TERMS & CONDITIONS
Initially Effective March 1, 2023
Last Updated May 25, 2023
These Capitalize Terms and Conditions contain three parts. Part A, Terms of Service governs the general terms of service for the Site and the Services; Part B, Investor Agreement governs the use of the Site by Investors and investments in Offerings hosted on the Site; and Part C, Fund Sponsor Agreement governs certain matters applicable to Startups using the Site and/or Services.
A. Terms of Service
Capitalize, a term which refers to Capitalize Technologies LLC and its affiliates, (together, "Capitalize," "we," "us," "our" or the "Company") operates the website located at www.capitalize.co and the Capitalize Android and iOS applications (together, the "Site"). Our mission is to make it easier for entrepreneurs ("Founders") who are working on innovative new businesses ("Startups") and investors interested in investing in those Startups ("Investors") to setup and administer single-asset and multi-asset venture capital funds ("Funds"). Among other things, Capitalize offers web-based tools for investing in Funds and a web-based wallet for storing money used to invest in Startups and/or Funds (see "Cash Accounts" below). Capitalize also provides supplementary materials that educate both Founders and Investors about the nature of entrepreneurship, the process and perils of investing in Startups and Funds. The services, features, content or applications that may be offered from time to time by Capitalize in connection with the Site and/or Capitalize's business, including Cash Accounts, are collectively referred to as the "Services." Capitalize is a financial technology company, not a broker-dealer. We do not facilitate securities transactions or provide investment advice.
1. Acceptance of the Terms of Service; Changes
By accessing the Site and/or using the Services, you accept and agree to be bound by all of the provisions of the Terms of Service (the "TOS" or “Terms”). IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THE TOS, OR IF YOU ARE NOT ELIGIBLE, YOU ARE NOT AUTHORIZED TO ACCESS THE SITE OR USE THE SERVICES.
If you are not a resident of the European Union, this TOS provides that all disputes between you and Capitalize will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 15.3 ("Dispute Resolution") for the details regarding your agreement to arbitrate any disputes with Capitalize.
As used in the TOS, the terms "you" and "your" mean each individual or entity that accesses, browses or uses the Site and/or the Services in any manner. If you are accessing the Site and/or using the Services on behalf of an entity, you represent and warrant to Capitalize that you have the authority to bind the entity you represent to the TOS. Your agreement to this TOS will be treated as the agreement of the entity you represent.
Capitalize may modify the TOS or add or remove terms at any time, and each such modification, addition or deletion will be effective immediately upon posting on the Site. Your use of the Site or the Services following any such posted modification, addition or deletion constitutes your agreement to be bound by and your acceptance of the TOS as so modified. It is therefore important that you review the TOS regularly. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THE MODIFIED TOS, YOU ARE NOT AUTHORIZED TO ACCESS THE SITE AND/OR USE THE SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE DOING SO.
You may only use the Site and the Services if you are at least 18 years of age. Capitalize reserves the right to require you to provide Capitalize with proof of your age. Capitalize may terminate your access to and use of the Site and the Services without warning if it determines that you do not meet the foregoing eligibility requirements.
In addition to the eligibility requirements in the TOS, your use of certain Services may be subject to eligibility requirements set forth in the Additional Terms.
4. Access to the Site and Services
4.1 General Access
Subject to your compliance with the TOS and Additional Terms, Capitalize hereby grants to you a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available, hosted software product and related documentation via a Web-browser or mobile application for use during the term of the TOS and Additional Terms. Capitalize hosts and retains control over the software and only makes it available for access and use by you over the Internet through a Web-browser or mobile application. Nothing in the TOS or Additional Terms obligates Capitalize to deliver or make available any copies of computer programs or code from the software to you, whether in object code or source code form. You may not rent, lease, distribute, or resell the software, or use the software as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the software.
4.2 Registered Users
In order to access or use certain Services, you must become a "Registered User" by creating an account (an "Account") and choosing a password that you will use to access your Account. Once an Account has been created on either the Wefunder or Capitalize websites or mobile applications, the same Account may be used on both Wefunder and Capitalize. By registering, you represent and warrant to the Company that all registration and other information you submit to or through the Site is truthful, accurate, current and complete, and you agree to immediately provide corrected information if any of the submitted information shall no longer be truthful, accurate, current and complete. You further represent and warrant that your use of the Site and the Services does not violate any applicable laws, rules or regulations. Without limiting any of Capitalize's other available legal remedies, if you provide any registration or other information that is untrue, inaccurate, or incomplete, or Capitalize has reasonable grounds to suspect that such is the case, Capitalize may immediately, and without notice to you, suspend or terminate your Account and refuse any and all use by you of the Site and the Services. Your registration on the Site and your use of the Site and the Services are void where prohibited.
