Terms of Service
1. USE OF THE SERVICE
You may use the Service only if you can form a binding contract with Finalis, and only in compliance with this Agreement and all applicable laws, rules and regulations. If you are a party to a separate contract with Finalis, including as a customer of Finalis, you are also bound by the provisions of that contract. To the extent the provisions of any other contract with Finalis conflicts with the provisions of this Agreement, such other contract, and not this Agreement, shall govern and prevail. You agree that Finalis may, but is not obligated to, access and/or monitor the Service and/or a User’s access and/or use of the Service. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including by any automated or non-automated “scraping”; (ii) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the servers running the Service than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Finalis grants the operators of public search engines revocable permission to use spiders to copy materials from Finalis.com for the sole purpose of, and solely to the extent necessary for, creating publicly-available searchable indices of publicly-available content on Finalis.com); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper functioning of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein. We may, without prior notice, change the Service; stop providing the Service or features of the Service to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without liability if in our sole determination you violate any provision of this Agreement. Upon termination for any reason or no reason, you continue to be bound by this Agreement. You are solely responsible for your interactions with other Finalis Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Finalis shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. OUR PROPERTY RIGHTS
The Service and all materials therein or transferred thereby, including software, images, text, graphics, illustrations, logos, patents, trademarks, service marks and copyrighted or copyrightable material (collectively, the “Finalis Content”), and all intellectual property rights in respect thereof, are the exclusive property of Finalis and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Finalis Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You acknowledge and agree that you shall not (i) distribute, disassemble, decompile create derivative works of, reverse engineer the Service or cause or allow discovery of Source Code for the Service; (ii) sell, resell, lease, distribute, assign, transfer, sublicense or allow any other person to use the Service; (iii) use the name or proprietary logo(s) of Finalis without Finalis’ prior written consent; (iv) use the Service for any purpose other than as permitted by Finalis; (v) use the Service in a manner that interferes with the use of Service by Finails or its other customers; (vi) without giving at least 365 days’ prior notice to Finalis, commence development of, marketing or supporting an electronic platform for the purpose of offering a platform similar to the Service, in competition with the Service or to nonaffiliates portals; or (vii) use or authorize the use of Service in any manner or for any purpose that is unlawful under applicable Law.
“Law” means any statue, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Source Code” means the human readable source code of the Service to which it relates, in the programming language in which the Service was written, together with all related flow charts and technical documentation, including a description of the procedure for generating object code, all of the level sufficient to enable a programmer reasonably fluent in such programming language to understand, build, operate, support, maintain and develop modifications, upgrades, updates, adaptations, enhancements, new versions and other derivative works and improvements of, and to develop computer programs compatible with, the Service.
You may choose to or we may invite you to submit comments or ideas about the Service, including about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Finalis under any fiduciary or other obligation, including with respect to the use of the Idea, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Finalis does not waive any rights to use similar or related ideas previously known to Finalis, or developed by its employees, or obtained from sources other than you.
3. NO PROFESSIONAL ADVICE
If the Service provides professional information (for example, legal or financial information), such information is for informational purposes only, is incidental to the Service, and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
4. USES OF THE SERVICE AND KEY LIMITATIONS
The Service is designed for officers and owners of private companies, duly authorized merger and acquisition professionals, and investment professionals to, inter alia, connect with one another for the purposes of business development, originating and managing investment or acquisition opportunities, and engaging with relevant capital partners. Customer accounts and Users use a variety of tools to implement such processes, including virtual data rooms, question and answer tools and document hosting tools, deal communication and messaging tools, and a variety of reporting and analytical tools. Finalis is not involved in the actual transaction between or among counterparties and does not render investment or legal advice in connection therewith.
None of the information submitted through the Service constitutes a solicitation, offer, opinion, or recommendation by Finalis to buy or sell any securities or other financial instruments or to provide legal, tax, accounting, or investment advice or services regarding the suitability or profitability of any security of any kind, investment or transaction. Finalis has not made any recommendations regarding the merit of any company or asset identified through the Service, made any recommendation regarding the purchase or sale of any security, or endorsed or sponsored any company identified through the Service. For that reason, all Users agree to be responsible for their own diligence and the legal and regulatory compliance of any transaction they enter into, and Finalis makes no representation or assurance about such compliance. You are required to provide true and accurate information about your business or businesses of your clients, and to update and maintain such information, but Finalis cannot and does not confirm the accuracy of information provided. The information and material made available through the Service may contain typographical errors or inaccuracies. In addition, Finalis does not control the information provided by other Users that is made available through the Service.
You acknowledge and agree that Finalis is and will remain the sole and exclusive owner of all right, title and interest in and to the Service, including any and all modifications, derivatives, improvements and enhancements to the same, even if Finalis incorporates into the Service suggestions made by you.
