These Electronic
Access Terms and Conditions (the “Terms and Conditions”)
govern your usage of this Web Platform (as defined below).
By clicking “I
Agree” you
(i)
acknowledge and agree to these Terms and Conditions; and
(ii)
represent and warrant that the capacity in which you are
acting and using the Web Platform is that you are an agent of a principal, who
is a client of an MUFG entity (“MUFG”), or an agent of the such
principal’s delegate;
(iii)
that such principal has entered into
a.
separate a Services Agreement (as defined below) for one or more
the following services, administration, banking, custody, credit, treasury
services, business process outsourcing or related ancillary services with an
MUFG referred to below and also
b.
a wet inversion of the these Terms and Conditions and that
such principal client has designated you as an authorised user of the Web
platform.
These Terms and
Conditions set forth the terms and conditions under which the MUFG will provide
you (“You” or “Your“) with access to and use
of the MUFG’s electronic information delivery sites known as the “Web
Platform” (branded as Avatar Investor Portal, AvatarFM, OBDx, CFT or
Circle or such other name as MUFG may designate from time to time) and/or other
MUFG-designated access Web Platforms (“Electronic Access”). Electronic
Access includes access to MUFG web sites accessible via the Web Platform and/or
other MUFG-designated access Web Platforms (“Sites”), pursuant to
which You are able to access products and services provided by the MUFG. Access
to and use of Electronic Access by You is contingent upon and is in
consideration for Your compliance with the Terms and Conditions set forth and
is also subject to any separate written agreement between (i) MUFG (including
its policies procedures and departmental guidelines) and (ii) the legal entity
on whose behalf or at whose request You are granted Electronic Access (the “Client”)
with respect to such products and services including and not limited to, banking,
client facing technology, custody, business process outsourcing (each a “Services
Agreement”). In addition, terms and conditions and restrictions with
respect to any particular product or service accessed through Electronic Access
(such as privacy and internet security matters), together with any disclaimers
related to the specific products or services, may be set forth on the Sites
(hereinafter referred to as “Terms of Use”) and will apply to
such products and services.
By availing of
Electronic Access, You and/or a User (as defined below) agree to the Terms and
Conditions and the Terms of Use.
1. Access:
a. Access
to Electronic Access is solely through user-id and password. You must keep Your
user-id and password confidential and are solely responsible for doing so. You
acknowledge and agree that MUFG will have no duty or obligation to verify or
confirm the actual identity of any person who accesses Electronic Access using
a validly issued user-id and password or that any person who accesses the Web
Platform using such validly issued user-id and password is, in fact, a “User”).
b. You
shall not, and shall not permit any User or third party to, breach or attempt
to breach any security measures used in connection with Electronic Access or
Proprietary Software (as defined below). Any attempt to circumvent or
penetrate any application, network or other security measures used by MUFG or
its suppliers in connection with Electronic Access is strictly prohibited.
c. You
are also responsible for ensuring that all Users comply with these Terms and
Conditions and any Terms of Use included on the Sites, the Service Agreement
for each product or services accessed through the Sites and their associated
services and all applicable terms and conditions, restrictions on the use of
such products and services and data obtained through the use of Electronic
Access.
d. MUFG
reserves the right to prohibit access or revoke Your access and/or the access
of any User) to Electronic Access if MUFG determines that You have violated or
breached these terms and conditions or any Terms of Use on a Site accessed by
You, including the Data Terms Web Site (as defined below) or where MUFG reasonably
determines Your conduct, may constitute a criminal offence, violate any
applicable local, state, national, or international law or constitute a
security risk for MUFG, its third party service providers, its clients or any
users of Electronic Access. MUFG may also terminate access to You following
termination of all Services Agreements between MUFG and the Client at whose
request You are granted access to Electronic Access hereunder.
2. Proprietary
Software:
Depending upon the
products and services You elect to access through Electronic Access, You may be
provided with software owned by MUFG or licensed to MUFG by a third party (“Proprietary
Software”). You are granted a limited, non-exclusive, non-transferable
license to install the Proprietary Software on Your authorized computer system
(including mobile devices registered with MUFG) and to use the Proprietary
Software solely for Your own internal purposes in connection with Electronic
Access and solely for the purposes for which it is provided to You. You may
make copies of the Proprietary Software for backup purposes only, provided all
copyright and other proprietary information included in the original copy of
the Proprietary Software are reproduced in or on such backup copies. You shall
not (i) except as provided in these Terms and Conditions, make additional
copies of Proprietary Software; (ii) disclose Proprietary Software to, or allow
Proprietary Software to be used by or for the benefit of, any third party;
(iii) alter, decompile, disassemble, reverse engineer, modify, or attempt to
determine the source code for, any Proprietary Software and/or merge
Proprietary Software with another software program. Any attempt to circumvent
or penetrate security of Electronic Access is strictly prohibited.
