A. Terms and Conditions of Service
1. Acceptance of the Terms and Conditions.
1.1 Securities Finance Trust Company, and their respective affiliates (collectively referred to herein as “eSecLending,” “we,” “us” or “our”) provides and makes available the public portion of this web site (the “Web Site”). All use of this Web Site is subject to the terms and conditions contained in these Terms and Conditions (the “Agreement”). Please read this page carefully. By accessing, browsing or using this Web Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not accept the terms and conditions of this Agreement, do not use the Web Site.
1.2 You understand and agree that we reserve the right to amend, remove or add to the terms and conditions of this Agreement at any time without prior notice. Such modifications will be effective immediately. Accordingly, please continue to review these terms and conditions of service whenever accessing or using this Web Site. You may read a current, effective copy of this Agreement at any time by selecting the “Terms and Conditions” link on the home page of the Web Site. Your use of the Web Site after the posting of modifications to this Agreement will constitute YOUR ACCEPTANCE OF THIS AGREEMENT, as modified.
2. Access to and Use of the Web Site.
Access to and use of password-protected and/or secure areas of this Web Site, including, without limitation, any areas of the Web Site upon which the eSecAuction or eSecLending Auction Information Center services are available, is restricted to authorized users who have entered into separate agreements with eSecLending. Unauthorized individuals attempting to access these areas may be subject to prosecution.
3. Limit of Liability and Warranty.
3.1 eSecLending, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “eSecLending PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS, OR RELIABILITY. THE eSecLending PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE WEB SITE AND THE CONTENT AT YOUR OWN RISK.
THE eSecLending PARTIES DO NOT WARRANT THAT THE WEB SITE WILL OPERATE ERROR-FREE OR THAT THIS WEB SITE, ITS SERVER, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE WEB SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO eSecLending PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE WEB SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE eSecLending PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
3.2 IN NO EVENT SHALL ANY eSecLending PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEB SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF AN eSecLending PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In no event shall the total liability of the eSecLending Parties to you for all damages, losses, and causes of action exceed the greater of $100.00 or the amount paid by you for accessing the Web Site.
4. Indemnification. You agree to defend, indemnify, and hold harmless the eSecLending Parties, from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the Content or Web Site. eSecLending shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. eSecLending reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting eSecLending’s defense of such matter.
5. Termination of the Agreement; Survival
5.1 eSecLending reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Web Site or the Content, at any time and for any reason without prior notice or liability. eSecLending reserves the right to change, suspend, or discontinue all or any part of the Web Site or the Content at any time without prior notice or liability.
5.2 If this Agreement is terminated, Sections 2, 3, 4, 5, and 8 of Article A, Article B in its entirety and Sections 2 and 3 of Article C shall survive the termination of this Agreement.
6. User Must Comply with Applicable Laws.
6.1 This Web Site is based in Boston, Massachusetts. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Web Site or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
6.2 You hereby acknowledge and agree that information you provide to us via the Web Site, including any individually-identifiable information or personal data you provide, may be processed in the United States in connection with administering this Agreement, monitoring your access to and utilization of the Web Site and corresponding with you. eSecLending is not responsible for ensuring your compliance with any legislation governing the privacy of such individually-identifiable information or personal data.
6.3 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
7. U.S. Government Restricted Rights. The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Web Site or Content by the Government constitutes acknowledgement of our proprietary rights in the Web Site and Content.
8. Miscellaneous. This Agreement is governed by the internal substantive laws of the Commonwealth of Massachusetts, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Boston in the Commonwealth of Massachusetts. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of eSecLending to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against eSecLending unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. This Agreement constitutes the entire Agreement between you and eSecLending with respect to the subject matter, and supercedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter, provided however, all use of the eSecAuction services and the eSecLending Auction Information Center services shall be governed by additional terms and conditions applicable to such services. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
B. Intellectual Property Issues
1. eSecLending Intellectual Property Rights
1.1 This Web Site contains material, such as software, text, graphics, images and other material (collectively referred to as the “Content”). The Content may be owned by us or may be provided through an arrangement we have with others. The Content is protected by copyright under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other Web site or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and Web Site automatically terminates and you must immediately destroy any copies you have made of the Content.
