Terms of Service

1          General

 

1.1     These general terms and conditions (the “General Terms and Conditions” or the “GTC“) govern the relationship (the “Agreement“) between (i) Equilink SA (CHE-437.497.973), Rue Dr-Alfred-Vincent 5, 1201 Geneva, Switzerland (“Equilink” or the “Company“) and (ii) each wealth manager (each, the “Wealth Manager“) of which the user (the “User“) of the Equilink platform (the “Platform“), available at the URL https://app.equilink.com/, is a director, officer, manager, employee, agent and/or representative (each, a “Wealth Manager Representative“; (Equilink and the Wealth Manager, collectively, the “Parties” and each, individually, a “Party“) regarding the Wealth Manager’s access and use of the Platform, the investment opportunities displayed therein and related investments made by the Wealth Manager for the accounts of its clients as a result of the access and use of the Platform. Each User shall be bound by these GTC.

 

1.2     The Agreement is effective as of the earlier of (i) the User accepting these GTC by ticking the related Platform’s purpose-built box; and (ii) the first use of the Platform by the User (the “Effective Date“). The User represents and warrants that the User has full authority to bind the Wealth Manager to the Agreement.

 

1.3     The Agreement shall remain in force until terminated by either Party in accordance with Clause 15 (the “Term“).

 

1.4     Unless expressly agreed otherwise by the Parties in writing, these GTC apply to the relationship between Equilink and the Wealth Manager to the exclusion of any other general terms and conditions, in particular any general terms and conditions of the User, without prejudice to any Distribution Agreement entered into by the Parties, as applicable.

 

2                 Scope and Investment Process

 

2.1     Equilink makes the Platform available to the Wealth Manager in accordance with these GTC, and subject to the discretionary approval of Equilink further to completion of the registration process by the Wealth Manager, for the purpose of (i) connecting professional investment managers (each, a “General Partner“) and wealth managers, such as the Wealth Manager, looking for investment opportunities, as well as (ii) enabling access by wealth managers to detailed financial and operational data relating to such investment opportunities so as to enable wealth managers and their relevant clients to evaluate and engage in said investment opportunities (the “Purpose“).

 

2.2     The investment by the Wealth Manager (including the Users) and/or its clients in an investment opportunity displayed on the Platform shall be subject to the Parties entering into a distribution agreement (the “Distribution Agreement“) confirming that the Wealth Manager intents to abide by these GTC and setting out, inter alia, the Wealth Manager’s right to distribution fees, as applicable. In particular, Clause 5 shall apply. The access to different functionalities of the Platform may vary depending on the status of the Wealth Manager, including, without limitation, whether it has entered into a Distribution Agreement or not.

 

2.3     If the Wealth Manager (including the Users) or its clients are interested by an investment opportunity offered by a General Partner on the Platform, the Wealth Manager may invest in the relevant special purpose vehicle (each, a “SPV“) set up by the relevant General Partner for the relevant investment through the relevant pooling vehicle (each, a “Pooling Vehicle“), provided that the Distribution Agreement has been entered into by the Parties. In connection with each investment, the Wealth Managers may receive distribution fees (the “Distribution Fees“) as a percentage of their investment, within the fee range as determined by Equilink and specified in the term sheet for each investment.

 

2.4     Unless agreed otherwise on a case-by-case basis by Equilink and the Wealth Manager, the investment process is as follows (i) the Wealth Manager indicates interest on the Platform to invest in the relevant investment opportunity, (ii) the Wealth Manager wires funds (through a regulated custodian bank/broker) to the Pooling Vehicle’s custodian bank, and, in exchange, the Pooling Vehicle issues securitized notes to the Wealth Manager as a private placement, and (iii) the Pooling Vehicle invests in the SPV set up by the relevant General Partner. Each securitized note sets out a contractual obligation towards the Wealth Manager, as further specified in the securitized note.

 

2.5     Equilink is entitled to enter into agreements with the General Partners and/or the SPVs pursuant to which it will be entitled to fees as specified in the term sheet for the relevant investment.

 

3                 Disclaimer

 

3.1     The Platform serves as an intermediary and does not provide financial, legal, tax or investment advice, or any other advice of any kind.

