Last Updated: [11/12/2022]
THE INFORMATION PRESENTED ON OR THROUGH THE SITE IS MADE AVAILABLE SOLELY FOR GENERAL INFORMATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THIS INFORMATION. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE SITE, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
The Fund and Business Relationship
ALTURA CAPITAL and the company and/or individual accessing this web site (“Recipient” or “you” or “your”) have expressed a mutual interest in determining whether the Recipient desires to and is qualified to purchase limited partnership interests in Altura Capital II, LP (the “Fund”) and, if such interests are purchased, in sharing certain information about the Fund over the course of the Fund’s life (such activities collectively referred to as the “Business Relationship”).
In order to establish and maintain the Business Relationship between the parties, it may be necessary for ALTURA CAPITAL to disclose to Recipient certain information which ALTURA CAPITAL considers to be confidential and/or proprietary (in writing, verbally, electronically, visually or otherwise) including, but not limited to, research, business, engineering and technical information, product information, formulations, ideas, clinical data and samples, financial data, projects, business plans and strategies, business alliances, trade secrets, research, products, services, customers, suppliers, markets, formulas, software, hardware, developments, inventories, processes, designs, drawings, marketing and any other information pertaining to the business and operations of ALTURA CAPITAL (including the Fund) and the Fund’s portfolio companies (collectively the “Information”). This Agreement sets forth the terms and conditions under which ALTURA CAPITAL will make its Information and this Site available to Recipient.
Disclosure of Information/Confidentiality
This Agreement will apply to all Information provided to Recipient during the parties’ Business Relationship. It is hereby acknowledged that the Information may be disclosed by ALTURA CAPITAL or on behalf of ALTURA CAPITAL by its designated related parties and/or consultants or collaboration partners and all such Information will be considered confidential Information of ALTURA CAPITAL under this Agreement. ALTURA CAPITAL will not be obligated to disclose Information under this Agreement, and the amount and type of Information provided under this Agreement will be completely within the discretion of ALTURA CAPITAL. Notwithstanding the termination of these Terms and the providing of Information hereunder, the parties will remain bound by the provisions contained in this Agreement with respect to all Information perpetually. For the avoidance of doubt, this Agreement is intended to cover only ALTURA CAPITAL’s disclosures of Information as ALTURA CAPITAL does not wish to obtain or receive any Information from Recipient via this Site, which Recipient considers confidential.
Unless otherwise authorized by ALTURA CAPITAL in writing, Recipient agrees not to (i) disclose the Information to any third party or (ii) use such Information for its own benefit or the benefit of any third party or for any purpose except as reasonably required solely in connection with the Business Relationship.
Recipient agrees that it will only disclose Information internally to those of its representatives (including officers, employees, affiliates and employees of affiliates and certain related parties) who are legally obligated to protect and treat such Information as confidential in the manner and to the extent provided in this Agreement; and further agrees that it will remain responsible for the performance of such representatives while employed by Recipient or its affiliates. Notwithstanding the foregoing, under no circumstances will any disclosure be made to any person that is employed by, or an independent contractor of, a competitor of ALTURA CAPITAL, the Fund or the Fund’s portfolio companies.
Upon written request of ALTURA CAPITAL, Recipient agrees to promptly return all Information, including but not limited to copies thereof, derivative works containing such Information, or, at the request of ALTURA CAPITAL, Recipient agrees to destroy that Information in a manner reasonably acceptable to ALTURA CAPITAL.
The obligations of confidentiality and restricted use set forth above will not apply to any Information which and to the extent that such is: (a) in the public domain at the time of its first disclosure hereunder, or thereafter enters into the public domain other than by a breach of this Agreement by Recipient; or (b) at the time of its first disclosure hereunder, is in the possession of Recipient as evidenced by competent proof; but the foregoing exclusion will not apply to any Information in Recipient’s possession due to a prior confidential disclosure by ALTURA CAPITAL or any of its representatives, affiliates or predecessors or named related parties; or (c) subsequent to its first disclosure hereunder, is disclosed to Recipient by a third party in lawful possession of the same who has the right to make such disclosure and who is not under any obligation of secrecy or restricted use with respect to such Information; or (d) independently developed by representatives or on behalf of Recipient without the Information or access thereto, directly or indirectly, as demonstrated by competent evidence. Specific Information disclosed by ALTURA CAPITAL will not be deemed within the exceptions set forth in this Section merely because it is embraced by more general information to which one or more of those exceptions may apply. In addition, any combination of features will not be deemed to be within the above exceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient’s possession. Even though Information is within one of the above exceptions, Recipient will not disclose to third parties that the excepted Information was provided by ALTURA CAPITAL.
