1. Definitions

The following expressions shall have the following meanings:

• “Agreement” means this agreement and any other terms and conditions set forth on this website called MoatSpace, comprising the agreement between Albourne and a Registrant governing the Registrant’s use of MoatSpace, as updated, amended or supplemented from time to time;
• “Albourne” means each of Albourne Partners Limited and each of its subsidiaries and affiliated companies from time to time, or any one or more of them;
• “Albourne Privacy Policy” means the document, as modified from time to time, which explains how Albourne collects, uses and discloses, on a limited basis, the Personal Data of natural persons, and which can be viewed here: https://www.albourne.com/user/privacypolicy;
• “Albourne Research” means any report written by Albourne about a Fund or other investment vehicle, Manager or Dynamic Beta Product, including any review and/or evaluation in that report by Albourne of Information regarding that Fund, investment vehicle, Manager or Dynamic Beta Product;
• “Benchmark Regulation” means Regulation (EU) 2016/1011, the United Kingdom Benchmarks Regulation and other similar or equivalent regulations in any other jurisdiction;
• “Client” means an Albourne client who is a Qualified Investor and party to an agreement with Albourne to maintain the confidentiality of Albourne Research, Fund Documents and other Information provided by Albourne and which limits Client’s use of such Information;
• “Client Extranet” means Albourne’s password-protected client extranet located at https://village.albourne.com/castle;
• “Cookies” means small data files placed on the hard drive of a User’s computer which enable Albourne to identify the User;
• “Client-Specific Information” means Information that relates specifically to one or more investments of a Client, which is provided by a Registrant to Albourne at the direction of a Client or at Albourne’s request;
• “Dynamic Beta Documents” means documents relating to a Dynamic Beta Product’s descriptions, rules, methodologies, marketing, performance and/or other activities of a Dynamic Beta Product or Dynamic Beta Provider;
• “Dynamic Beta Products” means investment products that are based on static, beta-like, mathematical models or indices that constitute a form of active trading when executed and may have associated fixed fees but not performance fees and classified as such by Albourne;
• “Dynamic Beta Provider” means an issuer or offeror of Dynamic Beta Products classified as such by Albourne;
• “Fund” means a hedge fund, private equity fund, private credit fund, real asset fund, real estate fund, long-only fund or other similar investment vehicle (including, any managed account or other investment) now or hereafter managed by the Manager;
• “Fund Document” means any document provided by the Registrant or Manager (if not the Registrant) to Albourne relating to the organisation, marketing, performance and/or activities of the Fund;
• “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the laws of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019;
• “Index” means an index of Funds or Dynamic Beta Products that is constructed, maintained and administered by Albourne and is designed to measure the aggregate performance of a segment of the Funds universe or Dynamic Beta Product universe;
• “Indices” means an Index family or more than one Index;
• “Information” means confidential information (including any documents, materials and data) provided to Albourne by any method (including but not limited to meetings, conference calls, phone calls, questionnaires, email, physical mail and from the Registrant’s or the Fund’s website) by or on behalf of the Registrant, or uploaded by the Registrant or by Albourne to MoatSpace concerning the Fund, Manager, Dynamic Beta Product or Dynamic Beta Provider (including Client-Specific Information, Fund Documents, Dynamic Beta Documents, Open Protocol Reports and the contents thereof) except information that is (a) already in, or comes into, the public domain other than as a result of disclosure by Albourne; (b) already in the possession of Albourne prior to receipt from the Registrant; (c) at any time lawfully received by Albourne from a party other than the Registrant (or a party acting on its behalf) who is free to disclose such information; or (d) at any time obtained or developed independently by Albourne;
• “Information for Fund Managers” means a document located within MoatSpace that explains Albourne’s due diligence and privacy processes and procedures;
• “Intellectual Property Rights” means all present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how and all other proprietary rights of any type under the laws of any jurisdiction (including without limitation rights in and to all applications and registrations for such rights);
• “Manager” means a management company or general partner of a Fund or other management entity of a Fund;
• “MoatSpace” means the Albourne websites located at www.albourne.com/moatspace;
• “Open Protocol Report” means the report produced by or on behalf of a Fund in accordance with the Open Protocol Enabling Risk Aggregation template, which can be viewed here: http://www.sbai.org/toolbox/open-protocol-op-risk-reporting/;
• “Qualified Investor” means any of (a) an undertaking which is an eligible counterparty for the purposes of EC Council Directive 2004/39/EC (MiFID) and an investor or prospective investor treated as a “professional client” by investment firms as those expressions are defined in MiFID; (b) in the case of U.S. persons (as defined in Regulation S promulgated under the Securities Act of 1933 of the United States of America), a person who has represented to Albourne that it is an “accredited investor” as defined in Regulation D (Rule 501), promulgated under the Securities Act of 1933, as amended, and a “qualified purchaser” as such term is defined in Section 2(a)(51)(A) of the Investment Company Act of 1940; and (c) in the case of persons not falling under (a) or (b) above, a professional, high net worth or other sophisticated investor or prospective investor to which Albourne may lawfully provide its services;
• “Personal Data” has the meaning given to it under Relevant DP Laws and in the event of any inconsistency or conflict, the meaning shall be that ascribed to it under the GDPR;
• “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by Albourne;
• “Registrant” means the Manager, Dynamic Beta Provider or service provider, consultant or agent of a Fund described as the Registrant in “Employment Details” during the Registration process;
• “Registration” means the process by which a Registrant applies to use MoatSpace;
• “Relevant DP Laws” means all applicable laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality, security, integrity and protection of Personal Data, including without limitation, the UK Data Protection Act 2018 and the GDPR, as amended or superseded from time to time, and any national implementing legislation; and
• “User” means any individual described as such in “User’s Personal Details” during Registration who has been granted access to MoatSpace and is the Registrant’s duly appointed and authorised representative.