 

3.2     It is the sole responsibility of the Wealth Manager to perform its own due diligence and assessment of any investment opportunity, the General Partners, the Pooling Vehicle and/or the SPVs displayed on the Platform, and the risks associated therewith.

 

3.3     Equilink is not a financial intermediary (in particular within the meaning of Article 2 of the Swiss Federal Anti-Money Laundering Act (the “AMLA“)) and shall bear no liability with regard to such a qualification.

 

3.4     The Wealth Manager ops-out within the meaning of Article 5 of the Swiss Federal Financial Services Act (the “FinSA“) and therefore declares that it wishes to be treated as an institutional client within the meaning of Article 4 FinSA, unless it already qualifies as an institutional client.

 

3.5     The Wealth Manager releases Equilink, the General Partners, the Pooling Vehicle and the SPVs from any obligation to apply the code of conduct set out in Articles 7 and seq. FinSA (and the applicable provisions of the Swiss Federal Financial Institutions Ordinance (the “FinIO“)).

 

3.6     The Wealth Manager acknowledges and agrees that (i) an appropriateness or suitability assessment of its knowledge, experience, financial situation and investment objectives will not be performed by Equilink; (ii) Equilink does not provide any advice of any kind nor does offer any financial products of any kind, but solely and merely connects the Wealth Manager to General Partners that offer investment opportunities, with the investments being made through the SPV; (iii) Equilink does not provide any asset management services or advisory services; and (iv) the Wealth Manager is solely liable for any issue arising out of its relationship with its clients and towards the investors to whom it offers an investment opportunity detailed on the Platform.

 

3.7     The Wealth Manager consents to the Platform’s collection, use, and processing of data as necessary for the performance of the Agreement, as applicable, in accordance with the Platform’s privacy policy.

 

3.8     At all times and without any responsibility or liability towards the Wealth Manager and/or any of its clients, Equilink may at all times, at its sole discretion, refuse to connect the Wealth Manager and/or its relevant clients with one or several General Partner(s) on the Platform and/or discontinue the connection between them, as well as block access to the Platform to any User. For the avoidance of doubt, the Wealth Manager and its relevant clients shall remain subject to the non-circumvention undertakings set out in Clause 5.

 

3.9     All investments decisions and strategies are made by the Wealth Manager and/or its clients, as applicable, at their own discretion and risk.

 

4                 Transparency

 

4.1     The Wealth Manager shall accurately and fully transmit all information regarding each investment opportunity offered on the Platform to its clients, including, without limitation, detailed financial and operational data, risks, all fees and any potential conflict of interests related to the specific investment opportunity.

 

4.2     The Wealth Manager shall in particular expressly disclose to its clients (i) all direct or indirect fees, including, without limitation, the Distribution Fees, which will be charged by the Wealth Manager, Equilink, the General Partners, the Pooling Vehicle, the SPV and/or any third party in connection with any investment (collectively, the “Fees“) and (ii) any conflict of interests that may impact its impartiality or objectivity in recommending investment opportunities accessed through the Platform. This disclosure must be made in a timely manner and in accordance with all applicable Laws.

 

4.3     The Wealth Manager shall also duly inform its clients that it opted-out within the meaning of Article 5 FinSA and therefore declared that it wishes to be treated as an institutional client within the meaning of Article 4 FinSA, unless it already qualifies as an institutional client. The Wealth Manager shall duly inform its clients of the consequences of such opting-out, including, without limitation, that the provisions of the code of conduct (i.e., Articles 7 and seq. FinSA) do not apply to Equilink, which does not have to respect such provisions.

 

4.4     The Wealth Manager shall also duly inform its clients that Equilink is not a financial intermediary, as well as the consequences thereof, including, without limitation, with respect to AMLA.

 

5                 Non-Circumvention and Non-Solicitation

 

5.1     The Wealth Manager covenants and agrees, and shall cause the relevant Users and its relevant clients to covenant and agree, as a separate and independent undertaking, that during the Term and for a period of 12 months following the expiry or termination of the Agreement for whatever reason, the Wealth Manager and its clients shall not, directly or indirectly, engage in direct negotiations or transactions with General Partners, Pooling Vehicle and/or SPVs regarding investment opportunities displayed on the Platform, thus bypassing the Platform’s established processes which consist in connecting the Wealth Manager with the General Partners that provide access to investment opportunities.

