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Hedgeviews
Access Agreement Confirmation
ACCESS AGREEMENT
THERE IS AN ARBITRATION REQUIREMENT CONTAINED IN SECTION 17.
In consideration of Bear, Stearns & Co. Inc. (including its affiliated
companies,
collectively, "Bear Stearns") permitting you access to certain
information, data,
calculations, content documents and other materials, including, but not
limited to,
reports, data or analysis on your investments in private mutual funds
and investment
partnerships (collectively, “Fund Investments”) or account,
and research reports
(collectively, "Material") through any Bear Stearns' World Wide
Web site on the
Internet ("Site"), you (which term, as used in herein, includes
you personally and the
company or other organization on whose behalf we grant you access to the
Site) hereby
agree to the following terms and conditions (this "Agreement").
This Agreement is in
addition to, and does not nullify, any other agreement ("Customer
Agreement")
between you and Bear Stearns governing the conduct of your relationship
with Bear
Stearns. Bear Stearns undertakes no duty to you of any kind via this Agreement,
or by
providing the Materials and access to the Site, or by allowing others
to do so. You
understand that some or all of the material on the Site may be provided
or otherwise
made available to you by others, including the managers of the Fund Investments
(“Other Providers”), who are independent of Bear Stearns,
and Bear Stearns does not
review, approve or endorse any such Material.
You acknowledge that (i) the Site and Material is for informational purposes
only and
does not constitute investment advice or an offer to sell or a solicitation
of an offer to
buy any security, invest in any Fund Investment, or any other investment
or investment
service which may be referred to in the Site, (ii) not all Fund Investments,
securities,
other investments or investment strategies are suitable for or are eligible
to be offered
to all investors, (iii) the Material is defined by and provided at the
request of the Fund
or its manager, and that (iv) Bear Stearns does not review or endorse,
nor does the Site
imply review or endorsement, of the Fund, its manager, its strategy, its
investments, its
policies, or its conduct.
1) ACCESS PROVIDED.
Your access to the Site and/or the Material may be modified or revoked
at any time or
from time to time with or without notice. You agree to comply with any
rules or restrictions posted on the Site or as otherwise provided.
2) NO INVESTMENT ADVICE, OFFER OR SOLICITATION; SUITABILITY AND COMPLIANCE
WITH LAW.
1. Although the Material includes material about the Fund Investments
specifically
and securities and other investments generally (collectively, “Investments”),
as well
as research relating to specific securities or other Investments, such
Material are not
and should not be construed to be an offer or solicitation of any kind
whatsoever, or
a recommendation by Bear Stearns or Other Providers unless clearly labeled
by us
to as such. Bear Stearns and the Other Providers are not providing investment
advice through the Site and do not represent that any such Investments
or
investment strategies are suitable for you. In fact, such Investments
or investment
strategies may not be suitable for you.
2. You agree to make your own independent evaluation of the investment
merits and
suitability for you of any such Investments, investment strategy, and
the Material.
Any questions you might have regarding the Fund should be referred to
the Fund,
its manager, accountant, or administrator.
3. You also acknowledge that neither the Site nor any of the Material
constitutes tax
or legal advice. Neither does it constitute investment advice unless it
is specifically
and clearly identified as such. You agree not to use the Material or Site
in
contravention of this section, and agree to provide the text of this section
whenever
providing the Material to anyone.
4. Transmission, modification, copying to media of any form (other than
as allowed
by this Agreement), or use of any material in violation of any applicable
law, rule or
regulation (whether of the United States or other countries), or the rights
of any
third party, or except as specifically provided for in this Agreement,
is prohibited.
This includes, but is not limited to, copyrighted material, material which
is
defamatory, threatening, obscene, lewd and indecent, material protected
by
trademark, trade secret, or patent laws, or material that results in an
invasion of
privacy.
3) NO OBLIGATION REGARDING INFORMATION.
