1. ACCEPTANCE
These NPM Terms of Use (“TOU”) set forth the terms and conditions that apply for access to and use of the NPM Platform, the NPM website, and any of the services and applications available on or via such platform or website (together the “Platform”) by the individual reading these Terms of Use and/or any party which has agreed to these terms as incorporated into another agreement (“You” and “Your” will be construed accordingly). The Platform is owned and operated by Nasdaq Private Market, LLC, a Delaware limited liability company, together with certain of its affiliates, including NPM Securities, LLC (collectively, “NPM”, “Nasdaq Private Market”, or “We”).
By registering, logging onto, or accessing the Platform or clicking on the ‘I HAVE READ AND I ACCEPT THE TERMS OF USE’ button after scrolling through these TOU, You are accepting these TOU. By accepting these TOU, You represent and warrant that: (a) You have read and understand these TOU; (b) You have the capacity to be bound by them; and (c) You agree to the TOU. If You do not agree to the TOU, You are not authorized to access or use the Platform. If You are accepting these TOU on behalf of Your employer or another entity, You represent and warrant that: (x) You have full legal authority to bind Your employer, or the applicable entity, to these TOU in which case the term ”You” or “Your” will refer and apply to such employer or another entity; (y) You have read and understand these TOU; and (z) You agree, on behalf of the party that You represent, to these TOU. If You do not have the legal authority to bind Your employer or the applicable entity, please do not register, log onto, or access the Platform or click on the ‘I HAVE READ AND I ACCEPT THE TERMS OF USE’ button—You are not authorized to use the Platform. You may print or download a copy of the TOU for Your records.
If You are using and accessing the Platform as an employee and on behalf of a customer entity that has an agreement with NPM governing use of the Platform, then Your access and use are also governed by the terms of that agreement. If a conflict exists between a term in these TOU and a term in that other agreement, the terms in the other agreement control. If You are an individual accessing the Platform in Your personal capacity as a participant in a liquidity program or auction or other event, Your access and use of the Platform is governed by these TOU.
2. ADDITIONAL TERMS; PRIVACY POLICY AND DATA PROCESSING; SECURITY; NPM DATA
A. Our privacy policy (the “Privacy Policy”) located at www.nasdaqprivatemarket.com/privacy-policy (and any successor hyperlink) explains how NPM treats Your personal information You provide when You access and use the Platform.
Our data processing addendum (the “DPA”) located at www.nasdaqprivatemarket.com/data-processing-addendum (and any successor hyperlink) explains how NPM processes any “Personal Data” (as defined in the DPA).
By agreeing to the TOU, You are expressly agreeing to the terms of the Privacy Policy and the DPA.
Both the Privacy Policy and DPA may be updated from time to time at the sole discretion of NPM. Changes are effective upon posting to the NPM website, or as otherwise specified upon posting.
B. (a) Additional terms apply to the extent Your use of the Platform and/or NPM services includes certain specialized services: (i) Data Services. Access to NPM data (including Tape D™) is subject to additional data-specific terms located at www.nasdaqprivatemarket.com/data-terms/; (ii) AI Tools. Artificial intelligence, machine learning, large language model, and similar tools or functionalities are subject to the AI Terms at https://www.nasdaqprivatemarket.com/ai-terms-of-use; (iii) Paying Agent Services. If NPM acts as Your paying agent (which includes all transactions NPM facilitates through NPM Securities, LLC), then the following additional terms apply: https://www.nasdaqprivatemarket.com/paying-agent-terms/.
(b) In the event of any conflict: (i) product-specific terms (including AI Terms) govern for that product or functionality; (ii) the TOU govern generally; and (iii) any separately executed agreement controls over both.
