TERMS OF USE.

1.               Changes to these Terms of Use and Platform

Except where prohibited by applicable law, we reserve the right to change these Terms of Use at any time without notice. Your continued access to or use of the Platform after any changes to these Terms of Use indicates your acceptance of such changes. It is your responsibility to review these Terms of Use regularly.

Subject to compliance with our recordkeeping requirements under applicable securities laws, the governing documents of our Investee Companies or other applicable contractual provisions, we reserve the right to change or remove any information, data, files, material or content (including, but not limited to, details, features and availability of services through the Platform, including reports, deliverables and other information about Investee Companies) contained on, or created or provided through the Platform (the “Content”) at any time and without notice.

2.               License Grants

Subject to these Terms of Use, PE Gate grants you a personal, revocable, non-exclusive and non-transferable license during the Term (as defined in Section 12) to use the Platform in accordance with these Terms of Use for the Permitted Use only.

3.               Ownership

Other than information provided by you about your existing investments which are not Investee Companies (“Member Data”), all Content, including, without limitation, all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Platform, are owned or licensed by PE Gate and are protected by copyright, trademark and other intellectual property laws. PE Gate does not obtain any ownership, license or other rights to Member Data and is not authorized to share Member Date without your consent.

PE Gate expressly reserves all rights in the Platform and all materials provided by PE Gate in connection with these Terms of Use that are not specifically granted to you herein. You acknowledge that all right, title and interest in the Platform, all materials provided by PE Gate in connection with these Terms of Use (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with PE Gate, and that the Platform and all materials provided by PE Gate hereunder are licensed and not “sold” to you.

4.               User Account

You will be required to create a user account through the Website to access and use the GATE. Once you register, you will be asked to provide a username and password which will provide you with access to the GATE. PE Gate may, at its sole discretion, elect not to issue you a user account. If you are issued with a user account, you will keep your password secure and will not share your password with anyone else. You are solely responsible for the activity that occurs on your user account. You must notify us immediately of any breach of security or unauthorized use of your user account. PE Gate reserves the right to disable any user account issued to you at any time and without notice in PE Gate’s sole discretion.

 5.               Use of the Platform

As a condition of your use of the Platform, you represent, warrant and covenant with PE Gate that you will use the Platform and the Content in accordance with these Terms of Use and solely for the Permitted Use.

Without limiting the generality of the foregoing, you will not (and will not attempt to), as applicable:

(a)             send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Platform any data, information, pictures, videos, music, or other materials or content that:

(i)              constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation or commercial electronic message;

(ii)            contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

(iii)           you do not have the lawful right to send, upload, collect, transmit, store, use, publish or otherwise communicate;

(iv)           is false, intentionally misleading or impersonates any other person;

(v)             is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;

(vi)           is harmful to minors in any way or targeted at minors;

(vii)         violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or

(viii)        encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability;

(b)            disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Platform (e.g., a denial of service attack);

(c)             attempt to gain unauthorized access to the Platform;

(d)            use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Platform or any part thereof or otherwise attempt to discover any source code;

(e)             use the Platform for the purpose of building a similar or competitive product or service;

(f)              harvest or otherwise automatically collect any information (including without limitation personal information) about other users of the Platform, including, without limitation, e-mail addresses, without the express consent of such users;

(g)             use the Platform or Content (including without limitation when communicating with other users of the Platform) under a false identity, or forge or otherwise manipulate identifying information in order to disguise or mislead others about the origin of any material transmitted by you through the Platform; or  

(h)            use the Platform other than as permitted by these Terms of Use.

PE Gate retains the right, at its sole discretion, to deny use of the Platform to anyone, at any time and for any reason, including, but not limited to, for violation of these Terms of Use. You will cease and desist from using the Platform immediately upon request by PE Gate to do so.

6.               Third Party Websites

The Website may contain links to third party websites or content posted on third party websites (the “Links”). PE Gate provides the Links only as a convenience to help you identify and locate other Internet resources that may be of interest.

