General terms and Conditions
1. Scope, Definitions and Construction
1.1 This Agreement sets out the terms and conditions in accordance to which the Supplier provides the Services in connection with, and the Individual Clients make use of, the EliteConnect platform. The present Agreement is made up of: (i) the General terms and Conditions; (ii) the Subscription Form (available at www. elite-connect.com after having requested registration), (iii) the Commercial Proposal (available at www.elite-connect.comafter having requested registration) and (iv) the Technical Specifications and Set-Up Guide (available at www.elite-connect.com).
The Annex and the Schedules form an integral and substantial part of this Agreement. In the event of any inconsistencies between the provisions set out in the General Terms and Conditions (including the Annex thereto) (on one side) and those contained in the Schedules (on the other), the General Terms and Conditions shall prevail.
1.2 Capitalised terms used in this Agreement shall have the meaning set out in the Annex (Definitions) to this Agreement.
2. Execution of the Agreement
2.1 The Individual Client acknowledges and accepts that the Supplier is entitled, at its sole and absolute discretion and without being obliged to give reasons, to decline any request for activation from the Individual Client, including - without limitation - in the following cases:
a. failure to provide the information set out in the Subscription Form (or in response to any subsequent requests for information by the Supplier) or provision of information which is false or inaccurate or reasonably believed to be false or inaccurate;
b. the Individual Client is not eligible to be treated as an Individual Client;
c. the Individual Client is in breach of any obligations under any other agreement entered into with the Supplier;
d. technical problems which prevent the activation of one or more Services.
The Individual Client acknowledges and agrees that it shall not have any rights or claims in connection with any rejection of a Subscription Form.
3. Eligibility Criteria – Services Provided – Territorial Scope
3.1 The Services are not designed for, and must not be used by, Individual Clients to carry out investment activities through EliteConnect.
3.2 Access to EliteConnect is restricted to (i) legal persons who are Issuer Companies, Professional Investors or Financial Advisors (Business Clients) (ii) employees acting on behalf of Issuer Companies, Professional Investors or Financial Advisors as notified to the Supplier in accordance with this condition (together Business Clients); and (iii) natural persons who have employment relationships with Business Clients (Individual Clients).
Individual Clients are granted access to EliteConnect in their own name and on their own behalf only and are granted access to Basic Services only. The Individual Client hereby acknowledges and agrees that the platform EliteConnect will be used in the context of his/her trade, business or profession and therefore the provisions of any relevant consumer protection laws and regulations will not apply to the Agreement.
3.3 The Supplier reserves the right to supplement or change from time to time the Services and/or the technical, functional, administrative and operational performance of the Services where it deems this appropriate or necessary, giving notice to the Individual Client thereof. Any additional or amended Services provided by the Supplier to the Individual Client will be governed by this Agreement.
3.4 The Services and the Information provided in the context of the Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Supplier to any registration requirements within such jurisdiction or country. The Supplier reserves the right to limit, in whole or in part, the availability of the Services, contents, programs and products to any person, geographic area, or jurisdiction, at any time and at the Supplier’s sole discretion.
4. Activation of the Services - Data - Company Administrator
4.1 The activation and use of the Services are subject to the set-up of a specific user account, including an ID and a password provided by the Individual Client. Individual Clients are encouraged to use “strong” passwords (i.e., passwords that use a combination of upper and lower case letters, numbers and symbols). With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers, the Supplier prohibits the creation, and the Individual Client acknowledges and agrees that it will not create, any accounts for anyone other than the Individual Client.
The Individual Client acknowledges that it is solely responsible for keeping the password confidential. The Individual Client must adopt any necessary measures in order to prevent unauthorized use, keep the password confidential and ensure that the password will not be shared with any third party. The Individual Client shall promptly notify the Supplier in writing of any unauthorized use of the ID and/or password and of any other events, including by way of example the theft or loss of the above data, which may lead to any unauthorised access to the Platform.
