TERMS OF SERVICE
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The BarclayHedge division of Backstop Solutions Group, LLC, a Delaware limited liability company, with its primary place of business at 233 S. Wacker Drive, Suite 3960, Chicago, IL 60606 (“BarclayHedge”) makes available an online portal (“Service”) that hosts performance returns and other data, information, content and documents (“Materials”) independently provided by investment advisers, sub-advisers and other sponsors (each a “Data Provider”) with respect to investment vehicles and separate accounts they advise (each a “Fund”), as well as proprietary information, data, databases, documents, analyses, compilations, studies, reports, and other items prepared by BarclayHedge that incorporate all or part of, are derived from, are a compilation of, or are otherwise developed using Materials (“Content”).
By SUBMITTING Materials to the SERVICE, you acknowledge that you are a Data Provider and agree to be bound by the following terms and conditions (“Terms”) IN connection with your access to and use of the SERVICE EFFECTIVE AS OF THE DATE you first submit materials to the service (“Effective date”).
Data Provider grants BarclayHedge a non-exclusive, worldwide, royalty-free, irrevocable, indefinite, sublicensable and transferable license to publish, distribute, sell, create derivatives of, and otherwise use the Materials for commercial purposes, including without limitation as may be necessary for BarclayHedge to develop Content and provide the Service generally to its users. For avoidance of doubt, BarclayHedge exclusively owns and shall retain all right, title and interest, including all related IPR, in and to, and related to, the Content and Service. “IPR” means all intellectual property rights therein and related thereto throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
Except as expressly authorized by BarclayHedge, Data Provider agrees not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service, in whole or in part. In connection with its use of the Service, Data Provider will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. The technology and software underlying the Service or distributed in connection therewith are the property of BarclayHedge, its affiliates and its partners (the “Software”). Data Provider agrees not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of, sell, assign, sublicense, or otherwise transfer any right in, the Software.
Data Provider Responsibilities
Data Provider is and will remain solely responsible for: (i) providing accurate Materials to BarclayHedge; (ii) immediately notifying BarclayHedge to correct material inaccuracies in previously provided Materials; and (iii) all communications with Service users who contact Data Provider directly, including without limitation through a link to the web site of Data Provider made available through the Service.
Data Provider represents and warrants that: (i) its provision of Materials has been duly authorized in accordance with the terms and conditions of the Fund’s governing documents; and (ii) Data Provider and its Fund(s) will at all times comply with all applicable laws and regulations, including but not limited to the Investment Advisers Act of 1940, as amended (the “Advisers Act”), the Investment Company Act of 1940, as amended, the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and the Commodities Exchange Act of 1936, as amended; (iii) all performance returns and other Fund data included in Materials provided to BarclayHedge will be calculated in accordance with the Advisers Act, including without limitation Rule 206(4)-1 thereof, whether or not Data Provider is a registered investment adviser, exempt reporting adviser, bank, family office or other entity exempt from registration under the Advisers Act; and (iv) it will immediately notify BarclayHedge in the event that any data becomes inaccurate, false or misleading in any material manner, including but not limited to the discovery of a calculation methodology that is inconsistent with Rule 206(4)-1.
Data Provider further represents and warrants that the Materials provided by Data Provider: (i) are and will be current, accurate, truthful, and complete; (ii) do not infringe, misappropriate or violate any intellectual property rights, publicity or privacy rights, or any law, rule, or regulation; (iii) are not defamatory, harmful to minors, obscene or child pornographic; and (iv) do not contain any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information.
Data Provider will indemnify, defend and hold BarclayHedge harmless from and against any Loss arising out of or resulting from a third party claim that, if true, would constitute a breach these Terms.
Disclaimers and Limitations
Data Provider agrees that BarclayHedge will not be responsible for any Loss (defined below) of any Fund, Fund investor or Fund beneficial owner resulting from: (i) inaccuracies or deficiencies in Materials provided by Data Provider; (ii) Data Provider’s failure to comply with all applicable laws concerning its provision of Materials to BarclayHedge; or (iii) Data Provider’s failure to provide and maintain accurate identifying information through the Service.
BarclayHedge SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE service, materials and content, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. Data Provider will be solely responsible for MATERIALS provided by Data Provider or any third-party ON BEHALF OF DATA PROVIDER, and BarclayHedge makes no representations or warranties as to, and is not responsible for such items.
BarclayHedge WILL NOT BE LIABLE TO DATA PROVIDER, ANY FUND OR ANY FUND INVESTOR FOR any SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF materials PROVIDED BY DATA PROVIDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), including, by way of example, lost revenue, lost profits, BUSINESS INTERRUPTION, COST OF REPLACEMENT SERVICES, and INJURY to reputation, EVEN IF BarclayHedge HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The provisions of this Section shall apply to the fullest extent permitted by law. Nothing in this Section limiting the liability of a party shall apply to any liability that has been finally determined by a court to have been caused by the willful misconduct of such party. For purposes of these Terms, “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether express or implied), by statute, or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Loss.
Data Provider acknowledges and agrees that any reference to Data Provider or a Fund may be terminated and removed, and all or any portion of Materials provided by Data Provider may be removed, at any time for any reason, from the Service, in the sole and absolute discretion of BarclayHedge.
BarclayHedge shall have no liability resulting from events beyond its reasonable control, including, acts of God, acts of a public enemy, acts of a foreign government or of the United States of America government or any political subdivision thereof, fires, floods, earthquakes, hurricanes, tornadoes, typhoons, droughts, wars, epidemics, riots, theft, quarantine restrictions, and freight embargoes, or, acts of a regulatory agency or other governmental body (collectively “Force Majeure Conditions”).
Agreement to Arbitrate
Except as otherwise provided in this Section, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to any Loss, and the arbitrability of the issues submitted to arbitration hereunder (each, a “Dispute”) through discussion between the parties. Except as otherwise provided below, if any Dispute cannot be resolved through negotiations between the parties within 10 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the Rules of American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by BarclayHedge in Chicago, Illinois U.S.A. The arbitrator will apply the laws of the State of Illinois to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend these Terms or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. Data Provider agrees that if BarclayHedge reasonably believes Data Provider has, in any manner, violated or threatened to infringe BarclayHedge’s IPR, then BarclayHedge may seek emergency, preliminary or other appropriate interim relief in the federal courts located in Chicago, Illinois U.S.A.
The interpretation of the rights and obligations of the parties under these Terms, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Illinois, U.S.A. as such laws apply to contracts between Illinois residents performed entirely within the State of Illinois. Subject to the preceding section, each party agrees that it will only bring an action or proceeding arising from or relating to these Terms in a federal or state court in the State of Illinois, U.S.A., and Data Provider irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by BarclayHedge. The parties expressly waive any application of the Uniform Computer Information Transactions Act (UCITA) or the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of these Terms.
The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by the Terms. Data Provider may not assign, delegate or transfer these Terms or any of its rights or obligations under these Terms, by operation of law or otherwise, without BarclayHedge’s prior written consent. Any such assignment, delegation or transfer in violation of the foregoing will be null and void. If any provision of the above terms and conditions is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining terms and conditions will continue in full force and effect.