 

5.2     The Wealth Manager covenants and agrees, and shall cause the relevant Users and its relevant clients to covenant and agree, as a separate and independent undertaking, that during the term of the Agreement and for a period of 24 months following the expiry or termination of the Agreement for whatever reason, the Wealth Manager and its clients shall not (i) either on its or their own account or for any other person or entity, directly or indirectly, solicit, hire, employ, attempt to hire or employ, negotiate or arrange the employment of any person who is employed by, or work as an independent contractor with, Equilink; (ii) directly or indirectly, solicit or induce any person or entity to breach his/her/its obligation towards or to terminate his/her/its contract relationship with Equilink, any General Partner, any Pooling Vehicle and/or any SPV; and (iii) directly or indirectly, solicit or induce any person or entity not to use or to stop using the Platform or to deal with Equilink in the manner in which such person or entity was previously accustomed.

 

6                 License

 

6.1     Subject to the terms and conditions of the Agreement, Equilink grants to the Wealth Manager, as of the Effective Date, a worldwide royalty-free, non-exclusive, non-assignable, non-transferable, and non-sublicensable license to use during the Term the Platform and the documentation related to the Platform made available to the Wealth Manager by Equilink in the framework of the Agreement (the “Documentation“) solely for the Purpose (the “License“).

 

6.2     Unless permitted under applicable mandatory law and solely to the extent permitted by such law, the Wealth Manager (including the Users) shall not, without Equilink’s prior written consent, in particular (i) grant access to the Platform to any third party or use the Platform on behalf of any third party; (ii) use the Platform for a purpose other than the Purpose; (iii) modify, alter, copy, transfer, emulate or create any derivative works of the Platform or of any part thereof; (iv) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt any of the foregoing or to derive source code, designs, or otherwise discover the underlying Intellectual Property of the Platform or any part thereof; (v) remove, alter or obscure any copyright, trademark or other attribution notice, on or in, the Platform and/or the Documentation; and (vi) use the Platform in any manner that would cause the Platform to become subject to an Open-Source Software and/or could harm the reputation of Equilink or any of its or any of its directors, officers, managers, employees, agents and representatives (each, a “Equilink Representative“).

 

6.3     The Platform includes third-party open-source software (“Open-Source Software“). The Wealth Manager acknowledges and agrees that the use by the Wealth Manager of the Open-Source Software shall be governed by the open-source licensing terms applicable to the relevant Open-Source Software, without prejudice to this Clause 6.3. To the extent required by the applicable open-source licensing terms, a list of the Open-Source Software included in the Platform, the open-source licensing terms applicable thereto and information for obtaining the source and/or object code of the relevant Open-Source Software, as applicable, are provided in the copyright and/or other attribution notices included in the Platform and/or the Documentation. At any time, Equilink has the right to replace any Open-Source Software included in the Platform with software that has similar functionality or purpose.

 

7                 Intellectual Property

 

7.1     As between Equilink and the Wealth Manager (including the Users), Equilink is and shall remain the sole and exclusive owner of (i) any and all of the Intellectual Property in or pertaining to the Platform and any part thereof, including, without limitation, any modifications, enhancements, improvements, updates, upgrades, and derivative works thereof, irrespective of whether they originate or have been learned or derived from the use by any User of the Platform or feedback, information or suggestion of any User regarding the Platform; and (ii) any and all Intellectual Property created or developed by, or on behalf of, the Wealth Manager using or referring to Confidential Information of Equilink (collectively, the “Equilink IP“), where “Intellectual Property” or “IP” shall mean any registered and unregistered intellectual property rights and any other rights entitled to or eligible for other forms of legal protection, under any legal theory, including, without limitation, patents, designs, trademarks, services marks, copyrights (including rights in computer software, source code and object code), semi-conductor layouts, inventions, distinctive signs, trade names, business names, domain names, works of authorship, know-how, data, results and trade secrets, including corresponding applications to register and rights to apply for registration, as well as the associated goodwill.

