United States: U.S. Regulatory Action Items For Investment Advisers (2017)

For investment advisers (registered, exempt reporting, and unregistered), there are myriad recurring obligations and undertakings to keep in mind. As a reminder, we have listed some of them below.

  • Part I—describes requirements and practices that may be relevant for any investment adviser, whether registered, filing as an exempt reporting adviser, or unregistered.
  • Part II—includes obligations for registered investment advisers.
  • Part III—describes some of the obligations of exempt reporting advisers (i.e., those relying on the "private fund adviser exemption" or the "venture capital fund adviser exemption").
  • Part IV—reviews certain tax considerations that may be relevant for any investment adviser.

PART I: ANNUAL OBLIGATIONS AND UNDERTAKINGS POTENTIALLY APPLICABLE TO ANY INVESTMENT ADVISER

Review of and Update to Offering Materials

To ensure compliance with federal and state securities laws (anti-fraud laws in particular), it is a good practice for an investment adviser to periodically review and update the offering documents for its funds that are currently being offered.

In the context of private investment funds, among the types of changes for which an investment adviser may want to consider whether an update is necessary are any modifications that may have occurred (or are being considered) to the description of the fund's investment strategy, instruments in which the fund may invest, service providers to the fund, risk factors related to market conditions, conflicts of interest, and applicable legal, tax, and regulatory matters.

Sometimes, the cases brought by the SEC and speeches by its Staff can provide useful reminders about disclosure topics that may require updating. Here are some from 2015 and 2016: (i) the allocations of broken-deal expenses to co-investors1; (ii) the acceleration of future monitoring fees2; (iii) the charging of an adviser's operating expenses to fund clients3; (iv) the use of the term "market rates" in the context of portfolio-level service fees4; (v) fee discounts to investment advisers from vendors that provide services to the adviser and its client funds5; (vi) the charging of investment adviser employee compensation to client fund portfolio companies6; and (vii) the extent of due diligence conducted on investments.7

It would be good practice for each investment adviser to review its practices and fund disclosure documents in the context of the above scenarios to ensure that its disclosure accurately reflects its actual practices.

TIP: If relevant to the offering of a private fund that you manage, make sure that your subscription documents reflect the Dodd-Frank-based adjustments to the accredited investor and qualified client standards, and that you have included any necessary "bad actor" representations in both your subscription documents and placement agent agreement(s). (See "Bad Actor Rule" below for further information.)

"Bad Actor" Rule

Under the "bad actor rule," a fund is not permitted to engage in Rule 506 private securities offerings if the fund (including beneficial owners of 20 percent or more of the fund's outstanding voting equity, directors, certain officers, and affiliated companies or other persons, including the fund's investment adviser and placement agent) had a so-called "disqualifying event." Although violations adjudicated before September 23, 2013, do not result in disqualification from Rule 506, those violations are subject to mandatory disclosure.

See Jones Day's July 2013 Commentary, " SEC Approves New Rules Regarding General Solicitation in Certain Private Offerings and Adopts 'Bad Actor' Provisions," for further information regarding the bad actor rules.

TIP: Make sure that your placement agent agreements for Rule 506 offerings contain "bad actor" representations and that you conduct the requisite due diligence on the entities (e.g., placement agent and investment adviser) and personnel at those entities covered by the rule so as to enable the fund to avail itself of the "reasonable care exception."

The SEC has provided guidance about a significant number of issues under the bad actor rule, such as the level of diligence that must be undertaken by an issuer with respect to the bad actor rules, including in the context of placement agents and employees of an investment adviser as well as with respect to ongoing offerings. For example, the following are useful resources to consult: (i) the SEC's adopting release for the bad actor rule; and (ii) the Division of Corporation Finance Compliance and Disclosure Interpretations beginning at Question 260.14.

Lobbyist Registration Requirements

Any investment adviser that solicits monies from public pension plans may be required to make filings in certain jurisdictions under those jurisdictions' lobbying laws. Many jurisdictions require annual (e.g., New York City) or biannual (e.g., California) registration of lobbyists and lobbyist agents.