3. Ownership
and Rights:
a. Electronic
Access, including any database, any software (including for the avoidance of
doubt, Proprietary Software) and any proprietary data, processes, scripts,
information, training materials, manuals or documentation made available as
part of the Electronic Access (collectively, the "Information"),
are the exclusive and confidential property of MUFG and/or MUFG’s suppliers.
You may not use or disclose the Information except as expressly authorized by
these Terms and Conditions. You will, and will cause all Users to, keep the
Information confidential by using the same care and discretion that You use
with respect to Your own confidential information, but in any event no less
than reasonable care.
b. The
provisions of this paragraph will not affect the copyright status of any of the
Information which may be copyrighted and will apply to all Information whether
or not copyrighted.
c. Nothing
in these Terms and Conditions will be construed as giving You, Users, or third
party users any license or right to use the trade marks, logos and/or service
marks of MUFG, its affiliates, its licensors, its Information Providers or its
third party service providers.
d. Any
Intellectual Property Rights (as defined below) and any other rights or title
not expressly granted to You or Users under these Terms and Conditions are
reserved to MUFG, its affiliates, its licensors, its Information Providers and
its third party service providers. "Intellectual Property Rights"
includes all copyright, patents, trademarks and service marks, rights in
designs, moral rights, rights in computer software, rights in databases and
other protectable lists of information, rights in confidential information,
trade secrets, inventions and know-how, trade and business names, domain names
(including all extensions, revivals and renewals, where relevant) in each case
whether registered or unregistered and applications for any of them and the
goodwill attaching to any of them and any rights or forms of protection of a
similar nature and having equivalent or similar effect to any of them which may
subsist anywhere in the world.
4. Use of
Data/Confidentiality:
a. Electronic
Access may include information and data that is proprietary to the providers of
such information or data (“Information Providers”) or may be used
to access Sites that include such information or data from Information
Providers. This information and data may be subject to restrictions and
requirements which are imposed on MUFG by the Information Providers and which
are posted on https://www.mufg-investorservices.com/service-agreements/ or any
successor web site of which You are provided notice from time to time (the “Data
Terms Web Site”). You will be solely responsible for ensuring that
Users comply with the restrictions and requirements concerning the use of
proprietary data that are posted on the Data Terms Web Site.
b. You
consent to MUFG, its affiliates and its third party service providers
disclosing to each other and using data received from You and all Users and,
where applicable, Your third parties in connection with these Terms and
Conditions (including, without limitation, Your personal data and personal data
of Users) (1) to the extent necessary for the provision of Electronic Access;
(2) in order for MUFG and its affiliates to meet any of their obligations under
these Terms and Conditions to provide Electronic Access; or (3) to the extent
necessary for You and all Users to avail of Electronic Access, and You have the
necessary consents of Your Users and any relevant third parties to give effect
to this Clause.
c. To
the extent that there are data protection and confidentiality terms,
conditions, obligations in the Services Agreement, the same shall apply to
these Terms and Conditions mutatis mutandi. Otherwise You hereby confirm
that You understand, and consent and agree to all data protection terms,
conditions and obligations in Clauses 4.d. to 4.t. below.
d. The
following terms used in these Terms and Conditions shall have the following
meanings and terms of “Data Controller,” “Data Processor,” and “Data
Subject,” as used in this Clause, shall each
have the respective meaning set out in the Data Protection Law:
i. “Ad
hoc Clauses” means the draft contractual clauses prepared by the Article 29
Working Party on data transfers from processors to sub-processors established
in third countries according to article 26(2) of Directive 95/46/EC of the
European Parliament and of the Council, as may be amended or replaced from time
to time;
ii. “applicable
law” means all applicable statutes, laws, rules, regulations and orders
means all statutes, laws, rules, regulations and orders that are applicable.
iii. “Associated
Person” means, with respect to any Person, another Person that, directly or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified. Solely for this purpose
“control” means with respect to any Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting shares or
partnership interests, or of the ability to exercise voting power by contract
or otherwise;
iv. “Confidential
Information” means any information relating to another party which a party
obtains as a result of or in connection with these Terms and Conditions and
includes: (i) any data or information that is competitively sensitive material,
and material not generally known to the public, such as information about
product or business plans, marketing strategies, finances, operations,
customer/investor lists, relationships and profiles, sales estimates, and
internal performance results, of the Disclosing Party, its respective
Associated Persons and the customers and suppliers of any of them (including
third party pricing or information vendors); (ii) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret; (iii) confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source and
object code, databases, inventions, know how, and trade secrets; and (iv) the
Proprietary Items; (v) anything clearly identified by a Disclosing Party as
proprietary or confidential, or which given its nature and the circumstances
surrounding its disclosure should reasonably be construed to be confidential.
