Schedule A Order Form Terms and Conditions
NFSTX,LLC.
1. DEFINITIONS
The following terms, when used in this Agreement, shall have the meanings set forth below. Capitalized terms used herein without definition shall have the meanings ascribed thereto in the Order Form.
1.1 “Agreement” shall mean these Order Terms and Conditions and any Order Form associated therewith. The Parties agree that this Agreement constitutes the entire understanding among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, communications, writings and understandings.
1.2 “Agent” shall mean NFSTX, LLC, in its capacity as agent to represent Customer in submission of orders to the alternative trading system operated by NFSTX, LLC
1.3 “Customer” shall mean the entity or individual listed on the Order Form.
1.4 “Nasdaq Requirements” shall mean: (i) the rules, regulations, interpretations, decisions, opinions, orders and other requirements of the Securities and Exchange Commission (“SEC”), including Rule 10b-5 of the Securities Exchange Act of 1934; (ii) the applicable rules, regulations, bylaws, board resolutions, disciplinary decisions, and rule interpretations of self‐regulatory organizations; (iii) Nasdaq’s operating procedures, specifications, requirements, and other documented terms that are regulatory or technical in nature (including, but not limited to, user guides) published on the NFS Platform or another Nasdaq website accessible by and made known to Customer; (v) Applicable Law (as defined below); and (vi) the successors, as they may exist at the time, of the components of the Nasdaq Requirements. “Applicable Law” shall mean all applicable laws, statutes, rules, regulations, orders, decisions, interpretations, opinions, and other requirements of governmental authorities, self-regulatory organizations and exchanges with jurisdiction over Customer, as they may be amended from time to time.
1.5 “Order” shall mean the indication to purchase or sell securities set forth on the Order Form.
1.6 “Service Provider” refers to the Fund’s investment adviser, sub-adviser, transfer agent, administrator and/or custodian, as the context requires.
2. SCOPE OF SERVICES
2.1 NFS, the parent of Agent, operates the NFS Platform and the features, products, services and tools therein to facilitate transactions in interests in the fund identified on the Order Form (the “Fund”) (such interests, the “Securities”) by parties eligible to purchase and sell such Securities, such transactions (each, a “Transaction”) taking place pursuant to various price discovery and execution mechanisms available via the alternative trading system operated by NFSTX, LLC (the “ATS”) (such mechanisms, the “Matching Process”).
2.2 Customer hereby appoints Agent as its broker dealer to enter orders on its behalf pursuant to the instructions set forth on the order form provided to Agent (the “Order Form”), which Customer hereby submits to Agent or has directed a Service Provider designated by the Fund to transmit to Agent on its behalf, as the case may be, for approval and submission by Agent into the Matching Process facilitated by the ATS. Agent hereby accepts such engagement (the “Services”) subject to the terms and conditions set forth in this Agreement. Customer acknowledges that engagement of Agent and entering of any Order in the Matching Process by Agent is conditioned upon completion of information requested by Agent for purposes of carrying out Agent’s required legal and compliance procedures, and that if Customer does not provide such information in a timely or satisfactory manner, Agent shall not be in breach of any obligation hereunder by declining to provide Services to Customer . Agent is providing these services to you only for your internal use, and only for the purposes, and subject to the terms, of this Agreement. Customer acknowledges that any access to the NFS Platform will be governed by the NFS Platform terms of use posted within the site, and that Customer access to the NFS Platform will require acceptance of such terms.
2.3 Customer acknowledges Agent or its Affiliates may earn fees in connection with its role as an agent of the Fund, and that Customer will not owe Agent any fees for the Services provided herein.
