1. Terms of Service.
Africa Private Equity Market is the operator of the environment accessible through www.africapemarket.com (the “Site”). References to Africa Private Equity Market herein refer to APEM, and its designees as deemed appropriate by Africa Private Equity Market. Individuals who are authorized members of Africa Private Equity Market (“Members”) or who are officers, directors, employees, agents or contractors of Members of Africa Private Equity Market, together with such Members, are collectively referred to herein as “Users” or “you.” The Site allows certain qualified investors (“Investors”), investees (“Entrepreneurs”), sponsors (“Sponsors”) and service providers (“Service Providers”) to register for and have access to APEM platform, which is intended to enable Members to source and manage business opportunities, relationships and related information within the private equity industry (the “Platform”, and together with the Site, “APEM Network”). APEM Network and the Terms of Service in this Section 1 (“Terms of Service”) may be updated by us at any time without prior notice to you and will be set forth on the Site. Your continued use of APEM Network after any such modifications shall constitute your acceptance of any updated Terms of Service. BY USING APEM NETWORK, YOU ACKNOWLEDGE YOUR AGREEMENT WITH AND UNDERSTANDING OF THE FOLLOWING TERMS OF SERVICE PERTAINING TO APEM NETWORK INCLUDING ALL MATERIAL ON IT. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS OF SERVICE FOR ANY REASON, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING APEM NETWORK. YOUR COMPLIANCE WITH THESE TERMS OF SERVICE IS A CONDITION TO YOUR RIGHT TO ACCESS APEM NETWORK. YOUR BREACH OF ANY PROVISION OF THESE TERMS OF SERVICE WILL AUTOMATICALLY, WITHOUT THE REQUIREMENT OF NOTICE OR OTHER ACTION, REVOKE AND TERMINATE YOUR RIGHT TO ACCESS APEM NETWORK AND YOU WILL BE FULLY LIABLE FOR CONVERSION, MISAPPROPRIATION, TRESPASS TO CHATTELS AND ALL OTHER CLAIMS AND CAUSES, REGARDLESS OF THE IDENTITY OF CLAIMANT OR INJURED PARTY, ARISING FROM OR RELATING TO YOUR CONTINUED USE OF APEM NETWORK AFTER SUCH BREACH. APEM, IN ITS SOLE DISCRETION, MAY DETERMINE WHETHER OR NOT TO PROVIDE SERVICES TO MEMBERS AND OTHERWISE DISCHARGE ITS OBLIGATIONS THROUGH APEM.
Some pages within APEM Network contain supplemental terms and conditions and additional disclosure and disclaimers, which are in addition to the terms of this Agreement. In the event of a conflict, the supplemental terms and conditions and additional disclosures and disclaimers will govern for those sections or pages.
1.1 Authorized Users.
1.1.1. General. Some of our services, and certain pages of APEM Network, may be available only to Users who have been authorized by us to access those services and web pages. Such authorization may require completion of pre-qualification questionnaires and satisfactory background information screening. Only Users of APEM Network with a valid User ID and password are authorized to access such services and web pages.
1.1.2. Platform Authorized Users.Members will be required to identify any and all of their officers, directors, employees, agents or contractors authorized by them to access the Platform on their behalf (“Platform Authorized Users”). Members shall provide us with a list of Platform Authorized Users and maintain an up-to-date list of Platform Authorized Users with us. Within the limits of their respective subscriptions, Members may add and remove Platform Authorized Users from such list with prior written notice to us, provided that a Platform Authorized User may not be changed more frequently than once in every two (2) months unless the relevant Platform Authorized User ceases to be affiliated with the relevant Member. We shall not be obligated to add any person as a Platform Authorized User. We shall promptly notify the relevant Member in the event we determine that we will not permit participation by such person; and, provided, further, that we shall be entitled to remove any Platform Authorized User from the list of Platform Authorized Users at any time upon written notice to the relevant Member. If a Member or any of its Platform Authorized Users provides log-in and password credentials to unauthorized persons, we may terminate such Member’s right to access the Platform without notice to such Member. A Member shall promptly notify us if the Member or any of its Platform Authorized Users provides log-in and password credentials to unauthorized persons.