v. “Data
Protection Law” means the Data Protection Acts 1988 and 2003 (as amended),
the European Communities (Electronic Communications Networks and Services)
(Privacy and Electronic Communications Regulations 2011 and the GDPR (as
defined below) (as amended or replaced from time to time), and any other EU
regulations, directives, guidance, directions, determinations, codes of
practice, circulars, orders, notices or demands issued by any Supervisory
Authority and any applicable national, international, regional, municipal or
other data privacy authority or other data protection laws or regulations in
any other territory in which the services under these Terms and Conditions are
provided or received or which are otherwise applicable.
vi. “Disclosing
Party” means the You when You disclose Confidential Information to MUFG and
MUFG when it discloses Confidential Information to You.
vii. “GDPR”
means Regulation (EU) 2016/679 of the European Parliament and the Council of 27
April 2016 on the protection of natural persons with regard to the processing
of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation) and any related statutory
instrument(s) in respect of to the foregoing implemented in Ireland and related
guidance.
viii. “Person”
means any natural person or incorporated or unincorporated entity.
ix. “Model
Clauses” or “Model Contract” means the standard contractual clauses
annexed to the European Commission’s Decision 2010/87/EU for the Transfer of
Personal Data to Processors established in Third Countries under Directive
95/46/EC of the European Parliament and of the Council of 24 October 1995, as
amended, on the protection of individuals with regard to the Processing of the
Personal Data and on the free movement of such data, as may be amended or
replaced from time to time;
x. “Personal
Data” has the meaning assigned to it in Data Protection Law and includes
the categories of personal data Processed (as defined below) by the parties
under the Terms and Conditions, as set out in the Processing Schedule;
xi. “Process
(and its derivatives)” has the meaning assigned to it in Data Protection
Law;
xii. “Processing
Schedule” means the subject matter, Processing operations, types of
Personal Data processed, categories of Data Subjects and duration of the
Processing of Personal Data by MUFG in the provision of the services under
these Terms and Conditions, as set out in Appendix A to these Terms and
Conditions which may be added to, subtracted from, or amended from time to time
by the parties;
xiii. “Proprietary
Items” means all software and documentation provided as part of the and
produced by MUFG or its licensors (including any custom developments developed
by MUFG and/or its licensors on Your behalf), the object code and the source
code for any such software, the visual expressions, screen formats, report
formats and other design features of the software, all ideas, methods,
algorithms, formulae and concepts used in developing and/or incorporated into
the software or documentation, all derivative works based on any of the
foregoing and all copies of the foregoing.
xiv. “Receiving
Party” means You when You obtain Confidential Information from MUFG and MUFG
when it obtains Confidential Information from You.
xv. “Reportable
Breach” means any unauthorized or unlawful Processing, disclosure of, or
access to, Personal Data and/or any accidental or unlawful destruction of, loss
of, alteration to, or corruption to Personal Data;
xvi. “Supervisory
Authority” has the meaning assigned to it in Data Protection Law.
e. All
fee and expense arrangements referred to in these Terms and Conditions, to the
extent disclosed by MUFG, are designated as confidential. Each party further
agrees not to use the Confidential Information of the other party for any
purpose other than to perform its obligations or exercise its rights hereunder.
f. Information
shall not be subject to the provisions of Clause 4.e if it: (i) is already
known to the Receiving Party at the time it is obtained; (ii) is or becomes
publicly known or available through no wrongful act of the Receiving Party; (iii)
is rightfully received from a third party who is reasonably believed by the
Receiving Party not to be under a duty of confidentiality; (iv) is released by
the Disclosing Party to a third party without restriction; (v) is required to
be disclosed by the Receiving Party pursuant to a court order, subpoena,
applicable law, or pursuant to the request of a governmental or regulatory
agency (provided the Receiving Party shall provide the Disclosing Party prompt
written notice of such requirement to the extent such notice is permitted);
(vi) is relevant to the defence of any claim or cause of action asserted
against the Receiving Party (provided the Receiving Party (a) provide the
Disclosing Party prompt written notice of such proposed disclosure so that the
Disclosing Party may take steps to protect the confidentiality of any
information so disclosed and (b) cooperate with the Disclosing Party in
protecting against any such disclosure and/or obtaining a protective order, if
required of the Disclosing Party under the terms of any licence between it and
its licensor); or (vii) has been or is independently developed by the Receiving
Party. It shall not be a breach of these Terms and Conditions if Confidential
Information is disclosed to officers, directors, employees or agents of the
Receiving Party or of its Associated Persons, that have a need to know such
information and are bound by similar confidentiality provisions and
restrictions as set forth herein.