4.2 Any Data uploaded or otherwise stored (including notes of meetings and messages) on EliteConnect by Individual Clients shall be the exclusive property of the relevant Individual Clients who shall comply with any restrictions on the use and dissemination of such Data. The Supplier shall have no responsibility or liability in connection with any breaches by the aforesaid individuals of any limits and restrictions arising under applicable law or regulation or which the Individual Clients may notify to them.
4.3 The Subscription Form sets out the Identification Data required for the activation of the Services and an attestation by the Individual Client that such Data are true and accurate. The Individual Client shall promptly – and in any event no later 7 (seven) days from the occurrence thereof - notify the Supplier of any changes to the Identification Data including any termination of employment relationships with any Business Clients.
4.4 The Individual Client represents and warrants that the Profile Data is not and will not at any time be in breach of third party rights, including intellectual property rights connected to the Profile Data.
5. Obligations of the Individual Client
5.1 The Individual Client acknowledges that the Services provided through EliteConnect are IT services dedicated to Individual Clients and Business Clients only and that they are aimed at allowing interaction between them through various functionalities, in strict compliance with any applicable laws or regulations and that the Supplier does not act as a broker or adviser. The Individual Client undertakes to use the Services in good faith and for lawful purposes only and in accordance with the provisions of any applicable laws and regulations.
5.2 Without prejudice to the generality of the foregoing, the Individual Client shall:
a) use the Services in compliance with the intellectual property rights of the Supplier or any third party and upload on EliteConnect only information, images or any other Data under its legal control and in compliance with any contractual or legal provision or any decisions issued by a public authority, administrative or judicial;
b) act in strict compliance with any laws and regulations aimed at preserving market integrity and, accordingly, not to upload on EliteConnect any Data or information which: (i) cannot be made public under applicable law or regulation or stock exchange listing and disclosure rules; (ii) is inside information (or its equivalent howsoever described under any applicable law or regulation); (iii) creates, or may create, a false or misleading impression in relation to any company or financial instrument; or (iv) is otherwise in breach of any applicable law or regulation relating to insider dealing or market abuse,;
c) not to upload any data of offensive, racist or pornographic nature or otherwise objectionable;
d) keep the safety of the user account access codes and not to transfer such data to any unauthorized persons, being liable for the safety of such data vis-à-vis the Supplier and third parties;
e) not to cause, either directly or indirectly, any breach of Supplier’s IT systems including any privacy breach, third party data integrity breach, and shall not use any type of spider, virus, worm, spam which could damage in any way EliteConnect or other IT systems;
f) not to impact or attempt to impact the availability, in full or in part, of the Services by other Individual Clients or Business Clients;
g) process and cause its own employees to process any data and information relating to the Services in a safe and confidential manner;
h) when data and communications are directed to, or in any case accessible by, Individual Clients or Business Clients based in the United Kingdom, ensure that any Data uploaded and communications exchanged through EliteConnect, comply with the financial promotions rules from time to time applicable in the United Kingdom;
i) when data and communications are directed to, or in any case accessible by, Individual Clients or Business Clients based in the U.S., ensure that the use of the Services, including the uploading of Data, is in compliance with , any US Federal or State securities laws.
l) when data and communications are directed to, or in any case accessible by, Individual Clients or Business Clients, ensure that the use of the Services, including the uploading of Data, is in compliance with any laws and regulations applicable from time to time in the country where these clients are based.
5.3 In any case in which the Supplier concludes - or has reasons to suspect- in good faith that the Individual Client is in breach of its obligations hereunder, the Supplier will be entitled to adopt any necessary measures to avoid any further breach or damages, including immediate suspension or interruption in the provision of the Services without being obliged to give reasons thereof. Without prejudice to condition 6.2, the Supplier shall also be entitled to remove Data, or documentation containing Data, which are, or are reasonably believed to be, in breach of any provisions of laws or regulations or third party rights, also following a warning received from third parties or other Individual Clients or Business Clients. The Supplier shall also be entitled to terminate this Agreement with immediate effect, without prejudice to its ability to be indemnified for any damages deriving from any failure to comply with this Agreement. The Individual Client will not be entitled to any type of indemnification with respect to any suspension or interruption decision and/or measure adopted by the Supplier. The Individual Client undertakes to indemnify and keep indemnified and hold harmless the Supplier for any liability, damages, claims, costs, loss, expenses, charges, or prejudice suffered or incurred by the Supplier, arising from, or in connection with, a breach of the Agreement by the Individual Client. The Supplier shall have no obligation to monitor, or verify the accuracy and veracity of, the contents of the Data uploaded on, or the activities carried out through, EliteConnect. The Supplier does not have editorial control over the contents of the Data uploaded by the participants on EliteConnect platform.
