Effective: March 4, 2022
Welcome to the opusfund.com website (the “Site”), operated by Opus Capital Management LLC (“Administrative Manager”) and Opus Investment Management LLC (“Investment Manager”, and together with the Administrative Manager, “Opus”). Please read these Terms of Service carefully before using the Service (as defined below). These Terms of Service govern your use of and access to the Site, all information contained therein, and all related mobile applications, tools, and downloads (all of the foregoing, collectively, the “Service”).
THESE TERMS OF SERVICE FORM A LEGAL AGREEMENT (THIS “AGREEMENT”) BETWEEN YOU AND OPUS. BY ACCESSING THIS SITE AND THE USING SERVICE, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT, AS WELL AS THE SERVICE’S PRIVACY POLICY (THE “PRIVACY POLICY”), AND YOU ACKNOWLEDGE, UNDERSTAND AND ACCEPT OPUS’S DISCLAIMERS (THE “DISCLAIMERS”). BY CONTINUING TO USE THE SERVICE, WHETHER YOU MAKE AN INVESTMENT OR NOT, YOU ACCEPT AND AGREE THAT THIS AGREEMENT, THE PRIVACY POLICY AND THE DISCLAIMERS GOVERN YOUR USE OF THE SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE PRIVACY POLICY OR THE DISCLAIMERS, YOU MAY NOT USE THE SERVICE.
BY ACCESSING OR USING THE SERVICE, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT AND WARRANT THAT YOU ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THE SERVICES IN YOUR JURISDICTION. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER. PLEASE READ THE “ARBITRATION” SECTION BELOW FOR ADDITIONAL INFORMATION.
1. Modifications and Updates to this Agreement
Opus may make changes or improvements to the Service and/or to this Agreement at any time. Any modifications made will be effective immediately upon the posting of the modified Agreement on the Site. By continuing to use the Service after any changes or improvements are made, you are accepting and agreeing to the changes. Opus encourages you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you use the Service. If you do not agree to the revised Agreement, you may not access or use the Service.
2. Privacy Policy and Investment Disclaimers
Please review our Privacy Policy, available here, and the Disclaimers, available here, which also apply to and govern your use of the Service. The Privacy Policy explains how Opus collects, uses and protects certain information and data collected through the Service. The Disclaimers provide important disclaimers of certain information made available through the Service. By using the Service or providing any personally-identifiable information, you (a) are agreeing to Opus’s collection and use of such information consistent with the Privacy Policy, and to be bound by the terms of the Privacy Policy and this Agreement; and (b) acknowledge, understand and accept the Disclaimers.
3. Ownership of Intellectual Property
The Opus name and logo, and other marks displayed on or through the Service, or used as part of the Service, are the proprietary service marks or trademarks of the Administrative Manager, the Investment Manager or third parties, as applicable. The Opus trademarks may not be used in connection with any product or service that is not Opus’s without the owner’s express prior written consent. All other trademarks not owned by the Administrative Manager or the Investment Manager, that appear as part of the Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by, Opus.
All content on and comprising the Service, including, but not limited to, works of authorship, documents, designs, text, graphics, photos, logos, button icons, images, software, programs, code, digital downloads, and data compilations; any improvements or modifications to such content; any derivative works of any of the foregoing; and the collection, arrangement, and assembly of all data and content on or accessed through the Service are the property of the Administrative Manager or the Investment Manager, as applicable, or their respective licensors, and are protected by all applicable intellectual property laws.
You may not use, reproduce, perform, display, publish, adapt, modify, broadcast, transmit, distribute, exhibit, disseminate, license or sell any of the trademarks, service marks, names, logos, content, data, data compilations/analyses, illustrations, graphics, images, photos, documents, works of authorship, or other information, services or materials appearing or available on or through the Service (collectively, “Service Content”), or any other proprietary interests of the Administrative Manager or the Investment Manager, as applicable, in whole or in part, except as expressly permitted by this Agreement. Nothing in this Agreement shall grant to you or to any other user any license or right in or to any copyright, trademark, trade secret, patent or other proprietary right of the Administrative Manager or the Investment Manager or any other person, as applicable.
4. License to the Service and Service Content; Acceptable Use Policy
The Service may include information regarding Opus, Opus-managed private investment funds, publications and materials proprietary to the Administrative Manager or the Investment Manager, as applicable, and data compilations. Subject to the terms and conditions hereof, Opus hereby grants you a non-exclusive, worldwide, revocable, limited, non-transferable license to access and make use of the Service, and view, copy and print the Service Content (other than any software and other operational code) that is made available to you solely for your own personal, non-commercial use; provided, that (x) neither the Service Content nor any indicia, notices, content, disclaimers or other terms therein are altered or removed; and (y) any information provided to or through the Service by third parties is used solely for the purpose permitted in this paragraph.