 

7.2     Any Equilink IP shall directly vest in Equilink upon creation or development. In the absence of direct vesting of any Equilink IP, the Wealth Manager hereby assigns such Equilink IP to Equilink. In the event that any Equilink IP has not directly vested in Equilink and is not assignable in accordance with the foregoing, the Wealth Manager hereby grants to Equilink a worldwide, royalty-free, fully paid-up, exclusive, transferable and sublicensable (through multiple tiers), perpetual and irrevocable license to use any such Equilink IP for any purposes whatsoever.

 

7.3     The Wealth Manager grants to Equilink a worldwide, royalty-free, fully paid-up, non-exclusive, transferable and sublicensable (through multiple tiers) license to use any information, data, document or other material uploaded by the Users on the Platform during the Term for the Purpose.

 

7.4     Except as expressly provided otherwise in the Agreement, no other right, title or interest, including any license or rights by implication, estoppel or otherwise, in and to any Equilink IP is granted to the Wealth Manager or implied pursuant to the Agreement.

 

7.5     The Wealth Manager shall undertake all reasonable actions, and execute and deliver all documents and instruments necessary for Equilink to give full effect to this Clause 7, including, without limitation, executing any document confirming any direct vesting, formalizing any assignment or grant of license under Clause 7.2 or any confirmation thereof.

 

8                 Confidentiality

 

8.1     The Wealth Manager (including the Users) may receive or access proprietary and/or non-public knowledge, information or materials regarding Equilink, the Platform, the General Partners, the Pooling Vehicle, the SPVs and the investment opportunities displayed on the Platform (collectively, the “Confidential Information“), including, without limitation, any Equilink IP and any information pertaining to investment opportunities, such as the list of General Partners and any information about them, due diligence reports, operational data, strategic plans, financial plans, financial analysis, forecasts, budgets, cap tables, share registers, financial statements (in particular, balance sheets, profit and loss statements, and cash flow statements), business models, business plans, collaborations and prospects. Knowledge, information and materials will be considered Confidential Information regardless of the form or manner of disclosure and whether or not marked as “confidential” or with words of similar import. Confidential Information shall also be deemed to include any information generated by the Wealth Manager using Confidential Information. The Wealth Manager (including the Users) undertakes, unless specifically provided otherwise in the Agreement: (i) to keep confidential at any time and not to disclose, in whole or in part, to any third party any Confidential Information; (ii) not to publish, disclose or divulge any Confidential Information; (iii) not to use any Confidential Information for any purpose other than the Purpose; (iv) to take reasonable and appropriate measures to safeguard any Confidential Information from theft, loss or disclosure to others, including, without limitation, cyber security measure; and (v) not to copy or reverse engineer, reverse compile, nor attempt to derive the composition or underlying code or other information of any Confidential Information, including after the expiry or termination of the Agreement for whatever reason and indefinitely.

 

8.2     Without prejudice to Clause 7, Confidential Information shall always remain the property of the disclosing party, and the Wealth Manager will not obtain any rights, express or implied, in any Confidential Information.

 

8.3     The obligations mentioned in Clauses 8.1 and 8.2 shall not apply to Confidential Information which the Wealth Manager can demonstrate by documentary evidence: (i) was in the public domain at the time of its receipt by the Wealth Manager; (ii) was at the time of its receipt already in the Wealth Manager’s possession, or known to the relevant User, without restriction on use or disclosure; (iii) becomes part of the public domain after its receipt by the Wealth Manager, but not through a breach of the Agreement by any User; (iv) is rightfully given to the Wealth Manager by a third party authorized to make such disclosure and on a non-confidential basis; (v) was independently developed by the Wealth Manager without reliance upon any Confidential Information; and/or is approved for release and/or use by prior written consent from Equilink, solely to the extent of such consent.

 

8.4     The Wealth Manager shall have the right to disclose to the relevant authority any Confidential Information which is required by law, a competent court or a governmental entity to be disclosed, provided however that the Wealth Manager shall advise Equilink in advance of such disclosure to the extent practicable and permissible by such law and afford Equilink or any third party designated by Equilink, where reasonably possible, to counter such disclosure and take action to obtain a protective order or other appropriate measures precluding or limiting the disclosure of said Confidential Information. The Wealth Manager shall exercise reasonable efforts to ensure that any Confidential Information so disclosed will be accorded confidential treatment. The Confidential Information that is disclosed pursuant to this Clause 8.4 shall remain Confidential Information for all other purposes.

