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Data Room, Terms of Use

AGREEMENT TO TERMS OF USE

Please read the following terms and conditions (“Terms of Use”) before using this website (the “Website”). Your access to and use of the Website is subject to these Terms of Use and all applicable laws and regulations. These Terms of Use constitute a legal agreement between you and Davidson Kempner Capital Management LP (“DKCM”). The Website is available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Website is not available to persons under age 18. By accessing and using the Website, you accept, without qualification, these Terms of Use. If you do not approve and accept these Terms of Use without qualification, please exit the Website immediately.

NON-DISCLOSURE OF INFORMATION CONTAINED IN THE WEBSITE

By entering this Website, you agree to the following terms:

  1. You recognize and acknowledge the competitive value and confidential and proprietary nature of the Information (as defined below) and the damage that could result to DKCM and its affiliates (collectively, “Davidson Kempner” or the “Firm”), including the investment funds and accounts (the “Funds”) managed by Davidson Kempner investment management entities, if the Information is disclosed to any third party. You also recognize and acknowledge that the Information is being provided to you in reliance upon your acceptance of these Terms of Use.

  2. You agree that the Information will be kept strictly confidential and will be used solely for the purpose of your evaluation of an investment in one or more Funds (the “Permitted Purpose”); provided that you may disclose Information to those of your directors, officers, employees, agents or advisors (“Representatives”) who (i) have a need to know such Information in order to carry out the Permitted Purpose, (ii) are informed of the confidential and proprietary nature of the Information and (iii) have an obligation to keep the Information confidential in accordance with the requirements hereof. You also agree that you will not disclose any of the Information received from Davidson Kempner to any third party without the prior written consent of DKCM, or otherwise use or permit the use of the Information (a) to trade in securities and other financial instruments, (b) to gain a competitive advantage in your business or personal activities, or (c) in any way that could be detrimental to Davidson Kempner. If the Information is requested or required to be disclosed pursuant to any law, rule, regulation or administrative process, or a subpoena, court order or other judicial process, you will, unless prohibited by law, notify DKCM as promptly as practicable to permit Davidson Kempner, at its expense, to seek a protective order or take other action that DKCM, in its sole discretion, deems appropriate. Notwithstanding anything herein to the contrary, your agreement to keep the Information strictly confidential in accordance with these Terms of Use is subject to, and not in any way a limitation on, the confidentiality provisions contained in any other agreements between you and the Firm (including any confidentiality agreements and the organizational documents and subscription documents of any Fund in which you make an investment). In carrying out your obligations hereunder, you will, and will ensure that your Representatives will, safeguard and protect the Information with the same level of care used to safeguard and protect your own most confidential and proprietary information, but in any event, no less than a reasonable level of care.

  3. For purposes of these Terms of Use, the term “Information” means all information furnished via this Website, including, without limitation, all documents, data, reports, presentations, statements, “know-how,” interpretations, plans, studies, forecasts, projections and records containing or otherwise reflecting information concerning Davidson Kempner and its businesses, assets, investments, potential investments, investment strategies and other information not available to the public generally; provided, however, that the term “Information” does not include any information that is or becomes (a) generally available to the public through no action or omission by you or your Representatives in breach of this or any other agreement with Davidson Kempner, or (b) available to you on a nonconfidential basis from an independent source that is not, to your or your Representatives’ knowledge, prohibited from disclosing such information to you by a contractual, legal or fiduciary obligation. Promptly upon Davidson Kempner’s request, you will, and will cause your Representatives to, return or destroy all Information in your and your Representatives’ possession or control and you shall promptly confirm such deletion in writing.

  4. You agree that monetary damages may not be an adequate remedy for improper disclosure or use of Information and that Davidson Kempner shall be entitled to seek equitable relief, including, without limitation, injunctive relief and specific performance, from any court of competent jurisdiction (without the posting of any bond and without proof of actual damages) to prevent the breach or threatened breach of these Terms of Use and to specifically enforce these Terms of Use, without waiving any other right or remedy, and that you shall not resist an application for such relief on the ground that Davidson Kempner has an adequate remedy at law.

