Auction Login Center - eSecLending

Welcome to the eSecLending Auction Information Center. Through this private website authorized users are given access to information specifically related to upcoming securities lending auctions.
PLEASE READ THIS WEB SITE USER AGREEMENT CAREFULLY AS IT GOVERNS THE USE OF THE eSecLending.com WEB SITE (THE “WEB SITE”). In accordance with the terms of the User Agreement, notification of the revisions was provided as of August 30, 2002. This User Agreement is effective as of September 30, 2002.
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Securities Finance Trust Company – Web Site User Agreement<br /><br /><br /><br />
Effective September 30, 2002</p><br /><br /><br />
<p>PLEASE READ THIS WEB SITE USER AGREEMENT CAREFULLY AS IT GOVERNS THE USE OF THE eSecLending.com WEB SITE (THE “WEB SITE”).</p><br /><br /><br />
<p>This Web Site User Agreement (“User Agreement”) and the Borrower Participant Agreement by and between Securities Finance Trust Company (formerly Old Mutual (US) Trust Company)(“Trust Company”) and Borrower or the Web Site Participant Agreement by and between Trust Company and Borrower, as applicable to each Borrower, state the terms and conditions under which Borrower and its employees (collectively referred to herein as “Borrower”, “you” or “your”) may use the Web Site.  By using the Web Site, you acknowledge that you have read, understood and agree to be legally bound by this User Agreement.  Trust Company reserves the right to amend this User Agreement upon prior written notice of not less than 30 days.  Any use of the Web Site following the thirtieth day after such written notice constitutes acceptance by Borrower of such revised User Agreement.  Notification of amendments to the User Agreement was provided as of August 30, 2002, with an effective date of September 30, 2002.</p><br /><br /><br />
<p>Restrictions on Use of Content</p><br /><br /><br />
<p>This Web Site contains various information (including, without limitation, information concerning securities or portfolios to be made available for loan, through an auction bid process made available through this Web Site (each of such auction bid processes, an “Auction Bid Process”)) and other materials in the form of text, graphics, audio, video and other media (“Content”).  You acknowledge that all Content is protected by database rights, copyrights, trademarks, trade secrets, patents, or other proprietary rights, and that these rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed.  You also acknowledge that the Content is owned by and shall remain the property of Trust Company or the Lender Participant (as defined below) providing the Content (each a “Contributor”).  You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, publicly distribute, publicly display, reproduce, publicly perform, or in any way exploit in any format whatsoever (including, without limitation, print and electronic formats) any of the Content, in whole or in part without the prior written consent of Trust Company or the applicable Lender Participant.  You may view and download the Content only for internal use for the sole purpose of participating in the Auction Bid Process for the applicable securities or portfolios as a bidder for such securities or portfolios, and, to the extent that you are the successful bidder for one or more auctions, from time to time entering into securities lending transactions with Lender Participants (either directly with such Lender Participants or as part of a securities lending program maintained by Trust Company as agent for one or more Lender Participants); provided that you maintain any notices contained in the Content, or maintained by the Contributor, such as all copyright, trademark or confidentiality notices or legends, or other proprietary rights notices.  You acknowledge that you do not acquire any ownership rights in or to any Content by viewing or downloading the Content.  You agree to comply with all copyright laws and you shall not encumber any interest in, or assert any rights to, the Content.</p><br /><br /><br />
<p>Auction Information Center</p><br /><br /><br />
<p>The Auction Information Center is a password protected area of the Web Site which provides you with access to Content specifically related to securities or portfolios of owners (each, an “Lender Participant”).</p><br /><br /><br />
<p>eSecAuction</p><br /><br /><br />
<p>The eSecAuction segment of the Web Site (“eSecAuction”) is also a secured area of the Web Site, which is protected by a different password than that which protects the Auction Information Center.  eSecAuction allows each Lender Participant to make the securities or portfolios described in the Auction Information Center available for loan, through an Auction Bid Process, to potential securities borrowers which the Lender Participant has identified.</p><br /><br /><br />
<p>Any Lender Participant on whose behalf an auction is being hosted may, in its absolute discretion and based on factors not limited to price, (a) accept bids from one or more borrowers, either to act as exclusive borrower of one or more designated portfolios or as a borrower in a transaction involving a specific security or (b) decline any or all bids.  In addition, any Lender Participant may reserve the right to withdraw any portfolios or securities before the auction and shall have no liability whatsoever for such withdrawal.  Particular rules regarding individual auctions or bidding or listing requirements may be posted on eSecAuction from time to time and shall be deemed to be fully incorporated herein.  Each potential securities borrower is solely responsible for the accuracy and completeness of its bid. (If you are experiencing any problems with the eSecAuction-protected password area of the Web Site or the transmission of your bids, please discontinue use and notify your Trust Company contact person.)</p><br /><br /><br />
