PLATFORM TERMS OF USE
1. Definitions:
“Agreement”: |
shall mean the below terms of use as well as any Specific Agreements (as defined below). |
“AIFM”: |
shall mean Titanbay Ireland Limited, a private company limited by shares incorporated in Ireland and authorised and regulated by the Central Bank of Ireland as an alternative asset management firm. |
“Authorised User”: |
shall have the meaning assigned to it in Clause 3 of this Agreement. |
“Claims”: |
shall have the meaning assigned to it in Clause 10 of this Agreement. |
“Delegate”: |
shall have the meaning assigned to it in Clause 3 of this Agreement. |
Digital Services Act |
shall mean Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC |
“General Partner”: |
shall mean Titanbay International GP S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, with its registered office at 7, Rue Genistre, L-1623 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés de Luxembourg - RCS) under registration number B241168, acting in its own capacity and as managing general partner (associé commandité) of the RAIFs. |
“Platform Operator”: |
shall mean Titanbay Limited, a company incorporated as a private company limited by shares, which has its registered office at First Floor, 15 Golden Square, London, United Kingdom, W1F 9JGregistered with the Registrar of Companies for England and Wales with a Company number 12175760. |
“Platform”: |
shall mean the preferred private markets investment platform relating to the RAIFs accessible through https://app.titanbay.com/registration, as well as any information, data, materials, or other content provided therein. |
“RAIFs”: |
shall mean the investment funds managed by the General Partner, namely; Titanbay Master Fund SCSp-RAIF and Titanbay Focused Master Fund SCSp SICAV-RAIF and their respective compartments, in its capacity as General Partner, |
“Specific Agreements”: |
shall mean any document, terms, addendum, agreement, exhibit, or attachment of any kind related to or in connection with the services provided through the Platform or its content. |
“Titanbay”: |
shall mean the AIFM, the General Partner and the RAIFs. |
“Titanbay Indemnitees”: |
shall have the meaning assigned to it in Clause 10 of this Agreement. |
“User”: |
shall mean any individual or entity registering, creating an account, providing any information, or using directly or indirectly the Platform or its content, including, but not limited to, when acting as Authorised User or Delegate. |
Unless the context otherwise requires, all terms defined herein shall include both the singular and plural forms of such terms.
2. General Information
This Agreement describes the terms and conditions of use of the Platform as well as the legal relationship between the Users of the Platform on one hand (also referred to in this Agreement as “you” or “yours”), and Titanbay and the Platforms Operator on the other hand (also referred to in this Agreement as “we”, “us” or “our”).
By registering, creating an account, providing any information, or using the Platform, directly or through a third party, you agree to be bound by this Agreement. In the event that any provisions hereafter are found to be inconsistent or in conflict with any provisions contained in any Specific Agreement, the provisions of the Specific Agreements shall prevail and govern to the extent of such inconsistency or conflict. The use of the Platform might also be subject to certain additional terms of use required by the legal entity hosting or offering the Platform to its own users and customers. You agree that in case of conflict between these terms and the Agreement, the Agreement shall prevail.
The content of the Platform is provided by Titanbay. The Platform Operator only offers hosting services and technical support for the creation, operation, administration, and maintenance of the Platform and does not engage in any information, investment services, or other content provider activities. This Agreement does not imply or create any legal rights for a User toward the Platform Operator. All limitations of liability shall apply and benefit to the fullest extent the Platform Operator and its affiliates, directors, officers, agents, principals, members, partners, employees, or shareholders, which shall not be liable for any loss or damage of any kind. Any information uploaded, sent, or transferred in connection therewith via the Platform is delivered to Titanbay, not the Platform Operator]. It may subcontract (whether under an existing or new contract between the Platform Operator and a third party) or sublicense all of any part of the Platform, including the development, operation, and maintenance of the Platform and the collection, retention, and processing of data.
We may change any aspect of the Platform, or suspend it, at any time and without notice. We may also change the Agreement at any time by posting a new version to the Platform. Any changes shall be effective when posted. Your continued use of this Platform after a change to the Agreement constitutes your acceptance of any changes to the Agreement.