You acknowledge and agree that you are responsible for supporting the users of the Service (“End Users”) and Finalis will not provide support or maintenance to End Users. Subject to the terms and conditions of this Agreement, you hereby grant Finalis a limited, royalty-free, fully-paid, non-exclusive, non-transferable and non-sublicensable license to copy your data as provided by you in connection with your use of the Service and solely as necessary to provide the Service for your benefit as provided in this Agreement for so long as you or any End User uploads or stores such data on the Service. Finalis retains the right to advertise or to refuse to advertise that you use the Service. The Service may employ third-party integrations with vendors that have been selected by us.
You hereby disclaim Finalis for any and all infringement or other damages, claims or losses to you or others caused by (i) your modification or use of the Service other than as agreed with Finalis; (ii) your failure to use corrections or enhancements made available by Finalis, or (iii) information, specification or materials provided by you or third parties acting for you.
Notwithstanding anything to the contrary herein or in any letter agreement to which Finalis is a party, in the event that you override or differ with our legal or other recommendation with respect to any language in a letter agreement to which Finalis is a party, you agree to indemnify Finalis and its affiliates and their respective agents, officers, directors, employees, contractors, representatives and members to the fullest extent lawful, from and against any and all for any and all losses, claims, damages or liabilities that are incurred by any such indemnified person (whether joint or several, direct or indirect, or from any investigation or action by a government agency or self-regulatory organization) arising from or relating to your deviation from such recommendation.
Finalis is not a registered investment, legal or tax advisor and does not purport to tell or suggest which securities you should buy or sell. Finalis cannot and does not assess, verify or guarantee the adequacy, accuracy or completeness of any information identified through the Service, the suitability or profitability of any particular investment or the potential value of any investment or information source identified through the Service. Finalis in no way warrants the solvency, financial condition, or investment advisability of any of the securities or companies identified through the Service. Finalis assumes no responsibility for liability for your investment results. The use of the Service does not create a financial advisor relationship. You are responsible for conducting your own research and decisions and should seek the advice of a qualified professional before making any investment and investigate and fully understand all risks before investing. You should seek and take independent financial advice from a qualified professional in connection with, or independently research and verify, any information identified through the Service and which to rely upon, if for the purpose of making an investment decision or otherwise. Past performance is not a guarantee of future return, nor is it necessarily indicative of future performance. Keep in mind, investing involves risk. The value of your investment may fluctuate over time, and you may gain or lose money.
Individuals and entities affiliated with Finalis, Inc. providing Finalis Insights™ services are not employees of Finalis, Inc. or Finalis Securities LLC, are not investment advisers under the U.S. Investment Advisor Act of 1940, investment managers, financial planners or asset managers, and are not providing investment advice or issuing analyses regarding securities. Any communications disseminated by such individuals or entities are not to be considered investment advice or analyses or recommendations regarding securities or deemed to create a fiduciary or investment-adviser relationship with Finalis, Inc. or Finalis Securities LLC or any individual or entity affiliated with Finalis, Inc. Related services are based on third-party providers or research services unaffiliated to Finalis, Inc. or its affiliates.
Finalis Insights™ services are available Monday through Friday between 8 am and 5 pm Eastern Standard Time (EST).
As part of the Service, you may have access to third party information (the “Third Party Data”) which has been independently obtained by Finalis from financial markets information services, financial publishers, various securities markets, publicly available web data, and other sources (collectively, “Third Party Data Providers”). As applicable, the Third Party Data is the property of the Third Party Data Providers or others, and may be protected by copyright and/or other intellectual property rights. The accuracy or continued availability of Third Party Data and Third Party Data Providers, as applicable, is not controlled or guaranteed by Finalis. Except as expressly provided herein, you agree not to reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate, or commercially exploit the Third Party Data in any manner without the written consent of Finalis and, as applicable, Third Party Data Provider(s). User’s obligations under this provision shall remain in effect upon the expiration or termination of your use of the Service.
User’s use of the Service may be interrupted or unavailable from time to time, including, without limitation, under the following circumstances: (a) third party equipment malfunctions; (b) periodic maintenance or repairs which Finalis may undertake from time to time; (c) emergency maintenance or repairs; (d) malfunctions and other failures relating to the web sites or services of third parties affecting the Service; or (e) causes beyond the reasonable control of Finalis, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, or other failures.
5. ELIGIBILITY; AUTHORITY
In order to create an account or to be a user of the Service, you represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Service. We may, in our sole discretion, refuse to offer the Service to any person or entity and change our eligibility criteria at any time. You are solely responsible for ensuring that your use of the Service complies with all laws, rules and regulations applicable to you, and the right to access the Service is revoked where use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation. Further, the Service is offered only for your use, and not for the use or benefit of any third party.