The Material reflect the calculations, derivations, estimates, Other Providers’
or
respective authors' analyses as of the date each such Material was initially
published.
You acknowledge that Bear Stearns undertakes no duty to inform you as
to your
Investments, nor is it under any obligation to update the Material to
reflect
circumstances that may occur after the date initially published. Bear
Stearns may not
update any Material to reflect material changes or new information or
delete Material
that is not longer timely or accurate. You further acknowledge that (1)
The Material
that is made available is selected by the Fund or its management, (2)
the presentation of
the data within the Material may have been formatted by the Fund or its
management in
its complete discretion, and that (3) the Material that is made available
does not
constitute an exhaustive analysis of the Fund or its holdings, is not
intended to present a
whole or audited review of the Fund or its performance, and may not present
information in a generally accepted manner.
Prices of inventory holdings noted or used in preparing the Materials
may be estimates
and have been obtained from a number of sources, including vendors, sources
within
Bear Stearns, the fund’s managers or other traders. They may have
been determined or
derived utilizing imprecise methods and may not reflect actual trades
or prices available
in the marketplace. Many funds hold securities that may have no markets
or illiquid
markets or whose prices may not be readily or accurately discernable.
Bear Stearns has
not examined or approved the prices that have been submitted by the Fund
or its
management and may be used in the Materials, and these prices may not
reflect the
prices that Bear Stearns uses in its own analysis.
The only official books-and-records report regarding the fund’s
activity, positions, and
balance at Bear Stearns is the monthly statement that is sent to the fund
or its appointed
administrator.
4) BLUE SKY AND FOREIGN LAWS.
The Material may discuss Investments which may be restricted or otherwise
not
qualified for sale in certain states or countries, and therefore, may
not be offered to
certain or any investors in such states or countries. You agree to independently
determine the qualifications for sale, and your qualifications to buy,
such Investments.
5) DISCLOSURES AND DISCLAIMERS.
The accuracy, timeliness and completeness of the Material, information,
securities
prices, and the underlying data or the computations based thereon cannot
be
guaranteed. Bear Stearns may make markets and effect transactions, including
transactions contrary to any opinion or recommendation, or have positions
in the
securities mentioned in the Material (or options or futures contracts
with respect
thereto) and may also have performed investment banking services for the
issuers of
such securities. In addition, employees of Bear Stearns may have positions
and effect
transactions in the Investments or securities of the issuers mentioned
therein (or options
or futures contracts with respect thereto) and may serve as directors
of such issuers.
Each fund and partnership, including your specific Fund Investments, may
have its own
policies with regard to employee trading and conflicts of interest. You
agree that Bear
Stearns is not responsible for the promulgation or enforcement of such
policies.
Some Sites (including but not limited to “Hedge Views”) may
contain information that
is created, formatted, or otherwise made available to you by the managers
of your Fund
Investments (“Managers”). Bear Stearns does not edit or monitor
Material on such
Sites for accuracy or suitability for your use. Other than to provide
to you an ID and
initial password (which you agree to immediately change), Bear Stearns
is not
responsible to you for your use of the Site or any material that appears
therein,
regardless of origin. You agree that Bear Stearns makes the Site available
to you and
the Managers as a service, and does not by doing so enter into any agency
or
partnership affiliation or responsibility to or for them or you.
Bear Stearns performs services for the Fund and the Managers consistent
with their
Prime Broker relationship and for which Bear Stearns may receive remuneration.
These services may include (but are not limited to) (i) execution, clearing
and carrying
the fund’s transactions and positions, (ii) financing the fund’s
inventory, (iii) providing
research and reporting to the Managers and related professionals and vendors,
(iv)
introduction of investors, and (v) making this Site available to you and
them. Bear
Stearns may have a long standing or ongoing relationship with the fund,
the managers,
administrators, accountants and other professionals or vendors that are
contracted by
the fund. Some Funds or Managers may be affiliates of Bear Stearns.