3. Authorisation
By accessing the Platform, you agree that this Agreement shall apply to you as well as your employees, consultants, contractors and agents, and any other person or entity:
- who are authorised by you to access and use the Platform, or
- for whom access to the Platform has been directly or indirectly subscribed or granted hereunder, including, but not limited to, potential and existing investors, general partners or managers of private funds and transfer agent or administrator entities, or any other service providers engaged by these entities or private asset funds as well as any of their respective authorised users, as well as
- their respective directors, officers, agents, principals, members, partners, employees, and shareholders
(each an “Authorised User”, and together, the “Authorised Users”).
If you authorise any individuals to act on your behalf with respect to your account (each a "Delegate" and together the “Delegates”), you represent and warrant that you have the legal right to do so and that you have provided the Delegate with clear and specific instructions as to the scope of their authority. If you act as a Delegate, you agree to be bound by this Agreement and represent and warrant to Titanbay and the Platform Operator that you have received clear and specific instructions from the account owner as to the scope of your authority and that you will only act within that scope.
You represent and warrant that if you are an individual, you are of legal age to form a binding contract, and that all registration information you submit is accurate and truthful.
You must be, and represent that you are, competent to agree to this Agreement on behalf of your entity and Authorised Users and Delegates, if any. You represent and warrant that you accept the terms of this Agreement on such entity's behalf, which agree to comply with the terms of this Agreement. You are also responsible for your Authorised Users’ or Delegate’s compliance with this Agreement and you assume full responsibility for any and all actions taken by them, including all representations and warranties made in any response or document submitted, as well as any breaches of this Agreement.
If you act as Authorised User or Delegate, you undertake to comply with the terms of this Agreement and you acknowledge and agree that Titanbay and the Platform Operator shall not be held liable for any losses, liabilities, claims, demands, damages, costs or expenses, including legal and accounting fees, or any investigative or legal fees, or punitive, special or consequential damages resulting from your actions on the Platform. You further agree to jointly indemnify and hold harmless the account owner, Titanbay, and the Platform Operator from any losses, damages, or expenses arising from your actions on behalf of the account owner.
4. Customer Data
If you provide customer data, including personal information, contact information, transaction history, account information, and any other data collected through the platform or through third party, to Titanbay and/or the Platform Operator, you represent and warrant that you have the legal right and authority to provide such data, and that Titanbay and the Platform Operator's use and processing of such data will not infringe upon anyone's rights or privileges, including their right to privacy. You agree to indemnify and hold harmless Titanbay and the Platform Operator from any claims, harm, or damages that may arise from your provision of customer data, including personal information, to Titanbay or the Platform Operator.
You undertake to provide only accurate, reliable, and relevant data, and only to the extent such disclosure will not violate any applicable law, statute, or regulation or infringe upon a person's data privacy rights or privileges. In the event that you discover any inaccuracies or discrepancies in the data provided, you shall promptly inform us of such discrepancies and take reasonable steps to correct them. You hereby explicitly consent to Titanbay's and the Platform Operator’s sharing of such information with each other for the purposes of performing the services herein and for the Platform Operator's administration and operation.
You recognise and concur that customer data may contain personal information and that Titanbay and the Platform Operator may obtain, use, disclose, transfer, or otherwise process such personal information in accordance with our Privacy Policy (available here), as may be amended from time to time.
5. Digital Services Act
The Platform has introduced procedures as required in order to be compliant with the Digital Services Act. The Platform performs transparency reporting referencing any content moderation engaged in, cooperates with national authorities and any and all court or administrative orders and facilitates the notice and action mechanism available to recipients of information under the Digital Services Act. The Platform has appointed a legal representative and provided a single point of contact available at legal@titanbay.com.
6. No Offering
Any material on the Platform is provided for general information purposes only and does not constitute investment advice or personal recommendation to acquire any limited partnership interests, shares or other securities or investment advice of any kind, nor does this Platform constitutes an invitation to invest, directly or indirectly, in any company or collective investment scheme, or to undertake to do so. Products and services described in the Platform are not offered or sold through the Platform, and may only be offered to potential investors, after a formal screening and selection at a later stage pursuant to a specific documentation to be prepared and distributed and clearly indicated as such. Any such transaction may only occur between a prospective investor and the dedicated party separate and apart from the Platform. Information on this Platform may not be accurate or current and may be rendered inaccurate by changes in law or regulation.