In no circumstance shall title to any Service Content, or other information found through the Service be transferred to you by the function of this license. Any unauthorized use of any Service, Service Content or any intellectual property or information accessed or available through the Service or Service Content may violate intellectual property and other laws.
You agree not to upload or transmit to or via the Service any information that (i) infringes or otherwise violates any copyright, patent, trademark, trade secret, or other intellectual property or proprietary right; (ii) is defamatory, libelous, expresses hate, or is unlawfully threatening; (iii) is pornographic, obscene, or exploitative of a minor; (iv) contains or embodies a virus, worm, Trojan Horse, or any other contaminating or destructive feature; or (v) otherwise violates any applicable treaty, law, or regulation.
You agree that you will not interfere, in any way, with others’ use of or access to the Service, will not develop, invoke or utilize any code or other method to disrupt, diminish the quality of, interfere with the performance of, impair the functionality of, or attempt to reverse engineer the Service (or any part thereof) or circumvent any security features thereof, and will not attempt to gain unauthorized access to the content or computer system of any other site or of any Service user, or any portion of the Service for which you do not have authorization. You further agree (i) not to use any software, program, code, algorithm, method, data or data compilation owned by the Administrative Manager or the Investment Manager, as applicable, except as may be implemented in the Service, as applicable; (ii) not to take any other action in connection with your use of the Service that violates any treaty, law, or regulation; and (iii) to fully comply with all applicable treaties, laws, and regulations in your use of the Service.
You agree not to authorize or encourage any third party to use the Service to facilitate or engage in any of the prohibited conduct described in this Agreement. You also agree to immediately notify Opus in the event of an actual or threatened claim that you have violated any of the terms, conditions, limitations, covenants or agreements contained in this Agreement.
You agree to access the Site through a standard Web browser, and you specifically agree not to use any third-party applications to access the Service or any page of the Site. You further agree that you will not use any robot, spider, or other automatic device, manual process, or application or data mining or extraction tool to access, monitor, copy, or use the Service. You agree not to take any other action that imposes an unreasonable or disproportionately large load on the Site or Service.
Except as expressly provided herein, you may not use, download, upload, reproduce, copy, duplicate, print, display, perform, republish, sell, license, post, transmit, disseminate, redeliver using “framing technology,” otherwise distribute, or commercially exploit in any way the Service or any portion thereof or any information or content on the Site or Service without the prior written consent of Opus. In addition, you agree not to link to any page of the Site other than the Site’s home page.
5. Term; Termination; Modification or Discontinuance of the Site and/or Service
This Agreement will remain in effect until terminated in accordance with this Section 5.
Opus may immediately suspend or terminate the license and/or your right and ability to use the Service at any time for your breach or suspected breach of this Agreement. Upon termination, you will immediately destroy any materials, content or other information (including, without limitation, Service Content) that you obtained from the Service, if any, and cease all use of the Service.
Opus reserves the right, in its sole discretion, to discontinue or modify the Service or your right to use the Service at any time, for any or no reason, and you acknowledge and agree that Opus will have no liability or obligation to you in such event. In the event of any material modifications to the Service, your access to the Service and the information, content, services and materials on the Service may be limited or unavailable on a temporary basis.
Any provisions of this Agreement which by their nature should survive the expiration or termination of your right to access and use the Service shall survive the expiration or termination for any reason whatsoever. Opus shall in no way be liable to you or any third party for any consequence which results from Opus’s decision to modify, suspend or discontinue the Service.
6. Qualification for Use and Access to the Service
By using the Service, you represent and warrant that you are at least eighteen (18) years of age or the age of majority in your jurisdiction, and that you agree to abide by all of the terms and conditions of this Agreement. Use of the Service is void where prohibited.
7. Third Party Sites
If you reach the Site using a link or from another web site or search engine, or go to another site from the Site, information about your visit to the Site may be collected by the other website or search engine, and will be subject to the privacy policy of that site. You are encouraged to review the privacy policy of each of those sites or search engines.
IN NO EVENT WILL OPUS BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE, OR RELIANCE ON ANY THIRD PARTY SITE, OR ANY LINK CONTAINED IN A THIRD PARTY SITE.
8. Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE AND/OR ANY SERVICE CONTENT IS AT YOUR OWN RISK AND THAT THE SERVICE AND ALL SUCH INFORMATION IS PROVIDED BY OPUS ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OPUS MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE AND THE AVAILABILITY, OPERATION, AND USE OF THE SERVICE AND THE SERVICE CONTENT, AS APPLICABLE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
IN ADDITION, OPUS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ANY SERVICE CONTENT IS ACCURATE, COMPLETE, OR CURRENT, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OPUS IS NOT RESPONSIBLE FOR ANY ERRORS, INACCURACIES, DEFECTS, UNTIMELINESS, SECURITY BREACHES OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON ANY ASPECT OF THE SERVICE OR SERVICE CONTENT. OPUS UNDERTAKES NO OBLIGATION TO UPDATE ANY INFORMATION OR SERVICE CONTENT CONTAINED ON THE SERVICE. FURTHER, OPUS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR SERVICE CONTENT WILL BE AVAILABLE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, DEFECTS OR OTHER HARMFUL COMPONENTS.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPUS OR ITS CURRENT AND FUTURE PARENTS, SUBSIDIARIES AND AFFILIATES OR THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES (COLLECTIVELY, THE “OPUS PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR REVENUE, OR FOR BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, IN EACH CASE ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, YOUR ACCESS TO OR USE OF, OR THE INABILITY TO ACESS OR USE, THE SERVICE OR ANY SERVICE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN LAWS MAY NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, AND THUS SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS ABOVE MAY NOT APPLY TO YOU. IN SUCH CASES, OPUS’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SURVIVE AND REMAIN IN FORCE NOTWITHSTANDING THE FAILURE OF ANY REMEDY’S ESSENTIAL PURPOSE.
10. Indemnification
You agree to defend, indemnify and hold the Opus Parties harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees, disbursements, and court costs, including any incurred in enforcement of this indemnity) arising from, incurred as a result of, in connection with, or in any manner related to (i) your access to or use of the Service or any Service Content contained, displayed, or available therein; (ii) your violation or breach of this Agreement; and/or (iii) your violation of any applicable law, rule, regulation or ordinance, or any third party’s rights.
11. Denial of Access
If you violate, or are reasonably suspected by Opus of violating, this Agreement in any way, Opus may prohibit you from using or accessing the Service, in whole or in part, at any time, in its sole discretion, without notice to you. These actions are in addition to, and not in lieu or limitation of, any other right or remedy Opus may have available at law or in equity. Further, Opus shall not be liable to you or any third party for any such suspension or termination.
12. Force Majeure
WITHOUT LIMITATION TO ANY OTHER PROVISION IN THIS AGREEMENT, OPUS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT IF THE DELAY OR FAILURE ARISES OUT OF OR RESULTS FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, EARTHQUAKE, FIRE, FLOOD, STORMS, WAR, LABOR DISPUTES, INTERRUPTIONS, LOSS OR MALFUNCTIONS OF UTILITIES, COMPUTER OR COMMUNICATIONS SERVICES, ACCIDENTS, ACTS OF CIVIL OR MILITARY AUTHORITY OR GOVERNMENTAL ACTIONS, ACTS OF TERRORISM OR ANY OTHER ACT OF CIVIL OR MILITARY AUTHORITY OR GOVERNMENTAL ACTION.
13. Governing Law; Dispute Resolution
This Agreement and your access to and use of the Service is governed by the laws in effect in the State of New York, without giving effect to its conflicts of law provisions. By using the Service, you waive any claims that may arise under the laws of other countries or territories.
With respect to any and all disputes arising out of or in connection with the Service, this Agreement, or the Privacy Policy, you and Opus agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. If you and Opus do not resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by confidential binding arbitration in accordance with the commercial rules of arbitration of the American Arbitration Association in New York County, New York.
THE ARBITRATION OF DISPUTES PURSUANT TO THESE TERMS SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. YOU AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL YOU BE PERMITTED TO OBTAIN ANY AWARD FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) YOUR REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND YOU IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU.
The arbitrator's award shall be binding and may be entered as a judgment in a court of competent jurisdiction. You agree that Opus may seek any interim or preliminary relief from a court of competent jurisdiction in New York County, New York, necessary to protect its rights or property pending the completion of arbitration.
To the extent permitted by law, any claim or dispute arising out of or in connection with the Service, this Agreement, or the Privacy Policy, must be filed within one year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute isn't filed within one year, it's permanently barred.
14. Headings
The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
15. Assignability; Waiver; Invalidity
You may not assign or otherwise transfer this Agreement or any rights or obligations hereunder. Opus’s failure to act on any breach of any provision hereof shall not be construed as a modification or waiver of the enforcement of any provision unless Opus agrees to such waiver in writing. If any provision of this Agreement shall be held, be deemed or shall in fact be, invalid, inoperative or unenforceable as applied to any particular case or circumstance because of the conflicts of any provision with any law, regulation, ordinance or for any other reason, the provision or provisions in question shall not be invalid, inoperative or unenforceable in any other case or circumstance, nor shall any other provision or provisions herein contained thereby be or become invalid, inoperative or unenforceable, and such provision shall be reformed so that it would be valid, operative and enforceable to the maximum extent permitted in such circumstances.
16. Entire Agreement
This Agreement, together with Opus’s Privacy Policy and the Disclaimers, set forth the entire understanding between you and Opus with respect to the subject matter hereof and supersede any prior or contemporaneous communications, representations, or agreements, oral or written, between you and Opus with respect to such subject matter.
17. Contact Opus
If you have questions about the Service or this Agreement, please send us an email at info@opusfund.com, or a letter to the following address:
Opus Capital Management LLC
1 State Street
New York, New York 10004