2. Overview

Albourne is an independent investment consultant that provides investment advice on Funds, their respective Managers, Dynamic Beta Products and other alternative investments. Albourne also constructs, maintains and administers Indices of hedge funds, private market funds and Dynamic Beta Products. Each of these Indices is designed to be representative of the aggregate performance of a segment of the Funds or Dynamic Beta Products universe. In connection with Albourne’s business and its evaluation of Funds, Managers and Dynamic Beta Products, at Albourne’s initiative, it invites Managers and Dynamic Beta Providers to upload their own Information to MoatSpace or otherwise to provide Information for Albourne to upload to MoatSpace.

More information about Albourne is available in the Information for Fund Managers document available on MoatSpace.

MoatSpace is a secure area where the User on behalf of the Registrant may upload Information about its Funds and Dynamic Beta Products and documents relating to its Funds and Dynamic Beta Products.

As part of its consultancy services to Clients, Albourne may make any or all of the Information, including Open Protocol Reports and Albourne Research, available to Clients through the Client Extranet, subject to the terms and conditions of this Agreement, and provided further that, Albourne will not make Fund Documents or Dynamic Beta Documents available to Clients without the prior consent of the Registrant, Manager or Dynamic Beta Provider, as appropriate.

The Registrant may also upload Client-Specific Information to MoatSpace. Where the Registrant, on behalf of a Client or at Albourne’s request, supplies Albourne with Client-Specific Information for use by Albourne in providing its services to the relevant Client, Albourne will not, without the prior consent of the Registrant, Manager or Dynamic Beta Provider, as appropriate, disclose that Client-Specific Information to any party other than the Client to which the Client-Specific Information relates.

Albourne strongly encourages the Registrant to keep the Information, including Fund Documents and Dynamic Beta Documents, current through regular updates.

3. Registration

Once a Registrant is registered on MoatSpace, its User(s) can upload and edit Information and upload Fund Documents and Dynamic Beta Documents. Albourne will use Information, Fund Documents and Dynamic Beta Documents uploaded by the Registrant to MoatSpace in accordance with this Agreement.

The Registrant acknowledges that Albourne can use any means as it deems appropriate to confirm the Registrant’s and any User’s identity and authority. If Albourne is unable to obtain such confirmation to its satisfaction, it may cancel the Registrant’s registration by providing notice to the Registrant.

4. User Access

If Albourne obtains satisfactory confirmation of the Registrant’s and any User’s identity and authority, it will issue to the User a user ID and password to access MoatSpace. Following successful registration, the User can upload, check and edit Information and upload and check Fund Documents or Dynamic Beta Documents.