g. Notwithstanding
anything to the contrary in these Terms and Conditions, You shall not use MUFG’s
name in any document whatsoever without the prior written consent of MUFG;
provided, however, that You shall not be required to obtain the prior written
consent of MUFG to disclose in client documents that: (i) MUFG is Your service
provider; (ii) summarises the material terms of these Terms and Conditions; and
(iii) includes the biographical details relating to MUFG as provided by MUFG to
You from time to time.
h. You
hereby undertake to notify MUFG in the event any Persons leave their employment
(or the end of a contractor’s engagement) who may have had access to the
internal systems and networks of MUFG and will further undertake to ensure that
such Persons are prevented from accessing any data, Confidential Information or
other Proprietary Items available on MUFG's systems or networks.
i. You
authorize MUFG to Process Personal Data provided to MUFG or which is made
available to it for the purposes of providing the services under these Terms
and Conditions to You pursuant to the Terms and Conditions and for any other
purpose set out in these Terms and Conditions and as may be further agreed by
You and MUFG.
j. The
parties hereto record their intention that in respect of any Personal Data
Processed by MUFG in its provision of the services under these Terms and
Conditions and except as set out in Clause 4.s., You shall be the Data
Controller and MUFG shall be a Data Processor for the purposes of Data
Protection Law. In any such case, You represent and warrant that:
i. all
Personal Data You provide or make available to MUFG has been lawfully obtained
in accordance with Data Protection Law, and can be lawfully disclosed to MUFG
for the provision of services set out in these Terms and Conditions by MUFG and
any other agreed purposes;
ii. the
relevant third parties, including but not limited to Data Subjects, have been
informed of MUFG’s Processing of such Personal Data for the agreed purposes and
You can demonstrate a lawful basis for such Processing and on request will
provide evidence of such to MUFG;
iii. You
comply and have complied with any Data Protection Law applicable to the
collection and Processing of the Personal Data;
iv.
MUFG is permitted to:
1. process
the Personal Data in order to provide the services set out under these Terms
and Conditions;
2. process
the Personal Data to carry out itself (or through third parties) anti-money
laundering checks and related actions MUFG considers appropriate to meet
applicable legal obligations relating to the prevention of fraud, money
laundering, terrorist financing, bribery, corruption, tax evasion and the
provision of financial and other services to persons who may be subject to
economic or trade sanctions, on an on-going basis;
3. disclose
or transfer the Personal Data to its Associated Persons, and any of its
employees, agents, delegates, subcontractors, credit reference agencies,
professional advisors or competent authorities (including tax authorities) and
bodies in order to provide the services under these Terms and Conditions or
services ancillary thereto or for resolution of disputes or investigations or
re-use of posted anti-money laundering data to facilitate additional
investments or services;
4. use the
Personal Data in order to update Your records, either itself or through third
parties, for fee billing and to provide the services set out in these Terms and
Conditions;
5. monitor
and record calls and electronic communications, which may contain Personal
Data, for quality, business analysis, training, investigation and fraud
prevention purposes, for crime and/or regulatory detection, prevention,
investigation and prosecution, and to enforce or defend MUFG's rights, itself
or through third parties to whom it delegates such responsibilities or rights;
6. report
tax or regulatory related information to competent bodies or authorities in
order to comply with its legal and regulatory obligations;
7. retain
the Personal Data for so long as it is required to provide the services set out
under these Terms and Conditions or perform investigations in relation to such,
unless otherwise required by applicable law and/or justified under applicable
statutory limitation periods, whichever is the later;
8. use the
Personal Data for the purpose of servicing the client relationship, evaluate
Your financial needs and to advise You of other products and services offered
by MUFG and/or its Associated Persons; and
9. transfer
Personal Data to competent bodies, courts or regulatory authorities in order to
provide the services set out in these Terms and Conditions, comply with law or
comply with requests from such competent bodies, courts or regulatory bodies.