 

8.5     The Wealth Manager shall have the right to disclose to its clients any information which is required to be disclosed by law or under the Agreement, as well as to the Wealth Manager’s client(s) interested in investment opportunities and to the Wealth Manager’s advisors, provided said clients and advisors have entered into a specific non-disclosure agreement setting out confidentiality undertakings similar to those of this Clause 8.

 

8.6     Upon the expiry or termination of the Agreement for whatever reason, or at the earlier request of Equilink, the Wealth Manager shall, at the election of Equilink, return or destroy all originals and copies of Confidential Information, or, in case of Confidential Information stored in electronic, magnetic or digital media, shall erase or render unreadable all materials furnished (including working papers containing any Confidential Information or extracts therefrom) which contain Confidential Information.

 

8.7     The Wealth Manager acknowledges that a breach of this Clause 8 may cause irreparable damage impossible of calculation to Equilink and that, in addition to all other remedies, legal or contractual, Equilink shall be entitled to obtain preliminary or permanent injunctions, or such other form of equitable relief as a court of competent jurisdiction might impose, to enjoin a breach or threatened breach of the Agreement.

 

9                 Representations and Warranties of the Parties

 

9.1     Each Party represents and warrants that it is duly organized and validly existing, and, where applicable, in good standing, under the laws of its jurisdiction of incorporation and that it is duly qualified to do business in each jurisdiction in which it does business.

 

9.2     Each Party represents and warrants that the execution and performance of the Agreement do not require any approval, license, qualification, consent or filing or exemption therefrom, or other action by any person, which it has not already obtained, cannot obtain or which has been already refused, and that said execution and performance do not contravene or constitute a default under any legal or contractual obligations binding on such Party and/or any of its assets.

 

10            Representations and Warranties of the Wealth Manager

 

The Wealth Manager represents and warrants that:

(i)        it is either an institutional client within the meaning of Article 4 paragraph 1 letter c FinSA or it is a professional client within the meaning of Article 4 paragraph 3 FinSA that has opted to be treated as an institutional client;

(ii)       it is not a retail client within the meaning of Article 4 paragraph 2 FinSA, nor a professional client who has not declared it wishes to be treated as an institutional client;

(iii)      it has all the authorizations and licenses, including, without limitation, as applicable all the authorizations and licenses delivered by the Swiss Financial Market Supervisory Authority FINMA (“FINMA“) and any other relevant financial market supervisory authority, to perform the Agreement as an institutional client and is duly authorized to conduct its business in accordance with the laws of any jurisdiction in which it conducts business;

(iv)      it has duly informed its relevant clients of the existence and contents of the Agreement, the consequences of the non-application by Equilink of the rules of the code of conduct provided under Articles 7 and seq. FinSA and the applicable Articles of FinIO, the fact that Equilink is not a financial intermediary and the consequences of not being a financial intermediary, as well as the content of any and all investment opportunities (especially the risks) in which the Wealth Manager and/or the Wealth Manager’s clients decides to invest, at its sole and entire discretion;

(v)      its relevant clients have accepted the terms and conditions of the Agreement, as well as the terms and conditions of any investment opportunity (especially the risks) in which the Wealth Manager decides to invest, at its sole and entire discretion;

(vi)      if the contractual relationship with a client does not imply to inform the latter, the Wealth Manager represents and warrants that it has the right to use the Platform and to invest in an investment opportunity through the Pooling Vehicle and the SPV;

(vii)     it assumes all the liability – to the entire exclusion and discharge of Equilink and the Equilink Representatives – for any issue (of any kind whatsoever) arising out from its clients;

(viii)    it has duly informed its relevant clients in advance of all the Fees (including, without limitation, the Distribution Fees) which will be charged to its clients and it has made sure that its clients relinquished to receive the entire compensation and consent to the payment of such Fees;

(ix)      it has the right to disclose to Equilink, the Pooling Vehicle and the SPV any information related to its clients, including, without limitation, personal data and any type of Confidential Information, and has obtained the express consent from the relevant client(s) to disclose the personal data Equilink and/or on the Platform;