6) USER CODES.
1. In connection with your first use of or access to the Site and/or the
Material,
Bear Stearns from time to time may provide you with user names and/or
passwords under separate cover which you will be required to use ("User
Codes").
2. The User Codes are for your personal use only.
3. You are responsible for the confidentiality of the User Codes, and
agree not to
provide disclose them to any third party, including any other employee
in your
organization.
4. You are responsible for all statements made and acts or omissions that
occur
while your User Codes are being used. Bear Stearns is not responsible
for any
breach of security caused by your failure to maintain the confidentiality
of
your User Codes.
5. You agree to notify Bear Stearns immediately in the event of loss,
theft or
disclosure of any or all of your User Codes, or if you believe the
confidentiality of any or all of your User Codes has been compromised
in any
way, or in the event of your learning about a possible or actual unauthorized
access to and/or use of the Site and/or the Material.
6. Bear Stearns reserves the right to revoke or modify your User Codes
at any
time without prior notice.
7) ELECTRONIC RECORDING.
In connection with your use of or access to the Site and/or the Material,
you
acknowledge and consent to any form of electronic recording of any communication
between you and Bear Stearns (or its representatives or agents). You acknowledge
and
consent to the recording, retention and use by Bear Stearns (and its employees,
representatives and agents) of all information and data that you input
during your
access to and/or use of the Site and/or the Material.
8) PROPERTY RIGHTS IN INFORMATION AND SITE.
1. The Site and any Material provided through the Site are being provided
by
Bear Stearns only for your personal, non-commercial use and display. You
may download the Material to your computer and print out a hard copy for
your personal reference, but you shall not remove any copyright or other
notices contained therein.
2. The Site and the Material are the property of Bear Stearns and are
protected
by applicable copyright, patent, trademark or other intellectual property
law.
Except as expressly authorized herein, you may not reproduce, transmit,
sell,
display, distribute, publish, broadcast, circulate, modify, disseminate,
or
commercially exploit such Material or any of the Site provided in any
manner
(including electronic, print or other media now known or hereafter developed)
without the written consent of Bear Stearns. You also agree not to use
the
Material or Site for any unlawful purpose, and you shall comply with any
request of Bear Stearns to protect their respective rights in the Material
and
Site.
9) HYPERLINKS
In the event you use the Site or the links included on the Site to gain
access to a World
Wide Web site or Internet location or source of information of any company,
organization or person other than Bear Stearns, or to any other Internet
location, you
acknowledge that such other sites or locations are not under the control
of Bear Stearns
and agree that Bear Stearns shall not be responsible for any information
or other links
found at any such World Wide Web site or Internet location or source of
information,
or for your use of such information. Bear Stearns provides such links
only as a
convenience to you, and has not tested any software or verified any information
found
at such sites. The fact that Bear Stearns has provided a link to another
site does not
signify an endorsement of the site or its contents by Bear Stearns. There
are inherent
risks in the use of any software or information found on the Internet,
and you
acknowledge that you understand these risks before making any access to
and/or use of
the Site and/or the Material.
10) DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
1. The accuracy, completeness or timeliness of the Materials and other
information cannot be guaranteed. Bear Stearns and its affiliates, agents
and
licensors shall not have any responsibility whatsoever for any direct,
indirect,
consequential, special, or other damages or lost profits or savings or
other
economic harm you may incur or suffer for any reliance by you on any
Materials and other information or the Site, or for the reliability, accuracy,
completeness or timeliness thereof, or for any delays or errors in the
transmission or delivery of any information or any part of the site.