<p>Passwords</p><br /><br /><br />
<p>To access either the Auction Information Center or eSecAuction, each potential securities borrower must receive a password from Trust Company.  If Trust Company does not provide you with a password for either the Auction Information Center or eSecAuction, then you are not entitled to access the applicable area of the Web Site.</p><br /><br /><br />
<p>Confidentiality of Content</p><br /><br /><br />
<p>You acknowledge that any Content you access through this Web Site (regardless of whether it is displayed on the Web Site or linked from or to the Web Site) is confidential and proprietary to either Trust Company or a Lender Participant (“Confidential Information”).  You agree that you and your employees, officers, directors, agents and affiliates (“Representatives”) will keep secret and never disclose any Confidential Information, other than to your Representatives to whom you have delegated responsibility for reviewing and analyzing the applicable securities or portfolio for purposes of deciding whether to bid thereon or preparing a bid for the applicable auction, or as may otherwise be required by applicable law, regulation, or court order.  You will use reasonable care and adequate measures to protect the security of the Confidential Information and ensure that no Confidential Information is disclosed, made available or used in violation of the foregoing; provided, that such care and measures are not less than those used by you to protect your own confidential or proprietary information.  In particular, without limitation of the foregoing, you will not disclose any Confidential Information to any person or allow access to any Confidential Information by any person, in each instance including your Representatives, who is not bound by a written agreement or, alternatively, by a corporate policy enforceable against such person, requiring such person to maintain the confidentiality thereof and observe the obligations and duties with respect thereto as set forth in this User Agreement.  If you are not the successful bidder in an auction you must promptly return or destroy all copies of any Confidential Information that is in your possession (except to the extent you are required by applicable law, rule or regulation to maintain copies thereof) and, upon Trust Company’s written request and if applicable, certify the return or destruction of all such Confidential Information.  Each Lender Participant shall be a third party beneficiary of your agreement set forth in this paragraph.  The obligations of the parties under this section (Confidentiality of Content) shall survive any termination of this User Agreement.</p><br /><br /><br />
<p>Notwithstanding anything in this section (Confidentiality of Content) to the contrary, your confidentiality obligation under this section does not apply to Content or other information which is (i) generally available to the public (other than by means of unauthorized disclosure by you or any other person or organization under an obligation of confidentiality), (ii) shown by written record to have been independently developed by you, or (iii) received from a third party and such third party is not subject to a confidentiality or nondisclosure requirement.</p><br /><br /><br />
<p>Role as a Venue</p><br /><br /><br />
<p>The Web Site serves as a venue for Lender Participants to make securities or portfolios available for loan pursuant to an Auction Bid Process.  A Lender Participant is responsible for all aspects of auction listings, including without limitation, title to the securities, securities descriptions and quantities.  As a result, Trust Company has no control over the securities or portfolios listed or the ability of Lender Participants or bidders to successfully reach an agreement with respect to such securities or portfolios.  Trust Company does not control, and makes no representations as to, the information provided by Lender Participants, which is made available through the Web Site.</p><br /><br /><br />
<p>IF A DISPUTE ARISES SOLELY BETWEEN YOU AND ANY LENDER PARTICIPANT, YOU RELEASE TRUST COMPANY (AND ITS AGENTS AND EMPLOYEES) FROM ANY CLAIM, DEMAND OR DAMAGE (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.  FOR THE AVOIDANCE OF DOUBT, THIS RELEASE DOES NOT OPERATE TO RELEASE ANY CLAIM THAT YOU MAY HAVE AGAINST TRUST COMPANY.  IF YOU ARE LOCATED IN CALIFORNIA, YOU WAIVE CALIFORNIA CIVIL CODE ยง542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”</p><br /><br /><br />
<p>Disclaimer Of Warranties</p><br /><br /><br />
<p>YOU ACKNOWLEDGE AND AGREE THAT THE WEB SITE (INCLUDING ANY SERVICES PROVIDED THEREIN) AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  NONE OF TRUST COMPANY OR ANY OF ITS REPRESENTATIVES GUARANTEES THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY OF THE CONTENT.  NONE OF TRUST COMPANY OR ITS REPRESENTATIVES WARRANT THAT THE WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THIS WEB SITE, ITS SERVER OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS.  YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB SITE AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.</p><br /><br /><br />
<p>NONE OF TRUST COMPANY OR ITS REPRESENTATIVES MAKES ANY AND EACH HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEB SITE (AND ANY SERVICES PROVIDED THEREIN) AND ANY CONTENT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH OF TRUST COMPANY AND ITS REPRESENTATIVES DISCLAIM ANY WARRANTIES WITH RESPECT TO ANY RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEB SITE.</p><br /><br /><br />