7. Non-Disclosure
By accessing this Platform, you agree to be bound by our Privacy Policy (available here). Except as otherwise permitted herein, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative of, transfer or otherwise use in any other way, in whole or in part, any information obtained from the Platform.
8. Ownership
All content included on this Platform, such as graphics, logos, articles and other materials, is the property of Titanbay or others and is protected by copyright and other laws. All trademarks and logos displayed on this Platform are the property of their respective owners, who may or may not be affiliated with Titanbay. Except as expressly provided herein, we do not grant to you any express or implied rights with respect to this Platform or the material or information contained on this Platform.
You agree not to use the Titanbay or Platform Operator name, logo or material in any way that suggests or implies that you are affiliated with Titanbay or the Platform Operator, or that you have any endorsement or sponsorship from Titanbay or the Platform Operator, without obtaining the prior written consent of Titanbay and/or the Platform Operator.
9. Limitation on Liability
We make no commitment regarding the availability, performance, or functions of the Platform and give no warranty that your access to the Platform or use of the materials on the Platform will be lawful in any particular jurisdiction. You are responsible for compliance with local law and regulation. Neither we, the Platform Operator, Titanbay’s related companies or affiliates nor any of our respective directors, officers, employees, agents, or other representatives will be liable for any loss or damage of any kind which arises or may arise as a result of or in connection with your use of (or inability to use) or reliance on information on the Platform or of any unavailability or failure of the Platform itself, including as a result of our negligence.
The Platform may not always be accessible. We do not guarantee that material on the Platform will be free from infection, viruses, worms, Trojan horses and/or other similar code. You are responsible for virus checking and taking any other protective steps. None of Titanbay nor the Platform Operator is liable for any delays, delivery errors, viruses, loss or compromise of customer data, or other damages resulting from such problems. The Platform and its content may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. You assume all risks related to the use of the Platform.
While the information on this Platform is believed to be accurate and reliable, neither Titanbay, the Platform Operator nor any of their officers, directors, shareholders, agents and employees makes any warranty, express or implied, of any kind related to the adequacy, accuracy or completeness of any information or opinions contained on this Platform and does not represent that the material is accurate, current, or complete and the material should not be relied upon as such. We will have no responsibility to maintain the material or to supply any corrections, updates or releases concerning the material. By accessing the Platform, you acknowledge that we provide the contents of the Platform on an "as is" basis with no warranties of any kind and that the opinions expressed on the Platform do not constitute investment advice.
Private equity is an illiquid asset class with a high risk of loss of all invested capital. Investment in private placements and private equity via feeder funds in particular are complex, speculative in nature and involve a high degree of risk. Past or simulated performance is no guarantee of future results. The value of an investment may go down as well as up, and investors may not get back their money originally invested. For private equity investments via feeder funds, investors will typically receive illiquid and/or restricted membership interests that may be subject to holding period requirements and/or liquidity concerns. Investments in private equity are highly illiquid and those investors who cannot hold an investment for the long term (at least 10 years) should not invest. Prior to making any investment decision, investors are advised to check the investment horizon and category of the fund in relation to any objectives or constraints they may have. As such, it will only be suitable for a small number of investors. The duty to determine the suitability of the asset class for the investor rests with the investment professional using these materials. In particular, no warranty is given as to the suitability of any fund offered on the Platform for the recipient's clients. The Platform's materials and research cover a small proportion of the investable universe of private equity funds.
The material on the Platform is not to be shared with investors who are not eligible to invest as it has not been designed for their use. All investments shall in any case be subject to a separate appropriateness assessment process ensuring that any investor qualifies to invest or use the services and any decision in this respect should be made solely on the information contained in a fund’s specific prospectus and separate documentation.
Your use of the Platform and use or reliance upon any materials or information on it is solely at your own risk and you and your clients should consult your investment, tax or legal advisors before you make any investment decision. We cannot be held liable for any damage that may result from the use of this Platform or the information contained therein or that may be obtained via this Platform.