TIP: Investment advisers should be aware that the definition of "lobbyist" in a jurisdiction (such as a state, city, or municipality) in which they—or their agents—solicit public pension plans as clients or investors may have been revised to explicitly include placement agents (which in turn may trigger a registration requirement). It is helpful to review the relevant laws and regulations regarding lobbyist registration requirements rather than just the lobbying registration forms, as those forms may not contain the most up-to-date information regarding registration requirements.

Whistleblower Rule Compliance

In 2011, the SEC adopted Rule 21F-17 under the U.S. Securities Exchange Act of 1934, as amended ("Exchange Act"), which provides that "no person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement ... with respect to such communications." The SEC has since brought various enforcement actions charging violations of Rule 21F-17.8 In an October 2016 risk alert, the SEC noted that its Staff is examining registered investment advisers and registered broker-dealers, "reviewing, among other things, compliance manuals, codes of ethics, employment agreements, and severance agreements to determine whether provisions in those documents pertaining to confidentiality of information and reporting of possible securities law violations may raise concerns under Rule 21F-17."

TIP: All agreements with employees, and former employees, should be reviewed to ensure that those agreements do not contain the types of provisions referenced in the October 2016 risk alert as violating or potentially violating Rule 21F-17 (e.g., provisions that purport to limit the types of information that an employee may convey to the SEC or require departing employees to waive their rights to any individual monetary recovery in connection with reporting information to the SEC).

Form D Filings

Annual electronic Form D renewal filings for each issuer of securities in a continuous offering is required by the SEC and certain states.9

TIP: A mandatory capital commitment call for a private fund does not constitute a new offering but is deemed to have been made as part of the original offering, so no new Form D filing is required.

If a continuous offering has in fact been terminated, in order to reflect that fact, an investment adviser may want to consider filing a final amended Form D with the SEC and with those states that require notification that sales will no longer be made in that state.

Blue Sky and World Sky Laws

Many countries and U.S. states have requirements for filings in respect of private offerings of interests in investment funds.

TIP: Investment advisers should make sure that they have maintained and updated a record of the state and country of residence of each fund investor and that any required blue sky and world sky filings have been made.

TIP: Many blue sky filings must be renewed on a periodic basis (e.g., annually).10

Notification to CFA Institute for Use of GIPS

If your firm claims Global Investment Performance Standards ("GIPS") certification, then it will be required to provide a report to the CFA Institute by no later than June 30, 2017. The information required to be provided generally includes the name of the investment adviser, contact details, whether the firm has been verified within the past 24 months, and whether the firm would like to be hosted on the GIPS website.

TIP: The CFA Institute will make available on its website the form to be used for providing the report to the CFA Institute. In addition, the CFA Institute has included an FAQ on its website that provides guidance on a variety of topics.

CFTC—Annual Reaffirmation of CPO/CTA Exemptions

Persons claiming an exemption or exclusion from registration as a commodity pool operator ("CPO") or a commodity trading advisor ("CTA"), under CFTC Regulations 4.5, 4.13(a)(1), 4.13(a)(2), 4.13(a)(3), 4.13(a)(5), or 4.14(a)(8), must annually affirm their eligibility within 60 days of the calendar year end. Failure to affirm will result in automatic withdrawal of the exemption or exclusion, meaning that you become subject to all applicable CPO or CTA compliance requirements even if you still qualify for the relevant exemption or exclusion.

TIP: The deadline for affirming an exemption or exclusion is March 1, 2017.

TIP: You may affirm your exemption or exclusion by accessing the National Futures Association's Exemption System.

Schedules 13D and 13G

Schedule 13D filings must be amended "promptly" upon the occurrence of any "material changes."

Schedule 13G filings must be updated within 45 days of the end of each calendar year (i.e., February 14), to report any change to any of the information reported in the previous filing (except that no update is necessary to reflect a change in the holder's percentage ownership due solely to a change in the number of outstanding shares).

TIP: Consider whether you may be subject to any reporting obligations, or potential short-swing profit liability, under Section 16 of the Exchange Act.