6. Exclusion of warranties and limitation of liabilities
6.1 The activation and use of the Services shall be under the exclusive control and responsibility of the Individual Client. The Individual Client acknowledges and agrees that upon his/her registration he/she shall be responsible for the use and the maintenance of his/her user account, including any liability related to the maintenance of the Data Profile towards the Supplier and any third parties, and shall indemnify and keep indemnified and hold harmless the Supplier against any liability, damages, claims, costs, loss, expenses or charges arising out of or relating to any third party’s claims or actions. The Individual Client is solely responsible for any interaction with other users of EliteConnect, whether online or offline.
6.2 The Individual Client acknowledges and agrees that the Supplier shall not be responsible in any manner whatsoever for the information, Data, content inserted, processed or used in any way by the Individual Client through the Services with respect to which. Furthermore, the Individual Client shall indemnify and keep indemnified and hold harmless the Supplier against any liability, damages, claims, costs, loss, expenses or charges arising out of or relating to any third party claims (including, without limitation, any claims of IP infringement) against Supplier or its Group arising from use of or access to the Services, or for any content or Data submitted to the Services by Individual Client. The Individual Client acknowledges and agrees that the Supplier shall have no responsibility for the conduct of other Individual Clients or Business Clients through EliteConnect or otherwise. The Individual Client is solely responsible for compliance with the applicable laws and regulations in conducting any activity on, through or in conjunction with EliteConnect.
6.3 The Supplier gives no warranties and shall have no responsibility with respect to the suitability of the Services with respect to their proposed use by the Individual Client, and the Individual Client agrees that Elite Connect and the Services are provided on an “as is” and “as available” basis. Individual Client acknowledges and agrees that in entering into the Agreement, it did not rely on any representations of any kind, other than as set out in this Agreement, and the Supplier shall have no liability in any circumstances other than in accordance with express terms of this Agreement.
6.4 The Supplier shall use its reasonable endeavours to ensure the proper performance of EliteConnect and of the Services, provided that it shall not be responsible in any manner whatsoever towards the Individual Client or third parties for the suspension, interruption, malfunctioning or delay caused by events outside its reasonable control including but not limited to:
a) accidental events and force majeure;
b) catastrophic events, wars, terrorist attacks, flood, fire;
c) national or local strikes;
d) electric energy service interruption, interruption and/or malfunctioning of electronic data transfer due to third party;
e) constraints and prohibition orders provided by the law or a judicial/administrative decision.
6.5 Subject to all limitations contained in this Agreement, in particular clauses 6.1 – 6.4 above and 7.3 below, to the maximum extent permitted by law, the Supplier shall not be liable to the Individual Client for any loss, (whether direct, indirect or consequential) including, without limitation, loss of or corruption to data, reputation, profits, revenues, business opportunities or otherwise, related to the Individual Client’s use of, or inability to use, Elite Connect or the Services. If, notwithstanding the aforementioned, the Supplier is determined by a court of competent jurisdiction to be liable to the Individual Client, such liability shall not exceed, for any and all claims in the aggregate, an amount that is the lesser of £1000 or the yearly fees paid by the Individual Client for the Premium Services.
6.6 These limitations of liability are an essential part of the Agreement between the Individual Client and ELITE S.p.A.. The parties expressly acknowledge and agree the reasonableness of these limitation of liability provisions.
