DATE LAST REVISED: JULY 29, 2014
This User Agreement (“Agreement”) sets forth the terms and conditions that apply to your access and use of the websites located at www.nasdaqprivatemarket.com and www.exactequity.com and any of the services and applications available on or via such websites (together the “Site”). The Site is owned and operated by The NASDAQ Private Market, LLC, a Delaware limited liability company and joint venture of SharesPost, Inc., and The NASDAQ OMX Group, Inc., and their affiliates (“NASDAQ Private Market”, “we,” and “us”).
You agree to use the Site subject to any additional terms and conditions applicable to you. If you are using the Site as a client of a broker-dealer, you also agree to comply with the applicable broker-dealer terms and conditions. Such terms and conditions are available via the links at the bottom of each web page where the broker-dealer is referenced. In the event of a conflict between this Agreement and the broker-dealer terms and conditions, this Agreement controls with respect to NASDAQ Private Market. If you are using the Site as a representative of a broker-dealer, then your use is subject to the Marketplace Access and Use Agreement (“MAUA”) between NASDAQ Private Market and such broker-dealer. In the event of a conflict between this Agreement and the MAUA, the MAUA controls. If you are using the Site as an issuer or a representative of an issuer (“Issuer”), then your use is subject to the Issuer Platform Agreement (“Issuer Platform Agreement”) or the Issuer Portal Agreement (“Issuer Portal Agreement”), as applicable between NASDAQ Private Market and such Issuer. In the event of a conflict between this Agreement and the Issuer Platform Agreement or the Issuer Portal Agreement, the Issuer Platform Agreement or the Issuer Portal Agreement, as applicable to that Issuer, controls. If you are using the Site as a subscriber or customer of the ExactEquity product, then your use is subject to the Terms of Service agreement (“TOS”) between NASDAQ Private Market and you for such service. In the event of a conflict between this Agreement and the TOS, the TOS controls.
You represent and warrant that you are of legal age to use the Site. You may not accept this Agreement if you are not of a legal age to form a binding contract with NASDAQ Private Market. By accepting this Agreement, you represent that you have the capacity to be bound by it, or if you are acting on behalf of a company or entity that you have the authority to bind such entity. You may print or save a copy of this Agreement for your records.
3. INFORMATION FROM THIRD PARTIES
NASDAQ Private Market works with third-party providers of information in connection with the Site. NASDAQ Private Market does not endorse or guarantee any such third-party information for any purpose, including but not limited to accuracy, legality, non-infringement or fitness for any particular purpose. NASDAQ Private Market is not responsible for any third-party products and services accessed through the Site, including any broker-dealer.
4. OFFERS AND THIRD-PARTY SPONSORED LINKS
Some parts of the Site may be supported by sponsored links from advertisers and display offers that may be custom matched to you based on information stored in the Site, queries made through the Site or other information.
In connection with any such offers, the Site may provide links to other websites belonging to advertisers and other third parties. NASDAQ Private Market does not endorse, warrant or guarantee the products or services available through any such offers (or any other third-party products or services advertised on or linked from the Site), and NASDAQ Private Market is not an agent or broker or otherwise responsible for the activities or policies of those websites. You are responsible for evaluating whether you want to access or use them. You assume all risk, and we disclaim all liability arising from your use of or reliance on them.
5. YOUR REGISTRATION INFORMATION
You must register to use the Site. Your login ID and password, together with any mobile number or other contact information you provide form your “Registration Information.” You represent and warrant that the information you provide to NASDAQ Private Market upon registration and at all other times will be true, accurate, current, and complete. If you do not keep such information accurate, the accuracy and effectiveness of the Site to you may be affected.
By providing NASDAQ Private Market with your e-mail address, you agree to receive all required notices from NASDAQ Private Market electronically, to the e-mail address provided. It is your responsibility to update or change that address to keep it current. As a client of a broker-dealer, you agree that any information collected by the Site about you and your activity will be available to your designated broker-dealer to assist you with the services provided by your broker-dealer.
You agree and understand that you are responsible for maintaining the confidentiality of your password, which, together with your login ID/e-mail address, allows you to access the Site. If you become aware of any unauthorized use of your Registration Information, you agree to notify NASDAQ Private Market immediately.
6. YOUR USE OF THE SITE
Your right to access and use the Site is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use the Site for lawful purposes.