You, and the individual or entity whose name is set forth in any Finalis registration process, represent and warrant to Finalis that: (i) they have the full right, power and authority to enter into this Agreement on behalf of them and create a binding obligation on themselves; (ii) the execution and delivery of this Agreement has been fully authorized by such individual or entity and constitutes a valid and binding agreement, enforceable in accordance with its terms; (iii) they have not previously been terminated from using the Service for violating any agreement with Finalis; (iv) all information provided by them is complete, accurate and up-to-date; and (v) they are, and at all times have been, in material compliance with all requirements of applicable federal, state or local law.
6. ACCREDITED INVESTOR CERTIFICATION
In order to participate in the Service as an investor or lender, you must be a U.S. Persons (as defined in Rule 902 (K) under the Securities Act of 1993, as amended, who are Qualified Purchasers (as defined in Section 2(a)(51) of the Investment Company Act of 1940, and certain rules thereunder) and Accredited Investors (as defined in Rule 230.501(a)(1)(2)(3)(7)(9)(12)(13) under the Securities Act).
We have implemented commercially reasonable technical and organizational measures designed to secure information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use information for improper purposes. You acknowledge that you provide information to Finalis, including through the Service, at your own risk.
9. DMCA NOTICE
Since we respect artist and content owner rights, Finalis’ responds to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Finalis’ copyright agent in accordance with the DMCA.
10. THIRD-PARTY LINKS
11. YOUR MATERIALS; LICENSE
You are solely responsible for: (a) all materials submitted to Finalis to include for use in connection with the Service, whether or not created originally by you (“Your Content”); and (b) all websites and content linked, or otherwise referenced, in Your Content (the “Linked Content” and together with Your Content, “Your Materials”).
You hereby grant to Finalis a royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable right and license to copy, modify, display, distribute, perform, create derivative works from, store and otherwise use and exploit, all Your Content, in any form through any media, software, or technology, in connection with: (a) providing you the Service; and (b) distributing Your Content on, or in connection with, the Service. Finalis makes no claim to any ownership interest in Your Content obtained from you under this Agreement, and no ownership rights will be transferred under this Agreement.
You represent and warrant to Finalis that: (a) you hold all ownership rights, including all applicable intellectual property rights, in Your Content necessary to grant Finalis the license hereunder and Your Content will not violate any third party rights; (b) Your Content, and your use of the Service, do not violate, facilitate, or encourage violation of any applicable law, and you will not discriminate in the investment, purchase or sale of any company on the basis of any protected class under applicable laws; and (c) Your Content is not obscene, defamatory, disparaging, deceptive, profane or indecent.
Finalis will have the sole right to determine the placement and location of all or any portion of Your Content on the Service. You will provide Finalis with all Your Content necessary for Finalis to provide the Services and will continue to provide all Your Content necessary to perform the Service for the duration of this Agreement. You are responsible for promptly updating Your Content and contact information as necessary, including updating any changes to your profile or listing regarding availability, pricing, or content. Finalis may send notice to you, as described herein, requiring you to resolve any issues related to Your Content, including errors in Your Content or Your Content that violates this Agreement. For clarity, Finalis has the right, in its sole discretion, to remove or modify Your Materials for any reason, including format, spelling, or other matters of presentation, or if Finalis believes Your Materials violate this Agreement. You grant Finalis permission to utilize an automated software program to retrieve and analyze websites associated with the listed company for quality and service purposes. You hereby authorize Finalis to modify Your Materials for listing and presentation purposes on the Service.
You agree that Finalis (including our affiliates) may freely use any data (including Your Materials) that Finalis learns, acquires or obtains in connection with the performance or your use of the Services to improve the quality of the Services and deliverables.
12. PROHIBITED USES
You will not, and will not authorize any party to: (a) provide any fraudulent or otherwise misleading listings, information or transaction; (b) use any Service for benchmarking or similar testing; (c) use any automated means of scraping or data extraction to collect Finalis listing, profile, information, transaction or any related information from the Service except as expressly permitted in writing by Finalis at our sole discretion; (d) use any Service for the purpose of building a competitive product, platform or service; (e) list anything illegal or engage in any illegal or fraudulent business practice, or not in compliance with our Terms of Service; (f) conduct automatic queries, including screen and database scraping, spiders, robots, crawlers, bypassing “captcha” or similar precautions, and any other automated activity meant to obtain information from the Service or interfere with the performance of the Service; or (g) commit any prohibited uses as set forth in our Terms of Service.