<p>Limitation Of Liability</p><br /><br /><br />
<p>NONE OF TRUST COMPANY OR ITS REPRESENTATIVES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY LOSS, INJURY OR DAMAGE (COLLECTIVELY, “LOSSES”) ARISING FROM YOUR USE OF OR INABILITY TO USE THE WEB SITE (INCLUDING, WITHOUT LIMITATION, ANY LOSSES ARISING FROM ANY DELAY, INTERRUPTION OR TRANSMISSION FAILURE RELATED TO THE USE OF THIS WEB SITE OR WITH RESPECT TO THE OFFER OR ACCEPTANCE OF ANY BIDS MADE BY MEANS OF ESECAUCTION), UNLESS SUCH LOSSES ARISE DIRECTLY FROM TRUST COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.</p><br /><br /><br />
<p>OTHER THAN DIRECT DAMAGES WHICH ARISE DIRECTLY FROM TRUST COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS EXPRESSLY PERMITTED UNDER THIS USER AGREEMENT, IN NO EVENT WILL TRUST COMPANY OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, OR LOSS OF GOODWILL OR REPUTATION) WHICH MAY BE INCURRED OR EXPERIENCED ON ACCOUNT OF USE OF OR RELIANCE ON THIS WEB SITE OR ANY CONTENT CONTAINED HEREIN , WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY EVEN IF TRUST COMPANY OR ANY OF ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.</p><br /><br /><br />
<p>Indemnification</p><br /><br /><br />
<p>You shall indemnify and hold harmless Trust Company and all of its Representatives from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments and expenses, as well as third party claims and causes of action, including, without limitation, attorneys’ fees, (collectively, the “Losses”) arising out of any breach by you of any of the terms and conditions of this User Agreement, unless such Losses arise directly from Trust Company’s gross negligence or willful misconduct.  Trust Company shall have the right, at its own expense, to participate in the defense of any such claim through counsel of its own choosing, and shall in any event cooperate reasonably with you, at your expense, in the defense of such claim.  In no event shall you settle any suit, claim or cause of action imposing any liability or other obligations on Trust Company or any of its Representatives without Trust Company’s prior written consent.  The obligations of the parties under this section (Indemnification) shall survive any termination of this User Agreement.</p><br /><br /><br />
<p>Termination</p><br /><br /><br />
<p>Trust Company may terminate this User Agreement at any time without cause.  Without limiting the foregoing, Trust Company shall have the right to immediately terminate your access to the Web Site in the event of any conduct by you which Trust Company, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of this User Agreement.</p><br /><br /><br />
<p>Service Marks</p><br /><br /><br />
<p>”eSecLending,” “eSecAuction,” the eSecLending Stylized Logo, and any combination thereof are service marks of Trust Company or its affiliates. All rights reserved.  All other trademarks appearing on the Web Site are the property of their respective owners.  You gain no rights of any nature whatsoever in Trust Company’s or its affiliates’ trademarks, service marks or trade names through your use of the Web Site.</p><br /><br /><br />
<p>Independent Contractors</p><br /><br /><br />
<p>Trust Company and you, as a user of the Web Site, are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created hereby. Trust Company shall not be a party to, or have any liability for breaches by any party of, any contract created between you and any Lender Participant.</p><br /><br /><br />
<p>Data Protection</p><br /><br /><br />
<p>You hereby acknowledge and agree that information you provide to Trust Company via the Web Site, including any individually-identifiable information or personal data you provide, may be processed in the United States in connection with administering this User Agreement, monitoring your access to and utilization of the Web Site, and corresponding with you.  Trust Company is not responsible for ensuring your compliance with any legislation governing the privacy of such individually-identifiable information or personal data.</p><br /><br /><br />
<p>Governing Law</p><br /><br /><br />
<p>This User Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to its conflicts of law rules.</p><br /><br /><br />
<p>Compliance with Export Laws</p><br /><br /><br />
<p>The United States controls the export of products and information.  You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws.  By downloading the Content, you expressly agree that you are not in a country where such export is prohibited; or you are not a person or entity for which such export is prohibited.  You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.</p><br /><br /><br />
<p>Construction</p><br /><br /><br />
<p>In the event that any portion of the User Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the User Agreement shall remain in full force and effect.  The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of the User Agreement.</p><br /><br /><br />
<p>No Assignment; Implied Waiver; Modification</p><br /><br /><br />
<p>You may not assign this User Agreement, by operation of law or otherwise, without Trust Company’s prior written consent.  Subject to that restriction, this User Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.  Trust Company’s failure to enforce your strict performance of any provision of this User Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this User Agreement.  Neither the course of conduct between parties nor trade practice shall act to modify any provision of the User Agreement.</p><br /><br /><br />
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