You may not circumvent the Site to execute one or more transactions off the Site where the counter-party to the transaction was sourced through the Site.
Your access and use of the Site may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Site or other actions that NASDAQ Private Market, in its sole discretion, may elect to take. NASDAQ Private Market may, but is not required to, provide advance notice of any service interruptions. NASDAQ Private Market is not responsible or liable for any effect on you for such service interruptions. NASDAQ Private Market cannot always foresee or anticipate technical or other difficulties that may result in failure to obtain data or loss of data, personalization settings or other service interruptions. NASDAQ Private Market cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings.
7. ONLINE AND MOBILE ALERTS
NASDAQ Private Market may from time to time provide automatic alerts and voluntary account-related alerts. Automatic alerts may be sent to you following certain changes made online to your account, such as a change in your Registration Information. You do not need to activate these alerts. Although you may have the option to turn off some of these automatic alerts, NASDAQ Private Market recommends that you leave them on, since they may be security-related.
Voluntary account alerts may be turned on by default as part of the Site. NASDAQ Private Market may add new alerts from time to time, or cease to provide certain alerts at any time in its sole discretion. Each alert may have different options available, and you may be asked to select from among these options upon activation of your alerts service.
Any such electronic alerts will be sent to the e-mail address you have provided as your primary e-mail address when you registered on the Site. If your e-mail address changes, you are responsible for informing NASDAQ Private Market of that change by updating your email address on the Site. Changes to your e-mail address made at the Site will apply to all of your alerts from NASDAQ Private Market. Alerts may include your login ID and some information about your account.
8. ALERT DISCLAIMER
You understand and agree that any alerts provided to you through the Site may be delayed or prevented by a variety of factors. NASDAQ Private Market does its best to provide alerts in a timely manner with accurate information. NASDAQ Private Market does not guarantee the delivery or the accuracy of the content of any alert. You explicitly agree that NASDAQ Private Market shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert, for any errors in the content of an alert, or for any actions taken or not taken by you or any third party in reliance on an alert.
9. RIGHTS YOU GRANT TO US
You authorize NASDAQ Private Market to use, free of any charge, any information, data, passwords, usernames, PINs, other log-in information, materials or other content (collectively, “Account Content”) you provide in connection with the Site for the purpose of providing and improving the Site and related services.
10. NASDAQ PRIVATE MARKET'S INTELLECTUAL PROPERTY RIGHTS
The Site’s “look and feel” (for example, the text, graphics, images, logos and button icons appearing on the website), photographs, editorial content, notices, software (including HTML-based computer programs) and other materials are protected under United States and other applicable copyright, trademark and other laws. The contents of the Site belong or are licensed to NASDAQ Private Market or its software or content suppliers. NASDAQ Private Market grants you the right to view and use the Site subject to these terms. You may download or print a copy of information provided on the Site for your personal, internal and non-commercial use only. Any distribution, reprint or electronic reproduction of any content from the Site, in whole or in part, for any other purpose is expressly prohibited without NASDAQ Private Market’s prior written consent.
11. ACCESS AND INTERFERENCE
You agree that you will not access or use the Site in an unauthorized manner, such as:
A. Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Site, without NASDAQ Private Market’s express written consent, which may be withheld in NASDAQ Private Market’s sole discretion;
B. Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site, other than the search engines and search agents available through the Site and other than generally available third-party web browsers;
C. Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interferes with the proper working of the Site; or
D. Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Site.
12. RULES FOR SUBMITTING ACCOUNT CONTENT IN CONNECTION WITH THE SITE
As part of the Site, you may submit Account Content.
A. You are solely responsible for all Account Content you submit in connection with the Site.
B. By submitting Account Content in connection with the Site, you represent that you have all necessary rights to such Account Content.
C. You may not post or transmit any Account Content which is libelous or defamatory, or which discloses private or personal matters concerning any person. You may not post or transmit any Account Content that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate.
D. You may not post or transmit any Account Content that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion.
E. You may not interfere with other users’ use of the Site, including, without limitation, disrupting the normal flow of dialogue in an interactive area of the Site, deleting or revising any content posted by another person or entity, or taking any action that imposes a disproportionate burden on the Site infrastructure or that negatively affects the availability of the Site to others.