You are solely responsible for safeguarding the confidentiality of your password and for any and all use of your Account and password, whether or not authorized by you. Although Capitalize will not be liable for any of your losses that are caused by any unauthorized use of your Account, you may be liable for the losses of Capitalize or others due to such unauthorized use. If you suspect any unauthorized use of your Account or unauthorized access to your password, please contact Capitalize immediately at [email protected]. You do not have the right to transfer your Account to any individual or entity and Capitalize reserves the right to remove or reclaim your Account if Capitalize determines, in its sole discretion, that such action is appropriate under the circumstances. You agree that you will not create an Account for any individual other than yourself (or, if applicable, the entity you represent). As a Registered User, you agree that Capitalize may electronically provide you (via email or postings or links on the Site) with invoices, documents, notices and other communications regarding the Site, the Services and/or your use thereof, as well as special offers, promotions, commercial advertisements, marketing materials, etc. You agree that Capitalize may send the foregoing communications to you via your Account or any email address(es) which you provide to Capitalize as part of your Account registration or otherwise.
5. Use of the Site and Services
5.1.1. You agree that you will use the Services solely in a manner consistent with this Agreement and the Capitalize mission described above. You assume all risk when using the Site and the Services, and you acknowledge that the Company cannot guarantee and does not promise any specific results from your use of the Site and the Services.
5.1.2. While some of the Services relate to legal, tax, investment or accounting matters, neither we nor any of the professionals providing such content are providing professional advice to you, and you acknowledge that there is no professional relationship (including without limitation any attorney-client relationship) between you and any of the same, unless you and such party specifically agree otherwise.
5.1.3. The information and services provided on the Site are not provided to, and may not be used by, any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where Capitalize is not authorized to provide such information or services. Some products and services described in the Site may not be available in all jurisdictions or to all users.
5.1.4. You represent and warrant to Capitalize that: you own all rights in and to the content posted by you on, through or in connection with the Site or the Services ("User Content"), or otherwise have all the rights, power and authority legally required to grant Capitalize the rights in your User Content pursuant to the TOS and the Additional Terms; and the posting of your User Content on or through the Site does not violate the TOS or violate the privacy rights, publicity rights, intellectual property rights (including, without limitation, copyrights and trademarks), contract rights or any other rights of any person or entity, whether or not such person or entity is depicted or appears/performs in your User Content. You agree that you are solely responsible for the User Content that you post on or through the Site and any material or information that you transmit to other users of the Site or the Services.
5.2. You agree that Capitalize has the right to perform all technical functions necessary to offer the Services, including, but not limited to, processing and transmitting email communications to and from you, and transcoding and/or reformatting your User Content. You do not have the right to use, copy or distribute any of the content posted on the Site, except as expressly authorized by the TOS and the Additional Terms. Any violation by you of the forgoing prohibitions may result in the termination of your Account and your right to use the Site and the Services.
5.3 Your Conduct When Using the Site and the Services
5.3.1. As a condition of your access to the Site and use of the Services, you are prohibited from taking any action that would violate the content and conduct standards set forth in Section 6 below. In addition and not in limitation of the prohibited actions set forth in Section 6 below, you agree that you will not (a) employ any device, scheme, or artifice to defraud or (b) engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
5.3.2. Capitalize reserves the right, but is under no obligation or duty, to at any time, and without notice, monitor activity on the Site to determine compliance with the TOS and Additional Terms or to comply with any law, regulation or authorized government request. You hereby specifically agree to such monitoring. In the event that Capitalize does monitor the Site or the Services, Capitalize makes no representation or warranty that Capitalize will take any action whatsoever in connection with any of the monitored activities and Capitalize assumes no liability with respect thereto.
5.4 Your Interactions with Other Users
5.4.1. Capitalize uses various techniques to verify the accuracy of the information provided by users. However, in view of the limitations in verification on the Internet, Capitalize cannot confirm the identity of users. We encourage you to use the various tools and content available on the Site, as well as elsewhere, to evaluate the users with whom you are dealing.