k. To
the extent that Personal Data is Processed by MUFG pursuant to these Terms and
Conditions, MUFG shall:
i. only
act on and Process such Personal Data in accordance with Your documented
instructions, unless otherwise prevented or required by applicable law;
ii. as
soon as practicable inform You if in MUFG’s opinion, and without any obligation
to perform any legal assessment, an instruction is given to it which breaches
applicable law;
iii. if
it is required by applicable law to Process or disclose Personal Data for
purposes other than those agreed, promptly inform You of that legal requirement
before Processing the Personal Data, unless applicable law prohibits such
information being given on important public interest grounds;
iv. take
appropriate technical and organisational measures against unauthorized or
unlawful Processing of Personal Data and against accidental loss or destruction
of, or damage to, the Personal Data;
v. ensure
that all persons who have access to Personal Data have committed themselves to
appropriate obligations of confidentiality;
vi. save
for the disclosure of information which is confidential, commercially sensitive
or privileged, make available to You (or Your auditor acting under Your
direction), at Your cost and upon reasonable notice and access arrangements,
all information requested by You to demonstrate compliance by MUFG with its
obligations under these Clauses 4.d. to 4.t. which may include data protection
audits, assessments and inspections concerning MUFG's data protection
procedures relating to its compliance with this Clause;
vii. provide
reasonable assistance to You to enable You to comply with (i) the rights of
Data Subjects set out in Chapter III of GDPR, (ii) the security requirements
under GDPR; and (ii) any privacy assessment procedure or consultation conducted
under GDPR;
viii. notify
You as soon as it becomes aware of a Reportable Breach and will provide You
with assistance in responding to and mitigating it PROVIDED ALWAYS that where
the Reportable Breach is connected to MUFG’s Processing of the Personal Data,
You are obliged to provide MUFG with a copy of the intended notification (if
any) to be made by You to the affected Data Subjects and/or Supervisory
Authority, and any such notification requires MUFG’s prior written approval;
ix. upon
termination of the Terms and Conditions, the Personal Data shall, at Your
option, be destroyed or returned to You, unless applicable law prevents the
return or deletion of such Personal Data.
l. You
acknowledge and agree that MUFG shall be permitted to perform any or all of its
data processing obligations through Associated Persons or subcontractors,
PROVIDED ALWAYS that (i) MUFG shall remain liable for such performance of its
data processing obligations by any Associated Person or subcontractor; and (ii)
all Associated Persons and subcontractors engaged by MUFG shall be bound by the
terms of an agreement which contain the same or equivalent obligations with
respect to data processing as are imposed on MUFG under these Terms and
Conditions. MUFG shall notify You of its intention to replace an Associated
Person or subcontractor. You acknowledge and agree that it shall only object to
such replacement where it has reasonable grounds for doing so.
m. You
acknowledge and agree that MUFG may transfer the Personal Data to a country
outside of the European Economic Area (“EEA”), in accordance with
the Model Contracts, Ad hoc Clauses or other available data transfer solutions
under Data Protection Law.
n. Pursuant
to 4.m., You hereby expressly authorize MUFG (or any person designated by MUFG)
to enter into Model Clauses with a sub-processor, in the name of and on Your
behalf, for the limited purposes of binding You as principal to the Model
Contract in the capacity of “data exporter” where the conclusion of such a
Model Contract is required for the purpose of legitimising the transfer of
transferring Personal Data outside the EEA where You are based in the EEA. You
hereby expressly authorize MUFG to enter into Ad hoc Clauses, for the purposes
of transferring personal data outside the EEA where You are not based in the
EEA. For the avoidance of doubt, MUFG shall be permitted
but is not obliged to enter into Model Clauses or Ad hoc Clauses, as relevant,
for any transfer of Personal Data outside the EEA in the course of providing
the services set out in these Terms and Conditions and may in its sole
discretion use an alternative adequacy ground or variation of the Ad hoc
Clauses for any such transfer and You hereby expressly authorize MUFG to enter
into any agreement to give effect to any such alternative adequacy ground or
variation. You hereby consent to such transfers and represent and warrant to MUFG
that disclosure of any transfer contemplated by Clause 4.m. will be made in
Your offering memorandum and that investor consent to this transfer shall be
obtained in any subscription or other related documents to be executed by the
investors, where applicable. You agree to indemnify and hold MUFG and its
Associated Persons harmless in the event MUFG or its Associated Persons suffer
any loss as a result of Your failure to ensure compliance with this Clause 4.m.
o. You
shall remain solely and fully liable for any damage which a Data Subject may
suffer as a result of the Processing of their Personal Data which is under Your
control and which does not result from a breach by MUFG of its obligations
under these Terms and Conditions and Data Protection Law.
p. You
acknowledge and agree that MUFG is reliant upon You as Data Controller for
lawful direction and documented instructions as to the extent to which MUFG is
entitled to Process any Personal Data and, consequently, You agree that MUFG
will not be liable and it shall fully and effectively indemnify MUFG for any
claim brought by a Data Subject and/or any competent authority or body arising
from any action or omission of MUFG, to the extent that such action or omission
resulted from Your instructions given to MUFG with respect to the Processing of
such Personal Data.
q. MUFG
shall be liable in respect of any breach of its obligations under these Clauses
4.d. to 4.t. and Data Protection Law with respect to the Processing of Personal
Data permitted PROVIDED ALWAYS that You acknowledge and agree that MUFG shall
not be liable in the event that any failure to comply with its obligations is
caused by or results from Your acts or omissions in which case You shall be
fully liable.
r. Both
parties acknowledge and agree that, whether MUFG has or You have paid full
compensation for damages suffered by a Data Subject, where joint liability has
been determined in the course of any legal proceeding or other decision, the
party that paid the compensation in full to the Data Subject is entitled to
claim back from the other party that portion of the compensation corresponding
to the other party’s responsibility for the damage.
s. MUFG
agrees to comply with the obligations imposed on Data Controllers under Data
Protection Law solely to the extent it obtains information in connection with
its due diligence of the client pursuant to applicable law in respect of
anti-money laundering and counter-terrorist financing.
t. MUFG
undertakes to treat information regarding the client strictly confidential, in accordance
with the statutory provisions on data protection and professional secrecy.
