By accessing or using this website (this “Site”) of Empyrean Capital Partners, LP and its affiliated entities (collectively, “Empyrean”) you hereby accept and agree to comply with the terms and conditions set forth in this User Agreement (“User Agreement”).
PLEASE READ THIS USER AGREEMENT CAREFULLY BEFORE USING THIS SITE. YOUR USE OF THIS SITE INDICATES YOUR FULL ACCEPTANCE OF AND AGREEMENT TO ABIDE BY THIS USER AGREEMENT IN ITS THEN-CURRENT FORM. IF YOU DO NOT AGREE TO THE TERMS OF THIS USER AGREEMENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
(Scroll to bottom of page to accept this User Agreement)
1. No Offer of Securities
You acknowledge that the Information and Materials (as defined below) contained on this Site are not and should not be construed as legal, tax, accounting or investment advice (including any advice concerning the suitability or profitability of any security or investment). Under no circumstances should this Site or any Information and Materials be used or considered as an offer to subscribe or a solicitation by Empyrean or any investment fund or other entity directly or indirectly managed by Empyrean, to invest in any investment fund managed by Empyrean. Offers can only be made where lawful under, and in compliance with, applicable law.
By accessing this Site, you agree and acknowledge that (i) you are an “accredited investor” within the meaning of Rule 501 under the U.S. Securities Act of 1933, as amended, and (ii) you have a substantive pre-existing relationship with Empyrean. Further, you agree and acknowledge that you are familiar with these standards and shall provide Empyrean with written evidence and/or representations confirming your compliance with these standards upon reasonable request.
2. Confidentiality; Restrictions on Use and Disclosure of Information and Materials; Intellectual Property
All content displayed or otherwise contained on or available via this Site, including without limitation all images, text, screens, documents, data and other materials (“collectively, “Information and Materials”) constitutes the proprietary intellectual property of Empyrean or its licensors, and are protected by U.S. [and international copyright laws]. By accessing or utilizing this Site, you agree not to directly or indirectly copy, modify, recast, create derivative works, post, publish, display, redistribute, disclose, or make available the content displayed or otherwise contained on or available via this Site, in whole or in part, to any third parties, or assist others to do the same, or otherwise make any commercial use of the materials without the prior written consent of Empyrean.
You acknowledge that EMPYREAN® and EMPYREAN CAPITAL PARTNERS® are registered trademarks, or trademarks, of Empyrean or its affiliated entities, that are protected in the United States and elsewhere throughout the world, and you shall not contribute or further in any way, directly or indirectly, unauthorized usage by any individual or entity not affiliated with Empyrean. This Site is protected by copyrights, trademarks and other proprietary rights, and except as specifically provided in this User Agreement, your use of this Site shall be governed and constrained by applicable copyright, trademark and other intellectual property laws, in addition to this User Agreement. You specifically agree that Empyrean owns all intellectual property rights in and to the content and trademarks on this Site (regardless of whether those rights are registered), except with respect to other company names, trademarks and service marks contained on the Site that are the trademarks of their respective owners.
You may not use this Site to transmit, distribute or store material (a) in violation of any applicable law or regulation, (b) in a manner that shall infringe the copyright, trademark, trade secret or other intellectual property right of another or violate the privacy, publicity or other personal right of another, or (c) that is defamatory, obscene, threatening, abusive or hateful. You are prohibited from violating or attempting to violate the security of this Site.
3. Limited Access to Site
By accessing this Site, you promise that you are the person issued the username and password by Empyrean, and that you shall not provide to any other person or entity, directly or indirectly, through any medium, either your user name or password, or any Information and Materials contained in this Site in whole or in part. You are solely responsible for maintaining the confidentiality and security of your password. You agree to notify Empyrean immediately of any actual or suspected loss, theft or unauthorized use of or access to your password. Empyrean has no obligation to inquire as to the authority or propriety of any use of or action taken under your password and shall not be responsible for any loss to you arising from any such use or action or from your failure to comply with the above. Empyrean reserves the right to limit access to this Site to any person, geographic region or jurisdiction.