C. NPM provides a range of information and services, including a wealth referral service (“Wealth Referral Services”) that is provided by SecondMarket Financial, LLC, an SEC-Registered investment adviser (“SMF”). Our Wealth Referral Services include referring You to certain unaffiliated third-party registered investment advisers and/or investment adviser representatives (“3rd Party Advisor”) in our network. SMF does not review or consider a 3rd Party Advisor’s investment strategies, investment performance or any other aspect of the 3rd Party Advisor’s investment advice during our initial due diligence of a 3rd Party Advisor, participate in the management of Your account maintained at a 3rd Party Advisor or provide advice regarding specific investments. SMF periodically monitors the services provided to You by the 3rd Party Advisor. 3rd Party Advisors are recommended to You based on, among other things, (1) the amount of a Your unsold, unvested equity holdings and/or (2) the amount of Your cash proceeds following a liquidity event. Additional factors may be included in the future. SMF receives compensation from 3rd Party Advisors for our Wealth Referral Services. Important information regarding our services and associated conflicts of interest is available in our Form ADV Part 2A brochure, available here. You should review our brochure before using our Wealth Referral Services. Use of the Wealth Referral Services constitutes consent to these limitations on the scope of our services. You also acknowledge and agree that NPM and/or its Affiliates may contact You with communications related to the Wealth Referral Services. If You choose to engage a 3rd Party Advisor, You will need to enter into a separate agreement with the advisor that governs Your relationship with them. For the avoidance of doubt, these TOU govern Your relationship with SMF when You use the Wealth Referral Services.
D. NPM will take appropriate security precautions reasonably designed to prevent malicious or unauthorized access to the Platform and to maintain the accuracy and integrity of user and customer information, which may include (a) appropriate protection barriers, firewalls, and logically secure areas, and (b) appropriate levels of internal controls for granting access to any materials used in performing the services, in each case designed to protect personal data and other materials from malicious or unauthorized access. NPM shall establish and maintain environmental, safety, and facility procedures, data security procedures, and other safeguards reasonably designed to protect against the destruction, corruption, loss, or alteration of customer information and to prevent access, intrusion, alteration, or other interference by any unauthorized third parties of the same, that are no less rigorous than those maintained by NPM for its own information. NPM has implemented industry standard measures reasonably designed to prevent unauthorized persons from gaining access to the data processing equipment where customer information and/or Personal Data is processed or used in the NPM Platform. Unless NPM is prohibited by law from so notifying, or a relevant authority has asserted in writing a legal/regulatory basis requiring NPM to withhold notification, NPM shall, without undue delay, but in any event within any applicable legally required notice period, notify the appropriate user party(ies) if NPM confirms that a Security Breach (defined below) has occurred. NPM shall, without undue delay, investigate such Security Breach, terminate such unauthorized use/access, and take all reasonable steps to prevent such Security Breach from continuing or recurring. “Security Breach” means unauthorized disclosure to, or access, use, or acquisition of Personal Data by, a third party which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information. Security Breach excludes (y) any unintentional acquisition, access, or use of Personal Data by NPM or any employee or person acting under the authority of anyone authorized by You, if such acquisition, access, or use was made in good faith and within the scope of authority and does not result in further use or disclosure in a manner not permitted hereunder; or (z) any inadvertent disclosure by a person who is authorized to access Personal Data at NPM to another person authorized to access Personal Data at NPM or the relevant disclosing party(ies), and the information received as a result of such disclosure is not further used or disclosed in a manner not permitted under any applicable agreement.
3. INFORMATION FROM THIRD PARTIES; THIRD-PARTY LINKS
Third parties such as transaction counterparties, liquidity event sponsors, companies, issuers, service providers, or third-party financial institutions may provide NPM information, documentation, and/or functionality that is to be made available to You, including links to third-party websites or apps (collectively, “Third-Party Content”). NPM does not make enquiries into, does not endorse, warrant, or guarantee, and is not responsible for, the accuracy, validity, legality, security, completeness, or any other aspect of any such Third-Party Content, or the information You provide to such third parties or provide to NPM to provide to such third parties. With regard to third parties and Third-Party Content, NPM is not responsible for the content, activities, or policies (including privacy policies) of those third parties. You are responsible for evaluating whether You want to access or use all such information, documentation, or websites. You assume all risk, and We disclaim all liability arising from Your use of or reliance on such information, documentation, or websites, and for the manner in which such third parties treat information You provide to them.