Form 13F

Institutional investment advisers with investment discretion over $100 million of certain equity securities ("Section 13(f) securities") must file quarterly reports on Form 13F (within 45 days of the end of each calendar quarter). The next quarterly filing deadline is February 14, 2017.

TIP: The official list of current and past Section 13(f) securities is available on the SEC's website.

Form 13H

Annual amendments for "large traders" (persons effecting transactions in certain securities in amounts equal to two million shares or $20 million in one calendar day or 20 million shares or $200 million in one calendar month) are due within 45 days of the end of each calendar year (the next quarterly filing deadline is February 14, 2017).

TIP: If any of the information contained in a Form 13H filing becomes inaccurate for any reason, a large trader must make an amended filing no later than the end of the calendar quarter in which the information became stale. If a large trader files an amended Form 13H to reflect changes that occurred during the fourth calendar quarter, the large trader is still required to file the mandatory annual updated Form 13H.

New Issues Certifications

If a fund is permitted by its investment objectives to purchase "new issues," its broker (or, for funds of funds that invest in funds investing in new issues, the underlying fund(s)) will likely request that the fund complete an annual certification (certifying whether the fund is a "restricted person" under Rule 5130 and/or Rule 5131 adopted by the Financial Industry Regulatory Authority ("FINRA")). In order to complete that certification, the investment adviser to that fund will need to confirm that there has been no change to the status of its investors (i.e., as "restricted" or "unrestricted").

TIP: Make sure that any new issues questionnaire in the subscription documents for the funds that you manage requires representations from investors as to their respective statuses under Rules 5130 and 5131. Be aware that if you fail to respond to a request for annual certification, the broker or underlying fund may deem you to have represented that you are a restricted person under Rules 5130 and 5131.

Department of Commerce Mandatory Foreign Direct Investment Survey—Form BE-13

The U.S. Department of Commerce Bureau of Economic Analysis requires a filing (Form BE-13) in the context of all forms of foreign direct investments in the United States where a foreign entity, or the U.S. affiliate of a foreign entity, acquires, merges with, expands, or establishes a U.S. business. There are exemptions for transactions that do not meet certain thresholds; however, a claim for exemption from filing the complete report must still be filed if the transaction results in direct or indirect foreign ownership of greater than 10 percent of the U.S. business.

TIP: For more information about the requirement to complete and file the Form BE-13, see Jones Day's February 2015 Commentary on the topic, " Department of Commerce Mandatory Foreign Direct Investment Survey BE-13: Information Collection Related to Direct or Indirect Foreign Investment in the United States."

PART II: ANNUAL OBLIGATIONS FOR REGISTERED INVESTMENT ADVISERS

Annual Form ADV Update

Each registered investment adviser is required to update its Form ADV (Parts 1 and 2A) within 90 days of the end of its fiscal year. In 2017, this deadline is March 31 for advisers with December 31 fiscal year-ends.

Unlike the Form ADV Part 2A ("brochure"), the Form ADV Part 2B ("brochure supplement") is not required to be filed with the SEC or delivered annually to clients (however, the brochure supplement must be updated and delivered to clients should there be material changes to any disciplinary information).

TIP: You should ensure that your IARD account is adequately funded (generally $225 for registered investment advisers, plus any additional amount(s) for newly required state notice filings11) well in advance of the filing deadline.

Annual Delivery of Form ADV Part 2

A registered investment adviser must, within 120 days of the end of its fiscal year, deliver to each client either (i) a free updated brochure that either includes a summary of material changes or is accompanied by a summary of material changes, or (ii) a summary of material changes that includes an offer to provide a copy of the updated brochure and information on how a client may obtain the brochure.12

TIP: You should review your compliance manual to confirm whether it requires you to take the approach in (i) or (ii) above and whether, in respect of any private investment funds that you advise, you must make such an annual delivery only to your "clients" (e.g., the private investment funds that you advise) or also to the investors in those funds.

