Supplemental Terms of Use

SUPPLEMENTAL TERMS OF USE

Last updated June 2021

These Supplemental Terms of Use supplement and incorporate the Company’s Terms of Use available at https://www.cerebrocapital.com/terms-of-use/.

Please read these Supplemental Terms of Use (“Supplemental Terms”) carefully before agreeing to use the www.cerebrocapital.com website or any page thereof (collectively, the “Website”) and any services (the “Services”) offered or provided by Cerebro Capital, Inc. (“Cerebro,” “Company,” “we,” “us,” or “our”). For purposes of these Supplemental Terms, “you” or “your” means the person(s) using this Website and/or the Services, both in such person’s individual capacity and in such person’s capacity as an employee or agent, if applicable. 

Acceptance of These Supplemental Terms

These Supplemental Terms apply to all users of the Website and Services who have indicated acceptance hereto. These Supplemental Terms expand on the Company’s Terms of Use, available at https://www.cerebrocapital.com/terms-of-use/ (the “Terms of Use” and collectively with these Supplemental Terms, the “Terms”), which remain binding on all users. The Terms of Use are incorporated into these Supplemental Terms as if fully set forth herein. The term “Services” as set forth in the Terms of Use includes the Services as defined below, along with any additional services provided to you by us.

Your access to and use of the Website and the Services beyond the point at which you are prompted with these Supplemental Terms is conditioned upon your acceptance of and compliance with these Supplemental Terms.

BY ACCESSING OR USING THE WEBSITE OR SERVICES, YOU AGREE (ON BEHALF OF YOURSELF AND ANY INDIVIDUAL OR ENTITY OF WHICH YOU ARE AN EMPLOYEE OR AGENT) TO BE BOUND BY THESE TERMS. IF YOU DISAGREE WITH ANY PART OF THESE TERMS THEN YOU DO NOT HAVE PERMISSION TO ACCESS AND MUST IMMEDIATELY CEASE USING THE WEBSITE OR SERVICES.

 

Scope of Engagement

Provision of Access

Subject to and conditioned on your compliance with the terms and conditions of this Agreement, we hereby grant you a non-exclusive, non-transferable right to access and use the software as described in the materials made available to you (the “Services”). Such Services may include access to one or more virtual data rooms, the use of which is governed by these Terms.

 

The Services may include provision of your information to certain third parties, including but not limited to certain borrowers or lenders who have access to the Services (any such third party to whom we share your information, a “Counterparty”). You hereby authorize us to share such information with such Counterparties, subject to and consistently with our Privacy Policy, which is available at https://www.cerebrocapital.com/privacy-policy/ and is incorporated by reference herein.  

 

Acknowledgements

 

In addition to the acknowledgements set forth in the Terms of Use, you specifically acknowledge that:

 

  • We do not make any loans or credit decisions, issue commitments on any loan agreements, act as your agent, or provide financial or investment advice. We are not a financial institution and your provision of any information to us for use of the Services is not and does not constitute a loan application. We are not an attorney or an accountant, and any communications between you and us are not to be construed as legal, accounting, or other professional advice.
  • If and when your information is provided to Counterparties, you may be asked to upgrade your account, subject to additional terms and conditions applicable to such upgrade. You have no right to receive information about or from Counterparties by virtue of these Terms.
  • You may, at some point, be put in direct contact with one or more Counterparties. You may be required to complete a formal application by any such Counterparty, which such application may require you to pay additional fees or costs directly to such Counterparty.

Authorized Users

 

Access and use of the Services is solely for your employees, consultants, contractors, and agents (i) who are authorized to access and use the Services under the rights granted pursuant to this Agreement, and (ii) if applicable, for whom access to the Services has been purchased (collectively, “Authorized Users”). We will provide the necessary passwords and network links to allow you to access the Services, and you hereby agree to treat such information as confidential. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.

 

You are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you.

User Contributions & Commitments

Contributions

The Website may contain interactive features that allow you to submit information to the Company (“User Contributions”). In making any such submission, you represent and warrant that:

  • You own or control all rights in and to the User Contributions;
  • All information set forth in the User Contributions is accurate;
  • You are submitting the User Contributions for the purposes set forth in the feature soliciting such contributions; and
  • All of your User Contributions do and will comply with these Terms.

You are solely responsible for the accuracy of any User Contribution. You specifically acknowledge and agree that (i) we are not responsible for the accuracy of any User Contribution; (ii) we do not verify or conduct diligence regarding the accuracy of any User Contribution; and (iii) information from any User Contribution may be disclosed to and relied upon by Counterparties. 

 

By submitting any User Contribution, you grant the Company a non-exclusive, royalty-free, worldwide license to use the information contained therein and to use and display any such information incorporated within any aggregated statistics.

 

Commitments

 

You hereby agree to receive any notices about the Services electronically, that your information technology systems meet the technical requirements for such receipt, and that you are able to access and retain copies of any notices or other information that is sent to you or otherwise made available to you electronically.

You hereby agree to not circumvent or attempt to circumvent, including by way of assisting, or attempting to assist, any Counterparty in circumventing, the relationship between any Counterparty and the Company or between you and the Company in an effort to reduce, remove or avoid any fees, commissions, remunerations or any other consideration, or to otherwise cause the same not to be paid to the Company or its affiliates.