5.4.2. You acknowledge that there are risks of dealing with other users acting under false pretenses, and you assume the risks of liability or harm of any kind in connection with transactions of any kind relating to goods and/or services that are the subject of transactions using the Site. Such risks shall include, but are not limited to, misrepresentation of information about a user or a Startup, breach of warranty, breach of contract, and violation of third-party rights and consequent claims. You agree that Capitalize shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise as a result of or in connection with any transactions with others using the Site.
6. Prohibited Content/Conduct
As a condition of your access to the Site and use of the Services, you are prohibited from (i) posting, uploading, exhibiting, communicating or distributing content which violates any applicable laws, rules or regulations or which Capitalize, in its sole and absolute discretion, deems to be inappropriate and (ii) engaging in conduct which violates any applicable laws, rules or regulations or which Capitalize, in its sole and absolute discretion, deems to be inappropriate. Examples of such prohibited content and prohibited conduct include, without limitation, the following:
- Posting, uploading or transmitting any content that violates any privacy right, publicity right, patent, trademark, trade secret, copyright or other proprietary right, or contract right or other right of any party;
- Posting, uploading or transmitting any content or engaging in any conduct that is offensive, harmful, threatening, abusive, harassing, defamatory, libelous, or obscene or that is unlawful in any manner or that degrades, intimidates, promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual, including, without limitation, on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- Posting, uploading or transmitting any content that is pornographic or that exploits people (adults or children) in a sexual or violent manner; or contains nudity, excessive violence, or offensive subject matter or that contains a link to any of the foregoing types of content or to an adult website or in any way using the Site or the Services in connection with any adult entertainment or pornography business;
- Copying, reproducing, modifying (including, without limitation, altering, obscuring, deleting, etc. any copyright or other legally required notices, credits, logos, trademarks, etc.), creating derivative works from, or distributing in any manner or medium any content posted on the Site or through the Services in any manner that is in violation of the terms of the User Agreements or other applicable agreements;
- Impersonating any person or entity, or submitting any materials to the Site or through the Services that are false, inaccurate, deceptive, misleading, unlawful, or are otherwise in violation of the TOS or the Additional Terms, including, without limitation, utilizing misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of any content transmitted to the Site or through the Services;
- Except as explicitly permitted by the TOS and Additional Terms, or otherwise pre-approved in writing by Capitalize, engaging in any commercial activity on the Site or including any links to commercial services or websites or uploading, posting or otherwise transmitting any content that contains advertising or any solicitation regarding products, goods or services;
- Interfering with any user's right to privacy; soliciting or collecting user names, passwords, emails, personal identifying information or other information from any user; engaging in conduct that poses or creates a privacy or security risk to any person; or posting private information about a third party;
- Engaging in conduct that involves the posting, uploading or transmission of unsolicited or unauthorized advertising or promotional materials, "junk mail," "chain letters," unsolicited mass mailing, "spimming," or "spamming";
- Engaging in any action or inaction that could disable, overload, impair the infrastructure of the Site or impair the proper functioning of the Site or the Services, including, without limitation, uploading, posting or otherwise transmitting any software or materials which contain a virus or other harmful or disruptive component; circumventing, altering or interfering with any computer software, or security-related features of the Site or the Services; or deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way utilized in connection with the Site or the Services;
- Accessing or attempting to access the Site or the Services using automated means (such as harvesting bots, robots, spiders, or scrapers) or gaining, or attempting to gain, unauthorized access to any servers, computer systems or databases utilized in connection with the Site or the Services;
- Using the communication systems provided by the Site for any solicitation or other commercial purposes, except as explicitly permitted by the User Agreements or otherwise authorized by Capitalize, or Capitalize and the specific user, as applicable;
- Uploading, posting or transmitting any content that advocates or provides instruction on illegal activity or communicating on or through the Site regarding illegal activities with the intent to commit them;
- Making any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, in connection with the purchase or sale of any security; and
- Engaging in any conduct that in Capitalize's sole discretion restricts or inhibits any other user from enjoying the use of the Site or any of the Services.
7. Pricing and Payment
Capitalize reserves the right to charge fees for use of the Site or specific Services, and may change the fees that it charges. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable. You agree that, in addition to all other amounts payable under the TOS or the Additional Terms, you are responsible for paying all sales, use, value added or other taxes - federal, state or otherwise - however designated, that are levied or imposed by reason of your use of the Site and the Services. Capitalize will charge the payment method you specify at the time of purchase. You authorize Capitalize to charge all sums as described on the Site for the Services you select, to that payment method. If you pay any fees with a credit card, Capitalize may seek pre-authorization of your credit card account prior to your transaction to verify that the credit card is valid and has the necessary funds or credit available to cover your transaction.