F. You may not post or transmit charity requests; petitions for signatures; franchises, distributorship, sales representative agency arrangements, or other business opportunities (including offers of employment or contracting arrangements); club memberships; chain letters; or letters relating to pyramid schemes. You may not post or transmit any advertising, promotional materials or any other solicitation of other users to use goods or services except in areas explicitly designated for such purpose.
G. You may not copy or use personally identifying or business contact information about other users without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Site are prohibited.
13. NOT A REGISTERED EXCHANGE, FINANCIAL PLANNER, INVESTMENT ADVISER OR TAX ADVISER
THE SITE IS NOT INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE.
NASDAQ Private Market is not:
A. a registered exchange under the Securities Exchange Act of 1934,
B. a registered investment adviser under the Investment Advisers Act of 1940, or
C. a financial or tax planner, and does not offer legal advice to any user of the Site.
Securities-related services are offered through NPM Securities, LLC, a registered broker-dealer and alternative trading system, which is a member FINRA/SIPC and a wholly-owned subsidiary of The NASDAQ Private Market, LLC. Securities offered through NPM Securities, LLC are not listed or traded on The NASDAQ Stock Market LLC, nor are the securities subject to the same listing or qualification standards applicable to securities listed or traded on The NASDAQ Stock Market LLC.
14. NOT AN OFFER TO BUY OR SELL
None of the information displayed on or downloadable from the Site represents an offer to buy or sell, or the solicitation of an offer to buy or sell, any security, nor does it constitute an offer to provide investment advice or service.
The Site may include forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 about securities of an Issuer which are located on the Site. To the extent that statements on this website do not relate to historical or current facts, they constitute forward-looking statements. The words "outlook," "believes," "expects," "potential," "continues," "may," "will," "could," "should," "seeks," "approximately," "predicts," "intends," "plans," "estimates," "anticipates" and similar expressions are intended to identify forward-looking statements. These forward-looking statements are based on the current assumptions and beliefs of the applicable Issuer in light of the information currently available to it, and involve known and unknown risks, uncertainties and other factors. Such risks, uncertainties and other factors may cause actual results, performance, achievements or financial position to be materially different from any future results, performance, achievements or financial position expressed or implied by these forward-looking statements. NASDAQ Private Market undertakes no obligation to review or publicly update any forward-looking statements to reflect subsequently occurring events or circumstances or to reflect unanticipated events or developments.
All persons contemplating a purchase or sale of any securities should carefully evaluate the relevant Issuer and should complete such purchase or sale only after conducting their own due diligence and independent analysis. All such persons are strongly advised to seek advice based on their particular circumstances from their own independent financial, tax, legal, accounting and other professional advisors.
15. FORMS OF AGREEMENTS
NASDAQ Private Market or its affiliates may offer standard forms of agreement as part of the transaction process which are made available on the Site on an “as-is” basis. NASDAQ Private Market is not acting as legal counsel to any party and use of any form of agreement, whether made available on the NASDAQ Private Market website or otherwise, and the provision of form documents does not constitute the provision of legal advice by NASDAQ Private Market to any person. NASDAQ Private Market strongly recommends that users consult their legal and financial advisors prior to entering into any agreement.
16. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
“Released Parties” include NASDAQ Private Market and its affiliates, and their officers, directors, employees, agents, partners, licensors, and service providers.
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OR PROVIDED THROUGH THE SITE ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE RELEASED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK.
THE RELEASED PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT OF THE SITE, WHETHER SUCH CONTENT IS PROVIDED BY THE RELEASED PARTIES, A USER OF THE SITE, INCLUDING A BROKER-DEALER OR AN ISSUER, AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE RELEASED PARTIES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SITE IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
17. LIMITATIONS ON NASDAQ PRIVATE MARKET’S LIABILITY
NONE OF THE RELEASED PARTIES SHALL IN ANY EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR YOUR USE OF THE SITE OR THIS AGREEMENT, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LIABILITY OF THE RELEASED PARTIES, IN THE AGGREGATE, TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $500.00 (FIVE HUNDRED UNITED STATES DOLLARS) OR THE AMOUNT OF FEES YOU HAVE ACTUALLY PAID TO NASDAQ PRIVATE MARKET FOR ACCESS TO THE SITE WITHIN THE PAST ONE-YEAR, IF ANY, WHICHEVER AMOUNT IS GREATER.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, ANY SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18. YOUR INDEMNIFICATION OF NASDAQ PRIVATE MARKET
You shall defend, indemnify and hold harmless the Released Parties, from and against all claims, losses, liabilities, damages, costs and expenses, including but not limited to attorneys’ fees, in whole or in part arising out of or attributable to any breach of this Agreement by you.