You acknowledge that in providing the Links PE Gate:

 

1.      does not endorse any third party website or content accessible via the Links;

2.     does not act as an editor, publisher or disseminator of any content accessible via the Links and does not control or monitor any third party website or content;

3.     does not make any representation or warranty of any kind regarding the Links;

4.     is  not  responsible,  directly  or  indirectly,  in  any  way  for  the  accuracy,  relevancy, completeness, timeliness or legality of any content accessible via the Links; and

5.     is not responsible, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your use of, or reliance on, any of the Links.

 You agree that you are solely responsible for:

 1.      taking all protective measures to guard against viruses and other destructive elements;

2.     abiding by the terms and conditions of use and the privacy policies posted at the third party websites; and

3.     evaluating the content accessible via the Links and bearing all risks associated with your use of, and reliance on, any such content.

 7.               Privacy

Please click here to review our current Privacy Policy, which contains information about the manner in which we collect, use, disclose or otherwise manage personal information.  

8.               Disclaimers

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS OF USE (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.

WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE PLATFORM AND CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. USE OF THE PLATFORM AND THE CONTENT IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, RELIABILITY, CURRENCY, TIMELINESS, QUALITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE PLATFORM OR THE CONTENT IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

9.               Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, DAMAGES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), IN CONNECTION WITH THESE TERMS OF USE OR YOUR INTERACTIONS OR ARRANGEMENTS WITH ANY INVESTOR, WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, LOSSES, DAMAGES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES RESULTING FROM OR RELATED TO THESE TERMS OF USE.

MEMBERS, INVESTEE COMPANIES AND PROFESSIONALS USING THE PLATFORM ARE NOT CONTRACTORS, AGENTS OR EMPLOYEES OF PE GATE. PE GATE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES, FRAUD, MISCONDUCT OR NEGLIGENCE OF ANY INVESTOR OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM.

THE PROVISIONS ABOVE REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS OF USE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.           Indemnification

You will defend, indemnify and hold harmless us and all of our officers, directors, employees and agents from and against any liabilities, claims, causes of action, demands, recoveries, losses, damages, fines, penalties, or other costs or expenses of any kind or nature including but not limited to legal and accounting fees arising out of or in connection with or as a result of:

(a)             your breach of your warranties, conditions, covenants or representations described hereunder;

(b)            your use of the Platform and Content;

(c)             your violation of any applicable law or the rights of a third party (including without limitation, privacy or intellectual property rights); or

(d)            your use of the Platform contrary to these Terms of Use or other instructional manuals, guidelines or documentation made available by us to you.

You agree to pay to PE Gate any and all costs, damages and expenses, including but not limited to reasonable legal fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit or proceeding. In such case, you agree to cooperate with all reasonable requests to assist us in the defense of any claim that is the subject of your obligations hereunder.  

11.           Term and Survival

(a)             These Terms of Use will commence on the day you first use the Platform and will continue into force until terminated by either party (the “Term”). We reserve the right to terminate these Terms of Use or a user’s account at any time, with or without notice in our sole discretion.

(b)            The following Sections, together with any other provision of these Terms of Use which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Use, will survive expiration or termination of these Terms of Use for any reason: Sections 3 (Ownership), 7 (Privacy), 8 (Disclaimers), 9 (Limitation of Liability), 10 (Indemnification), 11(b) (Terms and Survival), and 12 (General Provisions).

12.           General Provisions

(a)             Choice of Law. Except as restricted by applicable law, these Terms of Use will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and such laws apply to your access to or use of the Platform, notwithstanding your domicile, residency or physical location. You will only use the Platform in jurisdictions where the Platform may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario, Canada in all disputes arising out of or relating to the use of the Platform.

(b)            Entire Agreement. These Terms of Use, Privacy Policy, any other legal notices or statements posted on the Website, constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Platform. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

(c)             Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(d)            Severable. If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Use and all other provisions of these Terms of Use will remain in full force and effect.

(e)             Assignment. You will not assign these Terms of Use to any third party without our prior written consent. We may assign these Terms of Use or any rights under these Terms of Use to any third party without your consent. Any assignment in violation of this Section will be void. The terms of these Terms of Use will be binding upon permitted assignees. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.

(f)              Force Majeure. We will not be liable for delays caused by any event or circumstances beyond PE Gate’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service failures or delays.

(g)             English Language. It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.