4. Termination and Disclosure of Information
Empyrean has the right, but not the obligation, to monitor any activity and content associated with this Site. Empyrean may investigate any complaint or reported violation of this User Agreement or its policies and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspending or terminating your use of all or any portion of this Site and denying you access to all or any portion of this Site. Empyrean also reserves the right to report any activity that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators or other persons or entities. In order to cooperate with governmental requests, to protect the systems and users of this Site, to ensure the integrity and operation of this Site, business or systems, or otherwise to comply with the law and legal process, Empyrean may access and disclose any information it considers necessary or appropriate.
This Site and any Information and Materials in or accessible through this Site are not directed at, or intended for distribution to or use by, any person or entity who is a citizen or resident of or located in any jurisdiction where such distribution, publication, availability or use would be contrary to applicable law or regulation or which would subject Empyrean to any registration or licensing requirement. The products and services referred to on this Site may be subject to legal and regulatory requirements applicable in the jurisdiction where you are a resident and/or may not be suitable to you or available in the jurisdiction in which you are located. Those who choose to access this Site do so on their own initiative and are responsible for establishing the legality, usability and correctness of any Information and Materials under any or all jurisdictions and the compliance of that Information and Materials with local laws, if and to the extent local laws are applicable. You may not use or export the Information and Materials in violation of U.S. export laws and regulations.
You confirm that we have not been solicited, required or advised to access this Site or to or to make any request that Empyrean provide you with any information about the investment funds managed by it. You acknowledge that Empyrean is not required to comply with the requirements of the Alternative Investment Fund Manager Directive (Directive 2011/61/EU), and will not be providing the specific information mandated by the Directive to existing or prospective investors. The Information and Materials contained on this Site are not intended to constitute, and should not be construed as, investment advice. Potential investors in investment funds managed by Empyrean should seek their own independent financial advice.
Empyrean may modify the terms of this User Agreement or any other terms and conditions governing this Site, at any time and in its sole discretion, by posting the modified User Agreement on this Site, without notice to you. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review this User Agreement periodically so that you are aware of any modifications. Your use of this Site indicates your full acceptance of this User Agreement in its then current form each time you use this Site. You agree that the notice provisions provided in this User Agreement are reasonable. You may not modify the terms of this User Agreement or any other terms or conditions governing this Site without Empyrean’s express prior written consent.
7. No Warranty
THIS SITE AND ALL INFORMATION AND MATERIALS ON THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, SUITABILITY OR OTHER CHARACTERISTICS OF THE INFORMATION AND MATERIALS CONTAINED ON OR PRESENTED THROUGH THIS SITE. EMPYREAN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND FREEDOM FROM COMPUTER VIRUS.
8. Limitation of Liability
IN NO EVENT SHALL EMPYREAN OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE PARTNERS, MEMBERS, OFFICERS, DIRECTORS, AFFILIATES, AGENTS AND EMPLOYEES BE LIABLE FOR ANY CLAIMS, LOSSES, DEMANDS, LIABILITIES, COSTS, EXPENSES OR DAMAGES, INCLUDING INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF, OR IN ANY WAY DIRECTLY OR INDIRECTLY CONNECTED WITH THIS SITE OR USE THEREOF OR INABILITY TO USE BY ANY PARTY, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF EMPYREAN OR ITS AFFILIATES OR THEIR RESPECTIVE PARTNERS, MEMBERS, OFFICERS, DIRECTORS, AFFILIATES, AGENTS AND EMPLOYEES ARE ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES, DEMANDS, LIABILITIES, COSTS, EXPENSES AND DAMAGES. THIS LIMITATION OF LIABILITY IS COMPREHENSIVE.
You agree to indemnify, defend and hold harmless Empyrean and its affiliates and any of their respective partners, members, officers, directors, affiliates, agents and employees from and against any and all suits, claims, damages, losses, demands, liabilities, costs and expenses (including, without limitation, judgments, fines and amounts paid or to be paid in settlement and reasonable attorneys’ and other professional fees) arising out of or relating to (a) your use of this Site; (b) your actual or alleged breach of this User Agreement or any representation, warranty, or covenant made by you in this User Agreement; (c) your violation of any applicable law, statute, ordinance or regulation; or (d) claims asserted by third parties which, if proven, would place you in breach of the representations, warranties, covenants or other provisions in this User Agreement.
10. No Guarantee of Employment
This Site may contain information regarding employment opportunities. Nothing on this Site constitutes an offer of employment or promise thereof. Empyrean does not guarantee that documents submitted by users in connection with employment opportunities will result in candidates being hired or positions being filled.