User IDs and passwords are confidential and the User and the Registrant shall not disclose them to any third person. If the Registrant becomes aware of any unauthorised user ID or password use, it shall notify Albourne immediately. The Registrant will be solely responsible for all use of MoatSpace which has been accessed using the user IDs and passwords that have been assigned to the Registrant’s User(s). Information, Fund Documents and Dynamic Beta Documents uploaded by the Registrant will be and will remain the entire responsibility of the Registrant.

5. Use of Information 

The Registrant grants to Albourne a perpetual right to use, reproduce, publish, distribute, copy, display and create derivative works from any Information, Fund Documents and Dynamic Beta Documents which are in Albourne’s possession and/or control and to display such content throughout the world in any form, media or technology in accordance with this Agreement.

The Registrant agrees that Albourne may incorporate Information, extracts from Fund Documents and Dynamic Beta Documents into Albourne Research. In presenting the returns of a Fund associated with the Registrant that has more than one share class, the Registrant agrees that Albourne may present to Clients the returns of a representative share class only (and not the returns of other share classes), or alternatively, a composite return series, in either case as determined by Albourne.

Where the Registrant provides Client-Specific Information to Albourne, the Registrant agrees that Albourne shall be permitted to disclose the Client-Specific Information to the Client to which the Client-Specific Information relates. Albourne shall seek the consent of the Registrant, Manager or Dynamic Beta Provider, as appropriate, before disclosing Client-Specific Information to any party other than the Client to which the Client-Specific Information relates. With the prior consent of the Manager or the Dynamic Beta Provider, or the Registrant on behalf of a Fund or a Dynamic Beta Product, Albourne may also make Fund Documents and Dynamic Beta Documents available to a pre-authorised Client. If Albourne does so, it is not its intention to make or issue a financial promotion or investment advertisement but to provide Fund Documents or Dynamic Beta Documents to that pre-authorised Client for its reference in conjunction with Albourne Research. Any Fund Document so provided shall be treated as provided by the Manager direct to that Client without Albourne’s intervention or any review of the Fund Document by Albourne. Any Dynamic Beta Document so provided shall be treated as provided by the Dynamic Beta Provider direct to that Client without Albourne’s intervention or any review of the Dynamic Beta Document by Albourne.

Albourne encourages the Registrant to keep Information on its Funds and Dynamic Beta Products current through regular updates. In order to keep the Registrant’s Information current, the Registrant agrees that Albourne may (but is not obligated to) upload to MoatSpace any Information received outside of MoatSpace from the Registrant or a Manager, Dynamic Beta Provider, service provider, consultant or agent of a Fund, where that Information is not already present in MoatSpace. Where Albourne proposes to upload any Information comprising Personal Data, it will seek the Registrant’s pre-approval and shall not upload the Information in question unless that approval has been received.

If a Fund’s Open Protocol Report is uploaded by the Registrant or Albourne to MoatSpace, Albourne shall be permitted to inform its Clients that the Fund produces Open Protocol Reports.

The Registrant further agrees that Albourne may use the Information provided to Albourne by the Registrant on an aggregated basis in Indices of Funds and Indices of Dynamic Beta Products that it may construct, maintain and administer from time to time.

Where a Fund associated with the Registrant has more than one share class, the Registrant agrees that Albourne may select to include in an Index the returns of a representative share class only, or alternatively, a composite return series, in either case as determined by Albourne.

Albourne may use the daily and historic levels of the Indices (aggregated as Indices) in internal and external presentations, reports, analyses and marketing materials, and may also make such daily and historic levels of the Indices publicly available, such as through publication on its website www.albourne.com, provided that:

1. Albourne shall only disclose the names of any Index’s constituents on a confidential basis;
2. Albourne shall not disclose the constituents of any Index to third parties (including, without limitation, the Manager of any Fund or any Dynamic Beta Provider), provided that, upon request, Albourne may confirm to a Manager or Dynamic Beta Provider, or a Registrant that is acting on behalf of a Manager or Dynamic Beta Provider, whether any of its Funds or Dynamic Beta Products is a constituent of any Index;
3. Albourne’s clients and Index data subscribers may use the daily and historic levels of the Indices (aggregated as Indices) in their own internal and external presentations, reports, analyses and marketing materials; and
4. Albourne shall not itself use or grant to any person a license to use any Index in any manner that constitutes a regulated “use” as a benchmark under a Benchmark Regulation, including use (a) as a reference to which the amount payable under a financial instrument or financial contract, or the value of a financial instrument is determined; or (b) to measure the performance of an investment fund with the purpose of tracking the return of any Index or of defining the asset allocation of a portfolio or of computing the performance fees (collectively, the “Prohibited Uses”).