  5. You will indemnify and defend Davidson Kempner and its principals, directors, officers, employees and agents and any of their respective affiliates (collectively, the “Indemnified Persons”) against and hold each Indemnified Person harmless from any and all liabilities, obligations, losses, damages, costs, expenses, claims, penalties, lawsuits, proceedings, actions, judgments, disbursements of any kind or nature whatsoever, interest, fines, settlements and reasonable attorneys’ fees and expenses that the Indemnified Persons may incur, suffer, sustain or become subject to arising out of, relating to, or due to (i) your or your Representatives’ use of the Website, or (ii) your or your Representatives’ breach of these Terms of Use, including any representation, warranty, or covenant made by you in these Terms of Use.

  6. You agree and acknowledge that each affiliate of DKCM, including each Fund, is intended to be a third party beneficiary of these Terms of Use, which shall inure to the benefit of each such affiliate so as to give it a direct right of action to enforce these Terms of Use.

IMPORTANT DISCLOSURE INFORMATION

The Information is neither advice nor a recommendation to enter into any transaction with Davidson Kempner. Nothing on the Website is a recommendation that you purchase, sell or hold any security or other investment, or that you pursue any investment style or strategy. The Firm does not give any advice or make any representations through the Website as to whether any security or investment is suitable to you or will be profitable. Nothing on the Website is intended to be, and you should not consider anything on the Website to be, investment, accounting, tax, or legal advice. If you would like investment, accounting, tax, or legal advice, you should consult with your own financial advisors, accountants, or attorneys regarding your individual circumstances and needs.

Certain Information may include a summary of one or more Funds’ terms and investment strategies. Davidson Kempner may make changes to these and other aspects of its business plan in its discretion, and potential investors should read the final confidential memorandum or other disclosure document (the “Memorandum”) of each such Fund prior to investment.

Any offer or solicitation will be made only to qualified investors, and only by the Memorandum and governing and subscription documents (the “Operative Documents”) of a Fund, which should be read in their entirety. The Operative Documents contain information about the investment objective, terms and conditions of an investment in such Fund and also contain tax information and certain risk and conflicts of interest disclosures that are important to any investment decision regarding such Fund. All other Information is for discussion purposes only, not intended to be complete or final and is qualified in its entirety by the Operative Documents. In the event that any descriptions or terms are inconsistent with or contrary to the descriptions in or terms of the Operative Documents, the Operative Documents shall control.

DKCM or an affiliate has been registered as an investment adviser with the U.S. Securities and Exchange Commission (the “SEC”) since 1990. Since that date, all U.S. Firm affiliates under common control have operated on the basis of being registered and will continue to do so. The required Form ADV that DKCM files with the SEC contains extensive disclosure regarding all Davidson Kempner investment management entities. Registration with the SEC or with any state securities authority does not imply a certain level of skill or training.

An investment in a Fund will be suitable only for certain financially sophisticated investors who meet certain eligibility requirements, have no need for immediate liquidity in their investment, and can bear the risk of an investment in such Fund for an extended period of time.

Investment losses may occur, and investors could lose some or all of their investment. No guarantee or representation is made that any Fund’s investment program, including, without limitation, its investment objectives, diversification strategies, or risk monitoring goals, will be successful, and investment results may vary substantially over time. Nothing herein is intended to imply that any Fund’s investment methodology may be considered “conservative,” “safe,” “risk free” or “risk averse.” Economic, market and other conditions could also cause a Fund to alter its investment objectives, guidelines, and restrictions.

Certain Information may constitute “forward-looking statements,” which can be identified by the use of forward-looking terminology such as “may,” “will,” “should,” “expect,” “anticipate,” “target,” “project,” “estimate,” “intend,” “continue” or “believe” or the negatives thereof or other variations thereon or comparable terminology. Due to various risks and uncertainties, actual events or results or the actual performance of a Fund may differ materially from those reflected or contemplated in such forward-looking statements. Davidson Kempner shall have no duty to, and may not undertake to, update or correct any such forward-looking statements. Persons who access this Website are encouraged to contact representatives of Davidson Kempner to discuss the procedures and methodologies used to make projections, targets, forecasts and estimates and other information which may be provided herein.

THE PAST PERFORMANCE OF ANY INVESTMENT, INVESTMENT STRATEGY, OR INVESTMENT STYLE IS NOT INDICATIVE OF NOR A GUARANTEE OF FUTURE PERFORMANCE.