(x)      it ensures the protection and secure handling of personal and sensitive data;

(xi)      it will stay informed and adjust its practices in response to any changes in relevant laws and regulations;

(xii)     it will offer investment opportunities only to investors who are legally recognized as qualified and informed, adhering strictly to the applicable regulatory standards of investor qualification;

(xiii)    it has not entered into, nor will it enter into, any agreements that would conflict with its obligations under the Agreement or would render it incapable of satisfactorily performing hereunder; and

(xiv)    the acceptance of the Distribution Fees and the payment of other Fees do not create a conflict of interests in its fiduciary duties to its clients and that investment recommendations are made solely based on the best interests of its clients.

 

11            Disclaimer of Warranties

 

11.1   To the fullest extent allowed by the applicable law and notwithstanding any provision to the contrary, subject however to Clauses 9 and 13, Equilink provides the Platform, including, without limitation, the Open-Source Software, and the results thereof, and any information, data, document or other material displayed on, uploaded on or downloadable from, the Platform and/or related to any General Partner, any Pooling Vehicle, any SPV and/or any investment opportunity “as is” and “as available” without representation and warranty of any kind, either express or implied, including those of merchantability, authenticity, accuracy, completeness and fitness for a particular purpose. In particular, Equilink makes no representation and warranty as to the availability of the Platform and that the Platform is free of defects or errors, or that it adequately performs the functions the Platform is intended to perform, including without limitation, that there will be no delays and/or losses or corruptions of data.

 

11.2   The entire risk arising out of or in relation to the use of the Platform, including, without limitation, the Open-Source Software, and the results thereof, and any information, data, document or other material displayed on, uploaded on or downloadable from, the Platform and/or related to any General Partner, Pooling Vehicle, SPV and/or investment opportunity, as well as the pursuit of an investment opportunity and any investment made in connection with the foregoing shall remain with the Wealth Manager and its relevant client(s). For the avoidance of doubt, Equilink does not guarantee any return, increase or revenue to the Wealth Manager and any of its clients in connection with the use of the Platform, including, without limitation, the Open-Source Software, and the results thereof, and any information, data, document or other material displayed on, uploaded on or downloadable from, the Platform and/or related to any General Partner, Pooling Vehicle, SPV and/or investment opportunity, as well as the pursuit of an investment opportunity and any investment made in connection with the foregoing. Equilink does not guarantee that any such investment is exempt of any Taxes and the Wealth Manager acknowledges and agrees and shall cause its relevant clients to acknowledge and agree, that no tax ruling has been made regarding the investment opportunities made available by General Partners through the Platform, the financial products issued by the Pooling Vehicle and/or the SPV and/or the underlying assets in which the Pooling Vehicle and/or the SPV invest. Equilink shall not be liable if the Wealth Manager and/or any of its clients lose money, business and/or business opportunity.

 

11.3   Equilink is under no obligation to update or correct defects or errors in the Platform and/or any information, data, document or other material displayed on, uploaded on or downloadable from, the Platform and/or related to any General Partner, any Pooling Vehicle, any SPV and/or any investment opportunity, as well as to provide any related support service.

 

12            Limitation of Liability

 

12.1   To the fullest extent allowed by applicable law and notwithstanding any provision to the contrary, subject however to Clauses 9 and 13, Equilink shall in no event be liable to the Wealth Manager, any of its clients, any Users and/or any other third party for any damage, including, without limitation, any punitive, exemplary, special, indirect, incidental or consequential damages (including, without limitation, lost profits, lost revenues, lost business opportunities, and loss of or corruption to data), arising out of or in connection with the use of the Platform, including, without limitation, the use of Open-Source Software, and the results thereof, and any information, data, document or other material displayed on, uploaded on or downloadable from, the Platform and/or related to any General Partner, any Pooling Vehicle, any SPV and/or any investment opportunity, as well as the pursuit of an investment opportunity and any investment made in connection with the foregoing and/or with the Agreement, regardless of the legal theory under which such damages are sought, and even if Equilink has been advised of the possibility of such damages or loss.