1.3. APEM Network Security.
1.3.1. You are prohibited from violating or attempting to violate the security of APEM Network, including, without limitation, (a) accessing data not intended for you as a User or logging onto a server or an account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to APEM Network, overloading, “flooding,” “spamming,” “mailbombing” or “crashing;” (d) sending unsolicited email, including promotions and/or advertising of products or services other than through the normal use of APEM Network; (e) forging any TCP/IP packet header or any part of the header information in any email or posting; (f) using or attempting to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search APEM Network other than the search engine and search agents available on APEM Network and other than generally available third party web browsers; or (g) invading the
privacy of or, other than through the normal use of APEM Network, obtaining the identity of or obtaining any personal information about, any user of APEM Network.
1.4. IP Ownership
1.4.1. General. All materials, including images, text, data, illustrations, designs, icons, photographs, programs, music clips or downloads, educational, news and financial market information, video clips, and written and other materials, information, services and content (each “Content” and collectively, the “Contents”) that are part of APEM Network, are the property of APEM or others and are protected by copyright and other laws. Unless otherwise noted, and subject to Section 1.4.2 below, all Contents and all intellectual property rights thereto (including copyrights, trademarks, trade dress and/or other intellectual property rights) is owned by APEM or by third parties who have licensed their Content to APEM, (“Trademarks”) displayed on APEM Network are the property of APEM. All other marks are the property of their respective companies. Nothing contained on APEM Network should be construed as granting, by implication, estoppel, or otherwise, any right, title or interest to use any Content or Trademark displayed on APEM Network without the written permission of APEM or such other third party that may own the Content or Trademark displayed on APEM Network.
1.4.2. Member Marks and Member Materials. Subject to the terms and conditions of the Terms of Service, each Member hereby grants to APEM a non-exclusive, royalty-free and worldwide right to display such Member’s Trademarks (“Member Marks”) on APEM Network, and to use such Member Marks as otherwise reasonably necessary in connection with operating APEM Network. APEM may identify any Member in a press release in a form to be mutually agreed upon by APEM and the relevant Member. APEM may also identify any Member and use such Member Marks in APEM’s marketing materials and communications to existing and prospective Members. In all cases, APEM shall comply with any reasonable Member Marks’ usage guidelines that are agreed to in writing between the relevant Member and APEM from time to time. Members may from time to time provide APEM with data, information and other materials (“Member Materials”). APEM may use Member Materials only in connection with the operation of, and for purposes of operating, APEM Network. Member Materials may be disclosed only as specified by the relevant Member and no other disclosures shall be made without the prior written consent of such Member or as required by applicable law, rule, regulation, or order. Members will provide any amendments or updates to their respective Member Materials. APEM shall have no responsibility for the content of Member Materials, including for any omissions or misrepresentations therein. All Member Marks and Member Materials, all rights, title and interest therein and all goodwill pertaining thereto, both existing and additional goodwill pertaining to APEM’s activities, shall inure to the exclusive benefit of and belong exclusively to the relevant Member. Nothing in this Agreement or the Terms of Service transfers ownership or conveys to APEM any interest in or to the Member Marks or the Member Materials. To the extent any rights in and to any of the Member Marks or Member Materials are deemed to accrue to APEM, APEM hereby assigns to the relevant Member and shall assign to such Member any and all such rights, at such time as they may be deemed to accrue, including the related goodwill. APEM shall not use any of the Member Marks or Member Materials in a disparaging manner and shall promptly remove any materials that the relevant Member reasonably identifies as disparaging by notice to APEM.