There are various risks you assume in relying on the Information:

  1. Unless otherwise indicated, Information in the Website that is dated is current only as of the date indicated therein. I acknowledge that neither the provision of access to this Website, nor any sale of interests in a Fund, shall under any circumstances create an implication that such Information is correct as of any time subsequent to such date. Information that is not dated or Information that is dated but viewed subsequent to its date may not be current.

  2. The Firm makes reasonable efforts to provide accurate Information but assumes no duty to update or correct any Information for any reason, including new information, results or subsequent events.

  3. The Firm may change all or any portion of the Website at any time without notice to you.

  4. The Firm does not endorse the opinions of, or warrant the accuracy of facts or other Information contributed by, any third party.

  5. You agree the Firm is not liable for any action you or your Representatives take or decision you or your Representatives make in reliance on any Information.

Notwithstanding anything herein to the contrary, each person accessing this Website (and each of the Representatives of such recipient) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of (i) a Fund and (ii) any of its transactions, and all materials of any kind (including opinions or other tax analysis) that are provided to each recipient relating to such tax treatment and tax structure, it being understood that “tax treatment” and “tax structure” do not include the identifying information of (i) such Fund or (ii) the parties to a transaction, their affiliates or their respective advisors.

Certain Information may be deemed to be material non-public information. Use of material non-public information by the recipient, or communication of such material non-public information by the recipient to another party who then uses the information, to affect trades of a company's securities is strictly prohibited by U.S. federal securities laws. Penalties for trading based on, or communicating, material non-public information are severe, both for individuals involved in such unlawful conduct and for their employers, and can be levied upon an individual even if he or she does not personally benefit from the violation

The use of the Information in certain jurisdictions may be restricted by law. The Information is not directed at, and is not intended for, any person in any jurisdiction if it would be contrary to applicable laws or regulations in that jurisdiction for such a person to receive such information and/or to acquire an interest in any Fund to which the Information relates. The products mentioned on this Website may not be eligible for sale in some states or countries or suitable for all types of investors. Prospective investors should inform themselves as to the legal requirements and tax consequences of an investment within the countries of their citizenship, residence, domicile and place of business. This material is for informational purposes only and does not constitute a financial promotion, investment advice or an inducement or incitement to participate in any product, offering or investment.

To the extent that Information is communicated by, or in reliance upon approval from, Davidson Kempner European Partners, LLP, which is authorized and regulated by the Financial Conduct Authority of the United Kingdom, any such communication is made only to and/or is directed only at persons who are professional clients or eligible counterparties for the purposes of the Financial Conduct Authority’s Conduct of Business Sourcebook, and (i) interests in a Fund will only be made available to such persons and (ii) such Information must not be relied or acted upon by any other persons.

Information may be communicated to you by Davidson Kempner Asia Limited (“DKAL”), a licensed corporation regulated by the Securities and Futures Commission in Hong Kong. Such Information has not been approved by any regulatory authority in Hong Kong. Such Information will only be distributed by DKAL (i) to “professional investors” within the meaning of the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) and any rules made thereunder, or (ii) in other circumstances which do not constitute an offer to the retail public.

LIMITATIONS ON THE USE OF THE WEBSITE

DKCM grants you a non-exclusive, non-transferable, revocable and limited personal license to access and use the Website, conditioned on your continued compliance with these Terms of Use. Except as otherwise provided herein, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or otherwise distribute or sell any Information or Content (as defined below). You may not link other websites to the Website without the DKCM's prior written permission. You may not violate or attempt to violate the security of the Website. You may not decompose, decompile, reverse engineer, disassemble or otherwise deconstruct all or any portion of the Website. You may download, scan, and print copies of any accessible portion of the Website only for the Permitted Purpose. You may not remove any Content or other proprietary notice or legend contained on (or printed from) the Website.

You are solely responsible for maintaining the confidentiality and security of your password. You may not allow others to use your user name or password to access or use any part of the Website. You accept full responsibility for any use of your password. You must notify DKCM immediately of any actual or suspected loss, theft, or unauthorized use of your password.

Without limiting the foregoing, you are prohibited from using the Website to advertise or perform any commercial solicitation. You also are prohibited from using any robot, spider, scraper or other automated means to access the Website for any purpose without the prior written permission of DKCM. You may not take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure, interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website, or bypass any measures that we may use to prevent or restrict access to the Website. Any rights not expressly granted herein are reserved by the Firm.

