PENTWATER WEBSITE SITE USAGE AND NONDISCLOSURE AGREEMENT:
Your use of this web site and its features ("Site"), hosted by Pentwater Capital Management LP ("Pentwater") are subject to these Terms of Use ("Terms"), which we may update from time to time. Your use of this Site after we post any changes to these Terms constitutes your agreement to those changes. Pentwater, in its sole discretion, and at any time, may discontinue this Site or any part thereof, with or without notice, or may prevent your use of this Site with or without notice to you. You agree that you do not have any rights in this Site and that Pentwater will have no liability to you if this Site is discontinued or your ability to access it is terminated. If you do not agree with these Terms, you should immediately discontinue all use of this Site.
CONFIDENTIAL INFORMATION:
In connection with your use of this Site and your evaluation of Pentwater Event Fund LLC and/or Pentwater Event Fund Ltd. (the “Funds”), Pentwater will be furnishing you with certain information concerning Pentwater and the Funds. Such information may include certain business, technical, financial, operational, marketing and economic information and other materials and data that are non-public, confidential or proprietary nature. As a condition to your being furnished such information, you agree, on behalf of yourself, and your directors, officers, employees, agents, advisors, subsidiaries, affiliates, attorneys, accountants, consultants, or appraisers or other representatives (individually, a “Representative” and collectively, “Representatives”), as follows:
Definition of Confidential Information. For purposes of these Terms, “Confidential Information” shall mean all information of a confidential and/or proprietary nature, including financial information, such as financial statements, budgets and forecasts, clearing arrangements, profit margins, commission rates, financing arrangements and overhead costs; trading information, strategies and methodologies, such as the identity of any of the specific financial instruments traded, position and dollar limitations, trading and risk management methods and policies, style of trading, amount of trades, trade development methods, profitability of trades and hedging and spread trading techniques; business plans and operations, such as personnel and salary data, information concerning the utilization of trading facilities, recruitment information and equipment utilization information; current or potential investments, investors, and/or clients; marketing plans, techniques, strategies, ideas and contacts; proprietary programs and software, including computer programs in source or object code and all related documentation and training materials; and any other information of a confidential and/or proprietary nature, whether any of the foregoing types of “Confidential Information” is furnished to you orally or in writing (whether on paper or electronically) or gathered by inspection, and regardless of whether such information is specifically identified as “confidential.” The term “Confidential Information” shall not include information, which you can demonstrate through legally sufficient evidence: (a) is now or subsequently becomes generally available to the public through no fault of you or your Representatives; (b) was rightfully in the possession of you or your Representatives before it was received from Pentwater, provided that, to the best of your knowledge, such information was not obtained, directly or indirectly, from a source that was bound by a confidentiality agreement with or other obligation of secrecy to Pentwater or its Representatives; or (c) was obtained by you or your Representatives from a third party who has the right, without obligation to Pentwater, to provide such information.
Use of Confidential Information. You agree to use the Confidential Information solely for the purpose of evaluating a potential investment in a Fund (a “Potential Investment”) and/or your existing investment in a Fund (together with a Potential Investment, where appropriate, an “Investment”) and for no other purpose. You may disclose the Confidential Information only to your Representatives who have a “need to know” such information to assist you in evaluating an Investment, provided that you shall inform such Representatives of the confidential nature of such information, the terms of these Terms and the obligation of confidentiality undertaken by you herein. Notwithstanding the foregoing, you may also use or disclose the Confidential Information (i) if required by any governmental request, order or law; provided that you agree to provide the Manger with prompt notice of such request so that Pentwater may contest the requirement, seek an appropriate protective order, and/or waive your compliance with the provisions of these Terms with respect to the relevant information, or (ii) subject to the prior written consent of Pentwater.
Return of Confidential Information. You agree that, promptly upon Pentwater’s request, you and your Representatives shall return or, if expressly permitted by Pentwater, destroy all copies of any media or materials containing Confidential Information, including all documentation, notes, computer records and copies of the foregoing. Notwithstanding any such return or destruction, you will continue to be bound by your obligations hereunder, and you may retain, to the extent required by law or your recordkeeping policies, all routinely prepared account statements, memos or similar internal analyses, computations, studies, or reports, but any such retained information must be kept confidential and subject to the terms hereof.
Remedies. You understand and agree that by reason of the sensitive nature of the Confidential Information referred to in these Terms, (i) the Confidential Information is of a special, unique, unusual, extraordinary and intellectual character, (ii) that money damages would not be a sufficient remedy for any breach of these Terms by you or your Representatives, (iii) that the interests of Pentwater and the Funds may be irreparably injured by disclosure of such Confidential Information and that (iv) Pentwater and the Funds shall be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies for any such breach, bu t shall be in addition to all other remedies available at law or equity to Pentwater and the Funds.
No Definitive Agreement; Conduct of Process. Unless and until a definitive agreement between Pentwater and you with respect to any Potential Investment has been executed and delivered, neither Pentwater nor you will be under any legal obligation of any kind whatsoever with respect to such a Potential Investment by virtue of this or any written or oral expression with respect to such a Potential Investment by any of Pentwater’s Representatives except, in the case of these Terms, for the matters specifically agreed to herein.
COMMUNICATIONS WITH PENTWATER/YOUR ACCOUNT:
On certain areas of Pentwater’s Site, you may be given the ability to contact us by electronic mail, for example, to sign up for services such as e-mail notifications and newsletters about Pentwater’s products. The information that you provide to us through this Site is governed by Pentwater’s Privacy Policy. On certain areas of Pentwater’s Site you may also be able to create a unique account that may be used solely by you. You may not share or transfer your account with any other party, temporarily or permanently. You shall bear sole responsibility for all use of your account and for the confidentiality of your password. Pentwater will suspend access or change access to your account immediately upon notification by you that your password has been lost, stolen, or otherwise compromised.