1.2 eSecLending, the arrow design, combinations of eSecLending and the arrow design, and all other trademarks, service marks, and logos of eSecLending (the “eSecLending Trademarks”) used and displayed on this Web Site are registered and unregistered trademarks or service marks of eSecLending. Other company, product, and service names located on the Web Site may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with the eSecLending Trademarks, the “Trademarks”). Nothing on this Web Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Web Site, without the prior written permission of eSecLending specific for each such use. The Trademarks may not be used to disparage eSecLending or the applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by eSecLending in writing. All goodwill generated from the use of any eSecLending Trademark inures to our benefit.
2. Claims of Copyright Infringement. If you reasonably believe that your copyrighted work is accessible on this Web Site in a way that constitutes copyright infringement, please provide our copyright agent with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the allegedly infringing material is located on the Web Site;
- Your address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owners, its agent or the law;
- A statement by you made under the penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or duly authorized to act on the copyright owner’s behalf.
Our agent for notices of claims of copyright infringement can be reached as set forth below:
Anita B. Ryan, Esq.
175 Federal Street, 11th Floor
Boston, MA 02110
Phone: +1 617 204 6017
Consistent with the Digital Millennium Copyright Act, we reserve the right to remove from the Web Site any Content that is alleged to infringe someone’s copyright.
C. Linking and Framing Policies
1. Links to External Sites. The Web Site contains links to third-party web sites (“External Sites”). Such External Sites are not maintained or controlled by eSecLending. eSecLending is therefore not responsible for the availability, content or accuracy of such External Sites. eSecLending does not: (a) make any warranty, express or implied, with respect to the use of any External Sites; (b) guarantee the accuracy, completeness, usefulness or adequacy of any External Site; or (c) make any endorsement, express or implied, of any External Sites.
You should take precautions when downloading files from all web sites, including the External Sites, to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so solely at your own risk.
2. No Framing. Elements of the Web Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except to the extent expressly permitted under this Agreement. None of the Content may be retransmitted without express written consent from us for each and every instance.
3. No Deep Linking. You are not authorized to establish links from any External Sites to any internal or subsidiary pages of this Web Site located one or more levels down from the home page of the Web Site (“Deep Links”) without the prior written consent of eSecLending. If you wish to establish any Deep Links into this Web Site please contact us to request permission.
1. Privacy information for public areas on the Web Site
When using the public areas of the Web Site, we do not monitor or collect any personally identifiable information from you. We may, however, track the number of users who visit the public areas of the Web Site. We may also record the location of your computer on the Internet for systems administrative and trouble shooting purposes and to report aggregate information. We use various technical means, but we do not use “cookies”, to collect and store information about your Internet connection when you visit the Web Site. We may use other methods now or in the future to accomplish the goals of collecting technical and navigation information about the Web Site.
If you voluntarily provide personal information such as an e-mail address when inquiring about us or our products and services, we use that personal information to improve our services to you, to provide information to you and to inform you about additional products or services that may be of interest to you. We do not share your personal information with unaffiliated third parties, except as required by law.
2. Privacy information for password-protected areas on the Web Site
We use your personal information to service your account, to improve our services to you, to provide information to you and to inform you about additional products or services that may be of interest to you. We do not share your personal information with unaffiliated third parties without notifying you, except to service your account or as required by law.
While we take active steps, including use of firewall barriers, encryption techniques and authentication procedures, to protect all information we receive online, we cannot guarantee the security of any information you transmit to the Web Site online, and you do so at your own risk.
If you share your personal information with a third party you do so at your own risk. By doing so, you may compromise the security of your personal information, including account/financial information. For security reasons, you will automatically be logged out of a password-protected site after a period of browser inactivity.
3. United Kingdom Users
This communication is directed at professional persons (this includes persons who are market counterparties and intermediate customers as defined by the Financial Services Authority) who have professional experience in matters relating to investments. The products and services to which this communication relates are only available to such persons and persons of any other description (including private investors) should not rely on this communication.
To the extent this communication refers to collective investment schemes, this communication is directed at persons having professional experience of participating in unregulated schemes and at trustees of high value trusts. Units in the scheme(s) to which this communication relates are available only to such persons. Persons who do not have professional experience in participating in unregulated schemes or who are not trustees of a high value trust should not rely on it. Participation in exempt collective investment schemes is restricted to pension schemes or funds which satisfy the criteria set out in the Income Tax (Pension Funds Pooling Schemes) Regulations 1996.