TRUTHFUL INFORMATION

As a condition to your use of the Website, you represent and warrant to, and agree with, DKCM that all of the information that you provide is truthful, accurate and complete.

DISCLAIMERS AND LIMITATION OF LIABILITY

THE INFORMATION AND CONTENT PUBLISHED ON THE WEBSITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. DUE TO VARIOUS FACTORS, INCLUDING THE INHERENT POSSIBILITY OF HUMAN AND MECHANICAL ERROR, THE ACCURACY, COMPLETENESS, TIMELINESS AND CORRECT SEQUENCING OF THE INFORMATION AND CONTENT AND THE RESULTS OBTAINED FROM THEIR USE ARE NOT GUARANTEED BY THE FIRM OR ANY PERSONS CREATING OR TRANSMITTING SUCH INFORMATION. YOU AGREE THAT THE FIRM IS NOT LIABLE FOR ANY ACTION YOU TAKE OR DECISION YOU MAKE IN RELIANCE ON ANY INFORMATION OR CONTENT.

THE FIRM AND/OR ITS RESPECTIVE SERVICE PROVIDERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE CONTENT AND OPERATION OF THE WEBSITE AT ANY TIME WITHOUT NOTICE. THE WEBSITE MAY BE TEMPORARILY UNAVAILABLE, OR MAY NOT FUNCTION PROPERLY AT ANY TIME DUE TO REQUIRED MAINTENANCE, TELECOMMUNICATIONS INTERRUPTIONS OR OTHER REASONS.

THE FIRM AND/OR ITS SERVICE PROVIDERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, CONTENT OR THE WEBSITE FOR ANY PURPOSE. THE INFORMATION, CONTENT AND WEBSITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE FIRM AND/OR ITS RESPECTIVE SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION, CONTENT AND WEBSITE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND AVAILABILITY. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IF YOU ACCESS ANY THIRD PARTY WEBSITE THROUGH THE WEBSITE OR OTHERWISE, YOU DO SO AT YOUR OWN RISK. LINKS TO OR FROM THE WEBSITE DO NOT CONSTITUTE THIRD PARTY ENDORSEMENT OF, SPONSORSHIP BY OR AFFILIATION WITH THE FIRM, INCLUDING ANY FUNDS.

YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR ANY OTHER DAMAGE OR LOSS THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT FROM THE WEBSITE. IN NO EVENT SHALL THE FIRM AND/OR ITS SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATING TO THE USE OF OR ACCESS TO THE INFORMATION, CONTENT OR WEBSITE OR WITH THE DELAY OR INABILITY TO USE THE INFORMATION, CONTENT OR WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE FIRM OR ANY OF ITS SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE FIRM AND ANY PERSON CREATING OR TRANSMITTING THE INFORMATION ON THE WEBSITE SHALL NOT BE LIABLE FOR ANY INFECTION BY VIRUSES OF OR DAMAGE TO ANY COMPUTER THAT RESULTS FROM YOUR USE OF, ACCESS TO OR DOWNLOADING OF SUCH INFORMATION. IF YOU ARE DISSATISFIED WITH THE INFORMATION, CONTENT OR THE WEBSITE OR WITH THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF AND ACCESS TO THE WEBSITE.

THIS WEBSITE IS OPERATED BY A THIRD PARTY SERVICE PROVIDER. ACCORDINGLY, I ACKNOWLEDGE AND AGREE THAT THE FIRM BEARS NO RESPONSIBILITY OR LIABILITY FOR THE SERVICES PROVIDED BY AND/OR SOFTWARE USED BY THIS WEBSITE. I ACKNOWLEDGE THAT MY ACCESS AND USE OF THIS DATAROOM IS ALSO GOVERNED BY THE ONLINE TERMS AND CONDITIONS OF SUCH THIRD PARTY SERVICE PROVIDER (IF ANY).

