Effective May 15, 2020
2. Updates to the Sites and Terms. Black Creek reserves the right, at its sole discretion, to change, modify, add, or delete all, or portions of, the Sites or these Terms at any time. Your continued use of the Sites after any such changes to these Terms constitutes your acceptance of the new Terms. If you do not agree to abide by these or any future Terms, do not access or use (or continue to access or use) the Sites.
3. Additional Agreements; Investor Portal. These Terms are in addition to any other agreements between you and Black Creek. Some portions of the Sites (for example, an investor portal for certain users) and certain content may be subject to additional policies, terms, conditions, disclaimers, notices and other provisions, which will be described separately on the applicable pages. To the extent that any such agreement or additional provisions conflict with these Terms, such agreement or such additional provisions shall control with respect to their subject matter.
By accessing or using any investor portal, you represent and warrant that you are authorized to do so with respect to the applicable account, and, if applicable, that you meet any other eligibility criteria for such access and use. Any such investor portal, including any materials, products or services accessible through such investor portal, may be subject to additional terms and conditions between you and Black Creek (collectively, “Investor Terms”). To the extent of any conflict between these Terms and the Investor Terms, the Investor Terms will control with respect to their subject matter.
4. Authorized Use. In accessing or using the Sites, you agree not to: (a) use the Sites in violation of these Terms or any statute, regulation, order, rule, or other law; (b) interfere with, disrupt, or violate the security of, the Sites or any networks or equipment used by Black Creek; (c) access data or information not intended for you or harvest or collect information about Site users; (d) misrepresent your identity or provide untruthful or inaccurate information; (e) use the Sites to commit fraud or engage in other misleading or deceptive activities; (f) remove any notices, warnings, disclaimers, labels, annotations, or instructions from any portion of the Sites or related material; (g) reverse engineer, decompile, or disassemble the Sites or any software underlying the Sites (except to the extent this restriction is prohibited by applicable law); (h) transmit any unsolicited or unauthorized advertising or promotional materials; (i) transmit any material that contains adware, malware, spyware, software viruses, or any other harmful or malicious code; or (j) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Sites, without Black Creek’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Sites’ root directory, Black Creek grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Black Creek reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
5. Password Protection and Security. Certain portions of the Sites may allow you, after inputting appropriate credentials, to access materials, subscribe to alerts, download reports, download forms, and otherwise obtain information and content from Black Creek. Access to and use of password protected and/or secure areas of the Sites are restricted to authorized users only. You may not violate the security of all or any portion of the Sites, including without limitation obtaining or attempt to obtain unauthorized access to such parts of the Sites, or to any other protected materials or information, through any means not intentionally made available by us for your specific use. You are responsible for all activities that occur using your login credentials. We reserve the right to require you to change your login credentials if we believe they are no longer secure. Unauthorized individuals attempting to access, or actually accessing, these areas can be subject to criminal and/or civil prosecution.
6. Ownership of Content. All content on or available through the Sites, including but not limited to reports, documents, designs, text, images, graphics, logos, trademarks, trade dress, pictures, video, audio, information, applications, and software, is the proprietary property of Black Creek.
7. Limited License. Subject to the terms of these Terms, we grant you a limited, revocable, non-sublicensable, non-transferable license to use content on or available through the Sites for your legitimate business purposes. You may not modify, copy, distribute, frame, reproduce, republish, create derivative works from, download, display, perform, post, transmit, transfer, license, or sell, in any form or by any means, in whole or in part, any such content without Black Creek’s prior written permission unless otherwise noted. No right, title, or interest in any such content will be transferred to you under any circumstances.
8. Materials to be Reviewed in their Entirety. All materials on the Sites are meant to be reviewed in their entirety, including any footnotes, legal disclaimers, restrictions, or disclosures. Any disclaimers, restrictions, disclosures, or notices apply to any partial document or material in the same manner as they do the whole, and will be deemed incorporated in the portion of any material or document that you consult, print, or download.
