Access to the SIMON Markets LLC ("SIMON," "we" or "us") Web site is defined by this agreement. For purposes of this agreement, "SIMON" shall mean SIMON Markets LLC, SIMON Annuities and Insurance Services LLC, SIMON Group LLC, and SIMON Technologies LLC, all of which are affiliates of iCapital, Inc., and their officers, directors, managing directors, partners, and employees. The "SIMON Web site" or "Web site" shall mean the Web site of SIMON located at https://www.simonmarkets.com, https://www.simon.io, and select other domains.
SIMON HAS THE RIGHT TO CHANGE THE SIMON WEB SITE OR THIS AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE, WHETHER AS A RESULT OF CHANGES IN LAW OR POLICY OR OTHERWISE. THEREFORE, EACH TIME YOU USE THE SIMON WEB SITE, YOU SHOULD VISIT AND REVIEW THE THEN CURRENT TERMS & CONDITIONS. YOUR CONTINUED USE OF THE SIMON WEB SITE WILL CONSTITUTE ACCEPTANCE OF SUCH CHANGES.
SIMON MAY, WITHOUT NOTICE AND IN ITS SOLE DISCRETION, CHANGE OR DISABLE YOUR ACCESS TO THE SIMON WEB SITE AT ANY TIME FOR ANY REASON IT DEEMS ADVISABLE OR APPROPRIATE.
1. Acceptable Use
The SIMON Web site is targeted to broker dealers, banks, registered investment advisers, licensed insurance producers, product providers and other financial intermediaries and to their qualified employees or agents who are financial professionals and who are knowledgeable about Investment and Insurance Products. When using the SIMON Web site, You must comply with all laws and regulatory requirements applicable to Your use of the SIMON Web site.
Tampering with any portion of the SIMON Web site, providing untruthful or inaccurate information, misrepresenting Your identity, or conducting illegal or fraudulent activities on the SIMON Web site are prohibited and constitute a breach of this Agreement. You are prohibited from violating or attempting to violate the security of the SIMON Web site, including, (a) accessing data not intended for You or logging onto a server or an account which You are not authorized to access; (b) disabling, removing, defeating, or avoiding any security device or system, circumventing or overcoming any technological protection measures implement to restrict access to portions of the website, including, without limitation, the password and login functionality used to authenticate users; (c) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (d) attempting to interfere with service to any user, host or network, including, but not limited to, via means of submitting a virus to the SIMON Web site, overloading, “flooding,” “spamming,” “mailbombing” or “crashing;” (e) sending unsolicited email, including but not limited to, promotions and/or advertising of products or services; (f) forging any transmission control protocol/Internet protocol packet header or any part of the header information in any email or posting; (g) using or attempting to use any engine, software, tool, agent or other device or mechanism (including but not limited to, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the SIMON Web site other than the search engine and search agents available in the SIMON Web site and other than generally available third party web browsers; (h) reverse engineering, altering modifying, reproducing, creating derivative works of, decompiling or disassembling the underlying software, attempting to derive the source code or method of, models or data with respect to the website and all trade secrets therein; (i) removing, obscuring, or altering any logos, notices, warnings, labels, annotations or instructions from any portion of the SIMON Web site or any related, downloaded or printed material, including, but not limited to, any patent, trademark, copyright, or other proprietary notices or license provisions; (j) impersonating any person or entity, including without limitation any representative of SIMON, falsely stating or otherwise misrepresenting affiliation with any person or entity in connection with the SIMON Web site, or expressing or implying that SIMON or any representative thereof has endorsed You or any of Your statements; (k) otherwise invading the privacy of, obtaining the identity of, or obtaining any personal information about any user of the SIMON Web site; (l) using automated scripts (excluding authorized APIs) to collect information from or otherwise interact with the SIMON Platform; and/or (m) distributing, selling, reselling or otherwise making the SIMON Platform available to any unauthorized third party.