10. Third-party content
Certain portions of the Platform may contain third party content and may provide links to webpages and content of third parties. The Platform may also be integrated into other websites, software, systems and/or platforms controlled by third parties. Titanbay does not control, endorse, investigate, or adopt any third-party content, and makes no representations or warranties of any kind in this respect, including with respect to its accuracy or completeness and does not, approve or have any control over the content, products or services provided by such website, software, systems and/or platforms. Their access and use are at your own risk and subject to the terms of use and privacy policies applicable thereto.
You may have the option to link your Platform’s account to other accounts. By linking your Platform’s account to a third-party account, you acknowledge and agree that you are giving people permission to continuously access information about you (in accordance with your privacy settings on those third party sites). You acknowledge and agree that Titanbay and/or the Platform Operator have no control over the actions of third-party websites, software, systems and/or platforms or their owners and will not be liable for any damages or losses arising from your use of any third-party account linked to your Platform’s account.
11. Indemnification
By accessing the Platform, you agree to indemnify Titanbay, the Platform Operator and its affiliates, and each of their respective partners, shareholders, members, managers, officers, directors, employees, investment advisers, and agents (collectively, the “Titanbay Indemnitees”) against, and hold the Titanbay Indemnitees harmless from, any and all claims, demands, debts, obligations, liabilities, damages (actual, consequential or special), costs and expenses of any kind whatsoever (collectively the “Claims”), including attorneys’ fees, arising from your use of this Platform. You hereby release the Titanbay Indemnitees from any and all Claims that you may have against the Titanbay Indemnitees arising out of or in any way related to such disputes.
You hereby undertake to hold harmless, indemnify, and defend Titanbay Indemnitees against all Claims that arise from any of the following:
- Your or your Authorised Users' or Delegate’s use of or inability to use the Platform;
- Your or your Authorised Users' or Delegate’s unauthorised use of personal information obtained from or provided to the Platform or provision or use of any personal data;
- Any act of negligence, wilful misconduct, fraud, or bad faith committed by you or your Authorised Users or Delegate;
- Your violation of this Agreement or your infringement on any third party's rights;
- Any Claim by your client or any other third-party regarding services offered on the Platform resulting from your or your Authorised Users' or Delegate’s actions, in particular, but not limited to when acting as advisor or consultant.
In the event that Titanbay Indemnitees are required to defend against any of the above, they reserve the right to assume exclusive defence and control of the matter at their own expense. In such cases, you agree to cooperate fully with the Titanbay Indemnitees.
It is important to note that this clause applies to you, your Authorised Users and Delegates. You are responsible for ensuring that your Authorised Users and Delegates comply with this Agreement and for any actions they take that may result in the Titanbay Indemnitees’ incurring losses, costs, liabilities, or expenses.
If you are accessing this Platform from a jurisdiction that does not permit the limitation or exclusion of liability as described herein, the provisions of this Agreement shall apply to the maximum extent permissible in such jurisdiction.
12. Local Restrictions
This Platform is designed only for access and use by professional investors and eligible below professional investors in jurisdictions where it is allowed in accordance with the local rules. In the UK, only investors that satisfy the requirements in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 to be categorised as High Net Worth Individuals, Sophisticated Investors, or Investment Professionals may access and use the Platform. If you are not categorised as such or if you do not represent one of these qualified investors, please ignore the Platform’s material.
The distribution of material on this Platform may be restricted by the laws or regulations of the country from which you are accessing this Platform. The information on this Platform is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution would be contrary to local law or regulation. We make no warranties that the materials on this Platform are appropriate or available for use in such locations.
We decline all liability in relation to any person and invites users to check, prior to using the Platform, that there is no legal restriction to prevent or restrict the provision of the information on the Platform.
13. Governing Law
Any dispute arising out of or in connection with the Platform or this Agreement shall be governed solely by the laws of the Grand Duchy of Luxembourg and you hereby consent to the exclusive jurisdiction and venue of the courts of Luxembourg in all disputes arising out of or relating to the use of the Platform or this Agreement.
If, for any reason, any provision in this Agreement is determined to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder shall continue in full force and effect.
Any failure or delay by Titanbay in enforcing an obligation or exercising a right under this Agreement shall not constitute a waiver of that obligation, or right, or any other obligation or right.