13. REGULATION D “BAD ACTORS” CERTIFICATION
If applicable, User hereby certifies that neither it nor any of its controlling parties (including applicable officers, directors, and other personnel) or 20% or greater direct or indirect beneficial owners, nor any other “covered person” (as determined under Rule 506(d)) is subject to any of the disqualifying sanctions identified in Rule 506(d) under the Securities Act of 1933, as amended, and listed below. “Beneficial owner” under Rule 506(d) means any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, under Securities Exchange Act of 1934, as amended, Rule 13d-3 has or shares, or is deemed to have or share: (1) voting power, which includes the power to vote, or to direct the voting of, such security; and/or (2) investment power, which includes the power to dispose, or to direct the disposition of, such security. The disqualifying sanctions identified in Rule 506(d) are:
a) Within the last ten (10) years, conviction for a felony or misdemeanor, in the United States, (i) in connection with the purchase or sale of any security, (ii) involving the making of any false filing with the U.S. Securities and Exchange Commission or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
b) Currently subject to any order, judgment or decree of any court of competent jurisdiction, entered in the last five (5) years, that restrains or enjoins a person from engaging in any conduct or practice (i) in connection with the purchase or sale of any security, (ii) involving the making of a false filing with the U.S. Securities and Exchange Commission or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
c) Currently subject to a final order of a State securities commission (or an agency or officer of a State performing like functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or an agency or officer of a State performing like functions), an appropriate Federal banking agency, the National Credit Union Administration, or the U.S. Commodity Futures Trading Commission, that (x) bars a person from (i) association with an entity regulated by such commission, authority, agency or officer; (ii) engaging in the business of securities, insurance, or banking; or (iii) engaging in savings association or credit union activities; or (y) constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct within the last ten (10) years.
d) Currently subject to an order of the U.S. Securities and Exchange Commission pursuant to Section 15(b) or 15B(c) of the Securities Exchange Act of 1934 or Section 203(e) or (f) of the Investment Adviser Act of 1940 that (i) suspends or revokes a person’s registration as a broker, dealer, municipal securities dealer or investment adviser, (ii) places limitations on their activities, functions or operations or (iii) bars them from being associated with any entity or from participating in the offering of any penny stock.
e) Currently subject to any order of the U.S. Securities and Exchange Commission, entered in the last five (5) years, that orders a person to cease and desist from committing or causing a violation or future violation of (a) any scienter-based anti-fraud provision of the federal securities laws (including without limitation Section 17(a)(1) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, Section 15(c)(1) of the Securities Exchange Act of 1934 and Section 206(1) of the Investment Advisers Act of 1940, or any other rule or regulation thereunder) or (b) Section 5 of the Securities Act of 1933.
f) Currently suspended or expelled from membership in, or suspended or barred from association with a member of, a securities self-regulatory organization for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
g) Filed as a registrant or issuer, or been named as an underwriter in, a registration statement or Regulation A offering statement filed with the U.S. Securities and Exchange Commission that, within the last five (5) years, (i) was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or (ii) is currently the subject of an investigation or a proceeding to determine whether such a stop order or suspension order should be issued.
h) Subject to (i) a United States Postal Service false representation order entered into within the last five (5) years or (ii) a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
14. ACCOUNT SUSPENSION OR TERMINATION
If we have determined that you have breached any terms of this Agreement or any other of our terms or policies, we may suspend or permanently disable your account. In any case, we reserve the right to update, suspend, discontinue any Service, to remove you as a registered investor, buyer, seller or registrant of the Service or otherwise terminate or suspend your account(s) with us at any time, for any reason, with or without cause, with or without notice and in our sole discretion.
15. FINALIS MARKETPLACE™
As part of the Service, we may facilitate an online marketplace™ that connects, among others, brokers and potential investors, buyers, and sellers of companies (the “Finalis Marketplace™”).
You agree to commit reasonable time and resources to any transaction originated, distributed, conducted and/or consummated through the Finalis Marketplace™ (a “Transaction”) and shall furnish the parties in connection with a Transaction with such information and access as is customary, appropriate and/or necessary as they may need to perform their applicable services and fulfill their obligations in connection therewith. You agree that Transaction parties may rely, without independent verification, on the accuracy and completeness of your information that is available in the Finalis Marketplace™ and all information furnished by or on behalf of you in the Finalis Marketplace™ or any other potential party to any Transaction or that is otherwise reviewed by or discussed with, the applicable party, including financial information and data, projections and other information provided to applicable parties, all of which applicable parties may assume have been prepared in good faith based upon reasonable assumptions derived from the facts and best estimates then available to the applicable party.
You agree that all information made available on the Finalis Marketplace™ will, to the best of your knowledge, be complete and correct in all material respects and will not contain any untrue statement of a material fact or omit to state a material fact. You understand and agree that no other party will be responsible for the accuracy or completeness of such information and shall not be liable for any inaccuracies or omissions therein. You will promptly notify Transaction parties in writing of any material inaccuracy or misstatement in, or material omission from, any information previously delivered to, or discussed with, another Transaction party, or any materials provided to any interested party. You agree that no Transaction party has an obligation to conduct any appraisal of any assets or liabilities of a company or any other party or to evaluate the solvency of any party under any applicable laws relating to bankruptcy, insolvency or similar matters.