The Registrant agrees that the Indices maintained by Albourne from time to time are the exclusive property of Albourne, and Albourne retains all property rights therein.

Where an Index includes as a constituent a Fund or Dynamic Beta Product for which the Registrant is supplying Information to Albourne (each a “Constituent”), for so long as the Registrant consents to Constituent Information being included in aggregated form in such Index, the Registrant, the Constituent and its Manager or Dynamic Beta Provider (if not the Registrant) may obtain, by agreeing to additional terms and conditions of use, a limited, non-exclusive, non-transferable, revocable license, without the right to grant sublicenses, to use the levels of such Index solely to compare the relative performance of the Constituent against the performance of that Index in fund newsletters, marketing documents and other similar documents. For the avoidance of doubt, no license is granted to the Registrant, the Constituent or its Manager or Dynamic Beta Provider to use any Index in any manner that constitutes a regulated “use” as a benchmark under a Benchmark Regulation, including the “Prohibited Uses”.

6. Confidentiality etc

In consideration of Albourne’s receipt of the Information, Albourne agrees with the Registrant (a) to carefully safeguard the confidentiality of, and to treat as confidential, the Information and (b) not without the Registrant’s consent, to disclose Information or Albourne Research to any person except to Albourne Clients or, in the case of Client-Specific Information, except to the Client to which the Information relates. Notwithstanding the foregoing, Albourne shall not distribute any Fund Documents or Dynamic Beta Documents to its Clients without the prior consent of (i) the Manager or the Registrant on behalf of the Fund to which the Fund Documents relate or (ii) the Dynamic Beta Provider or the Registrant on behalf of the Dynamic Beta Product to which the Dynamic Beta Documents relate (and it is, in any event, not Albourne’s practice to distribute to its Clients Fund Documents or Dynamic Beta Documents which comprise marketing or subscription documents).

Notwithstanding anything in this Agreement to the contrary, Albourne will be permitted to disclose the Information if disclosure of any Information is required by law, rule, regulation, subpoena, court order or any similar judicial process, or by any applicable governmental agency, stock exchange or other regulatory authority (including any self-regulatory organisation having or claiming to have jurisdiction), provided that Albourne will to the extent permitted by law promptly notify the Registrant and take any reasonable steps as may be requested by the Registrant to dispute or resist the requirement (but the Registrant shall reimburse Albourne for any reasonable cost incurred by Albourne in doing so) and, in any event, Albourne will endeavour to restrict such disclosure to the minimum so required.

Where Albourne is at the date of the Registrant’s registration on MoatSpace, or becomes thereafter, a party to any written agreement signed by the Dynamic Beta Provider, the Manager and/or any Fund managed by the Manager containing confidentiality or other obligations on the part of Albourne, then to the extent that there is any conflict or inconsistency between those obligations and any rights or powers conferred on Albourne by this Agreement, Albourne and the Dynamic Beta Provider or Manager agree that, subject to the next two sentences, the provisions of that other agreement shall prevail and bind them. The foregoing provisions of this paragraph shall not apply to the provisions of this Agreement with respect to use of Information for the Indices, which shall prevail and bind Albourne, the Fund and the Manager or Dynamic Beta Provider to the exclusion of any conflicting provisions of that other agreement.

Where the Registrant or a Manager or Dynamic Beta Provider on whose behalf the Registrant is providing Information to MoatSpace requests Albourne to agree to terms and conditions in order to receive Information in connection with annual meetings or investor days or directs Albourne to access Information via a data room or private website for the purpose of itself populating MoatSpace, producing Albourne Research or for any other use of the Information and such data room or website requires Albourne to accept terms and conditions and/or any “pop up” or other confidentiality notices (together, “Ts&Cs”), Albourne and the Registrant agree (or if the Registrant is not the Manager or the Dynamic Beta Provider, the Registrant agrees on the Manager’s or Dynamic Beta Provider’s behalf, as applicable) that the provisions of this Agreement shall govern the use of the Information and that any provisions of the Ts&Cs which impose confidentiality or other obligations upon Albourne shall not apply to the Information and shall have no effect notwithstanding any acceptance of the Ts&Cs before or after the date of the Registrant’s registration on MoatSpace.