1.4.3. APEM Marks and APEM Materials.Subject to the terms and conditions of the Terms of Service, APEM hereby grants to each Member, and its affiliates, a non-exclusive, royalty-free and worldwide right to use APEM’s Trademarks (“APEM Marks”) solely for purposes of identifying such Member as such, in materials that provide information about APEM Network to such Member’s shareholders, employees, agents and contractors, and existing or prospective Members, and for no other purpose unless otherwise approved by APEM. Members shall not use any of APEM Marks in a disparaging manner and shall promptly remove any materials that APEM reasonably identifies as disparaging by notice to the relevant Member. In all cases, Members shall comply with any reasonable APEM Marks’ usage guidelines that are agreed to in writing between the relevant Member and APEM from time to time. All of APEM Marks, all rights therein and all goodwill pertaining thereto, both existing and additional goodwill pertaining to Members’ activities, shall inure to the exclusive benefit of and belong exclusively to APEM. Members acknowledge and agree that APEM shall own all rights, title and interest in and to all products, software and other materials created by or on behalf of APEM prior to, on or after the effective date of their membership with APEM and all intellectual property rights therein, including without limitation, APEM Network and services provided therein, and any software, products, intellectual property or other materials created by APEM in connection with APEM Network or otherwise owned by APEM (together, the “APEM Materials”); that any APEM Materials created by APEM in connection with APEM Network shall be owned exclusively by APEM and shall not be works made for hire; and that nothing in this Agreement or the Terms of Service transfers ownership or conveys to any Member any interest in or to the APEM Materials or APEM Marks. To the extent any rights in and to any of the APEM Materials or APEM Marks are deemed to accrue to any Member, such Member hereby assigns to APEM and shall assign to APEM any and all such rights, at such time as they may be deemed to accrue, including the related goodwill.
1.5 Restrictions on Use.
1.5.1. By accepting the Terms of Service through your use of APEM Network, you certify that you are 19 years of age or older. If you are under the age of 19 you may not use or access APEM Network. APEM Network does not knowingly collect personal information about children under the age of 13. Our prior permission is required for (i) any commercial use of Content; (ii) making more than minimal copies of Content; and (iii) copying large portions of Content, such as by bots, robots or spiders that “harvest” APEM Network. If you seek permission for such use of APEM Network, please Contact us via email@example.com . Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
1.5.2. You warrant that when using APEM Network you shall not violate or facilitate any violation of any applicable local, state, federal or international law, statute, regulation, code or ordinance, including, without limitation, regulations promulgated by or the rules of any national or other securities exchange. The permission to use APEM Network granted by the Terms of Service automatically terminates if you breach any of the terms and conditions of this Agreement. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Content, APEM Network or any related software. All software used on APEM Network is the property of APEM or its suppliers and protected by French and international copyright laws. For additional information, please see the section 1.4 above.
1.6. External Links.
APEM Network may contain links to, or may be linked from, other sites that are not maintained by us and to which we have not provided permission. We do not endorse, have any responsibility for, or make any representations about, any other sites, including their products and services, content, communications and website use policies. We expressly disclaim any responsibility for your access to or use of such other sites, including any content or data-collection policies and procedures of these sites. As such, we suggest you review the privacy policies of any linked sites you may visit.
1.7.1. BY USING APEM NETWORK, YOU EXPRESSLY AGREE THAT SUCH USE IS AT YOUR SOLE RISK. APEM NETWORK AND RELATED SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. NEITHER APEM NOR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, THIRD-PARTY LICENSORS, CONTRACTORS, DISTRIBUTORS OR THE LIKE (COLLECTIVELY, AND WITH RESPECT TO ANY PERSON, SUCH PERSON’S “REPRESENTATIVES”) WARRANT THAT USE OF APEM NETWORK OR RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER APEM NOR ITS REPRESENTATIVES WARRANT THE ACCURACY, INTEGRITY, COMPLETENESS, AVAILABILITY OR TIMELINESS OF THE CONTENT PROVIDED IN APEM NETWORK OR THE MATERIALS OR SERVICES OFFERED VIA APEM NETWORK NOW OR IN THE FUTURE. APEM AND ITS REPRESENTATIVES SPECIFICALLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF APEM NETWORK, INFORMATION IN APEM NETWORK OR THE RESULTS OBTAINED FROM USE OF APEM NETWORK OR RELATED SERVICES.
1.7.2. APEM Network and the information made available via APEM Network (including but not limited to any third party documents) are directed only at those persons to whom they may legally be directed. No natural or legal person should read or otherwise rely upon APEM Network or the information made available via APEM Network (including but not limited to any third party documents) if the laws and regulations of the jurisdiction in which such a person is or may be located from time-to-time would prohibit APEM from providing such information to that person. Neither APEM nor its Representatives warrant that APEM Network or related services will meet your needs now or in the future. No oral advice or written information given by APEM or its Representatives will create a warranty. Some states or jurisdictions do not allow the exclusion or limitation of certain warranties, so the above limitation or exclusion may not apply to you.