11. Miscellaneous Provisions
While Empyrean uses reasonable efforts to update the Information and Materials contained on this Site, Empyrean makes no representations or warranties as to the accuracy, reliability or completeness of any Information and Materials. Any content of this Site is subject to change without notice.
Past Performance and Risk of Loss
You acknowledge that while this Site may contain fund performance information, past performance should not be construed as an indicator of future results, and nothing on this Site or in the Information and Materials should be interpreted to state or imply otherwise. You should note that, if you choose to invest in any product described or referred to on this Site, your capital will be at risk and you may therefore lose some or all of any amount that you choose to invest.
Empyrean does not wish to receive any confidential or proprietary ideas, suggestions, or information through this Site. You agree that all unsolicited comments, feedback, ideas, suggestions and other subject matter disclosed or submitted to Empyrean through this Site shall become and remain the exclusive property of Empyrean.
Entire Agreement / Assignability
This User Agreement, as modified from time to time, constitutes the entire agreement between you and Empyrean with respect to this Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Empyrean with respect to the subject matter hereof. You agree that Empyrean may assign this User Agreement in whole or in part at any time without your consent. You may not assign this User Agreement or delegate any of your obligations hereunder. Any purported assignment of this User Agreement in violation of its terms shall be void.
Linking to Other Web Sites and Services
Empyrean does not review or monitor any websites linked from or to this Site and your following links from or to such websites is at your sole risk. Accordingly, Empyrean cannot be held responsible for the information, materials, products or services obtained on or from such other websites, nor shall Empyrean be liable in any respect whatsoever for any damages arising from or relating to your access to such websites. Any links from or to other websites are provided merely for the convenience of the users of this Site and the inclusion of these links does not imply an endorsement, representation or warranty by Empyrean with respect to any such linked websites or the content, products or services contained or accessible through, or the operators of, such websites.
No Waiver of Rights / Enforceability
No failure of either party to enforce any of its rights under this User Agreement shall act as a waiver of such rights.
If any portion of any provision of this User Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this User Agreement shall remain in full force and effect.
The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this User Agreement.
Governing Law and Consent to Jurisdiction
This User Agreement and all matters arising out of or relating to this User Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws that would require or permit the application of the laws of any other jurisdiction. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case located in the Borough of Manhattan, for any actions, suits or proceedings arising out of or relating to this User Agreement. You hereby appoint the Secretary of State of the State of New York as your agent for service of process in any such proceeding.
Waiver of Jury Trial
EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS USER AGREEMENT. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE.
12. Residents of Canada
This Site and any Information and Materials in or accessible through this Site are not, and under no circumstances are to be construed as, a prospectus, an offering memorandum, an advertisement or a public offering of securities in Canada or any province or territory thereof. No securities commission or similar regulatory authority in Canada has reviewed or in any way passed upon this Site and any Information and Materials in or accessible through this Site or the merits of the securities described herein and any representation to the contrary is an offence. Under no circumstances are this Site and any Information and Materials in or accessible through this Site to be construed as an offer to sell securities or as a solicitation of an offer to buy securities in any jurisdiction of Canada. Any offer or sale of the securities described herein in Canada will be made only under an exemption from the requirements to file a prospectus with the relevant Canadian securities regulators. This Site and any Information and Materials in or accessible through this Site are made available only to Canadian resident clients who qualify as an “accredited investor” as such term is defined in section 1.1 of National Instrument 45-106 Prospectus Exemptions and, in Ontario, in section 73.3(1) of the Securities Act (Ontario), as applicable, and, a “permitted client” as such term is defined in section 1.1 of NI 31-103 or a “permitted client” as such term is defined in in section 1 of Multilateral Instrument 32-102 Registration Exemptions for Non-Resident Investment Fund Managers (“MI 32-102”), as applicable. In addition, upon receipt any Information and Materials from this Site, each Canadian recipient hereby confirms that it has expressly requested that the Information and Materials be drawn up in the English language only. De plus, dès réception de ces documents, chaque récipiendaire canadien confirme par la présente qu’il a expressément demandé que ces documents soient rédigés seulement en anglais.
By accessing this Site, you agree and acknowledge that you expressly consent to receiving the Information and Materials from Empyrean.