5. Reliance:
a. MUFG
will be entitled to rely on, and will be fully protected in acting upon, any
actions or instructions associated with a user-id. You acknowledge that all
commands, directions and instructions, including commands, directions and
instructions for transactions issued by You, a User or a third party are issued
at Your sole risk. You agree to accept full and sole responsibility for all
such commands, directions and instructions and that MUFG, will have no
liability for, and you hereby release MUFG from, any losses, liabilities,
damages, costs, expenses, claims, causes of action or judgments (including
attorneys’ fees and expenses) (collectively “Losses”) incurred or
sustained by You or any other party in connection with or as a result of MUFG’s
reliance upon or compliance with such commands, directions and instructions.
b. All
commands, directions and instructions (“Instructions”) involving a transaction
entered by You will be treated as an Proper Instruction under the applicable
Services Agreement(s) covering accounts, products and services and products
provided by MUFG with respect to which Electronic Access is being used whether
such Services Agreement is executed prior to or after Your agreement to these
Terms and Conditions.
c. You
and MUFG each agree that the time at which Instructions are deemed to be
received by MUFG shall be the time of the sending of the confirmation of
receipt by MUFG to the originator of the relevant transaction. MUFG shall have
no obligation to act on any Instructions unless MUFG have sent (or otherwise
made available) You (from whom the Instruction originated from) a transaction
reference number. MUFG may in their absolute discretion decline to act upon any
Instructions which are insufficient or incomplete or are not received by MUFG
in sufficient time for MUFG to act upon or in accordance with such
Instructions, or any other circumstances prescribed by the relevant Services
Agreement.
6. Disclaimers:
a. Although
MUFG uses reasonable efforts to provide accurate and up-to-date information
through Electronic Access, MUFG and its Information Providers make no
warranties or representations under these Terms and Conditions as to accuracy,
reliability or comprehensiveness of the content, information or data accessed
through Electronic Access. Without limiting the foregoing, some of the content
on Electronic Access may be provided by third party sources (“Content Providers”)
and by Information Providers. For that content MUFG is a distributor and not a
publisher of such content and has no control over it. Information provided by
Information Providers has not been independently verified by MUFG and MUFG
makes no representation as to the accuracy or completeness of the content or
information provided. Any opinions, advice, statements, services, offers
or other information given or provided by Content Providers and Information
Providers (including merchants and licensors) are those of the respective
authors of such content and not that of MUFG. MUFG will not be liable to
You, Your clients, Users, or Your third party for such content or information
in any way nor for any action taken in reliance on such information nor for
direct or indirect damages resulting from the use of such information. For
purposes of these Terms and Conditions, all information and data, including all
proprietary information and materials and all client data, provided to You
through Electronic Access are provided on an “as-is”, “as available” basis.
b. MUFG
makes no guarantee and does not warrant that Electronic Access or the
information and data provided through the Electronic Access are or will be
virus-free or will be free of viruses, worms, Trojan horses or other code with
contaminating or destructive properties. MUFG will employ commercially
reasonable anti-virus software to its systems to protect its systems against
viruses.
c. Some
Sites accessed through the use of Electronic Access may include links to third
party websites. MUFG will not be liable to any person for the content found on
such third party websites. MUFG will not be responsible for third party
websites that collect information from parties who visit their web sites
through links on the Sites. MUFG will not be liable or responsible for any
loss suffered by any person as a result of their use of any third party
websites that are linked to MUFG Sites.
d. MUFG
retains complete discretion and authority to add, delete or revise in whole or
in part Electronic Access, including its Sites, and to modify from time to time
any Proprietary Software provided in conjunction with the use of Electronic
Access and/or any of the Sites. To the extent reasonably possible, MUFG will
provide notice of such modifications. MUFG may terminate, immediately and
without advance notice, and without right of cure, any portion or component of
Electronic Access or the Sites.
e. TO
THE FULLEST EXTENT PERMITTED BY LAW, THERE IS NO WARRANTY OF MERCHANTABILITY,
NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NO WARRANTY OF QUALITY AND NO
WARRANTY OF TITLE OR NONINFRINGEMENT. THERE IS NO OTHER WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, REGARDING ELECTRONIC ACCESS, THE SITES, ANY PROPRIETARY
SOFTWARE, INFORMATION, MATERIALS OR CLIENT DATA.