9. Accuracy not Assured. The content on the Sites is presented only as of the date published or indicated and may be superseded by subsequent market events or other reasons. Black Creek undertakes no obligation to update publicly or revise any information on the Sites, whether as a result of new information, future developments, or otherwise. Opinions and any other contents on the Sites are subject to change without notice. While Black Creek uses reasonable efforts to obtain information from reliable sources, Black Creek makes no representations or warranties as to the accuracy, reliability, or completeness of any information or document on the Sites obtained outside of Black Creek.
10. Forward Looking Statements. Certain information on the Sites may contain forward-looking statements, which reflect Black Creek’s views with respect to, among other things, Black Creek’s operations and financial performance. Such forward-looking statements are subject to various risks and uncertainties and speak only as of the date on which they are made. Accordingly, there are or will be important factors that could cause actual outcomes or results to differ materially from those indicated in these statements.
11. Informational Purposes Only / No Investment Advice. Black Creek is not utilizing the Sites to provide investment or other advice, and no information or material on the Sites is to be deemed a recommendation to buy or sell, an offer or solicitation to buy or sell, or a recommendation for, any security, investment product or any other product or service. All content on the Sites is for informational purposes only and is not to be relied upon for the purpose of making or communicating investment or other decisions. Nothing on the Sites is a recommendation that you purchase, sell, or hold any security, or that you pursue any investment style or strategy and Black Creek is not soliciting any action based on the Sites. In addition, no information, content or other materials contained on the Sites should be construed or relied upon as investment, legal, accounting, tax, or other professional advice or in connection with any offer or sale of securities. Any transactions listed on the Sites are included as representative transactions and are not necessarily reflective of overall performance.
12. Past Performance. Past performance is not indicative of future results; no representation is being made that any investment will or is likely to achieve profits or losses similar to those achieved in the past, or that significant losses will be avoided.
13. Data Transmission. You are responsible for obtaining your own hardware, software, and services (such as computers, web browsers, and Internet access service) necessary to access and use the Sites. You agree to use software produced by third parties, including browser software, that supports a data security protocol compatible with the protocol used by us, and to follow our log-on procedures for the Sites that support such protocols. You acknowledge that we are not responsible for notifying you of any upgrades, fixes, or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. You acknowledge that we cannot guarantee that data, including e-mail, electronic communications, and personal financial data will not be accessed by unauthorized third parties when communicated between you and us using the Internet or any other electronic means.
14. Third Party Content and Linked Sites. On the Sites, we may make reference to names, marks, products, or services of third parties, provide materials or information provided by third parties, or provide hypertext links to third party sites or materials or information provided by third parties (collectively, “Third Party Content”). No such references to or provision of Third Party Content constitutes or implies any endorsement, sponsorship, or recommendation of such Third Party Content (or any third party supplying such Third Party Content) by Black Creek, and Black Creek is not responsible for the practices or policies of any such third parties, nor any Third Party Content. Your use of any Third Party Content is entirely at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Content (such as terms of service or privacy policies of the providers of such Third Party Content).
15. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Sites infringe your copyright, you (or your agent) may send to Black Creek a written notice by mail or e-mail, requesting that Black Creek remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Black Creek a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Black Creek’s DMCA Agent as follows: By mail to: Sarah Wadsworth at 518 17th Street, Suite 1700, Denver, CO 80202; or by e-mail to: [email protected]. Black Creek’s DMCA Agent’s phone number is 303-226-9886.We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
16. No Warranty; Limitations of Liability. By using the Sites, you expressly agree that such use is at your sole risk. The Sites ARE provided on an “as is” basis. To the fullest extent permitted under applicable law: (A) WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SITES OR THE CONTENT AVAILABLE ON THEM (WHICH INCLUDES, WITHOUT LIMITATION, ANY THIRD PARTY CONTENT), INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) WE ALSO DO NOT WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS, USEFULNESS, RELIABILITY, TIMELINESS, OR AVAILABILITY OF, OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF, the SITEs, ANY INFORMATION OR OTHER CONTENT ON the SITES; AND (C) WE DISCLAIM ALL EQUITABLE INDEMNITIES. WE FURTHER ASSUME NO RESPONSIBILITY FOR, AND MAKE NO WARRANTIES THAT, THE SITES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE ON BEHALF OF BOTH BLACK CREEK AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, PARTNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES OR THIRD PARTY CONTENT IS TO STOP USING THE SITES. To the fullest extent permitted under applicable law, in no event will Black Creek or THE AFFILIATED ENTITIES be liable under any theory of liability (whether in contract, tort, NEGLIGENCE, STRICT LIABILITY, or otherwise) for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages (even if Black Creek OR ANY OF THE AFFILIATED ENTITIES WERE advised of, knew of, or should have known of, the possibility of such damages). should BLACK CREEK OR ANY OF THE AFFILIATED ENTITIES NEVERTHELESS BE FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY RELATING TO THE SITE OR ANY CONTENT ON IT, SUCH LIABILITY WILL NOT EXCEED $100.00 in the aggregate.
17. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
18. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Black Creek and the Affiliated Entities, and their successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Sites; and (b) any violation or alleged violation of these Terms by you.
19. Termination; Reserved Rights. These Terms are effective until terminated. We reserve the right to refuse access, terminate accounts, remove or change content, services, or functionality, or modify or discontinue any portion of the Sites in our sole discretion. We may terminate, suspend, or modify your access to all or part of the Sites, without notice, if you violate these Terms or you engage in any conduct that we, in our sole and absolute discretion, believe is in violation of any applicable law or is otherwise harmful to the interests of us, any other user of the Sites, or any third party. We reserve the right to establish practices and/or limits in connection with your use of the Sites. Sections 1-6 and 8-24 shall survive any expiration or termination of these Terms.20. U.S. Access Only. The Sites are intended for residents of the United States only. If you choose to access the Sites from locations outside of the United States, you do so at your own initiative and risk, and are responsible for compliance with all applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, orders, and other laws.
21. Governing Law; Venue; Arbitration. By accessing or using the Sites, you agree that the laws of the State of Colorado, without regard to principles of conflict of laws, will govern these Terms and any dispute or claim of any sort that might arise between you and Black Creek. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Denver County, Colorado, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such state and federal courts. ANY AND ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU ALSO AGREE THAT YOU AND BLACK CREEK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND BLACK CREEK, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT BLACK CREEK AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS AND OTHER CLASS PROCEEDINGS ARE NOT PERMITTED, AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION, CLASS ACTION OR OTHER CLASS PROCEEDING.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
Right to Opt Out of Binding Arbitration and Class Action Waiver within 30 Days. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST ACCEPT THESE TERMS. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO BLACK CREEK GROUP, 518 17TH STREET, SUITE 1700, DENVER, CO 80202, ATTN: GENERAL COUNSEL AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION AND BE BOUND BY THE CLASS ACTION WAIVER. PLEASE NOTE THAT ANY SUCH NOTICE WILL BE DEEMED A REJECTION OF BOTH THE BINDING ARBITRATION AND THE CLASS ACTION WAIVER.
22. Electronic Communications Notice. When you use the Sites or send emails to us, you are communicating with us electronically. You consent to receiving communications from us electronically. We may communicate with you by email or posting notices on the applicable portions of the Sites. You may update your information for notice purposes by logging in to your account.You agree that all agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, you must have a computer or other Internet-enabled device. In order to retain copies of any such communications, you must have a printer or data storage device. If you have a printer, you may print paper copies of any such communications for your own use. If you wish to withdraw your consent for us to communicate with you electronically, you must terminate your account (if any) and you may not use the Sites.
23. Miscellaneous. Nothing in these Terms supersedes any Investor Terms. Without limiting the Investor Terms, these Terms constitute the entire agreement between you and Black Creek regarding the access and use of the Sites, superseding any prior agreements relating to your access or use of the Sites. Any failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to our intentions as reflected in the provision, and that the other provisions of these Terms remain in full force and effect.
24. Contacting Us. If you have any questions about these Terms, you may contact us at [email protected], 303-228-2200, or Black Creek Group, 518 17thStreet, 17thFloor, Denver, CO 80202.