7. Representations, Acknowledgments and Agreements

The Registrant represents and warrants to Albourne (a) that, if the Registrant is the Manager, the Registrant has been authorised by the relevant Fund to enter into this Agreement and any other agreement within MoatSpace, upload and edit Information and upload Fund Documents and otherwise perform its obligations hereunder; (b) that, if the Registrant is a Dynamic Beta Provider, the Registrant has the authority to enter into this Agreement and any other agreement within MoatSpace, upload and edit Information and upload Dynamic Beta Documents and otherwise perform its obligations hereunder; (c) that, if the Registrant is an administrator, employee, consultant or agent of, or service provider to, the Manager, the Registrant has been authorised by the Fund or Manager to enter into this Agreement and any other agreement within MoatSpace for itself and on the Manager’s behalf (including any modification or amendment to this Agreement or such other agreement) and to upload and edit Information, to upload Fund Documents, to make any requests, to provide any consents and otherwise to perform the obligations hereunder; (d) that, if the Registrant is an administrator, employee, consultant or agent of, or service provider to, the Dynamic Beta Provider, the Registrant has been authorised by the Dynamic Beta Provider to enter into this Agreement and any other agreement within MoatSpace for itself and on the Dynamic Beta Provider’s behalf and (including any modification or amendment to this Agreement or such other agreement) to upload and edit Information, to upload Dynamic Beta Documents, to make any requests, to provide any consents and otherwise to perform the obligations hereunder; (c) that the Registrant has received and read the Information for Fund Managers document available to download from MoatSpace and that the Registrant (and where the Registrant is not the Manager, Dynamic Beta Provider or Fund, the Manager, Dynamic Beta Provider and Fund also) understands the purposes for which Albourne uses the Information; (d) that Information, Fund Documents and Dynamic Beta Documents uploaded to MoatSpace will be free from viruses, trojan horses, worms, spyware and the like; (e) that none of the information (including the Information) provided to Albourne by the Registrant through MoatSpace or otherwise shall constitute material, non-public information (including information concerning a Fund, its investments or its Manager or a Dynamic Beta Product or its Dynamic Beta Provider); and (f) that the Registrant will not hack, break into, access or use any part of the Client Extranet or any part of MoatSpace to which Albourne has not given it access, nor will it attempt to do any of those things.

The Registrant acknowledges and agrees that (a) Albourne will (after checking with the User where appropriate) have the right to correct errors in the Information, not being errors in Personal Data; (b) Albourne will have the right to discontinue publication of any Information to its Clients for any reason, including but not limited to unreliability of the Information or Albourne’s determination that presentation of Information by the Registrant is misleading; (c) the Registrant will not be able to access the Client Extranet or materials available there for use by Clients, nor will it be able to access Albourne Research; (d) the Registrant shall be responsible for any breach of this Agreement by any of its Users; (e) the Registrant will notify Albourne in writing within 7 days if a User ceases to work for or be affiliated with the Registrant or any Fund of which the Registrant is the Manager; and (f) Albourne has the unrestricted right to make changes to the functionality of MoatSpace at any time.

The Registrant can download or print certain reports from MoatSpace (the “MoatSpace Reports”) for the purpose of reviewing their accuracy, but the Registrant shall not disclose or circulate any MoatSpace Reports to third parties or permit third parties (apart from the Fund or its Manager or the Dynamic Beta Provider) to access, view or use MoatSpace Reports. Under no circumstances shall the Registrant represent or imply to third parties that Albourne endorses, approves or recommends a Fund or Dynamic Beta Product or has verified the contents of any MoatSpace Report or other Information of the Registrant that has been uploaded to MoatSpace by the Registrant or Albourne. Nothing in this Agreement seeks to limit the Registrant from circulating Information in its own format (and without reference to Albourne) to third parties where it is otherwise free to do so.