3. PURCHASE AND SALE OF SECURITIES.
3.1 To the extent deemed appropriate by Agent, Agent shall collaborate with the ATS, and Service Providers of the Fund, as applicable, to inform the Fund’s Service Provider to complete settlement and transfer of the Securities at the direction of Customer (the “Closing”);
3.2 To the extent Customer is matched as a counterparty in the Matching Process to a Transaction, such Customer:
3.2.1 agrees to satisfy closing requirements specified by the Fund’s designated Service Providers in accordance with their specified timing obligations;
3.2.2 authorizes and directs the Agent to provide, and Agent hereby agrees to provide, such information on behalf of Customer to Fund Service Providers, which may include the Fund’s transfer agent identified on the Order Form, as necessary to complete the sale of Securities matched via the ATS;
3.2.3 authorizes and directs Agent to populate details relating to matched Transactions in any documentation required by the Fund or its Service Providers to be executed by such Customer with respect to the final outcome of the Transaction, as applicable. Upon written request, Agent will make available any documentation completed for or on behalf of such Customer via the NFS Platform; and
3.2.4 NFSTX shall be permitted to reject any order, in whole or in part, if Agent, acting in good faith, believes that such order may, in Agent’s sole opinion, disrupt or otherwise impair the operation or integrity of the ATS or violate the NFS Rules and Procedures.
3.3 Customer further agrees that if there is an error in the calculation of any accrued expenses applicable to the purchase or sale of Securities at the price set forth on the Order Form, and as a result of the Customer has been overpaid or underpaid based on any corrections made to the purchase price for the Securities identified after the Matching Process, then the Customer agrees it will look directly to each relevant Transaction counterparty or the Fund in order to rectify the error, and Agent shall, unless the error was made by, and the direct fault of, Agent, have no responsibility or liability to rectify or be a party to any proceeding or communications relating to such error other than to provide each affected Transaction counterparty with a copy of the documentation agreed to by each other Transaction counterparty (and Customer hereby authorizes Agent to provide copies of this Agreement for such purpose). Customer further acknowledges Agent will rely on information provided by the Fund’s Service Provider, including accrued expense calculations and ownership amounts, in calculating the clearing price for the Matching Process.
3.4 If any Transaction is terminated after the conclusion of the Matching Process by the Customer that is a Transaction counterparty or as a result of the Customer’s failure to perform its obligations pursuant to this Addendum to effectuate such Transaction, where Transaction counterparties have properly performed, such Customer’s representation by Agent shall be immediately revoked, and such Customer may be deemed ineligible to participate in future Transactions at Agent’s sole discretion. Agent shall be permitted, in its sole and absolute discretion, to cancel or suspend all or any portion of the ATS at any time prior to the Closing.
]4. REPRESENTATIONS AND WARRANTIES.
4.1 The Customer hereby represents and warrants to Agent that the statements contained in this Section 4.1 are true as of (i) the Effective Date and (ii) at the Closing of any Transactions to which such Customer is a counterparty, to the extent applicable on each such date:
4.1.1 Use of the Services by Customer and its Associates shall comply with the Nasdaq Requirements (as defined above) and the rules, procedures and auction parameters established for the Matching Process set forth on Schedule B hereto or via hyperlink provided to you by Agent (the “NFSTX Rules and Procedures”) and, subject to the terms of this Agreement, where Customer is a counterparty to a transaction, to perform all obligations and deliver any payments required to complete a transaction resulting from an order for the purchase or sale of Securities via the Agent.
4.1.2 Agent may modify the NFSTX Rules and Procedures in its sole discretion, provided that any such changes (a) will not take effect until notified by email and (b) do not materially adversely change the nature or structure of the Matching Process. Customer may object in writing to such modifications by sending notice via email to fundslegal@nasdaq.com prior to the Matching Process. Any open order shall be immediately cancelled upon receipt of a termination notice. If Agent has not received notice of termination by the date of the Matching Process, then the modified NFSTX Rules and Procedures will automatically apply to Customer’s engagement of Agent, any related use of the NFS Platform, and participation in any Transaction.
4.1.3 Customer agrees that it will not use the NFS Platform or the Services for any purpose or in any manner that could: (1) have the effect of manipulating or distorting a market; (2) cause a false or misleading impression in relation to the price, volume or level of supply or demand for the securities or related financial instruments; (3) have no commercial purpose (a.k.a. "wash trades"); (4) assist a misuse of information; (5) prejudice access to a trading or clearing or settlement system or process; or (6) in Agent’s opinion, abuse or take an unfair advantage of the nature or characteristics of the ATS or the market. Agent may monitor Customer’s activity so as to detect any improper activity relating to transactions or business effected under this Agreement.