8. Proprietary Property.
8.1 Capitalize Proprietary Property.
The Site and the Services are and contain proprietary property/content of Capitalize (such as logos, copyrights, trademarks, technology, processes, etc.) ("Capitalize Proprietary Property") which may be protected by copyright, trademark, patent, trade secret and other laws. Capitalize owns and retains all rights in and to the Capitalize Proprietary Property. Capitalize hereby grants you a limited, revocable, nonsublicensable license to display and/or utilize the Capitalize Proprietary Property solely for your use in connection with using the Site and the Services for the purposes (if any) authorized by the User Agreement. Except as explicitly permitted in the TOS or any Additional Terms, you do not have the right to use the Capitalize Proprietary Property for any commercial use or to receive any monetary or other compensation in connection with the Capitalize Proprietary Property. Except as expressly provided by the TOS or the Additional Terms, your use of the Capitalize Proprietary Property is strictly prohibited.
8.2 Third Party Proprietary Property.
The Services may contain proprietary property/content provided by third party Capitalize licensors (such as logos, copyrights, trademarks, etc.) ("Third Party Proprietary Property"). Unless otherwise expressly provided by the TOS or the Additional Terms, your use of the Third Party Proprietary Property is strictly prohibited.
8.2 Use of Proprietary Property
Unless expressly provided by the TOS or the Additional Terms, you may not copy, modify, edit, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any Capitalize Proprietary Property, any Third Party Proprietary Property or any other content appearing on or through the Site. You acknowledge that Capitalize is not responsible for, does not control and makes no representation or warranty regarding the reliability, accuracy, usefulness, safety, legitimacy or quality of any content. Capitalize does not endorse any content on the Site or any statement, opinion, suggestion or advice contained therein, and Capitalize expressly disclaims any and all liability in connection therewith. You agree that you will bear any and all risk of reliance on the accuracy, validity or legitimacy of any content on the Site. You further understand and agree that in the course of your use of the Site and the Services, you may be exposed to content on the Site that is illegal, inaccurate, offensive, indecent or objectionable and you hereby waive, any legal or equitable rights or remedies you have or may have against Capitalize with respect thereto.
9. Protecting Intellectual Porperty; Digital Millennium Copyright Act.
Capitalize specifically prohibits users from uploading, embedding, posting, emailing, transmitting or otherwise making available on or through the Site or the Services any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. It is Capitalize's policy to terminate, under appropriate circumstances, the account of users who are determined to be repeat infringers.
9.2 DMCA Notification.
If you are a copyright owner or an agent thereof and believe that any content made available via the Site infringes upon your copyright, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Capitalize's copyright agent ("Copyright Agent") with the following information in writing: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Site (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit Capitalize to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf; and (f) your physical or electronic signature. The contact information for the Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, Capitalize Technologies LLC, 1885 Mission St., San Francisco, CA 94103; email: [email protected].
If you feel that any of your content was improperly removed or made unavailable to other users, please contact Capitalize's Copyright Agent via the contact information set forth above.
10. Links to Third Party Sites.
The Site and the Services may contain links to independent third-party websites and/or services (collectively, "Linked Sites"). The Linked Sites are not under Capitalize's control, and Capitalize does not endorse, is not responsible for and shall have no liability to you with respect to the business practices, privacy policies or content, materials, information, merchandise, products or services displayed, featured, mentioned, advertised, distributed or sold on or through such Linked Sites. By accessing a Linked Site, you may be disclosing your private information and be exposing yourself to content that you find disturbing. It is your responsibility to read and understand the privacy, membership, payment and other policies of the Linked Sites and to determine on your own whether or not you will have any interaction with any of the Linked Sites. Capitalize encourages you not to provide any personally identifiable information to any Linked Site unless you know and are comfortable with the party with whom you are interacting. You agree that Capitalize is not responsible for and shall have no liability to you, with respect to merchandise, products, and/or services advertised, featured, mentioned, sold, distributed, displayed or linked on or through the Site or the Services.