7. Suspension and interruption of the Services
7.1 The Individual Client acknowledges and agrees that:
a) the actual speed of the net connection depends on, inter alia, the net congestion layer, as well as the Individual Client’s IT infrastructure quality, so that the Supplier does not guarantee the actual access to the Services;
b) the Services may be suspended and/or interrupted, due to IT technical infrastructure or software malfunctioning and that this could jeopardize the integrity of the data stored.
7.2 The Supplier shall be entitled to suspend and/or interrupt the delivery of the Services, without prior notice:
a) in cases of breach by the Individual Client of this Agreement;
b) in the event of any breakdown or malfunctioning of the Supplier’s and/or the Supplier’s suppliers’ IT infrastructure or software;
c) in the event of breakdown and/or malfunctioning which could cause damage to the net system or to any persons;
d) for safety or confidentiality reasons;
e) in the event of breakdown or malfunctioning of the Services infrastructure depending on accidental events or force majeure, as well as in the event of urgent amendments or maintenance.
7.3 The Individual Client acknowledges and agrees that in any events of Services’ delivery suspension or interruption, the Supplier shall not be responsible towards the Individual Client, nor towards its successors or third parties, for any failures in the provision of the Services. The Supplier does not guarantee the continuity of the Services or the integrity of the data recorded through EliteConnect or internet.
8.1 Individual Clients may have access to Basic Services only. Premium Services are dedicated to Business Clients only.
9.1 The Individual Client will be granted a limited, non exclusive, non sub-licensable, non assignable, licence to any rights of use of any software necessary to receive the benefit of the Services owned or licenced by the Supplier, for the term of the validity of this Agreement and in accordance with any terms and conditions. With reference to third party software, the Supplier shall procure any required license, if any, and the Individual Client will be granted with such a license, being understood that the relevant use shall be consented exclusively in compliance with the applicable terms and conditions provided by the third party owner.
9.2 Upon termination of this Agreement, the Individual Client shall immediately cease to use any software and any other products provided by the Supplier in accordance with this Agreement.
10. Intellectual Property Rights
10.1 EliteConnect and any other products provided through the Services (such as, by way of example, the software) encompass information and intellectual property owned by the Supplier or its third party providers, so that such data and intellectual property shall be deemed confidential and protected under the applicable intellectual property law.
10.2 Any content on EliteConnect that is under the exclusive control and management of the Supplier, including texts, graphics, logos, music files, pictures, software, downloads are owned by the Supplier, its licensors or its affiliates and are protected under the applicable national law, the European Community and International Copyright Laws, therefore such data shall not be reproduced, copied, modified or used in any way without the express written consent of the Supplier.
10.3 “EliteConnect”, the EliteConnect trademarks and the EliteConnect logos are commercial brands registered by the Supplier, or by the companies of the London Stock Exchange Group of which the Supplier is part. Therefore they cannot be used without the express written consent of the owner in relation to other products or services which are not owned by the Supplier, to the purpose or effect of causing confusion between the users or causing offense or damage to the Supplier in any way. Any other trademark which is not owned by the Supplier, displayed on EliteConnect website, belongs to its relevant owner, therefore it cannot be used, reproduced, copied, modified without the express authorization of its owner; to this purpose, the Client acknowledges and agrees to keep harmless and indemnified the Supplier from any claim, action, exception of any third party arising from the unauthorized use of such trademarks, in breach of the above provisions.
10. 4 Notwithstanding anything to the contrary in this Agreement, the Individual Client grants the Supplier a non-exclusive, worldwide, transferable and sub-licensable licence to use, publish, process, modify and reproduce any Profile Data on the public website of EliteConnect.
