The following expressions shall have the following meanings:
Albourne is an independent investment consultant that provides investment advice on Funds, their respective Managers and other alternative investments. In connection with Albourne’s consultancy business and its evaluation of Funds and Managers, at Albourne’s initiative, it invites Managers to upload their own information onto 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 Fund and documents relating to its Fund. As part of its consultancy services to Clients, Albourne may make any or all of the Fund Overview, the Fund.Info Report, Open Protocol Reports and Albourne Research available to Clients through the Client Extranet, subject to the terms and conditions of this Agreement. Albourne will not make Fund Documents available to Clients without the prior written consent of the Registrant or Manager.
Albourne strongly encourages the Registrant to keep the Information and Fund Documents current through regular updates.
Once a Registrant is registered on Moatspace, its User can upload and edit Information and upload Fund Documents. Albourne will use Information and Fund Documents uploaded by Registrant onto Moatspace in accordance with this Agreement.
The Registrant acknowledges that Albourne can use any means as it deems appropriate to confirm Registrant’s and the User’s identities and authority. If Albourne is unable to obtain such confirmation to its satisfaction, it may cancel Registrant’s registration by providing notice to Registrant.
4. User Access
If Albourne obtains satisfactory confirmation of the Registrant’s and the 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.
User IDs and passwords are confidential and 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 with its assigned user ID and password. Information and Fund 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 and Fund 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 and for no other purpose.
The Registrant acknowledges and agrees that Albourne may incorporate Information and extracts from Fund Documents into Albourne Research. Albourne may also conduct additional due diligence on a Fund and may review aspects of the Fund’s organization, general management structure, key personnel, strategy, investment process, risks as well as example trades, investments and portfolio composition.
With the prior consent of the Manager or Registrant on behalf of a Fund, Albourne may also make Fund Documents available to its pre-authorised Clients. If Albourne does so, it is not its intention to make or issue a financial promotion or investment advertisement but to provide Fund Documents to pre-authorised Clients for those Clients reference in conjunction with Albourne Research provided to such Clients. 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.
If Registrant uploads a Fund’s Open Protocol Report to MoatSpace, Albourne shall be permitted to inform its Clients that the Fund produces Open Protocol Reports.
In consideration of Albourne’s receipt of the Information and Fund Documents, Albourne agrees with the Registrant with respect to its Fund (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; provided however that Albourne shall not distribute any Fund Documents to its Clients without the prior written consent of the Manager or Registrant on behalf of the Fund to which the Fund Documents relate, consent can be provided via the MoatSafe service.
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 organization 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.
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 consultant, agent 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 and to upload and edit Information, upload Fund Documents and to otherwise perform the obligations hereunder; (c) that the Registrant has received, read and understood the Information for Fund Managers document available to download from MoatSpace and that the Registrant and the Fund both understand the purposes for which Albourne uses the Information; (d) that Information and Fund Documents uploaded into MoatSpace will be free from viruses, trojan horses, worms, spyware and the like; and (e) it 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 (a) that Albourne will have the right to correct errors in the Information (after checking with the User where appropriate); (b) that 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; (c) that 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 (d) that Albourne has the unrestricted right to make changes to the functionality of MoatSpace at any time.
The Registrant can download or print the Fund.Info Report for the purpose of reviewing its accuracy, but Registrant shall not disclose or circulate the Fund.Info Report to third parties or permit third parties (apart from the Fund) to access, view or use the Fund.Info Report. Under no circumstances shall the Registrant represent or imply to third parties that Albourne endorses, approves or recommends the Fund or has verified the contents in the Fund.Info Report or other Information Registrant uploads to Moatspace. Nothing in this Agreement seeks to limit Registrant from circulating Information in its own format (and without reference to Albourne) to third parties.
Albourne represents and warrants to 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 unauthorized access to, or use of, MoatSpace, the Information, the Fund Documents and the Client Extranet.
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 and is unable to access MoatSpace, it may email such material or contact Albourne at firstname.lastname@example.org.
Albourne may also, with or without advance notice, suspend or terminate the Registrant’s or the User’s access to MoatSpace and/or the ability to upload or edit Information or upload Fund Documents if (a) the Fund or Manager so requests; or (b) Albourne forms the reasonable opinion that such action is appropriate because of the Registrant’s or User’s inappropriate use of MoatSpace. 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
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.
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.
Either Albourne or the Registrant may terminate this Agreement at any time by giving at least 7 days’ written notice (which may be in writing or by email to email@example.com) to the other party. Once this Agreement is terminated, the User’s and Registrant’s access to MoatSpace will be terminated but all pre-existing rights insofar as they relate to existing Information and Fund 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 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 TCU.
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 the 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 any gender shall be deemed to include the other gender. A reference to the singular shall be deemed to include the plural and vice versa.
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.
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.
Subject to any amendment as aforesaid, this Agreement constitutes the entire agreement between Albourne and the Registrant and any User and governs the Registrant’s use of MoatSpace. This Agreement may only be amended by way of a duly executed written agreement between Albourne and the Manager.
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 arising out of or in connection with the Moatspace or this Agreement.