1.7.3. All Content in APEM Network is presented only as of the date published or indicated and may be superseded by subsequent market events or other circumstances. APEM disclaims any responsibility to update the Content. You are responsible for refreshing your screen or setting the cache settings on your Internet browser to ensure you are viewing the most current Content.
1.7.4. APEM and its Representatives do not and cannot guarantee the completeness, accuracy, sequencing, timeliness or regulatory compliance of the educational, news and financial market information, market data or other informational content that APEM Network makes available to you, if any. APEM Network may provide access to news and content provided by third parties over which neither APEM nor its Representatives exercise editorial control or review, and APEM is not responsible for the content of such materials. You agree that APEM and its Representatives will not be liable for the accuracy or completeness of the information provided by or made available on APEM Network, for delays or omissions therein, or for any action you take or decision you make in reliance on any such information made available on APEM Network. APEM may cease to provide news, financial information, data or other Content to you at any time if a third party provider of such information ceases to provide such information to APEM or for any other reason in APEM’s sole discretion.
1.8. Conflicts of Interest.
1.8.1. Related Parties. By using APEM Network, you expressly acknowledge and agree that APEM and its Representatives may have one or more interest holders that also own an interest in certain Members or investment opportunities available on APEM Network, including Giant Africa Hub, European Super Angel Club, Venionaire Capital and their respective affiliated entities and investment opportunities (collectively, “Related Parties”). Each such Related Party is managed separately and independently from APEM, and APEM hereby represents and warrants that any such Related Party shall not benefit from any preferential terms or conditions with respect to their subscription for or use of APEM Network.
1.8.2. Remuneration. Each Member hereby acknowledges that, in connection with the operation of the Platform, APEM receives the payment of non-variable subscription fees and other fees from other Members, including other Members with whom the relevant Member may be able to carry out transactions related to financial instruments.
1.9. Limitation of Liability.
1.9.1. UNDER NO CIRCUMSTANCES WILL APEM OR ITS REPRESENTATIVES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING BUT
NOT LIMITED TO LOST PROFITS, LOST DATA, TRADING LOSSES, UNAUTHORIZED ACCESS, SYSTEMS FAILURE, COMMUNICATIONS LINE FAILURE, INTERNET FAILURE OR DAMAGES THAT RESULT FROM USE OR LOSS OF USE OF APEM NETWORK, CONTENT, INCONVENIENCE OR DELAY OR ANY BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN YOU AND APEM. THIS IS TRUE EVEN IF APEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING THE FOREGOING, APEM’S MAXIMUM TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR ANY NEGLIGENT ACT OR OMISSION AND BREACH OF ANY STATUTORY DUTY) HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR OBSERVANCE OF ITS OBLIGATIONS OR ANY BREACH THEREOF UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN YOU AND APEM, WILL BE LIMITED TO THE SUMS RECEIVED AND RETAINED BY APEM DURING THE TWELVE (12) MONTH PERIOD DIRECTLY
PRECEDING THE DATE OF SUCH ACT OR OMISSION.
1.9.2. Any material downloaded or otherwise obtained through APEM Network is done at your own discretion and risk and you are solely responsible for any damage to your computer or other electronic system or loss of data that results from the download of any such material. The foregoing limitation of liability will apply in any action, whether in contract, tort or any other claim, even if an authorized representative of APEM has been advised of or should have knowledge of the possibility of such damages.
1.10.1. Each Member hereby agrees to indemnify, defend and hold harmless APEM and any of its Representatives (collectively, a “APEM Indemnified Party”) against any Losses (as defined below) of any APEM Indemnified Party, to the extent arising or resulting from: (i) any breach by any such Member Indemnified Party (as defined below) of this Agreement or any other agreement between such Member and APEM; or (ii) any breach by any such Member Indemnified Party (as defined below) of any applicable laws or regulations; provided, however, that such indemnity shall not apply to any Losses that resulted from the fraud, willful misconduct or gross negligence of any APEM Indemnified Party.
1.10.2. APEM hereby agrees to indemnify, defend and hold harmless each Member and any of its Representatives (collectively, with respect to such Member, a “Member Indemnified Party”) against any Losses of any such Member Indemnified Party, to the extent arising or resulting from:
(i) any breach by any APEM Indemnified Party of this Agreement or any other agreement between such Member and APEM; or
(ii) any breach by any APEM Indemnified Party of any applicable laws or regulations; provided, however, that such indemnity shall not apply to any Losses that resulted from the fraud, willful misconduct, or gross negligence of any such Member Indemnified Party.