Albourne may, from time to time, make available to the Registrant certain tools (e.g., the FeeMometer), Albourne-generated scores (e.g., Investor Relations Quotient) and other Albourne-supplied information (collectively, the “Albourne Tools and Outputs”). The Registrant acknowledges and agrees as follows:

1. any use of and reliance upon the Albourne Tools and Outputs shall be at the Registrant’s sole risk;
2. the Albourne Tools and Outputs are provided “as is” and on an “as available” basis, with all faults, defects, bugs and errors;
3. Albourne has no obligation to the Registrant to further develop, update or continue to make available any of the Albourne Tools and Outputs;
4. Albourne makes no warranty regarding the Albourne Tools and Outputs, and disclaims to the fullest extent permitted by law any warranties, whether express or implied, including fitness for a particular purpose;
5. it is solely responsible for determining whether or not any of the Albourne Tools and Output is fit for its own use;
6. Albourne is only providing the Registrant with the right to access and use the Albourne Tools and Output in accordance with this Agreement and any additional terms and conditions of use associated with any of the Albourne Tools and Output, and that Albourne retains sole and exclusive ownership of and all right, title, and interest in and to the Albourne Tools and Output (including ownership of all trade secrets, copyrights, and other Intellectual Property Rights pertaining to the Albourne Tools and Output) and to all modifications and enhancements of the Albourne Tools and Output; and
7. to the extent permitted by law, in no circumstances shall Albourne be liable to the Registrant or any other party for any loss or damage (including, without limitation, damage for loss of business or loss of profits) arising directly or indirectly from any reliance upon or use by the Registrant of the Albourne Tools and Outputs.

Albourne may provide the Registrant with assistance with tasks related to MoatSpace, such as inputting and formatting data, uploading documents and templates and assistance with the completion of questionnaires. The Registrant agrees that where such assistance is provided, it remains solely responsible for ensuring the accuracy and completeness of the Registrant’s Information, and Albourne shall have no liability to the Registrant or any other party for the consequences of any inaccuracy or incompleteness of the Registrant’s Information.

Albourne represents and warrants to the Registrant that it has implemented reasonable commercial means (including administrative, technical and physical safeguards) at least consistent with the standards generally applicable to the protection of information in the securities industry to protect, safeguard and prevent any unauthorised access to, or use of, MoatSpace, the Information, the Fund Documents, the Dynamic Beta Documents and the Client Extranet.

8. Cookies

The Registrant further acknowledges and accepts that Albourne may collect information automatically about the User’s visit to MoatSpace by the use of Cookies. Users may refuse to accept Cookies by activating the setting on their browser which allows them to refuse the setting of Cookies. However, if a User selects this setting, the User may be unable to access certain parts of MoatSpace.

9. Maintenance and Access

The Registrant acknowledges that it may not have access to MoatSpace at all times and that Albourne may have to de-activate MoatSpace periodically to carry out system maintenance or repairs without prior notice. If the Registrant wishes to upload, check or edit Information or upload Fund Documents or Dynamic Beta Documents and is unable to access MoatSpace, it may email such material or contact Albourne at moatspace@albourne.com.

Albourne may also, with or without advance notice, suspend or terminate the Registrant’s or any User’s access to MoatSpace and/or the ability to upload or edit Information or upload Fund Documents or Dynamic Beta Documents if (a) the Fund or Manager so requests; or (b) Albourne forms the reasonable opinion that such action is appropriate because of, for example, the Registrant’s or any User’s inappropriate use of MoatSpace or for regulatory reasons. Albourne reserves the right to expand, reduce, modify, suspend or cancel all or any part of MoatSpace for any reason whatsoever and at any time with or without prior notice.

10. Data Protection

The User, the Registrant and Albourne acknowledge that the Information may contain Personal Data. Albourne’s Privacy Policy explains how Albourne collects, uses and discloses, on a limited basis, such Personal Data.

Albourne may store and process Information anywhere in the world. Albourne currently has data centres in the following locations: the United States of America, Singapore and Germany, all of which contain copies of Information. The User and the Registrant acknowledge and agree that Personal Data may be transferred to these and other jurisdictions and by entering into this Agreement consents to all such transfers (including, but not limited to, transfers out of the European Economic Area and the United Kingdom).

Albourne shall ensure that its employees, agents and/or sub-processors authorised to process Personal Data have committed themselves to confidentiality.