Disclosures Required by Law
Disclosure by a Recipient that is required in a judicial, administrative or governmental proceeding will not constitute a breach of this Agreement, provided that Recipient timely notifies ALTURA CAPITAL of that requirement so that ALTURA CAPITAL is afforded a reasonable opportunity to oppose such requirement or otherwise seek an appropriate protective order. In any event, Recipient will disclose only that portion of the Information that it is legally required to disclose in connection with such judicial, administrative or governmental proceeding, and will request confidential treatment of such Information prior to disclosure. Notwithstanding the foregoing, the fact that such disclosure took place as a result of a lawful requirement or by operation of law, does not mean that any part of the Information disclosed is no longer considered Information for purposes of this Agreement.
Ownership of Content
Access to certain features on the Site may require you to be registered with us via a ALTURA CAPITAL-generated registration form. This form will require you to provide certain requested information, including personal information. Upon successful completion of this form, you will be provided with an account and login information including a username and password to successfully complete the registration process. You are the only person authorized to access and use your account. For more information about our collection of personal information about you in connection with account registration on the Site, please review our Privacy Notice.
You must immediately notify us if your registration information changes, or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
The Site may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Site. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to ALTURA CAPITAL or the Site resulting from unauthorized access to the Site from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
We collect, store, and use personal information collected from you in accordance with our Privacy Notice.
Third Party Sites/Links
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party sites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such sites.
YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, AND ANY SERVICES OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ALTURA CAPITAL NOR ANY PERSON ASSOCIATED WITH ALTURA CAPITAL MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER ALTURA CAPITAL NOR ANYONE ASSOCIATED WITH ALTURA CAPITAL REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, ALTURA CAPITAL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL ALTURA CAPITAL, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY SITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER SITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IN THE EVENT THE ABOVE IS UNENFORCEABLE, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF THE SITE OR ITS CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The parties acknowledge that in the event of breach of this Agreement by Recipient of any obligations in respect of the Information, ALTURA CAPITAL will be irreparably and immediately harmed and unable to be made whole by monetary damages. Recipient therefore agrees that, in addition to any legal or equitable remedies to which ALTURA CAPITAL may be entitled, ALTURA CAPITAL will be entitled to seek a restraining order, injunction, or other appropriate equitable relief to remedy any breach of this Agreement and/or to compel specific performance of this Agreement. Recipient agrees to reimburse ALTURA CAPITAL for all costs incurred in connection with ALTURA CAPITAL’s attempt to enforce the obligations of Recipient or its representatives hereunder. Recipient agrees to promptly: (i) notify ALTURA CAPITAL of any breach of this Agreement of which it becomes aware and, (ii) provide ALTURA CAPITAL with all information known to Recipient regarding such breach.
The validity, interpretation and effect of this Agreement will be governed by and construed under the laws of the State of Delaware without regard to conflicts of law principles. Each party hereby consents and submits to the jurisdiction and venue of the State and Federal Courts, situated in Delaware for adjudicating any issue with respect to this Agreement, including without limitation, its validity, interpretation and effect.
This Agreement may not be assigned by the Recipient without ALTURA CAPITAL’s prior written consent. ALTURA CAPITAL has the right to freely assign this Agreement.
Certain provisions contained herein will, by their nature, survive a termination of this Agreement. Expiration or termination of this Agreement will be without prejudice to any rights and liabilities accrued prior to such expiration or termination, including those rights and liabilities in respect of any breach of this Agreement.
No Violation of Applicable Law
Recipient will adhere to the US Export Administration Laws and Regulations and will not export or re-export any technical data or products received from ALTURA CAPITAL or the direct products of such technical data to any proscribed country listed in the US Export Administration Regulations unless properly authorized by the US Government.