Should the Company contact you regarding the status of any proposed transaction between you and any Counterparty, or any related topic, you hereby agree to truthfully inform the Company of the status and substance thereof.

Fees and Payment

You hereby agree to pay any and all fees that are communicated to you by the Company and to which you have electronically acknowledged your consent, including but not limited to any fee imposed due to the renewal or autorenewal of any subscription. When you agree to utilize those Services for which the Company charges a fee, you will be required to input payment information for your credit card or other payment method. You hereby agree to have the Company charge you, via your credit card or other payment method, for the fees related to any Services that you have agreed to purchase, and to pay any such fees pursuant to any terms communicated to you by the Company. All fees paid by you or on your behalf to the Company are non-refundable unless explicitly set forth otherwise herein. All fees must be paid in US dollars. 

 

Please note that certain Counterparties may pay the Company a fee for certain transactions. Such fees are separate and apart from any fees to which you agree.

 

Termination

In addition to the Monitoring and Enforcement rights set forth in the Terms of Use, and any other termination or suspension rights set forth therein, the Company may restrict access to your account at any time and for any reason, provided, however, that if the Company restricts access to your account for a reason other than your suspected violated of the Terms, then if applicable, the Company will refund the prorated portion of any fees or payments made for the remainder of the applicable period to which such fees or payment applied.    

Upon termination of your right to access the Services, you shall immediately discontinue any use thereof.

The Company may, following termination, delete or retain any User Contribution or other information, consistently with the Privacy Policy.

Confidentiality

Your Confidential Information  

 

We hereby agree to treat any User Contribution or non-public, proprietary, or confidential information provided by you as “Confidential Information,” which we may use and disclose for the purpose of exploring a business relationship with you, providing the Services, and communicating with Counterparties in order to determine such Counterparties’ interest in a business relationship with you (the “The Purpose”). We will not use or disclose your Confidential Information except as necessary to carry out the Purpose; provided, however, that pursuant to and consistent with the Privacy Policy, we may use your Confidential Information to compile aggregated statistics or otherwise use anonymized information to improve our business.

 

Counterparty Confidential Information

 

If the Company discloses or otherwise makes available any non-public, proprietary, or confidential information about any Counterparty to you, you hereby agree to use and disclose any such information solely for the purpose of exploring a business relationship and closing a financial transaction with such Counterparty and performing your obligations to Cerebro. You hereby agree to safeguard any such information from unauthorized use, access or disclosure using a commercially reasonable degree of care in the industry in which the Counterparty operates, or the degree of care used to protect your own confidential and proprietary information, whichever provides a higher degree of care. You shall, at such Counterparty’s request, promptly return or destroy such Counterparty’s information. The applicable Counterparty is hereby designated as a third-party beneficiary of this Agreement, having the right to enforce this Agreement directly against you.

 

If Company discloses or otherwise makes available your Confidential Information to any Counterparty, the Company will require any such Counterparty to sign or acknowledge confidentiality restrictions similar to those set forth herein. You expressly agree and acknowledge that, other than requiring an agreement or acknowledgement of confidentiality, the Company makes no representations or warranties regarding, and shall not be responsible for, any Counterparty’s receipt of, use OF, disclosure OF, OR FAILURE TO SECURE your Confidential Information. You hereby release Cerebro from any liability involving any Counterparty’s receipt of, use of, disclosure of, or failure to secure your Confidential Information. We have no obligation to enforce any confidentiality agreement with any Counterparty and, to the extent you are a third-party beneficiary of any such agreement, you shall directly enforce any such agreement against the applicable Counterparty.

 

You may enter into any direct agreement with a Counterparty regarding Confidential Information, either via the Confidentiality Agreement provided by the Company regarding access to a dataroom, or an agreement provided by either Counterparty. In such event, however, you hereby authorize such Counterparty to disclose any Confidential Information to us for the purpose of providing the Services or ascertaining compliance with these Terms or any other agreement between you and us.

 

Cerebro Information

 

You acknowledge that the Company may disclose to you its confidential information (“Company Information”), defined as any information about the Company or its business (including but not limited to all aspects of your account, the Company’s processes, any data room to which you are granted access, and any communications with Counterparties, among others) that is not publicly accessible.  You hereby agree (a) not to disclose or otherwise make available Company Information to any third party without the prior written consent of the Company; provided, however, that you may disclose the Company Information to your officers, employees, consultants, affiliates, and legal advisors who have a “need to know,” who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations substantially similar to those set forth herein; and (b) to use the Company Information only for the purposes of performing your obligations under these Terms or making use of the Services; and (c) to promptly notify the Company in the event you become aware of any loss or disclosure of any Company Information.  If you become legally compelled to disclose any Company Information, you shall provide: (a) prompt written notice of such requirement so that the Company may seek a protective order or other remedy; and (b) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. 

You agree to take and use particular caution when accessing the Services, especially if accessing from a public or shared computer, so that unauthorized third parties are not able to view or record Company Information.