4.1.4 To the Customer’s knowledge, (a) all information that the Eligible Buyer provides to Agent in connection with its use of the Services or a Transaction, including information a Customer provides to Agent to satisfy its regulatory obligations, is true, accurate and complete in all material respects; and (b) the provision and use of such informationpursuant to and in accordance with the Agreement does not infringe any laws, regulations, or third party rights. Customer further acknowledges that Agent may receive information concerning Customer’s order information from the Fund’s transfer agent or other Service Providers of the Fund, and that Agent is entitled to rely on such information as if Customer provided such information directly to Agent.
4.1.5 If the Customer is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), such Customer has satisfied itself as to the full observance of the laws of its jurisdiction that are applicable to it in connection with any invitation to subscribe for the Securities or any use of this Agreement, including (a) the legal requirements within its jurisdiction for the purchase and sale of the Securities and wiring of funds in connection with its payment that are applicable to settlement of the Transaction, (b) any foreign exchange restrictions applicable to the Customer in its jurisdiction in connection with such purchase, sale and payment, (c) any governmental or other consents that may need to be obtained by the Customer, and (d) the income tax and other tax consequences, if any, that may be applicable to Customer and relevant to the purchase, holding, redemption, sale, or transfer of the Securities, and Customer confirms that Customer’s purchase or sale of, payment for and continued beneficial ownership of the Securities will not violate any Nasdaq Requirements.
4.1.6 Customer understands that it is engaging Agent solely for the limited purpose of facilitating Transactions on the ATS. Accordingly, the Customer acknowledges and agrees that:
a) Customer is not opening a brokerage account with Agent;
b) Agent does not independently verify, and is not responsible for, any content on the NFS Platform about the Fund provided by third parties, including the fund administrator and any service providers of the Fund, and Agent shall not be liable with respect to the validity, accuracy and completeness or otherwise of such information, nor for any information concerning Customer provided to Agent by an agent of the Fund, including its transfer agent, nor for any type of loss or damage associated with my use or reliance on such content.
c) nothing on the NFS Platform or the Services constitutes a recommendation to purchase or refrain from purchasing securities or any other type of investment advice to me by Agent or its Affiliates, and Customer is solely responsible for determining the suitability of an investment or strategy and accept the risks associated with such decisions that may include the risk of complete loss of my investment. Agent will not provide me with any advice or recommendations about whether an offering is appropriate or suitable for me.
4.1.7 The Following provisions apply to the extent Customer submitting an order to sell Securities in the Matching Process.. Customer (i) warrants that it has good, marketable and valid title to all Securities for which Customer has submitted an Order, and that such Securities may be transferred to the applicable Transaction counterparty(ies) at the Closing free and clear of all liens, claims, encumbrances or security interests of any kind whatsoever, and (ii) acknowledges that it is Customer’s absolute, unconditional and unassignable obligation, in connection with each Transaction matched on the ATS, to deliver by settlement date, in good deliverable form, the subject Securities and/or funds.
4.1.8. The following provisions apply to the extent the Customer is submitting an order to purchase Securities in the Matching Process.
a) Customer acknowledges that participation in the Fund is open only to potential buyers that are at a minimum "Accredited Investors" as defined under Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Act”)(an “Accredited Investor”) and that by using the Services, Customer represents and warrants that it is an Accredited Investor.
b) Customer has sufficient funds to effect the purchase of Securities of any Order submitted to Agent, which shall include any payments due to service providers or unpaid capital calls, as applicable, within the settlement timeframe specified by the Fund’s Service Providers.
c) Customer (a) is entering an order to acquire Securities for its own account for investment purposes only, and not with the view to sell or otherwise distribute any Securities; (b) has no present intention of selling or otherwise disposing of all or any portion of any securities it purchases through the Services, and (c) has not granted or agreed to grant any beneficial ownership of any securities purchased through the Services to any other person (other than its members, manager, partners and/or stockholders who may be deemed to have an indirect beneficial interest by virtue of their ownership interests in Customer).