1.10.3. For purposes of this Section 1.10, “Loss” or “Losses” shall refer to any damages, losses, liabilities, obligations, claims or expenses, including reasonable third party legal fees and other expenses incurred by the specified person.
1.11. Force Majeure.
No person shall be liable for, nor shall it be considered a breach by such person of this Agreement or any other agreement between any Member and APEM, with respect to any loss or damage arising from causes beyond its reasonable control, or any damages to another person resulting therefrom, including, without limitation, with respect to any person, any damages as a result of any work stoppage, power or other mechanical failure, computer virus, natural disaster, change in law or regulation or other government action, communications disruption, act of terrorism, fire, public health crisis or other circumstances or events beyond any such person’s reasonable control. Force majeure may justify the termination of the Agreement if the impediment created by such force majeure is a permanent impediment.
1.12. Electronic Signatures.
In the course of using APEM Network or receiving materials or services from us, you may be asked to consent to be bound by various agreements, including this Agreement and the Terms of Service. If in connection with your use of APEM Network, while operating under your user ID, you select an “I agree” or equivalent checkbox, you thereby agree that such action constitutes an electronic signature as defined by the
1.13. Consent to Receive Notices Electronically.
To the extent permitted by applicable law, your use of APEM Network constitutes your consent to receive all communications from us, including notices, agreements, legally required disclosures or other information in connection with APEM Network or materials or services provided (collectively referred hereafter as “Notices”) electronically. We will provide such electronic Notices by email (if we have your email address). The delivery of any such Notice is effective when emailed, regardless of whether you read the Notice. If you want to withdraw your consent to receive such Notices electronically, you must discontinue use of APEM Network. All other notices hereunder shall be in writing and be delivered in person, by registered or certified mail or by private courier, or by e-mail, to the address indicated by each Party to the other Parties from time to time in accordance with this Section 1.14, and shall be deemed received on delivery if delivered in person, on the date of receipt if mailed or sent by courier service, or on the date it was sent if delivered by e-mail.
1.14. No Investment Advice, Recommendations or Offer.
1.14.1. General. You acknowledge that the content of APEM Network is for general, informational purposes only and is not intended to constitute an offer to sell or buy any securities, promise to undertake or solicit business, or pursue any other particular course of action and may not be relied upon in connection with any offer or sale of securities. Any person seeking to rely upon the information contained on, or made available via, APEM Network, does so at their own risk. We are not utilizing APEM Network to provide investment or other advice, and nothing on APEM Network (including but not limited to the provision of third party documentation) is to be deemed a recommendation that you buy, sell or hold, or that you are eligible to buy, sell or hold any security or other investment or that you pursue any investment style or strategy. If you require investment, accounting, tax or legal advice, you should consult with your own advisors with respect to your
individual circumstances and needs. We make no commitment and we disclaim any duty to update the information contained on or via, APEM Network or to require any third party to update such information.
1.14.2. Forward Looking Statements. Certain information on, or made available via, APEM Network may contain forward-looking statements, which are subject to risks and uncertainties and speak only as of the date on which they are made. The words “believe”, “expect”, “anticipate”, “optimistic”, “intend”, “aim”, “will” or similar expressions are intended to identify forward-looking statements. We undertake no obligation to update or revise any forward-looking statements.
1.15.3. Past Performance. All performance data or comments expressed on, or made available via, APEM Network are an indication of past performance. Past performance is not indicative of future results; no representation is being made that any investment will or is likely to achieve profits or losses similar to those achieved in the past, or that significant losses will be avoided.
1.16. No Agency.
You acknowledge that neither APEM nor any of its Representatives will be deemed to be an agent or otherwise acting on behalf of any User, including you.