Form PF

Investment advisers to "hedge funds," "private equity funds," and/or "liquidity funds" (as those terms are defined in Form PF) that had at least $150 million in fund assets under management as of the last day of their most recently completed fiscal year are required to file a Form PF. The frequency and the timing of the Form PF filings are based on the type of funds managed by the investment adviser, the amount of the investment adviser's assets under management in those funds, and the date of the investment adviser's fiscal year-end.

See Jones Day's November 2011 Commentary, " SEC Adopts New Risk Reporting Requirements for Certain Registered Investment Advisers to Private Funds (Form PF)," for further information regarding Form PF.

TIP: Many private investment funds that may not typically be considered "hedge funds" (for example, real estate funds) may actually qualify as "hedge funds" under the Form PF definition of "hedge fund" depending upon their level and type of borrowing and short selling. (See the Form PF (page 57) for the definition of a "hedge fund.")

Compliance Review

Registered investment advisers are required to annually perform and document an annual review of their compliance policies and procedures to ascertain their effectiveness under the Advisers Act.

TIP: Review any revisions that have been made to your compliance policies and procedures to determine if they should be reflected in your Form ADV Part 2 and/or offering documents. Also, make sure to review more recent SEC guidance regarding issues that could affect your policies and procedures (for example, the SEC's June 2015 guidance on personal securities transactions reports, the SEC's September 2015 risk alert on cybersecurity, and the SEC's March 2014 guidance on testimonials and social media).

Distribution of Privacy Policy, Proxy Notice, and Code of Ethics

Subject to certain exclusions, each registered investment adviser must annually distribute its privacy policy,13 its current code of ethics (if distribution is required by the investment adviser's compliance manual), and information as to how to obtain proxy vote records.

TIP: You should refer to your compliance manual to determine who must receive this information/documentation (for example, whether it requires you to distribute your annual privacy notice to all investors or just natural person investors).

Distribution of Annual Audited Financial Statements

If an investment adviser uses the audited financial statement exception to the surprise examination requirements under the Custody Rule in respect of the private funds that it manages (and those funds have December 31 fiscal year-ends), the investment adviser should mark June 29 (for fund of funds) or April 30 (for all other funds) on its compliance calendar as the deadline for distributing 2017 fiscal year audited financial statements to fund investors.

TIP: If you take advantage of the audited financial statement exception, make sure that you satisfy all requirements of that exception, such as the requirement that the accountant performing the annual audit of the fund be registered with and subject to regular inspection by the Public Company Accounting Oversight Board. For further information on the audited financial statement exception (and the Custody Rule generally), please refer to the SEC's FAQ on the Custody Rule.

PART III: ANNUAL OBLIGATIONS FOR EXEMPT REPORTING ADVISERS

Annual Form ADV Update

Each exempt reporting adviser is required to update its Form ADV Part 1 within 90 days of the end of its fiscal year. In 2017, this deadline is March 31 for advisers with December 31 fiscal year-ends.

TIP: You should ensure that your IARD account is adequately funded ($150 for exempt reporting advisers, plus any additional amount(s) for newly required state notice filings) well in advance of the filing deadline.

TIP: If you are an exempt reporting adviser to a private fund(s) that relies on the "under $150 million" exemption and you report in your annual updating amendment that you have $150 million or more of private fund assets under management, you are no longer eligible for the private fund adviser exemption (and must register with the SEC within 90 days after filing your annual updating amendment, unless another exemption from registration is available).14

PART IV: TAXATION

FBAR Filing Requirements for Investment Advisers

Officers and employees of investment advisers who during any year had signature authority or other authority over non-U.S. financial accounts held by private investment funds controlled by such investment advisers must file, by June 30 of the following year, information relating to such accounts with FINCEN utilizing FinCEN Form 114 (the so-called "FBAR form").

TIP: Registered investment advisers who manage offshore accounts should examine their FBAR filing obligations, and should also visit the FinCEN website to obtain more information and, in some cases, to pre-register in order to be eligible to file FBAR forms electronically. There generally are no extensions to the June 30 filing deadlines for FBAR forms, and potentially significant penalties can apply for failures to timely file. Accordingly, investment advisers should address these requirements as early as possible in 2017 so as to avoid last-minute glitches or complications.