Albourne shall implement appropriate technical and organisational measures to safeguard Personal Data, which shall meet the requirements of Relevant DP Laws and the Registrant acknowledges and agrees that it has knowledge of and has reviewed these measures and is responsible for ensuring that they provide an appropriate level of protection to the risks of Personal Data to be processed. Albourne may update or modify these measures from time to time provided that such updates or modifications do not result in any material degradation of the security of Personal Data.

Albourne shall be permitted to appoint a subprocessor to process Personal Data provided that:

1. Albourne enters into a written contract with the subprocessor on the same terms as those set out in this section 10;
2. Albourne shall inform the Registrant of any intended changes concerning the addition or replacement of any subprocessor and give the Registrant the opportunity to object to such changes; and
3. where a subprocessor fails to fulfil its data protection obligations, Albourne shall remain fully liable to the Registrant for the performance of the subprocessor’s obligations.

Taking into account the nature of the processing, Albourne shall provide commercially reasonable assistance to the Registrant by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Registrant’s obligation to respond to a request from a data subject to exercise their right of access, or their right to rectification, restriction of processing, erasure or data portability, or their rights to object to the processing or not to be subject to an automated individual decision making. The Registrant shall be responsible for any costs arising from Albourne’s provision of such assistance.

Albourne shall notify the Registrant without undue delay after becoming aware of a Personal Data Breach and provide commercially reasonable assistance to the Registrant in connection with its third party notification and communication obligations under Relevant DP Legislation with respect to Personal Data provided to Albourne by the Registrant, taking into account the nature of the Personal Data processing and the information available to Albourne. The Registrant shall be responsible for any costs arising from Albourne’s provision of such assistance.

The Registrant acknowledges and agrees that it is solely responsible for the fulfilment of any third party notification and communication obligations under Relevant DP Laws with respect to Personal Data provided by the Registrant to Albourne.

Albourne shall provide commercially reasonable assistance to the Registrant in connection with its obligations under Relevant DP Laws to carry out a data protection impact assessment with respect to Personal Data provided by the Registrant to Albourne (and, where required by Relevant DP Laws, consulting with the relevant supervisory authority in respect of any such data protection impact assessment where necessary). The Registrant shall be responsible for any costs arising from the Albourne’s provision of such assistance.

Albourne shall make available to the Registrant all information necessary to demonstrate compliance with the obligations set out in this section 10.

Where the Registrant requests to conduct an audit, or an inspection, Albourne shall use an external auditor to demonstrate its compliance with the obligations set out in this section 10 and such audit or inspection shall be carried out by a third party auditor at the selection and expense of Albourne. The auditor’s report shall be provided to the Registrant upon the Registrant’s written request.

Albourne shall immediately notify the Registrant if, in its opinion, an instruction from the Registrant on the processing of Personal Data infringes Relevant DP Laws, but Albourne shall not be obliged to actively monitor such instructions for infringements of Relevant DP Laws.

If Albourne processes any Personal Data on the Registrant’s behalf when performing its obligations under the Agreement, the parties record their intention that the Registrant shall at all times be the controller and that Albourne shall at all times be a processor, and that Albourne shall only process such Personal Data in accordance with the Agreement and any lawful instructions given by the Registrant from time to time.

Where the Registrant uploads Personal Data to MoatSpace, the Registrant represents and confirms to Albourne that it has the right to do so, and has made any necessary notifications and/or received appropriate consents for the transfer and storage of that Personal Data to MoatSpace (including any applicable data centre wherever located).

The Registrant shall not upload to MoatSpace any information which constitutes special categories of Personal Data (as described in GDPR) or similar concepts under other Relevant DP Laws (including, but not limited to, criminal convictions and offences, data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person's sex life or sexual orientation).

The Registrant shall at the request of Albourne execute or procure the execution of such documents and do or procure the doing of such acts and things (including refraining from doing such acts and things) as Albourne may reasonably require to ensure compliance by the Registrant or Albourne with Relevant DP Laws.

For the purposes of this section 10, “controller”, “data subject’ and “processor” shall have the meanings given to them under Relevant DP Laws and in the event of any inconsistency or conflict, the meanings shall be those ascribed to them under the GDPR.

