Terms and Conditions
General Terms of Service
Updated On: 1 March 2020
Welcome to the website www.diligend.com (the “Website”) which is owned and operated by Diligend, Inc., (“Diligend”, “we” or “us)”. These General Terms of Service (the “Terms”) are between you, the user of our Website, Platform and Services (the “User” or “you”) and Diligend, including our affiliates, or entities controlled by or that control Diligend. There is a separate Client Terms of Service that adds additional terms for Clients that sign an order form and/or purchase Services from Diligend.
By visiting and browsing our Website and/or using our Solution and any of our Services, you confirm that you accept these Terms. If you do not agree to be bound by these Terms, you shall not access this Website or use our Platform and Services. Please read these Terms before using this Website, Platform or Services.
CHANGES TO THE TERMS
We may review and change these Terms at any time. Such changes are effective immediately upon posting. When changes come into effect, the revised Terms shall supersede the previous version of the Terms. We will notify you by email if any material change comes into effect. Otherwise, we will post the Terms without notification. You are responsible for regularly reviewing these Terms.
In these Terms the terms with capital letters have the following meaning:
‘’Agreement’’ means these Terms of Service and any supplemental terms, together with each order form and any related amendments.
“Diligend” (‘’we’’) means Diligend, Inc., our affiliates, or entities controlled by, under common control with, or that control Diligend companies.
“Fund Manager” means a company which engages in the management of assets or funds.
“Client” means an investment company or a user from an investment company having a valid subscription to the Solution and an agreement with Diligend.
‘’Party’’ means User or Diligend. ‘’Parties’’ means User together with Diligend.
“Services” means any and all services provided by Diligend on or through the Website and/or the Solution to Fund Managers or Clients or any other Users.
“Solution” means a technology product, platform or software feature including our Website and any apps or other interfaces for accessing Diligend’s Services.
“Terms” means these Terms of Service as may be amended by Diligend from time to time.
“User” means anyone visiting the Website or registered, accessing or using the Solution via a unique username or using the Website or the Solution.
“User Content” means any and all content that is submitted by the User, including, without limitation, documents, texts, graphics, images and other content that the User submits on the Website or Solution.
“Website” means the website www.diligend.com.
By using the Solution, you agree to these Terms. If you do not agree to be bound by these Terms, you shall not use our Website, Solution or Services. Please read these Terms carefully.
We may review and change these Terms at any time. We will notify you by email if any change comes into effect.
DESCRIPTION OF SERVICES
Through our Website you can connect to our Solution on which registered Users can use our due diligence software solution providing support to the due diligence processes performed by institutional investors and investment consultants. The Solution is online software on which Users may connect, request and collect information, participate in search process and submit information as well as using other available tools and features.
Diligend connects Users and provides software and technology tools to help them conducting their due diligence, the solution does not conduct any due diligence by itself. Through the Solution, Users enter into direct communication with each other, and Diligend is not and shall not be a party to any relationship between Users.
DISCLAIMER OF USER CONTENT AND ACTIVITIES
The Website is for general information only and does not constitute the provision of any financial or investment advice in connection with the Services contemplated by these Terms. Diligend is not acting as a financial entity or as a Fund Manager, asset manager, investor or investment consultant in the framework of any services performed by Users. Diligend does not recommend or endorse any User, and no User can act on behalf of Diligend for any purpose.
The information and materials contained on the Website is given for information purpose only. Individual legal, tax, financial, accounting or other professional advice from an independent qualified advisor should be obtained before relying on any User Content or other information received on or through the Website, Solution or as a result of the use of the Services.
Diligend does not verify or claim the accuracy, completeness, reliability, timeliness of any information submitted by Fund Manager or other Users. Diligend shall not be liable for any loss or damage that anyone incurs as a result of any activity that you or anyone else engage in on or through the Website, the Solution or as a result of the use of the Services.
No representation, warranty or undertaking, express or implied, is made and no responsibility or liability is accepted by Diligend which may arise directly or indirectly as a result of any activity that you or anyone else engage in on or through the Website, Solution or as a result of the use of the Services.