Any advice (whether written or oral) rendered by a Transaction party is intended solely for the use of the board of directors of the company in evaluating a Transaction, and such advice may not be relied upon by any other person or entity or used for any other purpose. Any advice rendered by, or other materials prepared by, or any communication from, a Transaction party may not be disclosed to any third party without the prior written consent of the disclosing party (other than to a Transaction party’s third-party advisors and agents and representatives who have a need to know such information in connection with a Transaction; provided, however, that they agree to the confidentiality with respect to such information, that neither the disclosing party nor any of its affiliates have any duty, liability or obligation to them in connection therewith and that the receiving party shall be responsible for any breach by them of the provisions of this Agreement). Neither a Transaction party nor the terms of a Transaction may be referred to without all Transactions’ prior written consent.
In connection with a Transaction, you agree to the provisions set forth on those certain “Confidentiality Provisions (Version 1.0)” located at https://www.finalis.com/clientnda and the terms thereof (the “Confidentiality Provisions”) are incorporated by reference as though fully set forth herein and shall survive any termination, expiration or completion of your engagement with a transaction (except that the defined terms therein shall apply to the applicable Transaction party).
You agree that, in connection with a Transaction, neither you or an affiliate shall, during and for a period of two years following your involvement or engagement with a Transaction, for any reason, either directly or indirectly, use information, contacts or introductions garnered through the Finalis Marketplace™ to conduct discussions, provide financial advisory or investment banking services or consummate a transaction unless conducted in conjunction with a registered representative of Finalis Securities (as defined below) and/or consummated through the Finalis Marketplace™. You acknowledge and agree that any letter or engagement agreement entered into by you Recipient that contravene this paragraph is null and void.
For a period of 12 months following your use of the Mandate Marketplace™, in the event you or an affiliate of Finalis Securities receives any inquiry regarding a transaction sourced through the Finalis Marketplace™ from any party not already sourced through the Finalis Marketplace™, unless there is a written agreement with such party to which Finalis Securities is a party, you shall promptly inform (i) the other representatives affiliated with Finalis Securities involved in such transaction and (ii) Finalis Securities of such inquiry so that any other representatives affiliated with Finalis Securities involved in such transaction may assist in evaluating such party and its interest in such transaction and in any resulting negotiations. You shall not circumvent, avoid, bypass or obviate Finalis Securities and, if applicable, other representatives affiliated with Finalis Securities, directly or indirectly, to avoid payment of fees, commissions or any other form of compensation to Finalis Securities or such representative due in connection with a Transaction, the Finalis Marketplace™ or any other agreement.
As part of the Service, we may facilitate an online directory of professionals and advisors (the “Directory”, and each professional and advisor, an “Advisor”) that you can engage with to help you in connection with a Transaction on the Finalis Marketplace™. You are not required in any way to engage with any Advisor on the Directory. By accepting this Agreement, you are NOT obligating or committing yourself to engage with any Advisor on the Directory.
Your access to the Finalis Marketplace™ to include being able to post or search for open and transactions and collaborating and connecting with other users of the Finalis Marketplace™ or affiliates of Finalis Securities is contingent on you displaying in the Finalis Marketplace™ in a non-collaborative manner all of your active transactions on your account with Finalis Securities established by Finalis.
The information in connection with your transactions to be displayed in the transaction description (also known as the “deal card” in the Finalis Marketplace™ shall include industry, sub-industry, location (country and state), transaction stage, transaction type, proposed transaction amount or size, transaction description and, as applicable, tail period, retainer amount, and success fee.
User is responsible for all their transaction information displayed in the Finalis Marketplace™.
User acknowledges and agrees and covenants with Finalis that the information and status of their transactions in the Finalis Marketplace™ may be changed by the User or Finalis at any time without prior notice to or consent to User.
User acknowledges and agrees that if User no longer displays their transactions in the Finalis Marketplace™, in Finalis’ sole discretion, they forfeit their right to access and use the Finalis Marketplace™.
Finalis reserves the right to, in its sole discretion, grant or withdraw access at any time to a User of the Finalis Marketplace™.
User acknowledges and agrees and covenants with Finalis that they are solely responsible for Your Materials and all their other information on the Finalis Marketplace™ to include in connection with any transaction and that such information and Your Materials do not conflict with any agreement to which they are a party to including, without limitation, agreements with third parties, confidentiality and non-disclosure agreements.