Any violations of system or network security including attempts to intentionally access a computer without authorization or exceed Your authorized access level may result in civil and criminal charges, including, but not limited to, charges under the Computer Fraud and Abuse Act (18 U.S.C. §1030). We may investigate occurrences that might involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. We may, without prior notice of any kind, restrict or terminate the access of any and all users of the SIMON Web site if we reasonably conclude that (i) You or any user engaged or attempted to engage in any of the activities identified in (a) through (m) above in this Section 1 or (ii) such restriction or termination is necessary to prevent the spread or further spread of a virus, security breach or system malfunction. In the event that we restrict or terminate access under these circumstances, in our sole discretion, we will use commercially reasonable efforts to restore access and use for proper purposes.
The SIMON Web site, all of the information and materials contained therein, any information generated from the SIMON Web site, any information derived from the information and materials contained therein (collectively, “Content”), as well as the software used to make the SIMON Web site available are and shall remain the property of SIMON and its licensors and suppliers, and are protected, without limitation, pursuant to U.S. and foreign copyright, trademark, patent and/or other proprietary rights and laws. You do not acquire any right, title or interest in any Content by virtue of accessing the SIMON Web site or making use of the Content, and You may not take any action inconsistent with SIMON’s (or any licensor’s or supplier’s) ownership of the SIMON Web site or Content.
SIMON’s trademarks, service marks, trade names, domain names, trade dress and other proprietary logos and indicia are the property of SIMON (“SIMON Marks”). All other marks are the property of their respective companies. You agree not to use any SIMON Marks. Notwithstanding any of the foregoing, any goodwill arising out of Your use of the SIMON Marks shall inure to the benefit of and belong to SIMON. No trademark or service mark license is granted in connection with the right to use Content as set forth herein. Access to the SIMON Web site does not authorize anyone to use any name, logo or mark in any manner. You also will not use any trade mark, service mark, trade name, domain name or logo of any company or organization in a way that is likely or intended to cause confusion with the SIMON Marks.
Subject to the terms and conditions of this Agreement, You are permitted to store, display, analyze, reformat and print Content only for Your own internal business uses or as expressly permitted in writing by SIMON. You are not permitted to publish, disclose, transmit, or otherwise reproduce any Content, in whole or in part, in any form outside of Your organization, other than to agents or representatives who are acting on Your behalf and that have agreed in writing to maintain its confidentiality. Notwithstanding anything stated to the contrary herein or in any Related Agreement, SIMON does not authorize You to make available any Content to Your customers other than Content that SIMON has explicitly identified for such purpose in its sole discretion.
Content Not to be Construed as a Solicitation or Recommendation
The SIMON Web site, including the Content, has been prepared for informational purposes only, without regard to any particular user’s or Your customers’ investment objectives, financial situation, or means, and SIMON is not soliciting or recommending that You or Your customers take any action based upon it. The SIMON Web site, including the Content, is not to be construed as a recommendation to buy or sell any security, annuity, financial product, or instrument, or otherwise to participate in any particular trading strategy.
Limitations on Accuracy; Third Party Data
Although the SIMON Web site and the Content are based upon information that SIMON considers reliable and endeavors to keep current, SIMON has not verified information that issuers, insurers, or other users of the SIMON Web site make available on or through the SIMON Web site and does not represent that such information is accurate, current, or complete and it should not be relied upon as such. Information made available on or through the SIMON Web site, including indicative price information and crediting strategies and other terms, may include information or other data received from third parties which SIMON considers reliable, but SIMON does not represent that such third-party information or data is accurate or complete and it should not be relied upon as such.
Content Not to be Construed as Advice
The SIMON Web site, including the Content, has been prepared for informational purposes only, and SIMON is not soliciting or recommending that You take any action based upon it. The SIMON Web site, including the Content, is not to be construed as a recommendation to buy or sell any security, annuity, financial product, or instrument, or otherwise to participate in any particular trading strategy.
Content Not to be Construed as a Solicitation or Recommendation
SIMON does not provide and nothing contained on or generated by the SIMON Web site should be construed to be business, financial, investment, insurance, hedging, trading, legal, regulatory, tax, accounting or any other form of advice, nor should You make the SIMON Web site the only basis for any investment or insurance decisions made by or on behalf of You, Your client or Your managed or fiduciary accounts. To the extent that any information on the SIMON Web site refers to a particular tax treatment, such treatment depends on the individual circumstances of the investor and may be subject to change.