USE OF WEBSITE AND PLATFORM
You agree that you will not use the Website and/ or Platform for any purpose that is unlawful or prohibited by these Terms. You must not, without limitation:
- use our Website, Solution or Services to perform illegal or criminal activity of any kind;
- damage, disable, overburden or impair the Website or Services, or interfere with any other party’s use and enjoyment of the Website or Services;
- attempt to gain unauthorised access to the Services, computer systems or networks connected to the Services by any means;
- reproduce, duplicate, copy, sell, resell or exploit any portion of the Website or Service, use of the Website or Service, or access to the Website or Service without the express written permission by Diligend;
- upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages;
- make available any materials containing viruses, bots or other code, files or programs designed to interfere, hinder or impair the operation of any computer, telecommunication equipment or software;
- violate third party rights, including, without limitation, Diligend or other Users, on the Website and/or cause harm in any way;
- collect and store personal information of other Users without their proper authorization.
- you are an individual or a legal entity and you have all rights and qualifications necessary to use our Services;
- you are qualified professional institutional investor or investment consultant;
- you register your account for your personal use and you will not share your account with any third party
- you enter into these Terms voluntarily and based on your own independent judgment;
- you will take sole responsibility for any activities performed with the use of our Website or Solution;
- you have full power, authority and capacity to comply with these Terms and obligations under these Terms;
- you have read and understood the content of these Terms in their absolute entirety.
USER ACCOUNT REGISTRATION FOR FUND MANAGERS
If you wish to register an account on the Solution as a User, your registration will have to be validated by our validation team. You agree to provide us, if requested, with any and all necessary information and documents, so that our Validation Team can verify your professional background and credentials. Once your account is approved, we will send you an email confirming the account registration. We may refuse to register you as a Fund Manager for any reason.
Once your account is approved, Diligend will send you an email confirming the account registration and emails to the authorized users with their log in details. Diligend may refuse to register you as a User for any reason.
You will provide full, accurate and true information, and update your information to keep your account accurate and correct.
You will be responsible for the security of your account access details on the Website or Solution and keep your password confidential. Even though Diligend uses modern security methods, Diligend cannot guarantee absolute security of your account. You shall be solely responsible for any actions (and their consequences) made through your account.
Entering into this Agreement with Diligend does not guarantee continued access to the Solution for any period of time. Diligend or the Client may end User’s access at any time. User will lose access to the Solution as soon as Client’s agreement with Diligend terminates.
Each Party may terminate the subscription to the solution immediately by giving notice to the other party if there is a breach of a provision of this Agreement.
Once the account is registered, Fund Managers will get free access to institutional investors and investment consultants’ questionnaires. Those questionnaires can be public questionnaires with a deadline that has not passed yet or private questionnaires generated by Fund Managers through Diligend which are visible and accessible only to the Fund Managers who have been directly invited. Fund Managers can decide either to participate or refuse to participate in a questionnaire.
If the Fund Manager decides to participate, such Fund Manager will be responsible to respond to different questions. It is the Fund Manager’s responsibility to make sure the responses are correct and are submitted in a timely manner. Fund Managers cannot modify responses to questionnaires once they are submitted.
The answers and any information submitted in the questionnaires are visible and accessible only to the asset owner who generated and published the questionnaire on Diligend.
Subject to compliance with these Terms, Diligend grants the User a non-exclusive, non-transferable, limited license to use the Website, Solution, Services, and to access to general functions and information on the Website, Platform and services within the limits set forth herein. If we have reasons to believe that the User violated these Terms, we are entitled, in our sole discretion, to block, suspend or terminate access to the Website or Solution or deny the use of any Services.
Each User assumes all responsibility for all documents, texts, data, graphics, images and other content that he or she submits on the Website (the “User Content”) or on the Solution. Each User agrees to be entirely responsible for all User Content that the User submits to the Website, Solution or shares with other Users.
Some of the User Content will not be visible to all Users and can be uploaded in a private mode and/or can be made available to selected Users only. Diligend, and/or any person or a legal entity designated by Diligend, will have the unlimited and exclusive rights to the public User Content including, without limitation, the rights to edit, modify, revise, augment, redevelop, excerpt, create derivative works from, release, publish, sell, distribute, sub-distribute, assign, license, sublicense, market, and otherwise exploit the User Content solely for the purpose of delivering technology solutions.