4.2 Customer covenants to inform NFS immediately and cease its use of and access of the NFS Platform and the Services if any representation or warranty that it has provided to Agent in this Agreement ceases to be true.
4.3 Each Party represents and warrants to the other that: (i) it has the power and authority to execute, deliver and perform this Agreement; (ii) upon due execution and delivery, this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms; and (iii) its execution, delivery and performance, and, in the case of Customer, its entering into Transactions matched through the Matching Process via the ATS, will not violate any law, ordinance, charter, by-law or rule applicable to it, or any agreement by which it is bound or by which any of its assets are affected.
5. CONFIDENTIALITY.
5.1 Except as otherwise provided herein, each Party, as receiving party (“Receiving Party”) agrees to maintain the confidentiality of Confidential Information (as defined below) of the other Party, as disclosing party (the “Disclosing Party”) with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. “Confidential Information” means all information disclosed, whether orally, in writing or otherwise, relating to the Agreement, the Services, information received or submitted pursuant to this Agreement or the NFS Platform and other information regarding the business and affairs of Agent and Customer.
5.2 “Confidential Information” does not include information that (a) is already, or becomes, available to the public other than as a result of unauthorized disclosure by the Receiving Party or any of its Associates (as defined below); (b) is, or was previously, received by the Receiving Party or one of its Associates on a non-confidential basis from a third party under no obligation to maintain the confidentiality of such information; (c) is already known by the Receiving Party or one of its Associates prior to the disclosure of the same to the Receiving Party or one of its Associates pursuant to this Agreement and not subject to any confidentiality obligation; or (d) was independently developed by Receiving Party or one of its Associates without use of or reference to the Confidential Information.
5.3 The Receiving Party may disclose any portion of the Confidential Information to any persons or entities: (a) as directed by the Disclosing Party and as contemplated by the scope of services described in this Agreement (for avoidance of doubt, information provided by the Customer to Agent, directly or through the Fund’s Service Providers, will be made available to agents and Service Providers of the Fund for use in the matching or settlement of Transactions or as otherwise necessary to maintain the Fund’s books and records) and the Receiving Party shall have no liability to the Disclosing Party or to any other person or entity for any loss or damages sustained by the Disclosing Party as a result of breach of confidentiality by parties, including Fund’s agents and Service Providers, to whom Confidential Information is disclosed as directed by the Disclosing Party; and (b) to Receiving Party’s Affiliates, employees, officers and directors, and professional consultants, subcontractors, third party providers or agents retained or used by Receiving Party in relation to the Acknowledgments (each, an “Associate”) provided that each Associate has been informed of the confidential nature of the Confidential Information and is bound by confidentiality obligations to Receiving Party which are materially equivalent to those in this Section. Receiving Party agrees that it will be liable for breach by any of its Associates of the confidentiality obligations herein. For purposes of this Agreement, “Affiliate” means an entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, Agent. For purposes of this definition, “control” means direct or indirect ownership of at least 50% of the stock or shares of the entity and/or the possession, direct or indirect, of the power to direct or cause the direction of management and policies of the entity, whether through the ownership of voting securities, by contract or otherwise.
5.4 Notwithstanding the foregoing, (a) Receiving Party and its Affiliates may disclose any Confidential Information without notice pursuant to any request or inspection by a governmental agency or regulatory authority; and (b) to the extent Confidential Information is in the possession of (or becomes available to) Receiving Party or any of its Associates as a result of an investment by the Receiving Party or any of its Associates and the Receiving Party or any of its Associates is permitted by the terms of such investment to disclose or use Confidential Information, nothing herein shall prohibit such disclosure or use by the Receiving Party (or its Associates) in accordance with such terms.