4. YOUR LOGIN CREDENTIALS
You may be issued with login credentials in order to access certain features of the Platform. Your login credentials, together with any e-mail address, telephone number, or other contact information You provide or that is provided on Your behalf, constitute Your “Registration Information.” You represent and warrant that Your Registration Information and any other information You provide to NPM will be true, accurate, current, and complete. If You do not keep such information accurate, the accuracy and effectiveness of the Platform to You, and NPM’s ability to communicate with You, may be affected.
NPM will use the e-mail address that has been provided to NPM in order to communicate with You (e.g., to send You notices or transaction confirmations), and You hereby expressly consent that NPM and/or its affiliates may also contact You with communications related to NPM and/or its affiliates services and products.
NPM will use the e-mail address that has been provided to NPM in order to communicate with You (e.g., to send You notices or transaction confirmations), and You hereby expressly consent that NPM and/or its affiliates may also contact You with communications related to NPM and/or its affiliates services and products. You can withdraw the foregoing consent for marketing by following the instructions in our Privacy Policy or any such e-mail message.
You agree and understand that You are responsible for maintaining the confidentiality of Your login credentials. If You become aware of any loss, theft, compromise, or unauthorized use of Your login credentials, You agree to notify NPM immediately.
5. YOUR USE OF THE PLATFORM
Your right to access and use the Platform is personal to You and is not transferable by You to any other person or entity. You agree that You will not access or use the Platform in an unlawful or unauthorized manner. For example, You will not:
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 Platform, without NPM’s prior express written consent, which may be withheld in NPM’s sole discretion;
B. Redistribute any data or content from the Platform, or otherwise use any data or content provided on the Platform, in each case other than solely for the express purpose for which it was made available to you;
C. 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 Platform, other than the search engines and search agents available through the Platform and other than generally available third-party web browsers;
D. 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 Platform;
E. Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Platform;
F. Post or transmit any content which is libelous or defamatory, or which discloses private or personal matters concerning any person without their permission. You may not post or transmit any content that, in NPM’s sole discretion, (a) is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, or racially or ethnically offensive; (b) encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or (c) is otherwise inappropriate;
G. Post or transmit any content that would violate the property rights of others, including unauthorized copyrighted text, images, or programs, trade secrets, or other confidential proprietary information, or trademarks or service marks used in an infringing fashion;
H. Copy or use personally identifying or business contact information about other users without their permission, or 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. Unsolicited emails, mailings, telephone calls, or other communications to individuals or companies whose contact details You obtain through the Platform are prohibited;
I. Interfere with other users’ use of the Platform, including, without limitation, disrupting the normal flow of dialogue in an interactive area of the Platform, deleting or revising any content posted by another person or entity, impersonating another person or entity, or taking any action that imposes a disproportionate burden on the Platform infrastructure or that negatively affects the availability of the Platform to others; or
J. Circumvent the Platform to execute one or more transactions off the Platform where the counterparty to the transaction was sourced through the Platform.
Your access to and use of the Platform may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, technical issues, standard maintenance or security concerns, periodic updating, maintenance, or repair of the Platform or other actions that NPM, in its sole discretion, may elect to take. NPM may, but is not required to, provide advance notice of any service interruptions. NPM is not responsible or liable for any effect on You for such service interruptions. NPM 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. NPM cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery, or failure to store any user data, communications, or personalization settings. NPM retains the right at all times to make any changes in its respective systems that We may deem necessary or desirable.
6. CONFIDENTIALITY
These TOU govern, among other topics, confidentiality obligations regarding the information You may have access to via the Platform, and in consideration of being granted continued access to the Platform and to confidential information provided by NPM, private issuers, or selling shareholders through NPM, including via the Platform, You agree that such parties, as applicable, are third-party beneficiaries with respect to the confidentiality obligations contained in the TOU and may enforce such confidentiality provisions directly against You.