11. Submitted Ideas/Feedback.
All comments, suggestions, ideas, notes, drawings, concepts or other information disclosed or offered by you through the Site and the Services or in response to solicitations made through the Site or the Services (collectively, "Feedback") is entirely voluntary and shall be deemed to be non-confidential and shall forever remain the sole property of Capitalize. You understand and acknowledge that Capitalize has both internal and external resources which may have developed, or may in the future develop, ideas, content, programming, etc. identical to or similar to your Feedback and you agree that Capitalize will not incur any obligation or liability to you or otherwise as a result of (i) any such similarities or (ii) Capitalize's review of any of the Feedback. Capitalize shall exclusively own, throughout the universe in perpetuity, and you hereby irrevocably assign, all rights of every kind and nature (whether currently existing or hereafter developed) in and to the Feedback and Capitalize shall be entitled to unrestricted use of the Feedback for any and all purposes whatsoever, commercial or otherwise, without any payment or other obligation to you or any other person involved with the creation and/or submission to Capitalize of the Feedback. You hereby waive any and all of your rights of droit moral and similar rights with respect to the Feedback.
12. Disclaimer; Exclusion of Warranties.
CAPITALIZE PROVIDES ITS USERS WITH A SELECTION OF SERVICES, TOOLS AND RESOURCES WITH THE GOAL OF CONNECTING ENTREPRENEURS WITH INVESTORS WHO MAY BE ABLE TO PROVIDE FINANCING, ADVICE AND OTHER SUPPORT TO THEIR STARTUPS. CAPITALIZE DOES NOT ENDORSE ANY THIRD PARTIES, OR THIRD PARTY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY STARTUP OR FUND SEEKING TO RAISE CAPITAL THROUGH THE SITE OR USING THE SERVICES. CAPITALIZE DOES NOT RECOMMEND OR ADVISE INVESTING IN ANY SUCH COMPANIES. CAPITALIZE MERELY SERVES AS A PLATFORM FOR INTERACTIONS BETWEEN ENTREPRENEURS OR STARTUPS AND INVESTORS. CAPITALIZE IS NOT RESPONSIBLE FOR ANY INVESTMENT OR OTHER DECISIONS MADE BY ANY INDIVIDUAL OR ENTITY IN CONNECTION WITH ANY OPPORTUNITY POSTED ON OR THROUGH THE SITE OR THE SERVICES.
THE SITE AND THE SERVICES, AND ALL OF THE CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK AND MATERIALS POSTED ON OR PROVIDED BY OR THROUGH THE SITE OR THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. BY USING THE SITE AND/OR THE SERVICES, YOU AGREE TO USE YOUR OWN JUDGMENT, CAUTION AND COMMON SENSE IN MANAGING ALL CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK AND MATERIALS OFFERED AND YOU AGREE THAT ANY USE YOU MAKE OF SUCH CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK OR MATERIALS IS AT YOUR OWN RISK. YOU ACKNOWLEDGE THAT CAPITALIZE DOES NOT EVALUATE OR GUARANTEE AND SHALL NOT BE RESPONSIBLE FOR, THE INFORMATION, COACHING, ADVICE AND/OR FEEDBACK SERVICES GIVEN THROUGH THE SITE OR THE SERVICES. CAPITALIZE IS NOT RESPONSIBLE FOR ANY DAMAGES OR LOSSES RESULTING FROM YOUR RELIANCE ON ANY OF THE FOREGOING CONTENT, INFORMATION, COACHING, ADVICE, FEEDBACK OR MATERIALS.
CAPITALIZE IS NOT RESPONSIBLE FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY USER OR THIRD-PARTY CONTENT POSTED ON, THROUGH OR IN CONNECTION WITH THE SITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT THAT IS UNAUTHORIZED OR VIOLATES THE TOS OR THE ADDITIONAL TERMS, AND SUCH CONTENT DOES NOT NECESSARILY REFLECT THE OPINIONS OR POLICIES OF CAPITALIZE. UNDER NO CIRCUMSTANCES SHALL CAPITALIZE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SITE OR THE SERVICES, FROM ANY CONTENT POSTED ON THE SITE OR THROUGH THE SERVICES (WHETHER SUCH CONTENT VIOLATES THE TOS OR ADDITIONAL TERMS OR NOT), FROM ANY SERVICES OFFERED THROUGH THE SITE OR FROM THE CONDUCT OF ANY USER OF THE SITE OR THE SERVICES OR ANY USER OF ANY LINKED SITE (REGARDLESS OF WHETHER SUCH CONDUCT VIOLATES THE TOS OR ADDITIONAL TERMS, OR WHETHER SUCH CONDUCT IS ONLINE OR OFFLINE).