5.5 To the extent NFS Processes any Customer Personal Data under this Agreement, Nasdaq Fund Secondaries’ data processing addendum (the “DPA”) located at https://www.nasdaq.com/data-processing-addendum (or any successor hyperlink), together with the Appendices for Nasdaq Fund Secondaries linked therein, shall apply between the parties and is, by this reference, fully incorporated in and made a part of this Agreement. The terms “Process” and “Personal Data” have the meanings given in the DPA.
5.6 Upon written request, Receiving Party shall delete or otherwise render illegible Confidential Information it receives pursuant to this Agreement, except that the Receiving Party may retain Confidential Information if and to the extent required under applicable law and/or document retention policies adopted in accordance with such law; provided, however, that the confidentiality and use restrictions in this Section shall continue to apply to such Confidential Information and/or copies so retained.
5.7 Notwithstanding anything else in this Agreement, Agent and its Affiliates may: (a) make available anonymized information relating to transactions occurring pursuant to this Agreement (e.g., number and class of shares purchased and/or purchase price per share purchased in connection with a transaction effected pursuant to this Agreement) to other participants and authorized users permitted to access and participate in purchase and sale of Securities of the Fund, so long as such transactional information does not, and cannot reasonably be used to, identify any participant or other individual; and (b) Agent may publish or reference transactional information as part of anonymized activities on the NFS Platform or the ATS, so long as such transactional information does not include any reference to the identity of the Customer or any personal data.
6. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold NFS, Agent, and each of their Affiliates, and their respective employees, officers, directors, and third-party providers (each, an “NFS Person”) harmless from and against any and all loss, claims, damages, liabilities and expenses including, without limitation, reasonable costs of attorney’s fees and expenses (collectively, “Damages”), incurred by an NFS Person without gross negligence or willful misconduct on its part and arising out of or in connection with: (a) the performance by such NFS Person of its duties under this Agreement, (b) Customer’s breach of its representations and warranties in Section [4.1], and (c) Customer’s use of the NFS Platform or the Services other than in accordance with the Agreement. Customer shall not hold any NFS Person responsible for (i) any error by Customer in completing an Order Form, (ii) the rejection of any order by the ATS or by Agent for any reason whatsoever, (iii) the acts or omissions of any third party vendor or Service Provider, including the Fund’s transfer agent, or (iv) any error by any other cause outside the direct control of Agent. Such indemnity includes, without limitation, damages incurred in connection with any litigation arising from this Agreement or involving the subject matter hereof. Customer further agrees to indemnify and hold each NFS Person harmless from any liability or obligation on account of taxes, assessments, additions for late payment, interest, penalties, expenses and other governmental charges that may be assessed or asserted against such NFS Person in connection with or relating to any payment made or other activities performed under the terms of this Agreement, including without limitation any liability for the withholding or deduction of (or the failure to withhold or deduct) the same, and any liability for failure to obtain proper certifications or to report properly to governmental authorities in connection with this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties. The indemnification provisions contained in this section are in addition to any other rights any NFS Person may have by law or otherwise and shall survive the termination of this Agreement.
7. LIMITATION ON LIABILITY.
7.1 NOTWITHSTANDING THE TERMS OF ANY OTHER SECTION HEREOF TO THE CONTRARY, EXCEPT WITH REGARD TO AN NFS PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (1) NO NFS PERSON SHALL BE LIABLE TO THE CUSTOMER FOR ANY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT; AND (2) IN NO EVENT SHALL AN NFS PERSON BE LIABLE UNDER THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, MULTIPLE, EXEMPLARY OR OTHER SIMILAR DAMAGES (INCLUDING LOSS OF FUTURE REVENUE, INCOME OR PROFITS, OR DIMINUTION OF VALUE, EVEN IF UNDER APPLICABLE LAW SUCH LOSSES OF PROFITS WOULD NOT BE CONSIDERED INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, MULTIPLE, EXEMPLARY OR OTHER SIMILAR DAMAGES), REGARDLESS OF THE FORM OF ACTION THROUGH WITH SUCH DAMAGES ARE SOUGHT AND EVEN IF A PARTY OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND SUCH LIABILITY LIMITS SHALL BE IN AGGREGATE AND NOT PER INCIDENT.