Further, except as otherwise provided herein, “Confidential Information” means information received or submitted pursuant to these TOU and other information regarding the business and affairs of You, NPM, and certain third parties as mentioned above. NPM and You agree to maintain the confidentiality of such Confidential Information with at least the same degree of care that each party uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances.
The party receiving the Confidential Information (“Receiving Party”) may disclose any portion of the Confidential Information to any persons or entities: (a) as required by any applicable law, rule, or regulation; (b) as directed by the party disclosing such Confidential Information (the “Disclosing Party”) and as contemplated by the services and products associated with or provided through the platform, and the Receiving Party shall have no liability to the Disclosing Party or to any other person or entity for any damages as a result of breach of confidentiality by parties to whom Confidential Information is disclosed as directed by the Disclosing Party; and (c) to the following persons (each an “Associate”) provided that each Associate has been informed of the confidential nature of the Confidential Information and is bound by confidentiality obligations to Receiving Party which are materially equivalent to those in this Section:
A. Employees, officers, and directors of the Receiving Party;
B. Receiving Party’s Affiliates (as defined below) and the employees, officers, and directors of such Affiliates; or
C. Any professional consultant, subcontractor, third-party provider, or agent retained or used by the Receiving Party or its Affiliate(s) or any legal or business advisor engaged to advise Receiving Party or its Affiliates in relation to its/their business.
The Receiving Party agrees that it will be liable for breach by any of its Associates of the confidentiality obligations in this Section. For purposes of these TOU, “Affiliate” means any corporation, partnership, limited liability company, joint venture, or other entity that is directly or indirectly, through one or more intermediaries, controlled by, or under common control with, one of the parties hereto or its parent. For purposes of this definition, “Control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management, policies, and operations of an entity, whether through ownership of voting securities, by contract, or otherwise. Once such relationship of control ceases, such entity shall no longer qualify as an Affiliate.
The restrictions set forth in this Section shall not apply to Confidential Information that (a) is or becomes publicly known other than by breach of these TOU by the Receiving Party, (b) was lawfully acquired from a third party on a nonconfidential basis by the Receiving Party prior to receipt from the Disclosing Party, (c) is subsequently lawfully obtained on a nonconfidential basis by the Receiving Party from a third party, or (d) is developed independently by the Receiving Party.
If You are required to disclose any Confidential Information pursuant to legal process, You will promptly notify NPM in order to permit NPM to seek a protective order or take other appropriate action. You will also exercise Your reasonable best efforts to cooperate in NPM’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding the foregoing or anything else in the TOU, NPM may disclose Confidential Information pursuant to a request or inspection by a governmental agency or regulatory authority with jurisdiction over NPM or any of its Affiliates or in the course of fulfilling any of the regulatory responsibilities of NPM or its Affiliates.
You agree that NPM may, at its sole discretion and to the extent permitted by law, access, read, preserve, and disclose Your credentials, usage history, and any submitted content in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) respond to claims that any content violates the rights of third parties, including intellectual property rights; (c) enforce these TOUs and investigate potential violations thereof; (d) detect, prevent, or otherwise address fraud, security, or technical issues; (e) respond to Your requests for customer service; or (f) protect the rights, property, or personal safety of NPM, its users, or the public.
7. EMAIL ALERTS
NPM may from time to time provide automatic alerts and voluntary Platform-related alerts, or alerts related to Your activity on the Platform. Automatic alerts may be sent to You following certain changes made online to Your data, such as a change in Your login credentials. You do not need to activate these alerts. Although You may have the option to turn off some of these automatic alerts, NPM recommends that You leave them on, since they may be security related.
Voluntary alerts may be turned on by default as part of the Platform. NPM 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 configuration 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 provided to NPM.