SIMON Is Not Acting as Your Advisor or Fiduciary
Unless explicitly agreed otherwise in writing, SIMON is not, by virtue of making available to You the Web site and the Content, acting as Your advisor or fiduciary.
Price and Performance Information
Unless explicitly stated otherwise, any prices provided on the SIMON Web site are indicative only. Such prices or values may not reflect actual prices or values that would be available in the market at the time provided or at the time You may decide to purchase or sell an interest in a particular Investment or Insurance Product. SIMON accepts no responsibility for updating any pricing information.
Past performance of Investment Products is not a reliable indicator of future performance. The value of investments and the income derived from them may decrease or increase, and investors may not get back the amount originally invested or may lose all of their investment. Other market factors may also affect performance.
Past Performance of Annuity Products calculated and displayed on the Web site does not represent actual performance and should not be interpreted as an indication of such performance in the past or in the future. Past performance of an Annuity Product should not be taken as an indication or guarantee of future performance, and no representation or warranty, expressed or implied is made regarding future performance.
The SIMON Web site and the Content should not be used for valuation purposes and should not be relied upon for the maintenance of your books and records or for any tax, accounting, legal or other purposes.
No Representations as to Other Sites or Links
The SIMON Web site may provide links to certain Internet sites(“Third Party Sites”) sponsored and maintained by third parties. SIMON is providing such links solely as a convenience to You. Accordingly, SIMON makes no representations concerning the content of any Third Party Site. The fact that SIMON has provided a link to a Third Party Site does not constitute an endorsement, adoption, entanglement, recommendation, authorization, sponsorship, or affiliation by SIMON with respect to the Third Party Site, its owners, or its providers. SIMON has not tested any information, software, or products found on any of the Third Party Sites and does not make any representations with respect thereto, including any representations regarding the content or sponsors of the Third Party Sites, or the suitability or appropriateness of the products or transactions described therein.
System Outages, Slowdowns, and Capacity Limitations
You may experience difficulty accessing the SIMON Web site or communicating with the SIMON Web site through the Internet or other electronic and wireless services due to, among other things and including but not limited to high Internet traffic, systems capacity limitations or other transmission problems. Any computer system or other electronic device, whether it is Yours, an Internet service provider’s or SIMON’s can experience unanticipated outages or slowdowns, or have capacity limitations.
You are solely responsible for obtaining and maintaining the necessary hardware, software, internet connectivity and other systems and network requirements necessary to access the SIMON Web site. SIMON shall have no liability, contingent or otherwise, to You or to third parties, or any responsibility whatsoever, for the failure of any connection or communication service to provide or maintain Your access to the SIMON Web site, or for any interruption or disruption of such access or any erroneous communication between the SIMON Web site and You, regardless of whether the connection or communication service is provided by SIMON or a third party service provider. SIMON may, from time to time, make changes to the SIMON Web site, which may require You to change or replace (at Your own expense) computer hardware or software or other equipment to maintain your access to the SIMON Web site.
No Warranties; No Responsibility to Update
NEITHER SIMON, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE PROVIDERS MAKES ANY WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE SIMON WEB SITE, ITS SERVICES OR CONTENT. THE SIMON WEB SITE, ITS SERVICES AND CONTENT ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS AT YOUR SOLE RISK. SIMON, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE PROVIDERS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND IN CONNECTION WITH THE SIMON WEB SITE, ITS SERVICES, THE CONTENT OR THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, SECURITY, PERFORMANCE, TIMELINESS, OR CONTINUED AVAILABILITY OF THE SIMON WEB SITE, ITS SERVICES OR CONTENT OR THAT USE OF THE SIMON WEB SITE, ITS SERVICES AND CONTENT WILL NOT INFRINGE, MISAPPROPRIATE OR VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS. SIMON CANNOT ENSURE THAT THE SIMON WEB SITE OR ANY SERVICES OR CONTENT (INCLUDING, WITHOUT LIMITATION, FILES, INFORMATION OR OTHER DATA) YOU ACCESS OR DOWNLOAD RELATED TO THE SIMON WEB SITE WILL BE FREE OF ERRORS, DEFECTS, VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES. NEITHER SIMON, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE PROVIDERS SHALL HAVE ANY RESPONSIBILITY TO MAINTAIN THE SIMON WEB SITE, ITS SERVICES OR CONTENT OR SERVICES MADE AVAILABLE ON THE SIMON WEB SITE OR TO SUPPLY ANY CORRECTIONS, UPDATES, OR RELEASES IN CONNECTION THEREWITH.
Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL SIMON, ITS AFFILIATES, AND EACH OF ITS AND THEIR OFFICERS, DIRECTORS, MANAGING DIRECTORS, PARTNERS, EMPLOYEES, ASSOCIATED PERSONS AND AGENTS (COLLECTIVELY, THE “SIMON PARTIES”) OR PROVIDERS OF THE SIMON WEB SITE, ITS SERVICES OR CONTENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES WHATSOEVER, INCLUDING DAMAGES FROM DELAY OF DELIVERY, LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES, FROM THE CORRUPTION, DAMAGE OR RECOVERY OF DATA, FROM BREACHES OF DATA OR SYSTEM SECURITY, OR FOR THE FAILURE OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN YOUR ACCESS TO THE SIMON WEB SITE, ITS SERVICES OR CONTENT FOR ANY INTERRUPTION OR DISRUPTION OF SUCH ACCESS OR ANY ERRONEOUS COMMUNICATION BETWEEN THE SIMON WEB SITE AND YOU, REGARDLESS OF WHETHER THE CONNECTION OR COMMUNICATION SERVICE IS PROVIDED BY SIMON OR A THIRD PARTY SERVICE PROVIDER, OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR INABILITY TO ACCESS OR USE THE SIMON WEB SITE, IT SERVICES OR CONTENT HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE, EVEN IF ANY OF THE SIMON PARTIES OR PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE SIMON PARTIES AND PROVIDERS SHALL HAVE NO LIABILITY, CONTINGENT OR OTHERWISE, TO YOU OR TO THIRD PARTIES, FOR THE CORRECTNESS, QUALITY, ACCURACY, TIMELINESS, RELIABILITY, PERFORMANCE, CONTINUED AVAILABILITY, COMPLETENESS OR DELAYS, OMISSIONS, OR INTERRUPTIONS IN THE DELIVERY OF CONTENT AND SERVICES AVAILABLE ON THE SIMON WEB SITE OR FOR ANY OTHER ASPECT OF THE PERFORMANCE OF THE SIMON WEB SITE OR FOR ANY FAILURE OR DELAY IN THE EXECUTION OF ANY TRANSACTIONS THROUGH THE SIMON WEB SITE. NONE OF THE SIMON PARTIES OR PROVIDERS WILL HAVE ANY RESPONSIBILITY TO INFORM YOU OF ANY DIFFICULTIES EXPERIENCED BY SIMON OR THIRD PARTIES WITH RESPECT TO THE USE OF THE SIMON WEB SITE OR TO TAKE ANY ACTION IN CONNECTION THEREWITH. HOWEVER NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT ANY DUTY OR LIABILITY THAT SIMON HAS UNDER THE REGULATORY SYSTEM UNDER APPLICABLE LOCAL REGULATORY RULES OR WHICH MAY NOT BE EXCLUDED OR RESTRICTED AS A MATTER OF APPLICABLE LAW. IN NO EVENT SHALL ANY OF THE SIMON PARTIES’ CUMULATIVE TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF TEN DOLLARS ($10.00).
4. IRS Circular 230 Disclosure
No statement contained on the SIMON Web site concerning U.S. tax matters is intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed on the SIMON Web site.
5. Copyright Infringement Notification
SIMON is committed to complying with U.S. copyright law and to responding to claims of copyright infringement. SIMON will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c) (“DMCA”).