You acknowledge that an Advisor is being engaged hereunder as an independent contractor to provide the services to the applicable party and that Advisor is not acting as an agent or fiduciary of the applicable party, its equity holders or creditors or any other person or entity in connection with such engagement, and you agree that you shall not make, and hereby waive, any claim based on an assertion of any such relationship. The engagement of Advisor is not, and shall not be deemed to be, and is not intended to confer rights or benefits upon, any equity holders or creditor of yours or any third party. In performing related services, Advisor is not assuming any responsibility for your decision whether to pursue, endorse or support any business strategy, or to effect, or not to effect, any Transaction, which decision shall be made by you in your sole discretion. Advisor is not assuming any responsibility to conduct any due diligence or investigatory services on behalf of any Transaction party or any other person with respect to a Transaction or any potential party thereto. Advisor disclaims all duties that would otherwise arise by reason hereunder or as a result of the services they provide. You shall be solely responsible for the terms, conditions and structure of a Transaction and ensuring that any Transaction complies with applicable law. You understand that Advisor shall not render an opinion as to whether the consideration of a Transaction is fair and is not undertaking to provide, and will not provide, any legal, regulatory, accounting, insurance, tax or other similar professional advice and you acknowledge and agree that you are relying on your own counsel, accountants and similar advisors for such advice.
To help the United States government fight the funding of terrorism and money laundering activities, the federal law of the United States requires all financial institutions to obtain, verify and record information that identifies each person with whom they do business as a condition to doing business with that person. Accordingly, as a condition to the closing of a Transaction and upon request by Advisor, you shall (i) promptly provide to Advisor, and (ii) require any and all applicable third parties to promptly provide to Advisor, certain identifying and other similar information of persons and entities necessary to comply with such laws and Advisor’s policies and procedures. You hereby represent and warrant that all such information is and shall be true, correct and complete as of the time it is provided to Advisor.
We may have entered into written agreements with an Advisor on the Directory under which the applicable Finalis entity may take a certain percentage of the professional services fees or other form of payment (depending on the type of Advisor and to the extent permitted by applicable state and federal laws, rules, and regulation) charged by an Advisor that you engage with on the Directory as a referral fee for connecting you and such Advisor on the Directory. By accepting this Agreement, you hereby agree and acknowledge that we have disclosed such referral fee arrangement to you and that you consent to the same. We may give You the option to participate in transactions on the Finalis Marketplace™, or otherwise assist You in connection with a transaction on the Finalis Marketplace™ by using one of Finalis’ partners. If You use one of these partners, the partner may pay a referral fee of some amount to Us in consideration of the introduction. By electronically accepting this Agreement, You hereby agree and acknowledge that We has disclosed such referral fee arrangement to You and that You consent to the same.
We may give you the option to finance the acquisition of a company on the Finalis Marketplace™, or otherwise assist you in the purchase or sale of a company on the Finalis Marketplace™, by using one of our partners. If you use one of these partners for financing your acquisition, the partner may pay a referral fee of some amount to us in consideration of the introduction. By accepting this Agreement, you hereby agree and acknowledge that we have disclosed such referral fee arrangement to you and that you consent to the same.
Finalis does not engage in, or is not, now or at any time in the future, any of the following:
a. We do not represent you in any fiduciary, agent, attorney-client, or any other capacity whatsoever, and your use of the Service does not create, by implication or otherwise and, without limitation, any fiduciary duty, attorney-client relationship, representation, or any other sort of professional relationship or representation whatsoever. We are not and do not hold ourselves out to be your attorney, fiduciary, agent, or any sort of other representative, professional or otherwise.
b. Finalis is not a law firm and the Service does not constitute legal advice, nor does Finalis intend for the Service to constitute legal advice. Finalis is not qualified to provide legal advice or legal analysis to you. Any information that Finalis or its employees or independent contractors provide regarding transactions is for informational purposes only and is NOT legal advice or legal analysis and should not be interpreted or treated as such.
c. Finalis does not broker or transact any of the transactions on the Finalis Marketplace™. Finalis does not act as a business broker, investment banker, advisor, business transfer agent, intermediary, or any other sort of professional engaging in the purchase and sale of businesses.
d. Finalis and each Advisor are independent contractors. Finalis has no power or authority to assume or create any obligation or responsibility on behalf of an Advisor. Finalis has no right, power, or authority to enter into any agreement or undertaking, or to act as or be an agent or representative of, or otherwise bind, an Advisor.
e. Finalis makes no representations, warranties, or guarantees of any kind regarding any Advisor or any of any Advisor’s services for you.
f. Finalis makes no representations, warranties, or guarantees of any kind regarding any Finalis partner or any of any Finalis partner’s services for you.
g. Finalis does not itself buy or sell any of the companies listed on the Finalis Marketplace™.