7. Limitation
of Liability:
a. IN
NO EVENT WILL MUFG, ITS LICENSORS, INFORMATION PROVIDERS OR THIRD PARTY SERVICE
PROVIDERS BE LIABLE TO YOU OR ANYONE ELSE UNDER THESE TERMS AND CONDITIONS FOR
ANY LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES INCLUDING BUT NOT LIMITED
TO, ANY DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, RELIANCE DAMAGES, EXEMPLARY
DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, INDIRECT
DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOOD WILL, BUSINESS INTERRUPTION, USE,
DATA, EQUIPMENT OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) THAT RESULT FROM (1) THE USE OF OR INABILITY TO
USE ELECTRONIC ACCESS; (2) THE CONSEQUENCES OF ANY DECISION MADE OR ACTION OR
NON-ACTION TAKEN BY YOU OR ANY OTHER PERSON, OR FOR ANY ERRORS BY YOU IN
COMMUNICATING SUCH INFORMATION; (3) THE COST OF SUBSTITUTE ACCESS SERVICES; OR
(4) ANY OTHER MATTER RELATING TO THE CONTENT OR ACCESS THROUGH ELECTRONIC
ACCESS. MUFG WILL NOT BE LIABLE FOR LOSS, DAMAGE OR INJURY TO PERSONS OR
PROPERTY ARISING FROM ANY USE OF ANY PRODUCT, INFORMATION, PROCEDURE, OR
SERVICE OBTAINED THROUGH ELECTRONIC ACCESS. MUFG WILL NOT BE LIABLE FOR ANY
LOSS, DAMAGE OR INJURY RESULTING FROM VOLUNTARY SHUTDOWN OF THE SERVER,
ELECTRONIC ACCESS OR ANY OF THE SITES TO ADDRESS TECHNICAL PROBLEMS, COMPUTER
VIRUSES, DENIAL-OF-SERVICE MESSAGES OR OTHER SIMILAR PROBLEMS.
b. MUFG’S
ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THESE TERMS AND CONDITIONS FOR
ANY DISPUTE OR CLAIM RELATED TO THESE TERMS OF USE, ELECTRONIC ACCESS OR SITES,
IS AS FOLLOWS: IF YOU REPORT A MATERIAL MALFUNCTION IN ELECTRONIC ACCESS THAT MUFG
IS ABLE TO REPRODUCE, MUFG WILL USE REASONABLE EFFORTS TO CORRECT THE
MALFUNCTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED
TO THE FULLEST EXTENT PERMITTED BY LAW.
c. The
limitation of liability set forth in this Clause and in other provisions in these
Terms and Conditions is in addition to any limitation of liability provisions
contained in any Services Agreements and will not supersede or be superseded by
limitation of liability provisions contained in such Services Agreements,
whether executed prior to or after Your agreement to these Terms and
Conditions, except to the extent specifically set forth in such other Services
Agreements containing a reference to these Terms and Conditions.
8. Indemnification:
a. You
agree, to the extent permitted by law, to indemnify, protect and hold MUFG, its
licensors, Content Providers and Information Providers (the “Indemnified
Parties”) harmless from and against all Losses resulting from a claim
by a third party that arises out of (i) any breach of these Terms and
Conditions and/or the Terms of Use by You and (ii) any person obtaining access
to Electronic Access through You or through use of any password or user-id
issued to You, whether or not You authorized such access, except to the extent
that any such Losses resulted from the fraud or wilful misconduct of MUFG, its
licensors and/or Information Providers, as applicable. For the avoidance of
doubt, and by way of illustration and not by way of limitation, the foregoing
indemnity is applicable to disputes between the parties, including the
enforcement of these Terms and Conditions. The rights and remedies conferred
hereunder will be cumulative and the exercise or waiver of any such right or
remedy will not preclude or inhibit the exercise of additional rights or
remedies or the subsequent exercise of such right or remedy.
b. The
indemnity provided in herein is in addition to any indemnity and other remedies
contained in any Services Agreements and will not supersede or be superseded by
such Services Agreements, whether executed prior to or after Your agreement to
these Terms and Conditions, except to the extent specifically set forth in such
other Services Agreements and expressly stating an intent to modify this Terms
and Conditions. Nothing contained herein will, or be deemed to, alter or
modify the rights and remedies of MUFG as set forth in the Services Agreements.