Self-Employment Tax Controversy for Fund Managers

Over the years, many hedge fund management companies have been formed as state law limited partnerships. The sole reason for this structure is an arcane provision of the tax code that since 1977 has exempted most types of distributive shares of a "limited partner" from being subject to federal self-employment taxes. Following a Tax Court decision from a few years ago (Renkemeyer v. Commissioner (2011)), the IRS in September 2014 issued a memorandum (ILM 201436049) stating its position that hedge fund managers cannot avoid the self-employment taxes in this manner. The IRS's rationale is based largely on legislative history (cited in the Renkemeyer decision) that generally states that the limited partner exemption was meant for truly "passive" partners and that "Congress did not intend to allow service partners in a service partnership acting in the manner of self-employed persons to avoid paying self-employment tax." Practitioners thus far seem to be divided on the question of whether the IRS is correct in its position, with some taking the view that the literal language of the statute exempting "limited partners" should prevail despite any legislative history.

TIP: The upcoming year is likely to see increased IRS audits of hedge fund managers' self-employment tax positions. Renewed focus has been placed on these taxes in the context of hedge fund managers, not just because of the IRS's activities, but also because of the recent enactment as part of the Affordable Care Act of an additional 3.8 percent tax on "net investment income" of individuals with earnings above certain thresholds. Thus, 2017 is good time for hedge fund managers to re-examine their exposure to self-employment taxes and/or the 3.8 percent tax on net investment income. Limited partnership structures for hedge fund management companies may still have some viability in certain contexts, as could other structures as well, such as "S" corporations.

IRS Memo Concludes that Offshore Hedge Fund Was Subject to U.S. Income Taxation Based on "Lending" and "Underwriting" Activities

The IRS has in recently shown an increased attention in examining offshore hedge funds that are engaged in lending activities. For example, in 2015, the IRS released a Chief Counsel Advice memo (CCA 201501013) in which it was concluded that an offshore hedge fund was engaged in a trade or business within the United States (and thus is subject to U.S. income taxation) based on its lending and stock underwriting activities. Although an offshore hedge fund's activities of trading in stocks and securities are generally not considered to be a trade or business for U.S. tax purposes (the so-called "trading safe harbor"), the IRS in this memo held that the fund in question did not qualify for the trading safe harbor based on the following activities (all of which were undertaken by the fund's U.S.-based management company): performing loan due diligence on prospective borrowers; negotiating terms of loans directly with potential borrowers; originating loans with borrowers; and actively soliciting potential new borrowers and receiving fees for these activities. The fund also was engaged (again, through its U.S.-based management company) in various underwriting activities that were also held to fall outside the trading safe harbor.

TIP: Given that the fund involved in this IRS memo was actively engaged in soliciting, negotiating, and originating a large number of loans directly with borrowers, the IRS's conclusion in this memo is not surprising. However, it does indicate an increased interest on the part of the IRS in examining these types of transactions by offshore funds (also see below regarding an expected increase in the number of IRS audits of investment partnerships generally). This also coincides with an increased appetite on the part of offshore hedge funds to engage in direct loan origination activities in search of additional yields. Thus, the coming year is likely to see increased attention on traditional structures utilized in the marketplace to mitigate to U.S. tax exposure for these transactions, including the use of "blocker" entities and so-called "season and sell" strategies, pursuant to which an separate, onshore entity originates the loans and, after some period of time, sells the loans to the offshore investment fund.

New U.S. Federal Tax Procedures for IRS Audits of Partnerships

In November 2015, President Obama signed into law the Bipartisan Budget Act of 2015 ("BBA"). Effective for tax years beginning on or after January 1, 2018, the BBA significantly revises the manner in which the IRS will audit tax returns filed by entities classified for tax purposes as "partnerships." Since many private investment fund vehicles are established as entities that are treated as partnerships for tax purposes, these new rules will undoubtedly affect these vehicles. These rules represent a complete overhaul of the manner in which the IRS may audit, and collect resulting tax adjustments from, entities that are treated as partnerships for U.S. tax purposes. Most notably, these new rules, for the first time ever, will allow the IRS (for tax years being on or after January 1, 2018) to collect any underpayment of U.S. federal income tax (including penalties and interest thereon) owed by the partners as a result of an audit of the partnership directly from the partnership. As such, those persons who are partners at the time the audit is finalized will bear the economic burden of such underpayment even though the underpayment relates to a prior year. However, these new rules do provide an elective mechanism by which a partnership (with certain trade-offs) may shift back the responsibility for the payment of any underpaid amounts to those persons who were partners in the year to which the audit relates.