Each User represents and warrants that: (i) he/she is the sole and exclusive owner of all User Content made available through the Website, Solution and Services; (ii) he/she has all rights, titles, licenses and permissions to grant the rights in such User Content, as provided in these Terms; (iii) the User Content made available by the User does not violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, and will not result in the violation of any applicable law or regulation; and (iv) the User Content made available by the User does not contain any viruses, worms, Trojan horses, or other malicious codes.
Each User shall take any and all necessary steps in order to protect its confidential and proprietary information. Under no circumstances shall we be liable for any loss or damage you or anyone else incurs as a result of any breach of confidential or proprietary information by any third party.
Diligend does not control the User Content. Diligend does not guarantee the accuracy, integrity or quality of any User Content. Diligend is not an owner of any User Content, unless otherwise directly stated by Diligend. As a result, we cannot guarantee that all information is accurate, complete and correct, nor can we be held liable for any errors, omission, interruptions, inaccurate, misleading or untrue information or non-delivery of information and/or services. Each User shall solely verify with whom they are dealing with.
Though Diligend does not verify the User Content, Diligend may (but is not obliged to) in its absolute discretion delete, amend, or otherwise preserve disclosure in order to: (a) comply with applicable laws and governmental decrees; (b) protect rights and property of Diligend, Users or any third party; or (c) respond to complaints that any User Content infringes any rights of third parties.
By submitting the User Content, you grant Diligend the right to use, copy, manipulate, create derivative works, create and use anonymous/ aggregate data as necessary out of the User Content solely for the purpose of delivering the Solution or Services.
INTELLECTUAL PROPERTY RIGHTS OF DILIGEND
The intellectual property contained in the Website, Solution and Services (and any derivative works based on them) is confidential and/or proprietary information of Diligend, our affiliates or its licensors and is protected by copyright and other intellectual property rights. All title, ownership and intellectual property rights on the Website, Solution and Services shall remain with Diligend, our affiliates or licensors, as the case may be. All rights not otherwise claimed under the Terms or by Diligend are hereby reserved.
You further acknowledge and agree that the Website, Solution and Services are protected by copyrights, trademarks (whether registered or being under registration), service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Diligend or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Services, Solution or the Website, in whole or in part. Without limiting the foregoing, any reproduction, redistribution, reverse engineering or decompilation of the Services, Solution or the Website is expressly prohibited by law, and may result in severe civil and criminal penalties.
‘’Confidential Information’’ shall mean any and all proprietary and confidential data or information of a Party or any of its affiliates exchanged between Diligend and the User in connection with the provision or use of Solution and Services.
The Confidential Information shall include, without limitation, all forms and types of financial, business, technical, economic, competitively sensitive information, personal information of the disclosing party, proposals, patterns, plans, compilations, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints (including, without limitation, diagrams, explanation, examples, analogies), designs, prototypes, processes, procedures, codes, software, marketing plans, financial plans, financial analysis, business plans, strategies, or names of customers or any other documentation, password and server logins, data or material related to disclosing party’s business and/or technologies.
The receiving Party’s obligations shall not apply with respect to Confidential Information which the receiving Party can prove: (a) was known to receiving Party before receipt from a disclosing Party; (b) is or becomes a matter of public knowledge through no fault of receiving Party; (c) is rightfully received by receiving Party from a third party which owes no obligation of confidentiality to the disclosing Party; or (d) is independently developed by the receiving Party without use of any Confidential Information of the disclosing Party.
Each Party agrees that each receiving Party will treat and regard each item constituting the disclosing Party’s Confidentiality Information as strictly confidential and wholly owned by the disclosing Party and will not, without prior written consent of the disclosing Party, for any reason, communicate to any third party, use, sell, lend, lease, distribute, license, give, transfer, assign, show, disclose, reproduce, copy or misappropriate, or permit to its employees or agents to do any of the above with respect to all or any part of the disclosing Party’s Confidential Information, except a) as required by regulatory, judicial, or governmental action b) as necessary for Diligend to deliver the solution or c) as otherwise expressed within this agreement.
The receiving Party may retain, but not use, a copy of the disclosing Party’s Confidential Information as necessary for maintaining its internal business records, for audit or legal purposes, or as required by applicable law after termination or expiration of this agreement. As such Confidential Information so retained shall remain subject to the terms of this Agreement.