 

12.2   The Wealth Manager waives, and shall cause its relevant clients to waive, any and all claims that the Wealth Manager and/or its relevant clients may have against Equilink and/or any Equilink Representative in connection to any dispute between (i) the Wealth Manager and/or its relevant clients and (ii) any General Partner, any Pooling Vehicle, any SPV, any other Users and/or any third party.

 

13            Compliance with Laws

 

The Parties shall comply with all applicable laws and regulations, including, without limitation, financial, anti-money laundering, sanction and data protection laws and regulations (collectively, the “Laws“).

 

14            Indemnification

 

The Wealth Manager shall indemnify and hold harmless Equilink and the Equilink Representatives from and against any claim made against them in connection with a breach by the Wealth Manager of any its obligations under Clauses 4, 13 and/or 19.1 and/or any of its representations and warranties pursuant to Clauses 9, 10 and/or 19.2.

 

15            Termination

 

15.1   Either Party may terminate the Agreement by giving 30 days written notice to the other Party.

 

15.2   Either Party may terminate this agreement for material breach of the Agreement by the other Party with immediate effect by giving written notice specifying the nature of the breach.

 

15.3   In the event of termination of the Agreement for any reason whatsoever, the Wealth Manager shall inter alia (i) cease using the Platform and (ii) cease the pursuit of any investment opportunity displayed on the Platform.

 

16            Survival

 

The expiry or termination of the Agreement will not relieve the Parties of any obligation accrued prior to such expiry or termination. Clauses 1, 3.4, 3.9, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 22 and 23, as well as any Clause which by its nature shall survive the expiry or termination of the Contract, shall remain in full force after such expiry or termination for whatever reason.

 

17            Use of Logo

 

17.1   The Wealth Manager grants to Equilink permission to use its logo on the Platform and/or in Equilink’s marketing and promotional materials for the purpose of promoting Equilink’s services and/or the Platform. This permission does not imply any endorsement by the Wealth Manager beyond the scope of the Agreement.

 

17.2   Equilink commits to respect the Wealth Manager’s branding guidelines in the use of the Wealth Manager’s logo and will not alter or deploy it in a manner that could negatively impact the Wealth Manager’s brand reputation. Equilink agrees to cease using the Wealth Manager’s logo upon the Wealth Manager’s request.

 

18            Force Majeure

 

18.1   Neither Party shall be liable for any delay or failure of performance due solely to by reason of its delay in the performance of, or failure to perform, any of its obligations under the Agreement if such delay or failure is caused by strikes, labor disputes, embargos, epidemics, pandemics, quarantine restrictions, natural disasters, unusually severe weather, floods, earthquakes, fire, explosions, power surges, acts of God, or the public enemy, war, civil unrest, riots, acts or threats of terrorism, transport problems, communication network breakdowns, restrictions on import, export and transit, exchange restrictions on international payments, shortage in raw materials and energy, breakdown of operations of other events or other events which arise from circumstances beyond the reasonable control of the defaulting Party and without its fault or negligence, as well as other force majeure cases commonly recognized under applicable law (a “Force Majeure“).

 

18.2   The defaulting Party shall use reasonable efforts to anticipate the effect any Force Majeure event or cause and mitigate the effects of such event or cause. In any event, the defaulting Party shall upon termination of a Force Majeure event, promptly resume its obligations under the Agreement.

 

19            Taxes and Expenses

 

19.1   Each Party shall be responsible for declaring and paying its own actual or contingent direct or indirect tax, customs, social security or pension liabilities, duties, charges, levies, assessments, contributions or the like in any jurisdiction, including any interest, charges, fees, fines, costs, expenses or penalties related thereto (collectively, “Taxes“) due in connection with the Agreement, including, without limitation, the performance thereof.

 

19.2   The Wealth Manager expressly confirms that the Wealth Manager and its clients are solely responsible to check, analyse and pay their own Taxes. The Wealth Manager represents and warrants that the Company is not liable to pay any of the Taxes of the Wealth Manager and/or its clients and that the Company shall not be liable for any Taxes consequences arising out any investment opportunities made available by General Partners through the Platform, the subscription of financial products issued by the Pooling Vehicle and/or the SPV and/or the investment made by the Pooling Vehicle and/or the SPV in any underlying assets.