Pursuant to the DMCA, notifications of claimed copyright infringement in respect of the SIMON Web site should be sent to SIMON’s designated agent in the manner described below:
SIMON Markets LLC
368 9th Avenue, 16th Floor
New York, NY 10001
By Email: email@example.com
For a complaint to be valid under the DMCA, the complaining party must provide all of the following information in a written communication to SIMON’s designated agent when providing notice of the claimed copyright infringement:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of the infringing activity, and that is to be removed or access to which is to be disabled, as well as information reasonably sufficient to permit SIMON to locate the material;
- Information reasonably sufficient to permit SIMON to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For more details on the information required for valid notification, see 17 U.S.C. 512(c)(3).
You should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, including costs and attorneys’ fees.
6. Use of the SIMON Web site Outside the United States
USE OF THE SIMON WEB SITE OR CONTENT MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS. THE SIMON WEB SITE IS NOT TO BE USED, AND IS NOT INTENDED FOR USE BY ANY PERSON RESIDENT IN ANY LOCATION OR JURISDICTION WHERE SUCH USE MAY BE CONTRARY TO LOCAL LAW, REGULATION OR BUSINESS PRACTICES. SIMON DISCLAIMS ALL RESPONSIBILITY IF YOU ACCESS, USE OR DOWNLOAD ANY CONTENT FROM THE SIMON WEB SITE IN VIOLATION OF ANY LAW OR REGULATION IN THE JURISDICTION OF WHICH YOU ARE A CITIZEN OR IN WHICH YOU ARE RESIDING OR DOMICILED.
You will defend, indemnify and hold the SIMON Parties harmless from and against any and all suits, claims, losses, liabilities, damages, judgments, costs and expenses (including attorneys’ fees) arising from Your (i) use of or access to, or inability to use or access, the SIMON Web site, any content or any services related to the SIMON Web site, (ii) violation of any of the terms of this Agreement, or (iii) any text, file, data and other content you may upload.
8. Governing Law; Dispute Resolution
The laws of the State of New York applicable to contracts to be performed wholly within such state shall govern this Agreement. You hereby expressly consent to the exclusive jurisdiction of and venue in the courts located in the State of New York, and waive any objection to such courts, including without limitation, on the basis of personal jurisdiction, venue or inconvenience of the forum.
All controversies and claims arising under or relating to this Agreement are to be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any arbitration is to be conducted in the City of New York, State of New York. Unless You and SIMON agree to a sole arbitrator within thirty (30) calendar days after the filing of the arbitration, the number of arbitrators shall be three (3) of which SIMON and You shall each appoint one (1), and the arbitrators so appointed pursuant to the preceding clause will select the third and final arbitrator. Each party shall submit to any court of competent jurisdiction for purposes of the enforcement of any award, order or judgment. Any award, order or judgment pursuant to the arbitration shall be final and binding and may be entered into and enforced in any court of competent jurisdiction. The statutes of limitation and repose of the laws of the State of New York shall apply to all arbitration proceedings arising out of or relating to this Agreement such that all claims, which would have been barred, waived, limited or restricted by such laws if filed with the judiciary, shall also be forever barred from claims under any applicable arbitration (or mediation) proceedings. Failure to institute an arbitration (or mediation) proceeding within the periods required for filing a claim or initiating a suit under such laws shall constitute an absolute bar (and a waiver thereof) to making a claim under this Agreement and to instituting any such arbitration (or mediation) proceedings respecting such controversy or claim.
Notwithstanding the foregoing, actions seeking injunctions or other equitable relief for matters that may constitute irreparable harm are exempt from the processes set forth in the previous paragraph.
You hereby expressly consent to the jurisdiction of the state and federal courts located in the City of New York, State of New York, to enforce this arbitration clause and any awards rendered pursuant thereto as well as to grant interim or conservatory measures to maintain the status quo and prevent irreparable injury during the pendency of an arbitration and waive any objection to such courts, including without limitation, on the basis of personal jurisdiction, venue or inconvenience of the forum.
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 Agreement and the transactions it contemplates. This waiver applies to any action or legal proceeding, whether sounding in contract, tort or otherwise.
9. Contact SIMON
If You have any questions, You can contact SIMON at firstname.lastname@example.org.