This Agreement will continue to apply until terminated by either you or NASDAQ Private Market.
20. REVISIONS TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
We may revise this Agreement at any time by posting an updated version. You should visit this page periodically to review the most current terms and conditions, because you are bound by them. Your continued use of the Site after a change to these terms and conditions constitutes your binding acceptance of these terms and conditions.
21. GOVERNING LAW AND VENUE FOR DISPUTES
This Agreement, and your relationship with NASDAQ Private Market under this Agreement, is governed by the laws of the State of New York without regard to its conflict or choice of law provisions. Any dispute with the Released Parties arising under or in relation to this Agreement shall be resolved exclusively in New York, New York, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case NASDAQ Private Market may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, NASDAQ Private Market is able to offer the Site at the terms designated, and that your assent to this provision is an integral part of NASDAQ Private Market’s willingness to enter into this Agreement.
You also acknowledge and understand that, with respect to any dispute with the Released Parties, arising out of or relating to your use of the Site or this Agreement:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
A. NASDAQ Private Market and you agree to arbitrate all disputes and claims between us. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You and NASDAQ Private Market both intend this Section 22 to be broadly interpreted. The arbitrator shall be bound by the terms of this Section 22. Either party may alternatively bring an individual action in small claims court as opposed to arbitration provided that the procedure set forth in Subsection 22(C) below is observed.
Our agreement to arbitrate disputes includes, but is not limited to:
claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
claims that may arise after the termination of this Agreement.
For the purposes of this Section 22, references to “NASDAQ Private Market” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Site. You understand and agree that, by entering into this Agreement, you and NASDAQ Private Market are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision.
B. Any arbitration between you and NASDAQ Private Market will be conducted by JAMS/ENDISPUTE, Incorporated in accordance with its Arbitration Rules and Procedures (“Rules”) then in effect, as modified by these terms and conditions. The Rules are available online at http://www.jamsadr.com/rules-clauses/ or by writing to the Notice Address. You may also obtain information about the arbitration process online at http://www.jamsadr.com/. The arbitration shall be governed by the laws of the State of New York without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to the arbitration.
C. A party who intends to seek arbitration must first send to the other, by certified mail or Federal Express (signature required), a written Notice of Dispute (“Notice”). The Notice to NASDAQ Private Market should be addressed to: The NASDAQ Private Market, LLC, Attn: Chief Legal Officer, 150 Spear Street, Suite 350, San Francisco, CA 94105 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and NASDAQ Private Market do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or NASDAQ Private Market may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or NASDAQ Private Market shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or NASDAQ Private Market is entitled.
D. After NASDAQ Private Market receives notice at the Notice Address that you have commenced arbitration, it will reimburse you for your payment of any filing fee, unless your claim is for greater than $10,000. If your claim is greater than $10,000, the payment of any fees shall be decided by the Rules. Any arbitration hearings will take place at a location to be agreed upon in New York, New York. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, you agree to reimburse NASDAQ Private Market for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules. In addition, as noted above, if you initiate an arbitration in which you seek more than $10,000 in damages, the payment of these fees will be governed by the Rules. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
E. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND NASDAQ PRIVATE MARKET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and NASDAQ Private Market agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
F. Notwithstanding any provision in this Agreement to the contrary, we agree that if NASDAQ Private Market makes any future change to this arbitration provision (other than a change to the NASDAQ Private Market Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the NASDAQ Private Market Arbitration Notice Address provided above. By rejecting any such change, you are affirming that you will arbitrate any dispute between us in accordance with the language of this provision, and your account with NASDAQ Private Market shall be immediately terminated. This arbitration provision shall survive termination of this Agreement and the termination of your Site account.
G. If only Subsection 22(E) or the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 shall be null and void and, in each such case, the parties agree that the exclusive jurisdiction and venue described in Section 21 of this Agreement shall govern any action arising out of or related to this Agreement.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that if NASDAQ Private Market does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which NASDAQ Private Market has the benefit of under any applicable law), such failure to exercise such right or remedy may not be construed as a waiver of any other rights and remedies of NASDAQ Private Market.