2. Except as expressly set forth in this agreement, Bear Stearns and its
affiliates,
agents and licensors hereby expressly disclaim all express and implied
warranties, including without limitation, warranties of merchantability,
fitness
for a particular purpose, and error-free and uninterrupted services. Bear
Stearns does not warranty, guaranty, or make any representations or
warranties whatsoever, express or implied, or assume any liability to
you
regarding (i) the use or the results of the access to and/or use of the
Site and/or
the Materials and other information, including without limitation, any
financial results based on access to and/or use of the Site and/or any
Materials
and other information or any delay or loss of access to and/or use of
the Site
and/or the Materials and other information, or (ii) system performance
and
effects on or damages to software and hardware in connection with any
use of
the Site and the Materials and other information.
3. In addition to and without limiting the foregoing, Bear Stearns shall
not be
liable for any harm caused by the transmission, through the Site or Materials
and other information, of a computer virus, or other computer code or
programming device that might be used to access, modify, delete, damage,
corrupt, deactivate, disable, disrupt, or otherwise impede in any manner
the
operation of the site or any of your software, hardware, data or property.
4. In addition to and without limiting the foregoing, Bear Stearns makes
no
representation and assumes no liability regarding the quality, safety,
accuracy,
or suitability of any information or software found on any other site
not under
Bear Stearns' control.
5. Bear Stearns and its Affiliates, agents and licensors shall not be
liable for any
losses or damages incurred by you related in any way to your access to
and/or
use of the Site and/or the Materials and other information. Except as
otherwise
provided by law, Bear Stearns shall have no liability for losses caused
by the
negligence, actions or failure to act of any third party, including, but
not
limited to, your or our internet access provider, and to the extent permitted
by
law, Bear Stearns shall not be liable to you for any indirect, special,
incidental
or consequential damages (regardless of whether such damages are reasonably
foreseeable), or For any loss that results from a cause over which Bear
Stearns
does not have control, including but not limited to failure of any electronic
or
mechanical equipment or software, unauthorized access, strikes, failures
of
common carrier or utility systems, severe weather, or other causes commonly
known as "acts of god".
11) YOUR REPRESENTATIONS AND WARRANTIES.
You hereby represent and warrant that you are a sophisticated investor
capable of
understanding and independently analyzing the Material and the Investments
and will
not rely on the Site or the Materials in making your investment decisions.
You further
represent that your access to or use of this Site is not in contravention
of any law or
regulation of the locality, state, province, or country in which you live
or from which
you are accessing this Site.
12) LOCATION; GOVERNING LAW.
Not withstanding any other provisions of these terms, you agree that any
access to or
use of the Site or the Material will be deemed to be entirely at Bear
Stearns' facility in
New York City, under and subject to applicable New York State and United
States
Federal law, rules and regulations, to the same extent as if you were
to physically come
to Bear Stearns' offices in New York and, without assistance or solicitation,
copy
material contained in Bear Stearns' library. This Agreement and all the
terms herein
shall be governed by and construed in accordance with the laws of the
State of New
York without giving effect to principles of conflicts of law.
13) TERMINATION.
Bear Stearns or your fund manager may terminate the Site, the availability
of any
Materials, or your access to the Site and/or the Material at any time
with or without
notice. You acknowledge that Bear Stearns will be directed by the Fund
or its manager
regarding your access to the site.
14) ASSIGNMENT.
This Agreement and your rights and obligations hereunder may not be assigned
by you
without the written permission of Bear Stearns and shall inure to the
benefit of Bear
Stearns' successors and assigns whether by merger, consolidation or otherwise.
Bear
Stearns may assign this Agreement or any of its rights or obligations
under this
Agreement to a company affiliated with, or a successor to or assignee
of, Bear Stearns,
or to any other third party without prior notice and without your consent.
15) MISCELLANEOUS.
1. This Agreement (including your written Customer Agreement or Agreements
with Bear Stearns) represents the complete and exclusive statement of
the
agreement and understanding between you and Bear Stearns regarding your
rights to access and use Material on the Site, and supersedes all agreements
which you may sign with Bear Stearns, and all representations (whether
written or oral), regarding such subject matter.