Equitable Relief

You acknowledge and agree that any breach of your confidentiality obligations pursuant to this Section will cause injury to Cerebro or the applicable Counterparty and, in such event, money damages would be an inadequate remedy. As such, in addition to remedies at law, Cerebro shall be entitled to equitable relief as a remedy for any such breach.

DISCLAIMERS; LIMITATION OF LIABILITY

In addition to the disclaimers set forth in the Terms of Use, you hereby agree to the following additional disclaimers.

 

We do not endorse or recommend any Counterparty. We make no representations or warranties about the quality of any Counterparty. If you are communicating with one or more Counterparties, we make no representations and warranties about any such communications. We do not act as an agent of any Counterparty and we do not guarantee that any transaction between you and any Counterparty will transpire. We do not make any representations regarding the terms any Counterparty may offer to you, including but not limited to whether such terms are favorable to you or whether you might obtain more favorable terms elsewhere. We may elect to exclude certain Counterparties from any list made available to you at our discretion and based on factors that we may determine.    

 

We do not endorse or recommend you to any Counterparty. In performing the Services, we are not acting as your agent. We do not guarantee funding of any kind or the success of any transaction. To the extent we provide Services to assist or facilitate you in seeking a transaction with any Counterparty, we provide any such Services on an as-is basis and we make no representations or warranties regarding the quality of such services.

 

Should you communicate with any Counterparty, you are solely responsible for having legal counsel review all communications with any such Counterparty. We do not verify or conduct diligence regarding the quality or accuracy of any data or information provided by any Counterparty, and we are not responsible for the accuracy of any such information. Your reliance upon any such information is at your own risk.  

 

To the extent you are required by any Counterparty to pay any fees or costs directly to such Counterparty, you specifically acknowledge and agree that we are not, and will not be, responsible for any such cost.

 

You acknowledge that certain Counterparties may agree to pay fees to Cerebro on or upon the completion of certain transactions, which such fees may (or may not) be reflected in the flow of funds documentation. The existence or expectation of such fees may impact the terms that such Counterparty offers to you. Cerebro does not make any representations to you about the terms you may be offered by any Counterparty, which may be more or less favorable than terms you would have obtained from such Counterparty outside of the Website and Services. You are solely responsible for reviewing the terms offered to you by any Counterparty, conducting due diligence regarding such terms, and making the ultimate decision as to whether to accept such terms. To the extent any Counterparty agrees to or does pay such fees to Cerebro, Cerebro is not responsible for disclosing such fees (or the impact of such fees on the terms provided to you, if any) to you. Consistently with your non-circumvention obligations as set forth above, you hereby agree not to request that any Counterparty reduce, remove or avoid any fees, commissions, remunerations or any other consideration that such Counterparty has agreed to pay to Cerebro.  

 

IN ADDITION TO THE GENERAL DISCLAIMER OF WARRANTIES SET FORTH IN THE TERMS OF USE, WE HEREBY DISCLAIM ALL WARRANTIES RELATED TO THE SERVICES AND ANY COUNTERPARTIES. UNDER NO CIRCUMSTANCES WILL THE COMPANY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY OUR PROVISIONS OF THE SERVICES, OR YOUR COMMUNICATIONS OR DEALINGS WITH ANY COUNTERPARTY. USE OF THIS WEBSITES AND/OR THE SERVICES IS AT YOUR OWN RISK. TO THE EXTENT ANY DISPUTE ARISES BETWEEN YOU AND ANY COUNTERPARTY, YOU HEREBY AGREE THAT SUCH DISPUTE IS BETWEEN YOU AND THE APPLICABLE COUNTERPARTY AND YOU HEREBY RELEASE CEREBRO FROM ANY LIABILITY OR DAMAGES CAUSED BY OR ASSOCIATED WITH ANY SUCH DISPUTE.

IN NO EVENT WILL CEREBRO BE LIABLE IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE), FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

 

THESE TERMS ARE INTENDED TO DISCLAIM ANY AND ALL LIABILITY TO YOU. TO THE EXTENT THE COMPANY IS FOUND LIABLE TO YOU BY A COURT OR OTHER BODY OF COMPETENT JURISDICTION, IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE) EXCEED ONE TIMES THE TOTAL AMOUNTS PAID TO THE COMPANY UNDER THESE TERMS IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

 

Indemnification

You hereby agree to indemnify and hold harmless, and at the Company’s option, defend the Company and its affiliates, from and against any and all liabilities, costs, expenses (including any reasonable attorneys’ fees), and other damages arising out of or related to claims resulting from your use of the Services alleging facts that, if true, would constitute your breach of these Terms.  Notwithstanding the foregoing, if you do assume the obligation to defend such claims, you may not settle any such claim against the Company unless Company consents to such settlement, and further provided that the Company will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.

 

Changes to These Terms

We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them or otherwise notify you.  Your continued use of the Services following the posting pr notification of revised Terms means that you accept and agree to the changes.

 

All Other Provisions

All other provisions set forth in the Terms of Use, including but not limited to the sections captioned Governing Law and Jurisdiction; Waiver and Severability; and Entire Agreement, shall apply to these Terms.