7.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES, ALL LICENSES AND ALL OTHER GRANTS OF RIGHTS AND ALL OTHER PERFORMANCES UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UPTIME, AVAILABILITY, PERFORMANCE, ACCURACY OR NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SECURITIES ARE BEING SOLD ON AN “AS IS” BASIS, SUBJECT TO ANY AND ALL CONTINGENT LIABILITIES ASSOCIATED WITH SUCH SECURITIES THAT MAY ARISE, FROM TIME TO TIME, PURSUANT TO THE DOCUMENTATION GOVERNING THE SECURITIES AND THE ISSUER ISSUING SUCH SECURITIES.
7.3 THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, FOR ANY CAUSE OR UNDER ANY THEORY WHATSOEVER, AND REGARDLESS OF THE FORM OF CLAIM, WHETHER IN CONTRACT, INDEMNIFICATION, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
8. TERM AND TERMINATION. This Agreement shall continue for the period specified on the Order Form or until terminated by either Party upon five (5) business days’ prior written notice (which may be via email). In the event of any breach (actual or threatened) by Customer of any provision of this Agreement, Agent may, in our sole discretion, terminate this Agreement immediately. Sections 4, 5 and 6 shall survive the expiration or termination of this Agreement for any reason. Termination of this Agreement shall not release either party from any claim (including but not limited to any claim for payment) of the other party accrued hereunder prior to the effective date of such termination.
9. ASSIGNMENT. Except as specifically provided herein, no Party may assign or transfer their rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, and any assignment made in violation of the foregoing shall be null and void; provided, that Agent may assign any rights and obligations under this Agreement, in whole or in part, to (i) to another entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, Agent, or (ii) to any subsidiary or affiliate or in connection with a reorganization, the sale of all or part of a division, product or service of Agent or its Affiliates or any other business transaction of a similar nature, in each case, without Customer’s prior consent. No assignment of this Agreement or any rights hereunder shall relieve Customer of any obligations or liabilities hereunder.
10. LAW; DISPUTE RESOLUTION. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law provisions thereof. All disputes shall initially be referred jointly to the parties' respective project managers or other representative designated by each party. If the project managers or other designated representative(s) are unable to resolve the dispute within seven (7) business days after referral of the matter to them, the parties shall submit the dispute to a senior executive from each party for resolution. Any dispute with respect to this Agreement which is not resolved within ten (10) days after referral to the parties' senior executives shall at any time thereafter at the initiation of either party, be submitted to arbitration which shall be the exclusive means for resolving any such disputes. Such arbitration shall be held in the City of New York, and shall be conducted by JAMS/ENDISPUTE, Incorporated in accordance with its Arbitration Rules and Procedures then in effect. The arbitrators will be selected from a panel of retired judges, will have familiarity with dispute resolution in the information technology industry and will not have a relationship of any sort with either party. Any reasonable costs associated with the arbitration shall be borne by the non-prevailing party. All decisions of the arbitrators shall be binding on both parties. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY AND IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge, without the use of a jury, sitting in a court of competent jurisdiction. This binding arbitration and jury trial waiver provision shall survive termination of this Participation Agreement. Notwithstanding the foregoing, neither party has any obligation to comply with this Section 8 before bringing an action in any court of competent jurisdiction for injunctive relief in the event of a breach or threatened or attempted breach of Section 3 (Confidentiality) or any other provision hereof which would be reasonably likely to cause such party immediate harm for which money damages would be inadequate.
11. GENERAL PROVISIONS.
11.1 Force Majeure. Each Party shall be excused from performance of its obligations undertaken in this Agreement to the extent and for such time period as prevented or hindered from performing by circumstances beyond its reasonable control (“Force Majeure”). If a Party’s performance is affected by a Force Majeure event for a continuous period of thirty (30) days or more, any other Party may terminate this Agreement with immediate effect on written notice to the affected Party. For avoidance of doubt, Agent will be not liable for any failure, delay in its performance, costs or damages under this Agreement due to any cause beyond its direct control, including, without limitation, acts of war, acts of God, acts of government, labor, network or equipment failure, and data or security breach. To the fullest extent permitted by law, in no event shall the provisions of this Section excuse or terminate Customer’s obligation to pay Fees or other sums already due under this Agreement.