You understand and agree that any alerts provided to You through the Platform may be delayed or prevented by a variety of factors. NPM will use all reasonable endeavors to provide alerts in a timely manner with accurate information but does not guarantee the delivery or the accuracy of the content of any alert.
8. RIGHTS YOU GRANT TO NPM
You authorize NPM 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 Platform for the purpose of providing and improving the Platform and related services. NPM owns and has all right, title, and interest in any suggestions, requests, recommendations, or other feedback (collectively, “Feedback”) provided by You relating to the Platform or any services, and You hereby grant to NPM a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use Feedback in any form.
9. INTELLECTUAL PROPERTY RIGHTS OF NPM
The Platform’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 Platform belong or are licensed to NPM and its affiliates or its/their software or content suppliers. NPM grants You the right to view and use the Platform subject to these TOU. You may download or print a copy of information provided on the Platform for use only for the purpose for which it was made available to You. Any distribution, reprinting, or electronic reproduction of any content from the Platform, in whole or in part, for any other purpose is expressly prohibited without NPM’s prior written consent.
10. NPM IS NOT A REGISTERED EXCHANGE, FINANCIAL PLANNER, INVESTMENT ADVISER, OR TAX ADVISER AND THE PLATFORM IS NOT INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT, OR FINANCIAL ADVICE.
NPM 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 Platform.
Securities-related services are offered through NPM Securities, LLC, a registered broker-dealer, alternative trading system, member FINRA/SIPC, and a wholly-owned subsidiary of Nasdaq Private Market, LLC. Securities in transactions conducted through NPM Securities, LLC are not listed or traded on The NASDAQ Stock Market LLC, nor are such securities subject to the same listing or qualification standards applicable to securities listed or traded on The NASDAQ Stock Market LLC.
11. NOT AN OFFER TO BUY OR SELL
None of the information displayed on or downloadable from the Platform represents an offer, or the solicitation of an offer, from NPM or any of its affiliated companies to buy or sell any security, nor does it constitute an offer from NPM or any of its affiliated companies to provide, or the actual provision by them of, investment or legal advice or services. The content provided and any other information or data conveyed in connection with such content is intended for informational purposes only. Any information and data provided is not intended to be used as the primary basis of investment decisions and nothing contained therein or conveyed in connection therewith is, or is intended to be, predictive of the movement of the market prices of the securities of the applicable company or companies. SMF provides investment advisory services to SMF’s investment vehicles and does not solicit or make its services available to the public.
The Platform may include forward-looking statements (within the meaning of the Private Securities Litigation Reform Act of 1995) about securities of an issuer which are provided on the Platform. 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. NPM undertakes no obligation to review, verify, or 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. You acknowledge that it is Your responsibility to familiarize Yourself with terms and conditions of an opportunity disclosed via the Platform, including the guidelines for bid submission and applicable fees, prior to submitting an indication of interest in any bidding process.
NPM or its affiliates may earn fees in connection with any opportunity that You access through the Platform. NPM or its affiliates may alternatively, or additionally, charge You a fee for any transaction resulting from an opportunity. Any fee that You are liable for will be disclosed to You in advance.
You acknowledge that counterparties to a transaction made available via the Platform may currently possess or come to possess material non-public information (“MNPI”) regarding the issuer or its securities which has not been disclosed to You, which MNPI may be indicative of a value of the securities that is substantially different than the price of the securities in the applicable offering, and You agree that You have experience in financial and business matters and understand the disadvantage to which You may be subject on account of the disparity of information among any of the potential parties to a transaction in securities.
12. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
“Released Parties” means NPM and its affiliates, and their members, managers, officers, directors, employees, agents, partners, licensors, and service providers.
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OR PROVIDED THROUGH THE PLATFORM 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 PLATFORM. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM 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 PLATFORM, WHETHER SUCH CONTENT IS PROVIDED BY THE RELEASED PARTIES, A USER OF THE PLATFORM, INCLUDING AN ISSUER OR TRANSACTION COUNTERPARTY, AND THE RELEASED PARTIES EXPRESSLY DISCLAIM INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE RELEASED PARTIES MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE PLATFORM 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.