h. Except as otherwise required by applicable U.S. regulators, neither Finalis nor its affiliates performs any technical, legal, financial, or any other kind of due diligence on investors, buyers or sellers in the Finalis Marketplace™ and makes no representations, warranties, and guarantees regarding such investors, buyers or sellers of any kind. Finalis cannot guaranty whether a company listed on the Finalis Marketplace™ is suitable for a potential investor or buyer, or whether any company listed on the Finalis Marketplace™ will meet the performance expectations of an investor or buyer. Finalis is not responsible for a seller’s truthfulness regarding the existence, quality, accuracy, or completeness of any listing on the Finalis Marketplace™. You are solely and exclusively responsible for performing all due diligence on all investors, buyers and sellers in the Finalis Marketplace™.
i. Except as otherwise agreed to in writing by Finalis, Finalis is not a party to any agreement entered into between you and a buyer or seller on the Finalis Marketplace™, or you and an Advisor.
j. Finalis does not guarantee the success of any transaction originated in the Finalis Marketplace™.
k. Finalis is not a valuation firm and any valuations or opinions of value provided by Finalis or through the Service are for informational purposes only. Finalis cannot and does not make any guarantee, representation, or warranty regarding the accuracy or completeness of any information obtained through the Service. While the information provided has been obtained from sources believed to be reliable, Finalis does not attest to its accuracy or completeness.
l. Except as otherwise agreed in writing by Finalis, Finalis does not engage in dispute resolution of any dispute, controversy, disagreement, or proceeding between you and any investor, buyer or seller on the Finalis Marketplace™, or with any Advisor.
All resources that we provide in the Finalis Marketplace™ and the Directory are for informational purposes only and do not constitute legal, tax or any other type of professional advice. In all instances you should consult with legal, tax, qualified professionals or other advisors with regards to your situation. There are or could be many unknown or unexpected factors that could affect the market value of a company, and for this reason we encourage you to consult with qualified professionals to obtain a valuation for a company.
Finalis reserves the right to modify or remove any information on the Finalis Marketplace™ in our sole discretion.
If applicable, you hereby represent and warrant to Finalis that you are conducting any transactions conducted through Finalis and/or the Service in compliance with securities and other applicable laws in applicable jurisdictions and will be registered or exempt under applicable securities and other laws in such jurisdictions.
16. INFORMATION PROVIDED VOLUNTARILY FOR USE OF SERVICE
We may collect information that you voluntarily provide to us to provide you the Service. If you wish to incorporate data from your accounts with Finalis with third-party tools and applications and display such data on the information page of your company listing to counterparties on the Finalis Marketplace™, by signing into your account with such third-party tools and applications on the authorization page or providing us with your API Keys, View IDs or other data on such third-party tools and applications, you are authorizing us and granting us read access to certain information in your accounts with such third parties for the purpose of providing the Service.
You use any third-party services or content solely at your own risk and must be aware of any third-party terms and conditions and have consented to them. Under no circumstances will Finalis be deemed liable or have any obligations whatsoever in relation to the content, proper functionality, availability or the security of any link with any third-party services or transactions completed, and any contract entered into by you with any such third party.
Finalis reserves the right, in its sole discretion, to change, suspend, or discontinue the Service (or any part of it) at any time without notice to the maximum extent permitted by applicable law. Finalis may also impose limits on certain features and services or restrict your access to parts or all of the Service to include the Finalis Marketplace™ and Directory without notice or liability.
You agree to defend, indemnify and hold harmless Finalis and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their respective employees, suppliers, contractors, agents, representatives, managers, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you, your use or misuse of, or access to, the Finalis Marketplace™ and the Directory, any resource provided by Finalis, Your Materials or violation of this Agreement; (ii) your violation of any term of this Agreement, including your breach of any of your representations and warranties contained herein; (iii) your violation of any third-party right, including any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code. You agree at all times to be in compliance with all requirements of any federal, state or local law.
You acknowledge and agree to hold sufficient insurance to cover potential liabilities in connection with your use the Services.
20. COMPLIANCE WITH APPLICABLE LAWS
You acknowledge and agree and covenant with Finalis to comply with all applicable laws under and in connection with the Services and your use thereof, including but not limited to those related to data privacy and personal data.
21. ANTI-BRIBERY AND SANCTIONS
You agree at all times in connection with you use of the Services and Your Materials to: comply with all applicable laws, statutes and regulations including those relating to anti-bribery and anti-corruption; put in place, comply with, and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet statutory responsibilities; and promptly notify Finalis of any request or demand for any undue financial or other advantage of any kind received by or on behalf of you in connection with the Services.