11.2 Taxes. Agent will not be responsible or liable for any obligation on account of taxes, assessments, additions for late payment, interest, penalties, expenses and other governmental charges that may be assessed or asserted against Customer in connection with or relating to any payment made or sale of Securities or other activities performed under the terms of this Agreement, including, without limitation, any liability for the withholding or deduction of (or the failure to withhold or deduct) the same, and any liability for failure to obtain proper certifications or to report properly to governmental authorities in connection with this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties.
11.3 Waiver of Breach. No breach or provision of this Agreement shall be deemed waived, modified or excused, unless such waiver, modification or excuse is in writing and signed by an authorized representative of the waiving, modifying or excusing party.
11.4 Consent to Electronic Delivery of Documents. Customer agrees to electronic delivery and gives its informed consent to electronic delivery of all communications from Agent and NFS, including applicable current and future trade confirmations, offering documents, notices, disclosures, regulatory communications, and other information, documents, data and records regarding or relating to the Customer’s use of Services received from NFSTX or Nasdaq Fund Secondaries, or communications provided by NFS to Customer on behalf of other parties, including Funds or their Service Providers (collectively, “NFS Communications”). Customer may revoke or restrict the consent granted pursuant to this Section 11.4 at any time, subject to the terms of this Agreement, by providing written notice to NFS. Customer has the right to request paper delivery of any NFS Communication that the law requires NFS to provide in paper form upon request; provided, however, that NFS may charge a reasonable service fee for the delivery of NFS Communications that would otherwise be delivered electronically. Neither the revocation or restriction of this consent, or a request for paper delivery, nor NFS’s delivery of paper copies of NFS Communications will affect the legal effectiveness or validity of any electronic communication provided while the consent was in effect. Customer agrees that the primary method of NFS’ communication will be via email to Customer’s address specified on the signature page hereto. NFS may notify customer to access NFS Communications via a web page accessible via instructions provided to customer’s email on file. Customer acknowledges that email and the Internet is not a secure network and that communications transmitted via email or the Internet may be accessed by unauthorized or unintended third parties, and Customer hereby agrees that it will not send any sensitive information to NFS in an unencrypted email. This consent will remain in effect unless and until revoked by Customer or NFS, and Customer acknowledges that it may take up to five (5) business days to process a revocation of consent to electronic delivery and may receive electronic notifications in the interim. By its signature to this Agreement, Customer agrees it has read this Section 11.4 regarding informed consent and fully understands the implications thereof and agrees to the conditions concerning electronic delivery of NFS Communications. Customer agrees to maintain a valid email address and to continue to have access to the Internet. Customer shall immediately notify NFS of any changes in email address.
11.5 Notices. All notices required to be given in connection with this Agreement shall be in writing and shall, if delivered by registered/certified mail or by internationally recognized shipping/courier service, be deemed delivered upon post office/courier’s delivery (or refusal) confirmation (which confirmation may be electronic); or if sent by electronic mail, shall be deemed delivered when sent, if sent during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, in each case to Customer at its address specified on the Order Form (or to such other address as any such Party may hereafter designate by written notice to the other Parties).
11.6 Execution. This Agreement may be executed in several parts, each of which shall be considered an original and all of which, when taken together, shall constitute but one and the same Agreement. Each party agrees that a scanned or electronic copy shall be considered and treated like an original copy of the Agreement. Electronic or digital signatures shall have the same effect as hand-written signatures.
11.7 Amendments. This Agreement cannot be altered, amended, or modified by a party except in writing signed by an authorized representative of each party. Handwritten or other modifications made by Customer to the terms and conditions of this Agreement and to any exhibits, schedules, appendices and amendments to it shall void the Agreement.