1.17. Securities Transactions.
The Platform serves as an information medium and a private space to facilitate communications between Members. Members are responsible for determining the qualifications of other Members and for negotiating and effecting any resulting transactions. All interactions between Members, including interactions regarding potential transactions and negotiations in connection therewith, take place between those Members, and do not involve APEM. APEM does not act as the agent of any Member, nor does it prepare or provide advice on the preparation of offering materials, assist in the negotiation of securities transactions, or effect any securities transactions. APEM does not make any recommendations regarding securities and does not hold any Member funds or securities. Moreover, Members should be aware that primary and secondary securities transactions are highly specialized and the merit of any particular securities transaction depends upon thespecific facts and circumstances of that transaction. Investments in securities, including investments in private funds, are speculative and may involve the risk of substantial loss. Members are strongly urged to consult with their financial advisors before making an investment in securities.
1.18.1. Except as otherwise expressly provided herein, each of you and APEM shall not, and each shall cause its respective Representatives not to, disclose the contents of APEM Network, any agreement entered into between you and APEM (including this Agreement) or any information obtained from other parties thereto during negotiations for, and during the term of, any such agreement between you and APEM (including, without limitation, any information regarding other Members, the Platform, investment opportunities accessible through the Platform, and any of the Member Marks, Member Materials, APEM Marks and APEM Materials) other than (i) any information that is or becomes available to the public other than in breach of the Terms of Service or this Agreement, (ii) information in possession of the receiving person on a non-confidential basis prior to disclosure, (iii) information available on a non-confidential basis from a source other than the disclosing person, or (iv) information independently developed by the receiving person without access to the disclosing person’s information (collectively “Confidential Information”).
1.18.2. Notwithstanding Section 1.18.1, APEM may use and display Confidential Information on the Platform as necessary to provide services to Members therein, and each of you and APEM may provide Confidential Information on a “need to know basis” to its respective Representatives solely for the purposes of using or operating the Platform or for any other purpose when permitted to do so under applicable law. Furthermore, each of you and APEM may disclose any Confidential Information to the extent required by judicial order, law, rule or regulation, or as part of an inspection or request by a governmental agency or self-regulatory agency, or otherwise to their respective professional advisers, auditors and insurers to the extent that such persons are bound by a legal, fiduciary or contractual duty of confidentiality with respect to the relevant Confidential Information.
1.18.3. The obligations under Section 1.18 shall survive notwithstanding any termination of membership with APEM, for six (6) years.
You understand and agree to use APEM Network and any related materials or services at your sole risk and that we will have no liability to you for Content that may be deemed offensive, indecent, or objectionable. If we are notified or determine, in our sole discretion, that Content contained in APEM Network violates the Terms of Service, this Agreement, or applicable laws, we reserve the right (but not the obligation) to edit or remove such Content. All complaints should be sent to us at the following address: ATTN: General Counsel,
e-mail address: contact@APEM.com.
1.20. Agreements with Third Party Vendors.
APEM may enter into additional agreements with third party vendors in order to operate APEM Network. APEM shall not disseminate any Member Materials, Member Marks or other Confidential Information to third party vendors unless those third party vendors have entered into a separate, legally binding third party vendor agreement with APEM or are otherwise bound by a legal, contractual or fiduciary duty of
confidentiality towards APEM.
1.21. Termination of Use.
These Terms of Service are effective unless and until terminated or updated by APEM. We may terminate the Terms of Service, in our sole discretion, at any time and may do so immediately without notice, and accordingly deny you access to APEM Network.
2. Start Date. The Agreement shall commence on the date that the Client is granted access to the APEM Network.
3.1. The Agreement may be terminated by the Client at any time and for any reason, by cancelling the Membership. The Client may do so via the Client “Settings” page.
3.2. Upon termination of the Agreement, the Client must immediately cease all use of the APEM Network.
3.3. This Agreement may be terminated by APEM at any time if the Client breaches this Agreement or the Terms of Service or fails to timely pay applicable subscription fees.
4. Basic Services and Premium Services. Members may access the APEM Network at no cost. In addition to the basic no-cost membership option, Members may also register for upgraded premium services, in respect of which the Member shall pay such subscription fees as set forth on the setting page of the Site, as amended from time to time.
5. Refund Policy. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods.
6. Representations and Warranties of the Client given at any time during the term of the Agreement.
6.1. The Client is duly organized, validly existing and in good standing under the laws of the state of its formation or organization, and has full legal right, power and authority under applicable laws, rules or regulations to execute this Agreement and engage APEM to provide access to the APEM Network hereunder.