2. Except as herein provided, no waiver, modification or amendment of
any
provision of this Agreement shall be effective against Bear Stearns unless
the
same is in writing and signed by an authorized official of Bear Stearns.
3. Bear Stearns may modify these terms and conditions at any time upon
written
notice or posting to the Site. You agree that if you use the Site and/or
the
Material after such notification of changes in the Agreement, you will
be
bound by all such changes.
4. Should any term or provision of this Agreement be deemed or held to
be
invalid or unenforceable, the remaining terms and provisions shall continue
in
full force and effect.
5. Bear Stearns' failure to insist at any time upon strict compliance
with any term
of this Agreement, or any delay or failure on Bear Stearns' part to exercise
any
power or right given to Bear Stearns in this Agreement, or a continued
course
of such conduct on Bear Stearns' part shall at no time operate as a waiver
of
such power or right, nor shall any single or partial exercise preclude
any other
future exercise.
6. All rights and remedies given to Bear Stearns in this Agreement are
cumulative and not exclusive of any other rights or remedies which Bear
Stearns otherwise has at law or equity.
7. This Agreement shall be binding upon you and your executors, heirs,
successors and assigns.
16) INDEMNIFICATION.
You hereby indemnify and hold harmless Bear Stearns and its directors,
officers,
employees, control persons, vendors, licensors and agents, from and against
any
and all claims, actions, proceedings, losses, liabilities, damages, costs
and expenses
(including reasonable attorney's fees and costs) arising out of or related
to (i)
any breach by you of any agreements, representations and warranties contained
in this
Agreement, (ii) any access to and/or use of the Site and/or Material by
you in violation
of this Agreement, (iii) any access to and/or use of the Site and/or Material
by you in
violation of any rights of Bear Stearns or any third party, including,
but not limited to,
copyright, patent, trade secret, trademark, or other intellectual property
rights and
publicity and privacy rights, (iv) any access to and/or use of the Site
and/or Material by
you in violation of any applicable law, rule or regulation, or (v) any
failure by you to
maintain the security of your User Codes in accordance with this Agreement.
17) ARBITRATION.
Arbitration is final and binding on the parties. The parties are waiving
their right to
seek remedies in court, including the right to jury trial. Pre-arbitration
discovery is
generally more limited than and different from court proceedings. The
arbitrator's
award is not required to include factual findings or legal reasoning,
and any party's
right to appeal or to seek modification of rulings by the arbitrators
is strictly limited.
The panel of arbitrators will typically include a minority of arbitrators
who were or
are affiliated with the securities industry.
You agree that all claims or controversies, whether such claims or controversies
arose
prior, on or subsequent to the date hereof, between you and Bear Stearns
and/or any of its present or former officers, directors, or employees
concerning or
arising from (i) the Site or the Material, or (ii) the construction, performance
or breach
of this Agreement shall be determined by arbitration before, and only
before, any self-regulatory
organization or exchange of which Bear, Stearns & Co. Inc. is a
member. You may elect which of these arbitration forums shall hear the
matter by
sending a registered letter or telegram addressed to Bear, Stearns &
Co. Inc. at 383
Madison Avenue, New York, NY 10179, Attn: General Counsel. If you fail
to make such
election before the expiration of five (5) days after receipt of a written
request from
Bear Stearns to make such election, Bear Stearns shall have the right
to choose the
forum.
No person shall bring a putative or certified class action to arbitration,
nor seek to
enforce any pre-dispute arbitration agreement against any person who has
initiated
in court a putative class action; or who is a member of a putative class
who has not
opted out of the class with respect to any claims encompassed by the putative
class action until: (i) the class certification is denied; (ii) the class
is decertified; or (iii)
the customer is excluded from the class by the court.
Such forbearance to enforce an agreement to arbitrate shall not constitute
a waiver of
any rights under this agreement except to the extent stated herein.
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE
BOUND BY ALL OF ITS TERMS AND CONDITIONS.
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