OWNERSHIP OF CONTENT

The Website and all of its content, including but not limited to all text, graphics, charts, audio, logos, images, data compilations, icons, code and software (“Content”), are the property of the Firm or the licensors of such Content and are protected by U.S. and international copyright laws, with all rights reserved unless otherwise noted. All trademarks, service marks, trade names and other product and service names and logos displayed on the Website are proprietary to the Firm or the licensors of such Content, including all registered and unregistered trademarks and service marks of the Firm. If the Website includes any trademarks, service marks, trade names or logos of any third parties, such items are the proprietary marks and names of their respective owners, and are protected by applicable trademark and intellectual property laws. Your use of any Content, whether owned by the Firm or any third party, without the DKCM's express written permission, is strictly prohibited except as otherwise expressly permitted in these Terms of Use. Without limiting the foregoing, you are prohibited from using any of the Firm's copyrighted material or trademarks for any purpose, including, but not limited to, use as metatags, links or otherwise on any website, without the prior written permission of the Firm.

NO UNLAWFUL OR PROHIBITED USE

As a condition to your use of the Website, you represent and warrant to, and agree with, DKCM that you will not use the Website for any purpose that is unlawful or prohibited by these Terms of Use.

MODIFICATION AND MONITORING OF WEBSITE

The Firm may, at its discretion, change, modify, add or remove portions of these Terms of Use at any time without notice to you. We suggest that you check these Terms of Use periodically for changes. You will be bound by revised versions of these Terms of Use that are posted on the Website, which will become effective immediately when posted. Your use of the Website indicates your full acceptance of these Terms of Use in their entirety every time you use the Website. If you use the Website after we post changes to these Terms of Use, your continued use will constitute acceptance of the changed Terms of Use. The Firm expressly reserves the right (but is under no obligation) to monitor and record any and all use of the Website, subject to applicable data privacy laws and the Firm’s privacy policies. The Firm may report any activity we suspect may violate any law or regulation to regulators, law enforcement officials, or other persons or entities the Firm deems appropriate.

TERMINATION AND CANCELLATION

The Firm may modify or terminate the Website and/or terminate your access to the Website, without notice at any time and for any reason.

JURISDICTIONAL ISSUES AND APPLICABLE LAW

Unless otherwise specified, DKCM controls and operates the Website from its offices within the State of New York, United States of America.

DKCM does not claim that materials in the Website are appropriate or available for use in locations other than the State of New York. If you choose to access the Website from other locations, you do so on your own initiative, and you are responsible for compliance with any applicable local laws.

Notwithstanding where the Website may be accessed, you expressly agree that these Terms of Use are governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed, and to transactions wholly consummated within that State, without giving effect to principles of conflicts of laws. To the fullest extent permitted by applicable law, in the event of any action or proceeding brought by you or the Firm arising out of these Terms of Use or the Website, you irrevocably consent and submit to the exclusive jurisdiction of the federal and state courts located in the State of New York, and waive any defense based on doctrines of venue or forum non conveniens, or similar rules or doctrines. YOU KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE YOUR RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF THESE TERMS OF USE OR THE WEBSITE. THIS WAIVER APPLIES TO ANY LEGAL ACTION OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.

GENERAL

You agree that no joint venture, partnership, employment, agency or fiduciary relationship exists between you and the Firm as a result of these Terms of Use or use of the Website.

The Firm's performance of these Terms of Use is subject to existing laws and legal process, and nothing in these Terms of Use is in derogation of the Firm's right to comply with law enforcement requests or requirements relating to your use of the Website or information provided to or gathered by the Firm with respect to such use.

If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect.

By reviewing or using the Information after accessing the Website, you represent and warrant that (a) you have the authority to enter into these Terms of Use and create a binding contractual obligation (whether for yourself or an entity or vehicle on whose behalf you access the Website), (b) you understand and intend these Terms of Use to be the legal equivalent of a signed, written contract equally binding, and (c) you will use the Information in a manner consistent with applicable laws and regulations in accordance with these Terms of Use, as the Firm may amend them online or otherwise from time to time. A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based on or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Subject to the penultimate sentence of paragraph 2 of the section herein titled “NON-DISCLOSURE OF INFORMATION CONTAINED IN THE WEBSITE”, these Terms of Use constitute the entire agreement between you and the Firm with respect to the Website and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and the Firm with respect to the Website.

You agree to be bound by any agreement or consent you transmit to or through the Website via any media or electronic device, including internet, telephone and wireless devices.