6.2. To the extent the Client intends to do so, the Client is eligible to invest in the investment opportunities that may be listed or otherwise become available through the Platform. The Client acknowledges that an investment in any such investment opportunity should only be made by a qualified investor pursuant to the laws and regulations applicable to the Client or the relevant investment opportunity. The Client further agrees to submit any corresponding pre-qualification questionnaires reasonably requested by APEM throughout the term of the Agreement.
6.3. This Agreement has been duly and validly executed and delivered by the Client and constitutes a valid and binding obligation of the Client, enforceable against the Client in accordance with its terms.
6.4. The execution, delivery and performance of this Agreement does not and will not constitute a violation, breach or impairment of
(i) the organizational documents of the Client, or (ii) any agreement to which the Client is a party.
6.5. To the extent the Client acts as a Sponsor on the APEM Network, the Client is not established, nor has it registered in a country that (i) is subject to a decision of the European Commission stating that such country does not impose identification obligations in connection with the fight against money laundering and terrorism financing equivalent to those applicable in the European Union, or (ii) is listed by an international body involved in the fight against money laundering and terrorism financing on the list of countries whose legislation or practice obstructs such fight. Furthermore, the Client has and applies internal procedures intended to implement anti-money laundering and terrorism financing obligations which include identification procedures, procedures for training staff on preventing money laundering risks, procedures for archiving identification information and internal monitoring procedures intended to ensure compliance with all such internal procedures which comply with the recommendations published by the Groupe d’Action Financière (GAFI) and by the Traitement du renseignement et action contre les circuits financiers clandestins (TRACFIN) to combat money laundering and terrorism financing as amended from time to time.
Finally, the Client has access to the names of beneficial owners on request.
8.Representations and Warranties of APEM.
8.1. APEM SAS is a company duly organized, validly existing and in good standing under the laws of the country of its formation or organization, and has full legal right, power and authority under applicable laws, rules or regulations to execute this Agreement.
8.2. This Agreement has been duly and validly executed and delivered by APEM SAS and constitutes a valid and binding obligation of each of them, enforceable against it in accordance with its terms.
8.3. The execution, delivery and performance of this Agreement does not and will not constitute a violation, breach or impairment of (i) the organizational documents of APEM SAS, or (ii) any agreement to which APEM SAS is a party.
9.2. Jurisdiction. This Agreement and all of the terms, conditions and provisions hereof shall be governed by Zimbabwean laws.
9.3. Arbitration. Any disputes arising from this Agreement or the use of APEM Network, the Service or the Terms of Service, including disputes arising from or concerning the interpretation, violation, nullity, invalidity, non-performance or termination of this Agreement or the Terms of Service, as well as disputes about filling gaps in this contract or its adaptation to newly arisen circumstances, shall be subject to final and binding arbitration under the International Rules of Arbitration of the Chambre d’arbitrage de la Chambre Internationale du Commerce (CCI) (the “Rules”), by one or more arbitrators appointed in accordance with the Rules.
9.4. Successors, Assigns and Affiliates. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, assigns and, with respect to APEM, any existing or future affiliates providing the Service to the Client through the Platform, which shall be deemed to be Parties hereto; provided, however, that the Client shall not be permitted to assign any rights or delegate any of its obligations created under this Agreement, without the prior written consent of APEM, and any attempted or purported assignment thereof without such consent shall be null and void. This Agreement does not create any rights, claims or benefits inuring to any person that is not a Party hereto nor create or establish any third party beneficiary hereto.
9.5. Counterparts. This Agreement may be executed by electronic transmission in the form of a scanned PDF, in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.
9.6. Waiver/Amendment. Neither this Agreement nor any provision hereof may be waived, modified, changed, discharged or terminated, except by an instrument in writing signed by the Parties hereto. The exhibits to this Agreement may be modified from time to time in accordance with the terms hereof.
9.7. Defense of non-performance. A Party to this Agreement may refuse to perform its obligations or decide to suspend its performance in the event the other Party fails to perform.
9.8. Revision on account of unforeseen events. A Party to this Agreement may request that the Agreement be renegotiated in the event of unforeseeable changes in circumstances that render performance of the Agreement excessively burdensome.
9.9. Interpretation of the Agreement. This Agreement shall be interpreted in accordance with the common intention of the Parties.