9. Choice
of Law and Forum:
Unless otherwise
agreed and specified herein, these Terms and Conditions and any issues or
disputes arising out of or in connection with them are governed by and
construed in accordance with the laws of the Cayman Islands; You expressly and
irrevocably agree that exclusive jurisdiction and venue for any claim or
dispute with MUFG, its employees, contractors, officers or directors or
relating in any way to Your use of Electronic Access resides in the Irish
courts; and You further irrevocably agree and expressly and irrevocably consent
to the exercise of personal jurisdiction in those courts over any action
brought with respect to these Terms and Conditions.
10. Term
and Termination:
a. Either
MUFG or You may terminate these Terms and Conditions and the Electronic Access
upon thirty (30) days’ written notice to the other party.
b. In
the event of any breach of the provisions of these Terms and Conditions, or a
breach by any User of the Terms of Use or the restrictions and requirements
concerning the use of Information Providers’ proprietary data that are posted
on the Data Terms Web Site the non-breaching party may terminate these Terms
and Conditions and the Electronic Access immediately upon written notice to the
breaching party if any breach remains uncured after ten (10) days’ written
notice of the breach is sent to the breaching party.
c. MUFG
may immediately terminate access through You, and any User’s user-id and
password and may, at its discretion, also terminate Your access, or access by a
User without right of cure, in the event of an unauthorized use of a User’s
user-id or password, or where MUFG believes there is a security risk created by
such access.
d. MUFG
may terminate, without advance notice, Your access, and/or the access of Users
to any portion or component of Electronic Access or the Sites in the event a
third party service provider, Content Provider or Information Provider
prohibits MUFG from permitting You or Users to have access to their information
or services.
e. Promptly
upon receiving or giving notice of termination, You will notify all Users of the
effective date of the termination.
f. Upon
termination of Your access to Electronic Access, You shall return all related
manuals, documentation, workflow descriptions and the like that are in Your
possession or under Your control.
g. The
Proprietary Software, Use of Data/Confidentiality, Ownership and Rights,
Reliance, Disclaimers, Limitation of Liability and Indemnification provisions
of the Terms and Conditions (and other provision of these Terms and Conditions
containing disclaimers, limitation of liability and indemnification) shall
survive the termination of these Terms and Conditions.
11. Force
Majeure:
Notwithstanding
anything else in these Terms and Conditions, none of MUFG, its third party
service providers, licensors, or Information Providers shall be liable if they
are prevented from, or delayed in performing their obligations, or for any loss
resulting from a cause that is beyond the control of that entity.
12. General:
a. These
Terms and Conditions contain the entire agreement between You and MUFG relating
to the Electronic Access and supersedes all prior written or oral
communications between the parties on the subject. In the event any one or more
of the provisions of these Terms and Conditions shall for any reason be held to
be invalid, illegal or unenforceable, the remaining provisions shall remain
valid and enforceable. Furthermore, the unenforceable provision(s) shall be
modified to carry out to the full extent possible the intent of the provision
deemed unenforceable.
b. Unless
otherwise specified in these Terms and Conditions, these Terms and Conditions
may be amended through a written notice by MUFG to You (including by
notification on the Web Platform), and Your first exercise of Electronic Access
after the effective date of such amendment or such exercise by a User shall
constitute acceptance by You of such amendment to this Agreement.
c. You
may not assign these Terms and Conditions without the prior written consent of MUFG.
MUFG may assign these Terms and Conditions to any affiliate or successor in
interest without Your prior consent. These Terms and Conditions shall be
binding upon and inure to the benefit of You and MUFG and each of your
respective successors and assigns.
d. You
and MUFG each acknowledge the intention that these Terms and Conditions do not
confer or purport to confer on any third party any benefit or any right to
enforce any provisions under these Terms and Conditions, except that the (a) MUFG’s
affiliates may benefit from and enforce the provisions under these Terms and
Conditions; and (b) each Information Provider may benefit from and enforce any
right or benefit given to an Information Provider under these Terms and
Conditions.
e. A
notice to either party shall be given in written English and may be delivered
personally or sent by first class post, pre-paid recorded delivery or by
facsimile to the other party. Any proceedings arising out of these Terms and
Conditions will be sufficiently served if served on the relevant party at
registered office address and/or its address for the services of notices
pursuant to a Services Agreement which comprises these Terms and Conditions the
most recent address provided to the other party. Each notice will be effective,
in the case of a notice delivered by facsimile, when the sender receives a fax
receipt confirming transmission of the fax and, in any other case, will be
effective upon actual receipt.
You represent and
warrant to MUFG that these Terms and Conditions and the indemnity contained
herein have been duly authorized, executed and delivered on Your behalf, that
You have full authority to execute these Terms and Conditions for the
undersigned entities and that the individual executing these Terms and
Conditions has the requisite authority to bind the undersigned entities to
these Terms and Conditions, and that these Terms and Conditions constitute Your
binding obligation enforceable in accordance with its terms.