11.1 Without prejudice to any rights to suspend provision of the Services under this Agreement, the Supplier will be entitled to terminate this Agreement, should the Individual Client:
a) breach any of the provisions of the Agreement, including failure to pay any fees hereunder;
b) use the Services for purposes other than the permitted use;
c) be subject to any insolvency or bankruptcy procedure;
d) in case of Issuer Companies, resolve upon the delisting of its financial instruments or in the event the company which manages the relevant market where these instruments are negotiated - suspends or revokes the listing of these instruments;
e) terminate their employment relationship with any Business Clients;
e) in case of Financial Advisors, has its licence to provide investment services terminated, revoked or suspended;
g) be subject to any kind of civil, criminal administrative, judicial measure, immediately effective, which could prejudice in any way the Individual Client and potentially damaging the Individual Clients’ economic or financial status or its reputational, commercial and/or professional status;
and the Individual Client agrees that it shall notify the Supplier immediately if any of (b) to (g) occurs.
11.2 Upon the occurrence of any of the foregoing events, the Supplier will be entitled to terminate the Agreement by sending a notice by registered letter [or by e-mail] to the address indicated by the Individual Client in the Subscription Form. In such cases the Individual Client shall not have any right to claim any indemnity, reimbursement, damages or compensation for the period of time the Services have not been provided.
12. Right of Withdrawal
12.1 Without prejudice to the Supplier’s rights to receive any fees outstanding at the time of termination, the Individual Client will be entitled to withdraw from this Agreement at any moment by sending a request to the Supplier to close its user account, and shall immediately thereafter cease to use of any software and/or other products provided by the Supplier in connection with the Services.
13. Privacy and Data Protection
13.2 The Supplier and its employees, or third parties duly authorized by the Supplier, may have access to the Individual Client’s Data only for the purposes of carrying out maintenance activities on EliteConnect. The Supplier undertakes that any Data accessed in the performance of these activities shall be kept confidential and processed in compliance with any applicable privacy laws.
13.3 Where we collect personal information, we will use it in delivering the Services, for administration and to tailor our Service and/or products to match your needs.
13.4 We may employ the services of a third party to help us in certain areas, such as website hosting and marketing. In some cases that third party may receive your information. However, at all times we will control and be responsible for the use of your information.
13.5 By providing us with your personal information, you consent to our transferring your information to countries or jurisdictions which do not provide the same level of data protection as the UK, including without limitation countries or jurisdictions outside the EEA. If we do make such a transfer, we will, if appropriate, put a contract in place to ensure that your information is protected.
13.6 At all times we are legally obliged to collect, retain and process any personal information that you provide in accordance with the EU Data Protection Directive (Directive 95/46/EC) as amended or updated from time to time.
14. Assignment of the Agreement
14.1 The Individual Client shall not be entitled to assign, in whole or in part, this Agreement or any rights and obligations arising hereunder to third parties. The Individual Client hereby consents, to any assignment - in whole or in part - of this Agreement or of any rights and obligations arising hereunder by the Supplier to any member of its Group or to a third party.
15.1 Without prejudice to the Individual Client’s withdrawal rights, the Supplier is entitled to amend the Agreement, including the fees due for Premium Services, by giving prior notice thereof to the Individual Client.
16. Governing law and jurisdiction
16.1 This Agreement shall be governed by and construed in all respects in accordance with English law and the parties hereby submit irrevocably to the exclusive jurisdiction of the English courts to resolve any dispute between them.
16.2 Any non-contractual disputes or claims arising between the Parties in relation to this Agreement shall be submitted to the exclusive jurisdiction of the English courts.
17. Final provisions
17.1 Any failure or delay by the Supplier in enforcing an obligation, or exercising a right or remedy hereunder, does not amount to a waiver of that obligation, right or remedy, or to waiving any right to claim compensation.
17.2 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
17.3 The Individual Client accepts that any communications made in accordance with the present Agreement will be made by electronic mail to the address email@example.com if to the Supplier, and to the address indicated in the Subscription Form if to the Individual Client. All written communications will be deemed received and properly served 24 hours after an e-mail is sent, or five days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
17.4 Provisions of this Agreement which either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such expiry or termination.
Annex – Definitions
In this Agreement, unless the context otherwise requires, capitalised terms shall have the following meetings. Terms defined in the singular have the same meaning in the plural, and vice versa.