 

19.3   Each Party shall pay its own costs and expenses (including all legal, accounting, advisory and other fees), as well as other charges which might become due in connection with the Agreement, the negotiation leading up to, and the transactions contemplated by, the Agreement.

 

20            Communications

 

Any notice or communication within the framework of the Agreement shall be in writing (including by email and by message through the Platform) to the addresses communicated by each Party to the other Party.

 

21            Amendments

 

21.1   Equilink reserves the right to amend these GTC at any time by publishing the new version on the Platform. The Wealth Manager is responsible for checking the Platform regularly in that regard.

 

21.2   Provided that Equilink has informed the Wealth Manager of an amendment to these GTC and Equilink has not received a written notice of objection within 30 calendar days of informing the Wealth Manager, the amended GTC shall be deemed approved by the Wealth Manager without reservation. In the event that the Wealth Manager has not approved the amendments or has made a reservation, the Agreement entered by the Parties shall remain in force without amendments. All contracts between the Parties entered thereafter shall be subject to the latest version of these GTC.

 

21.3   The Parties agree to act in good faith to amend the Agreement as necessary to adapt to new Laws or changes in circumstances.

 

22            Miscellaneous

 

22.1   Binding Effect. All of the terms, provisions and conditions of the Agreement shall be binding upon to the benefit of the Parties and their respective successors, permitted assigns and legal representatives. The Agreement does not create, and shall not be construed as creating, any rights enforceable by any person not a Party.

 

22.2   Entire Agreement. The Agreement contains the entire agreement between the Parties relating to its subject matter and supersedes all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, whether oral or written, with respect to such subject matter.

 

22.3   Assignment and Transfer. The Wealth Manager may not assign or transfer, in whole or in part, its rights or obligations under the Agreement or transfer the Agreement to any third party without the prior written consent of Equilink. Any assignment or transfer made without such consent shall be null and void. Equilink shall have the right to assign or transfer, in whole or in part, its rights or obligations under the Agreement or transfer the Agreement to any third party at any time and the Wealth Manager hereby agrees to such assignment or transfer.

 

22.4   Independent Contractors. The Wealth Manager shall at all times be an independent contractor, and not an agent, partner or joint venturer of the Company, and nothing contained in the Agreement shall be deemed to create any agency, partnership or joint venture relationship between the Parties. The Parties and their respective representatives (including the Equilink Representatives and the Wealth Manager Representatives) shall have no authority to bind or commit the other Party to any obligation or agreement, or speak for, represent or obligate the other Party in any way.

 

22.5   Severability. If any part of the Agreement is found to be invalid, void, unenforceable or unlawful in any jurisdiction, the legality, validity and enforceability of the remainder of the Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the Agreement shall not be affected in any other jurisdiction. Any invalid, void, unenforceable or unlawful provision shall be adjusted rather than voided, if possible, in order to achieve then intent of the Parties to the fullest extent possible.

 

22.6   No Waiver. Failure or delay of the Company in exercising any of its rights shall in no way constitute a waiver of those rights nor shall such failure excuse the Wealth Manager from any of its obligations. No single or partial exercise of any right, power, privilege or remedy by the Company shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

 

22.7   Rights and Remedies. The rights, powers and remedies of the Company provided in the Agreement are cumulative and are not exclusive of any rights, powers or remedies provided by law or otherwise.

 

23            Applicable Law and Dispute Resolution

 

23.1   The Agreement shall be governed, interpreted and construed by, under and pursuant to the substantive laws of Switzerland, without regard to conflict of laws principles thereof.

 

23.2   The Parties shall attempt to settle any dispute, controversy or claim arising out of or in relation with the Agreement amicably. If no amicable settlement is reached within 30 (thirty) calendar days of a Party raising a dispute, controversy or claim with the other Party, either Party may submit the dispute, controversy or claim to arbitration in accordance with Clause 23.3.

 

23.3   Any dispute, controversy or claim arising out of or in relation with the Agreement, including the validity, invalidity, breach or termination thereof, which cannot be settled amicably pursuant to Clause 23.2, shall be finally settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre in force on the date when the notice of arbitration is submitted in accordance with said rules. The seat of the arbitration shall be Geneva, Switzerland. The language of the arbitration shall be English.