This Website may contain links to third party web sites (“linked sites”). The linked sites are not under the control of Diligend and we are not responsible for the content of any linked site. Diligend makes no representations regarding the content or appropriateness of content on such sites. When you access a linked site from this Website, you leave this Website and you do so at your own risk. You are responsible for viewing and complying with the terms and conditions posted on the linked site.
NO WARRANTIES; LIMITATION OF LIABILITY
You acknowledge and agree that all access and use of the Website, Solution and Services is at your own risk. Without prejudice to the generality of the foregoing, Diligend will not be liable if the Website, Solution or Services are inaccessible or unavailable in whole or in part due to periods of downtime, or for any reason beyond our reasonable control, or because we are carrying out maintenance, upgrades, developments or the like.
All Services are provided “as is” and “as available”. Under no circumstances shall Diligend be liable for any errors or omissions in the Services or User Content. Diligend makes no representations or warranties of any kind, either express or implied, as to the operation of this Website, Solution or the Services, User Content or other materials included on this Website, Solution or Services. Diligend does not warrant or make any representations regarding suitability, availability, accuracy, reliability, completeness, timeliness, or regulatory compliance of any material or information of any kind contained within the Website, Solution, Services or User Content. We cannot ensure that the Services, User Content, and other information provided on the Website or Solution are accurate, correct, reliable, exhaustive or complete on every subject.
Under no circumstances shall Diligend, including its subsidiaries, affiliates, officers, agents, licensors, employees, partners, licensors or others involved in creating, sponsoring, promoting or otherwise making available the Website, Solution, its content and Services, be liable to any person or entity whatsoever for any direct, indirect, incidental, consequential or punitive damages or any damages or losses whatsoever.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, DILIGEND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEBSITE, SERVICES AND SOLUTION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGES THAT YOU HAVE NOT RELIED ON ANY WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THESE TERMS. DILIGEND DOES NOT WARRANT THAT THE USE OR OPERATION OF THE WEBSITE, SERVICES AND SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY
DILIGEND’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUND THAT DILIGEND HAS RECEIVED FROM USER. IN NO EVENT WILL DILIGEND BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE LIABILITIES LIMITED IN THIS SECTION APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF DILIGEND IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of limitation of liability, Diligend’s liability will be reformed and limited to the maximum extent permissible under the law. For the avoidance of doubt, Diligend’s liability limits and other rights set forth apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
User agrees to indemnify, defend and hold harmless Diligend and its subsidiaries, affiliates, officers, agents, licensors, employees, partners, independent contractors, or consultants and others involved in creating, sponsoring, promoting or otherwise making available the Website, Platform and Services harmless from and against any and all claims, allegations, damages, losses or liabilities, including reasonable attorneys’ fees and expenses, due to or arising out or relating to a) User’s breach of the representations and warranties made by User in this agreement, b) any violations of a third party’s intellectual property rights caused by an information or data provided by the User to Diligend or within the solution, c) any including personal information of third parties provided by the User. d) that use of the System through User’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; or (e) injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of User or of any of its agents, contractors, or employees.
INTERNATIONAL USE OF WEBSITE, SOLUTION AND SERVICES
Diligend makes no representation that the Website, Solution and Services are appropriate or available for use in certain locations. If you access the Website or Solution and use the Services, you do so at your own initiative and are responsible for compliance with local applicable laws and regulations.
Diligend shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.
CHOICE OF LAW AND JURISDICTION
These Terms shall be interpreted, construed, and enforced in accordance with the laws of the State of Delaware, USA without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York, New York. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
We reserve the right to modify, suspend or terminate any Services or products available through the Website or platform, at any time for any reason with or without notice to you. User’s continued use of the Service following the effective date of an amendment will confirm User’s consent thereto.
No joint venture, partnership, employment, or agency relationship exists between you and Diligend as a result of these Terms.
No waiver by either party of any default by the other in the performance of any provisions of these Terms shall operate as a waiver of any continuing or future default, whether of a like or different character.
You may not assign this Agreement.
Diligend reserves the right to assign its obligations and duties in these Terms to any person or entity.
Any notice or other communication to be given to us under these Terms shall be in writing in the English language unless otherwise agreed between Diligend and the User. Any notice or other communication from Users shall take effect only when received by us unless such notice or another communication is contrary to these Terms.
Unless you are a Client, these Terms constitute the entire agreement between you and Diligend with respect to your use of the Solution and Services and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.