TIP: Because it will now be much easier and simpler for the IRS to conduct audits of partnerships and collect resulting taxes (i.e., the IRS now may only have to collect from one party—the partnership—rather than having to pursue many partners for collection), it should be expected that the rate at which the IRS conducts federal income audits of all partnerships, including private investment vehicles, will increase significantly beginning in 2018. Also, all existing investment funds that are classified as partnerships for U.S. tax purposes should review their partnership agreements for needed updates, to potentially include contractual provisions regarding not only the conduct of such partnership-level audits but also the manner in which the partners will share such resulting obligations. Thus, many partnership agreements likely will now require detailed indemnity/reimbursement agreements whereby all partners (and former partners) agree to indemnify or reimburse the partnership and other partners for their allocable shares of these obligations.

Footnotes

[1] In the Matter of KKR, IA Release No. 4131 (6/29/15); discussed in Andrew Ceresney, Director, SEC's Division of Enforcement, "Private Equity Enforcement," Speech for Securities Enforcement Forum West 2016 (5/12/16).

[2] In the Matter of Apollo Management V, LP, IA Release No. 4493 (8/23/16).

[3] In the Matter of Clean Energy Capital LLC and Scott A. Brittenham, IA Release No. 3955 (10/17/14); discussed in Julie M. Riewe, Co-Chief, SEC's Asset Management Unit, Division of Enforcement, "Conflicts, Conflicts Everywhere," Speech at the IA Watch 17th Annual IA Compliance Conference: The Full 360 View (2/26/15).

[4] Mark Wyatt, Acting Director, OCIE, "Private Equity: A Look Back and a Glimpse Ahead," Speech for Private Equity International (5/13/15).

[5] In the Matter of Blackstone Management Partners L.L.C., IA Release No. 4219 (10/7/15).

[6] In the Matter of Blackstreet Capital Management, LLC, IA Release No. 4411 (6/1/16).

[7] In the Matter of Total Wealth Management Inc.—SEC Order (4/15/14) and ALJ Initial Decision (8/17/15).

[8] See, e.g., In the Matter of BlackRock, Inc., Release No. 34-79804 (January 17, 2017).

[9] Form D must also be amended (for any offering) to correct a material mistake of fact or error in the previously filed notice and, subject to certain exceptions, to reflect a change in the information provided in the previously filed notice.

[10] See footnote 11 with respect to state notice filing renewals for the adviser itself.

[11] The state notice filings are made through an investment adviser's IARD renewal account.

[12] Advisers may deliver their brochures electronically–see SEC interpretive guidance on delivering documents electronically.

[13] The exclusions from the annual distribution of privacy policies include where the financial institution: (i) does not share nonpublic personal information with nonaffiliated third parties (other than as permitted under certain enumerated exceptions, e.g., to service providers who perform services on behalf of the financial institution, or as necessary to administer a transaction requested or authorized by an individual); and (ii) has not changed its privacy policies and practices from the policies and practices that were disclosed in the most recent privacy notice sent to individuals. See CFPB, "Amendment to the Annual Privacy Notice Requirement Under the Gramm-Leach-Bliley Act (Regulation P)."

[14] If your private fund assets under management meet or exceed $150 million during your fiscal year, you are not required to register with the SEC during that fiscal year. There is no transition period for: (i) exempt reporting advisers that are no longer able to rely on the "venture capital adviser" exemption; (ii) exempt reporting advisers to private funds that rely on the "under $150 million" exemption and that accept a client that is not a private fund; or (iii) exempt report advisers that have not complied with all of their reporting requirements under the "under $150 million" exemption.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.