“Additional Services” means all the IT services provided by the Supplier in favour of the Business Client, on a subscription fee basis, including the access to a scheduler, a relationship management tool and other services, as better described in the Commercial Proposal;
“Administrative Representative” means the person appointed by the Business Client in the Subscription Form responsible for any necessary administrative activities, including but not limited to, invoicing, debit or credit procedures, claims, etc. The Administrative Representative acts in the name and on behalf of the Business Client;
“Agreement” means collectively these General Terms and Conditions, the Subscription Form, the Commercial Proposal and any other connected or related document;
“Basic Services” means all the IT services provided by the Supplier in favour of the Individual Client including the, management and maintenance of the user account, as better described in the Commercial Proposal;
“Business Client” means Issuer Companies; Professional Investors and Financial Advisors who execute this Agreement and any individuals acting on their behalf;
“Client” means either an Individual Client or a Business Client;
“Commercial Proposal” means the documents and/or any other information which describes the functionality of the Services and the relevant economic conditions Services;
“Company Administrator” means the person identified through the Subscription Form by the Business Client in charge for managing, updating, verification, and control of the Profile Data. The Company Administrator acts in the name and on behalf of the Business Client;
“Data” means any information, text, image, as well as any other data, included Identification Data and Profile Data, transmitted by the Client through EliteConnect;
“EliteConnect” means the web platform www.elite-connect.com;
“Financial Advisors” means professionals (either companies or individuals) who provide companies with advisory services on financial issues;
“General Terms and Conditions” means these General Terms and Conditions;
“Group” means in relation to a party, that party and its group undertakings. For the purposes of this Agreement, “group undertakings” shall be construed in accordance with section 1161 of the Companies Act 2006.
“Identification Data” means the Client’s identification data, provided by the latter at the Agreement’s execution date and during the Services activation procedure or during the Agreement;
“Individual Client” means any individual who works for Issuers Companies or Professional Investors or Financial Advisors who enters into this agreement for the provision of the Base Services and shall accesses the platform in its own name and responsibility;
“Issuer Companies” means companies which issue financial instruments that are listed on the regulated markets managed by Borsa Italiana S.p.A. or by the London Stock Exchange Group plc, and on further markets identified by the Supplier as operator of the Services and of EliteConnect;
“Parties” means collectively the Client and the Supplier;
“Premium Services” means all the IT services provided by the Supplier to the Business Client, upon payment of a specific amount, as better described in these General Terms and Conditions;
“Professional Investors” means professional entities falling under the definition of Per se Professional Clients in accordance with Annex 2, paragraph 1, of MiFID and namely:
- Credit institutions;
- Investment firms;
- Other authorised or regulated financial institutions;
- Insurance companies;
- Collective investment schemes and management companies of such schemes;
- Pension funds and management companies of such funds;
- Commodity and commodity derivatives dealers;
- Other institutional investors;
- Large undertakings meeting two of the following size requirements on a company basis:
- — balance sheet total: EUR 20 000 000;
- — net turnover: EUR 40 000 000;
- — own funds: EUR 2 000 000;
- National and regional governments, public bodies that manage public debt, Central Banks, international and supranational institutions such as the World Bank, the IMF, the ECB, the EIB and other similar international organisations;
- Other institutional investors whose main activity is to invest in financial instruments, including entities dedicated to the securitisation of assets or other financing transactions.
“Profile Data” means any kind of information, including, without limitation, news, data, or images, published by the Client through EliteConnect and visible to any user, either registered or not registered on EliteConnect;
“Services” means all the services provided by the Supplier through EliteConnect, included the Basic Services and Premium Services, upon and within the limit of the terms and condition of the Agreement;
“Subscription Form” means the contractual document by means of which the Client requests to the Supplier the supply of certain Services;
“Supplier”: means ELITE S.p.A., with registered office in Piazza degli Affari 6, 20123 Milano, Tax and VAT Code, registered at the Company registry of Milan with number 09525110962;
“Technical Specifications and Set-Up Guide” means the document which describes the technical features of the Services, the set-up procedure when requested and any technical requirements.