By entering the Site you acknowledge and agree that any materials, ideas or other communications you transmit to us in any manner and for any reason will not be treated as confidential or proprietary. Furthermore, you acknowledge and agree that any ideas, concepts, techniques, procedures, methods, systems, designs, plans, charts, or other materials you transmit to Pentwater may be used by Pentwater anywhere, anytime, and for any reason whatsoever.
INFORMATIONAL USE/LIMITATION OF LIABILITY/NO WARRANTIES:
The materials posted on this Site are intended for informational purposes only. These materials do not constitute an offer to sell or the solicitation of an offer to purchase any security, investment product, or service, including any Fund. Offers to sell or the solicitation of offers to purchase investment in a Fund or any other securities will be made only in connection with the delivery of current confidential offering memoranda, information statements or disclosure documents obtained directly from Pentwater, and/or as required by applicable law. Any representation to the contrary is not permitted. These materials do not constitute a financial promotion, investment advice or an inducement or incitement to participate in any product, offering or investment, nor do they suggest, implicitly or otherwise, that Pentwater has received regulatory approval.
Pentwater strives to ensure that the information contained in this Site is accurate and reliable. However, Pentwater, the Internet, and your Internet connection are not infallible, and errors may sometimes occur. THEREFORE, PENTWATER HEREBY NOTIFIES YOU THAT
THIS SITE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS, AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PENTWATER DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THIS WEB SITE, INCLUDING WITHOUT LIMITATION THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. PENTWATER WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR INJURIES CAUSED BY USE OR INABILITY TO USE THIS SITE OR ANY FEATURE ON THIS SITE (SUCH AS VIRUSES, OMISSIONS, MISSTATEMENTS, MISTAKES, INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND PENTWATER'S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE’S RECORDS, PROGRAMS, OR SERVICES). In no event shall Pentwater's total liability for all damages, losses, and causes of action exceed five dollars ($5.00). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, as a result, the above limitation or exclusion may not apply to you.
Although the Confidential Information includes material that Pentwater believes to be relevant for the purpose of your investigation and/or continued analysis, you understand that neither Pentwater nor any of Pentwater’s or the Funds’ Representatives have made or make any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, the Site, or any other information contained or found on the Site. You agree that none of Pentwater, the Funds or their respective Representatives shall have any liability to you or any other person resulting from the use of the Confidential Information, the Site, or information contained or found on the Site.
INDEMNIFICATION:
You agree to indemnify and hold Pentwater, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys' fees and costs, related to your violation of these Terms or any violation thereof by your Representatives or which arises from the use by you of this Site or the information contained or found therein.
PENTWATER CONTENT:
Content on this Site provided by Pentwater or its licensors, including certain art work, graphics, photographs, images, screen shots, text, music, digitally downloadable files, video clips, trademarks, logos, product and character names, slogans, and the compilation of the foregoing ("Pentwater Content") is the property of Pentwater and its licensors and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Content provided by users of this Site ("Third Party Content") is the property of the third parties that provided that content, and is used by Pentwater subject to license, or subject to the fair use provisions of U.S. copyright or trademark law or made permissible under other applicable law.
You agree not to download, display or use any Pentwater Content or Third Party Content located on the Site for use in any publications, in public performances, on websites other than this Site for any other commercial purpose, in connection with products or services that are not those of Pentwater, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Pentwater and/or its licensors, that dilutes the strength of Pentwater's or its licensor's property, or that otherwise infringes Pentwater's or its licensor's intellectual property rights. You further agree to in no other way misuse any Pentwater Content or Third Party Content that appears on this Site.
TERM:
You agree that these Terms shall survive for the greater of 5 years after (i) the discontinuance of this Site or the last day that you use the Site or (ii) the date upon which you receive any Confidential Information.
PARTIES/ENTIRE AGREEMENT/MODIFICATION/WAIVER/CAPTIONS:
You agree that Pentwater is a party, and the Funds and their Representatives are deemed parties, to these Terms and as such, may rely upon and enforce the terms and conditions of these Terms. These Terms supersede all other prior agreements, including confidentiality agreements, whether written or oral, between the parties relative to the Confidential Information or the subject matter discussed herein. No provision of these Terms may be modified, waived, discharged, or terminated except by a separate writing signed by the parties to these Terms. The captions of these Terms are inserted for convenience only and shall not affect the meaning or interpretation of the provisions hereof.
GOVERNING LAW/DISPUTES:
These Terms shall be governed by, and construed in accordance with, the laws of the State of Illinois, without giving effect to the conflicts of law provisions thereof. In the event of any litigation arising hereunder, you and the Funds agree to submit to the exclusive jurisdiction of the courts of the State of Illinois and of the United States located in the Cook County, Illinois.
NO PARTNERSHIP:
Both you and Pentwater acknowledge and agree that no partnership is formed and neither of you nor Pentwater has the power or the authority to obligate or bind the other.
FORCE MAJEURE/NO WAIVER:
The failure of Pentwater to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of Pentwater shall not be deemed a breach of these Terms. If Pentwater fails to act with respect to your breach or anyone else's breach on any occasion, Pentwater is not waiving its right to act with respect to future or similar breaches. If any provision of these terms of use shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THE FOREGOING TERMS AND CONDITIONS AND BY "LOGGING IN" YOU AGREE TO ENTER INTO THIS BINDING AGREEMENT.