22. NO WARRANTY; DISCLAIMER
Finalis does not own or control any of the investors, buyers, sellers or any of the companies or assets or Advisors on the Finalis Marketplace™ or Directory. The availability of any investor, buyer, seller or Advisor does not indicate an affiliation with or endorsement of any investor, buyer, seller or Advisor.
Accordingly, Finalis does not provide any representations, warranties or guarantees with respect to any investor, buyer or seller or any company or assets, or any Advisor or any services or products offered by any Advisor. If you wish to obtain any representations, warranties, or guarantees with respect to any investor, buyer, seller or assets or companies, or Advisor, please consult directly with such investor, buyer, seller or Advisor.
THE SERVICE IS PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS WITH THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT WITH YOU, AND WITHOUT ANY WARRANTY WHATSOEVER. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU AFFIRM THAT FINALIS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF REPRESENTATION OR WARRANTY CLAIM THAT ARISE OUT OF ANY INVESTOR, BUYER, SELLER, OR ADVISOR’S FAILURE TO HONOR ANY REPRESENTATION OR WARRANTY OBLIGATION TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FINALIS OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FINALIS, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. FINALIS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND FINALIS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
23. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FINALIS, ITS AFFILIATES, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, MANAGERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF FINALIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE TO INCLUDE THE FINALIS MARKETPLACE™ OR DIRECTORY. UNDER NO CIRCUMSTANCES WILL FINALIS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FINALIS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OR MISUSE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, CODE DEFECTS OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. FINALIS EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION THAT MAY BE DEEMED CONFIDENTIAL BY YOU OR ANY THIRD PARTY. IN NO EVENT SHALL FINALIS, ITS AFFILIATES, AGENTS, REPRESENTATIVES, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FINALIS FOR THE RELEVANT SERVICES IN THE PAST 12 MONTHS, IF ANY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FINALIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. FINALIS DOES NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE WHICH MAY ARISE DIRECTLY OR INDIRECTLY FROM USE OR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICE.
Finalis makes no representations that the Service is appropriate or available for use in any specific jurisdiction or location. Those who access or use the Service do so at their own volition and are entirely responsible for compliance with all applicable local laws, rules and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
24. REGISTERED REPRESENTATIVE
If you are a registered representative (“Representative”) of our affiliate Finalis Securities LLC (“Finalis Securities”), Representative agrees that Finalis Securities shall be deemed included within the indemnification provisions of any written agreement to which Finalis Securities is a party. If, in the sole judgment of Finalis Securities, it is required under applicable law, rule or regulation or is otherwise necessary that any services, transaction or other matter contemplated by such written agreement to be conducted through a registered broker-dealer or member of Financial Industry Regulatory Authority, Inc., then, with no further action required by you or your client in respect of such matter, the applicable rights and interests of the Representative (including the right to receive any fees thereunder and all rights to indemnification) will be deemed automatically assigned and transferred to Finalis Securities, and Finalis Securities shall be deemed to have assumed all duties of the Representative and be acting through the Representative pursuant to such written agreement. The Representative will manage the applicable transaction whether it remains with the Representative or is assigned to Finalis Securities. Should any transaction have to be conducted by a U.S. registered broker-dealer, in the sole judgment of Finalis Securities, then (i) all billings will be made by, and all payments under such written agreement shall be remitted to, Finalis Securities from that time forward in connection with such transaction, and (ii) you agree that your company client shall make changes as Finalis Securities may require to any materials to be circulated to potential transaction counterparties or make additional disclosures to such counterparties to comply with any laws, rules or regulations.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, except in the event of a sale of all or substantially all of your assets, in which case this Agreement will be transferred to the surviving entity, but may be assigned by Finalis without restriction. Any purported assignment or delegation by you in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.
Application – Terms & Conditions
I hereby (i) certify that the information provided in this application (the “Information”) is complete and correct (ii) grant Finalis Securities LLC (together with affiliates, agents and assigns, “Finalis”) permission to conduct inquiries to verify the Information, including, but not limited to, my work experience, education and current and prior residential history, (iii) authorize Finalis to conduct a background check on me which may include, without limitation, my criminal, civil litigation and credit history to include such history which may be in the files of any federal, state or local governmental agency, court system, credit reporting bureau or any other records repository, (iv) authorize Finalis to conduct a search of my records in the Central Registration Depository (“CRD”) of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and use my FINRA CRD number in the Information in accordance therewith and (v) authorize the Social Security Administration (“SSA”) to verify and disclose to Finalis whether the name, Social Security Number and date of birth in the Information matches SSA records. Without incurring any liability or obligation, Finalis may, in its sole and absolute discretion, accept or deny for any lawful reason any application to be a registered representative of Finalis, without assigning any reason thereof. If your application is accepted, but later deemed to be unsuitable in Finalis’ sole and absolute discretion, Finalis may, at any time, terminate your application.