11. Intellectual Property Rights

The Registrant acknowledges that the MoatSpace format and technology has been developed, compiled and arranged by Albourne and represents a significant expenditure of time, effort, and money and that the content (including but not limited to text, photographs, video, audio, graphics and goods and services) comprises valuable Intellectual Property Rights belonging to Albourne. The Registrant agrees not to infringe or violate such Intellectual Property Rights and to comply with all reasonable written requests by Albourne to protect its contractual, statutory and common law rights in MoatSpace. All rights, title and interest in and to MoatSpace shall at all times be and remain the sole and exclusive property of Albourne. All present and future rights in and title to MoatSpace (including the right to exploit MoatSpace and any portion of it over any present or future technology) are reserved by Albourne. The Registrant may not copy or make any use of MoatSpace or any portion thereof and the Registrant shall not use MoatSpace or any variations or derivatives thereof for any purposes other than those permitted by this Agreement, without Albourne’s prior written consent.

12. Limitations

To the extent permitted by law, Albourne hereby disclaims and excludes any representation or warranty, whether express or implied (a) as to the title, fitness for a particular purpose, merchantability, accuracy or standard of quality of MoatSpace; (b) that access to or use of MoatSpace will be uninterrupted or error free; or (c) as to any results to be obtained by the User, the Registrant, the Fund or the Manager from the use of MoatSpace. Albourne gives no warranty as to whether MoatSpace will be compatible with the Registrant’s computer equipment.

13. Termination

Either Albourne or the Registrant may terminate this Agreement at any time by giving at least 7 days’ written notice (which, in the case of providing notice to Albourne, may be in writing or by email to legal.notices@albourne.com) to the other party. Once this Agreement is terminated, each User’s and the Registrant’s access to MoatSpace will be terminated but all pre-existing rights insofar as they relate to existing Information, Fund Documents and Dynamic Beta Documents held by Albourne at that time shall continue in perpetuity. In addition, Albourne’s obligation to keep Information confidential in accordance with this Agreement shall survive the termination of this Agreement for a period of three (3) years from the date of such termination.

14. Electronic Communications

When a User visits MoatSpace or sends emails to Albourne, he/she is communicating with Albourne electronically. By making such a communication, the User for himself/herself and on behalf of the Registrant gives consent to receiving electronic communications from Albourne. Albourne may communicate with a User or the Registrant by email or by posting notices on MoatSpace. The Registrant and each User confirms that all such electronic communications and notices satisfy any legal requirement for written notice to be given to them, including notice of any material changes to MoatSpace or the Agreement.

15. General

If any term of this Agreement becomes or is declared illegal, invalid or unenforceable for any reason, such term shall be deemed not to form part of this Agreement and, if necessary, that term and/or this Agreement will be amended to the extent necessary to give effect as far as possible to the spirit of this Agreement, and the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.

A reference to:

(a)    any gender shall be deemed to include the other gender;

(b)    the singular shall be deemed to include the plural and vice versa;

(c)    any website shall be deemed to be to such website as updated, superseded or replaced from time to time; and

(c)    any legislation shall be to such legislation as re-enacted, updated or replaced from time to time.

Albourne reserves the right to amend this Agreement at any time and in its sole discretion and any change will become effective immediately after Albourne posts notice of such change on MoatSpace. The Registrant’s and any of its associated Users’ use of MoatSpace following any such modification shall constitute an agreement by the Registrant to follow and be bound by the Agreement, as modified. Subject to any amendment mentioned in two preceding sentences and the third paragraph of 6 (Confidentiality etc), this Agreement constitutes the entire agreement between Albourne and the Registrant and any User and governs the Registrant’s use of MoatSpace.

No delay or omission by either party in exercising any of its rights under this Agreement shall operate as a waiver of that or any other right. A waiver by either party on any one occasion of any particular right shall be effective only in that particular instance and shall not be construed as a waiver of that or any other right on any other occasion.

Albourne operates other websites in addition to MoatSpace, each of which is governed by separate terms and conditions. Whilst a User is accessing content on one of Albourne’s other websites, the specific terms and conditions of that website shall apply to the exclusion of all others.

This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties hereby agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute (including any dispute arising out of non-contractual claims in tort, for breach of statutory duty or otherwise) arising out of or in connection with MoatSpace or this Agreement.