13. 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 OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR YOUR USE OF THE PLATFORM OR NPM SERVICES PROVIDED VIA THE PLATFORM OR THESE TOU, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
NONE OF THE RELEASED PARTIES SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN ITS PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING BUT NOT LIMITED TO, ACTS OF CIVIL OR MILITARY AUTHORITY, NATIONAL EMERGENCIES, TERRORISM, LABOR DIFFICULTIES, FIRE, FLOOD OR CATASTROPHE, ACTS OF GOD, INSURRECTION, WAR, RIOTS, OR FAILURE BEYOND ITS REASONABLE CONTROL OF TRANSPORTATION, POWER SUPPLY, INTERNET, OR ANY TELECOMMUNICATION LINES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TOU, 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 NPM FOR YOUR ACCESS TO OR YOUR USE OF THE PLATFORM OR NPM SERVICES PROVIDED VIA THE PLATFORM WITHIN THE YEAR PRIOR TO THE DATE YOU MAKE SUCH CLAIM, IF ANY, WHICHEVER AMOUNT IS GREATER.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, ANY SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YOU IRREVOCABLY AND FOREVER WAIVE, RELEASE, AND DISCHARGE EACH OF THE RELEASED PARTIES FROM, AND AGREE NOT TO ASSERT OR MAINTAIN, ANY AND ALL CLAIMS, SUITS, LIABILITIES, DEMANDS, CAUSES OF ACTION, OR SIMILAR PROCEEDINGS, KNOWN OR UNKNOWN, WHICH YOU MAY HAVE NOW OR IN THE FUTURE, ARISING FROM, RELATING TO, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, ANY INFORMATION PROVIDED BY THIRD PARTIES TO NPM AND MADE AVAILABLE TO YOU BY NPM AS REFERENCED IN SECTION 3 OF THIS TOU.
14. YOUR INDEMNIFICATION OF NPM
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 reasonable external counsel fees or other expenses incurred in connection with investigating any claim, in whole or in part arising out of or attributable to (a) any breach or violation by You of any applicable laws and regulations; (b) any unauthorized use of the NPM trademarks, NPM’s Confidential Information, or customer information; (c) any breach of these TOU by You; or (d) any dispute that You may have with any other party. You irrevocably and forever waive, release, and discharge the Released Parties from, and agree not to assert or maintain, any and all claims, suits, liabilities, demands, causes of action, or similar proceedings, known or unknown, which You may have now or in the future, arising from, relating to, or in connection with, directly or indirectly, the existence or non-disclosure of, in whole or in part, the MNPI.
15. TERMINATION
These TOU will continue to apply so long as You are able to access the Platform. NPM may, at any time and in its sole discretion, terminate its legal agreement with You, and Your ability and permission to access the Platform, immediately upon notice to the e-mail address that NPM has for You. Notwithstanding anything to the contrary herein, all covenants, agreements, representations, indemnities, and warranties made by You in these TOU shall survive the termination of these TOU.
16. REVISIONS TO THE TOU
NPM reserves the right, at its sole discretion, to modify these TOU from time to time. The modified terms will become effective when posted on the Platform. NPM may send You an email notifying You of any modifications to the TOU or post notice on the Platform. Your continued use of the Platform following posting on the Platform or our notice to You of such modifications constitutes Your acceptance of our revised TOU and policies.
17. GOVERNING LAW AND VENUE FOR DISPUTES
These TOU and Your relationship with NPM under these TOU are 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 TOU shall be resolved exclusively in New York, NY, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case NPM or You may seek such relief in any court with jurisdiction over the parties. You understand that, in return for Your agreement to this provision, NPM is able to offer the Platform at the terms designated, and that Your assent to this provision is an integral part of NPM’s willingness to enter into these TOU.
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 Platform or these TOU:
– 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.
18. ARBITRATION
A. NPM 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 NPM both intend this Section to be broadly interpreted. The arbitrator shall be bound by the terms of this Section. Either party may alternatively bring an individual action in small claims court as opposed to arbitration provided that the procedure set forth in Subsection (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 these TOU.
For the purposes of this Section, references to “Nasdaq Private Market”, “NPM” and “We” include Our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all users or beneficiaries of the Platform. You understand and agree that, by entering into these TOU, You and NPM are each waiving the right to a trial by jury or to participate in a class action. This TOU evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision.
B. If a dispute involves NPM’s broker affiliate, NPM Securities, LLC, then arbitration shall be held before and under the auspices of FINRA and pursuant to the FINRA Code of Arbitration Procedure (as of the date hereof at https://www.finra.org/arbitration-mediation/code-arbitration-procedure). Any other arbitration between You and NPM will be conducted by JAMS/ENDISPUTE, Incorporated in accordance with its Arbitration Rules and Procedures (“Rules”) then in effect, as modified by these TOU. The Rules are available online at https://www.jamsadr.com/rules-comprehensive-arbitration or by writing to the Notice Address. You may also obtain information about the arbitration process online at http://www.jamsadr.com/. Any arbitration shall be held in New York, NY, and 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 NPM should be addressed to: Nasdaq Private Market, Attn: Legal Department, 3 E 28th St, 7th Floor, New York, NY 10016, with a copy to legal@npm.com (“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 NPM do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or NPM may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or NPM shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or NPM is entitled.
D. After NPM 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, NY. 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 upon 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 NPM 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. Further, unless both You and NPM 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. Regardless of anything else in these TOU or this Section, no party, person, or entity covered by the provisions of this Section will be allowed to participate in a class action in court or in class-wide arbitration, whether as a class representative, class member, or otherwise, or act as a private attorney general, in each case in connection with any arbitration or court proceeding involving these TOU or any claim, dispute, controversy, or other matter in question, arising out of or relating to the TOU, or to the breach hereof. In addition, any arbitration or court proceeding involving the TOU or any claim, dispute, controversy, or other matter in question arising out of or relating to the TOU may not be joined or consolidated with any other arbitration or court proceeding involving a different agreement or different parties. The arbitrators have no power or authority to conduct class-wide, consolidated, or private attorney general arbitration. This Section shall apply only to the extent permitted by law and the validity and effect of this class action and consolidation waiver may be determined only by a court and not by an arbitrator. If a determination is made in a proceeding involving the parties that this class action and consolidation waiver is invalid or unenforceable, only this sentence of this Section will remain in force and the remainder of this Section shall be null and void, provided that the determination concerning the class action and consolidation waiver shall be subject to appeal.
G. Notwithstanding any provision in these TOU to the contrary, We agree that if NPM makes any future change to this arbitration provision (other than a change to the Notice Address), You may reject any such change by sending NPM written notice within 30 days of the change to the 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 NPM shall be immediately terminated. This arbitration provision shall survive termination of this TOU and the termination of Your Platform account.
H. If only Subsection G or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in each such case, the parties agree that the exclusive jurisdiction and venue described in Section 17 (Governing Law) of these TOU shall govern any action arising out of or related to these TOU.
19. MISCELLANEOUS
If any portion of these TOU is deemed unlawful, void, or unenforceable by any arbitrator or court of competent jurisdiction, the TOU as a whole shall not be deemed unlawful, void, or unenforceable, but only that portion of the TOU that is unlawful, void, or unenforceable shall be stricken from the TOU.
You agree that if NPM does not exercise or enforce any legal right or remedy which is contained in the TOU (or which NPM 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 NPM.
Other than as described in the TOU, the TOU represent the entire understanding and agreement between You and NPM regarding the subject matter of the Platform, and supersede all other previous agreements.
Electronic scanned copies of these TOU will have the same legal effect as the original. Each party agrees that a facsimile, electronic, or digital signature will have the same effect as a handwritten signature.