CAPITALIZE ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY OF YOUR COMMUNICATIONS ON OR THROUGH THE SITE. CAPITALIZE IS NOT RESPONSIBLE FOR ANY MALFUNCTION OR OTHER PROBLEM WITH ANY TELEPHONE NETWORK, TELEPHONE LINES, COMPUTER ONLINE SYSTEMS, SERVERS, INTERNET SERVICE PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL OR PLAYERS, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY OR PROPERTY DAMAGE. CAPITALIZE DOES NOT GUARANTEE ANY RESULTS (SPECIFIC OR OTHERWISE) FROM YOUR USE OF THE SITE OR THE SERVICES AND CAPITALIZE MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE, THE SERVICES OR THE INFORMATION OR SERVICES PROVIDED THEREBY WILL MEET YOUR REQUIREMENTS. IF YOU ARE IN ANY WAY DISSATISFIED WITH THE SITE OR THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITE AND/OR THE SERVICES. CAPITALIZE DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU AGREE THAT CAPITALIZE SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION.
13. Limitation on Liability.
IF YOU ARE NOT A RESIDENT OF THE EUROPEAN UNION, IN NO EVENT SHALL CAPITALIZE, ITS AFFILIATES, LICENSORS, SPONSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES) RESULTING FROM (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT DISPLAYED ON THE SITE OR THROUGH THE SITE OR THE SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF (OR YOUR INABILITY TO ACCESS AND USE) THE SITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE CAUSED TO YOUR COMPUTER OR SOFTWARE OR INFORMATION STORED THEREON, (III) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OBTAINED ON OR THROUGH THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF CAPITALIZE SERVERS AND/OR ANY AND ALL PERSONAL AND/OR OTHER INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE OR THROUGH THE SITE OR ANY OF THE SERVICES, (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE OR THE SERVICES BY ANY THIRD PARTY, (VII) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, (VIII) EMAILS OR OTHER TRANSMISSIONS OR COMMUNICATIONS MADE TO YOU THROUGH THE SITE OR THE SERVICES AND/OR (IX) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR SERVICES POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CAPITALIZE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ANY LIMITATION OF LIABILITY IN THIS TOS OR ANY OTHER USER AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION, BUT NO LIMITATION OF LIABILITY IN ANY USER AGREEMENT IS INTENDED TO LIMIT THE RIGHTS OF ANY PERSON UNDER FEDERAL AND STATE SECURITIES LAW.
IF YOU ARE A RESIDENT OF THE EUROPEAN UNION, THE MANDATORY APPLICABLE LAWS OF YOUR COUNTRY OF RESIDENCE REGARDING CONSUMER PROTECTION SHALL APPLY.
You may terminate your Account at any time by contacting Capitalize at [email protected]. If you terminate your Account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Services. If you violate any provision of this TOS or the Additional Terms, your permission from Capitalize to use the Services will terminate automatically. In addition, Capitalize may in its sole discretion terminate your user account for the Site or Services or suspend or terminate your access to the Site or Services at any time for any reason or no reason, with or without notice. Capitalize also reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
15. Governing Law; Disputes; Arbitration.
15.1 Governing Law; Venue and Jurisdiction; Waiver of Jury Trial.
If you are not a resident of the European Union, the User Agreements shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its conflict of law provisions. If you are a resident of the European Union, the User Agreements shall be governed by, and construed in accordance with, the laws of the country of your residence and the content of this section shall be replaced by the applicable laws regarding consumer protection. If a lawsuit or court proceeding is permitted under a User Agreement, then you and Capitalize agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute. EACH OF YOU AND CAPITALIZE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY USER AGREEMENT. FURTHER, EACH OF YOU AND CAPITALIZE HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF YOU AND CAPITALIZE ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR EACH OF THEM, RESPECTIVELY, TO ENTER INTO THIS TOS AND THE ADDITIONAL TERMS.
15.2 Disputes With Other Users.
You are solely responsible for your interactions with users of the Site and the Services, and any other parties with whom you interact on or through the Site, the Services and/or the Linked Sites. Capitalize reserves the right, but has no obligation, to become involved in any way with these disputes.
15.3 Dispute Resolution.
15.3.1. Generally. In the interest of resolving disputes between you and Capitalize in the most expedient and cost effective manner, and except as described in Section 15.3.2, you and Capitalize agree that every dispute between you and any Capitalize affiliate arising in connection with the TOS and Additional Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of any User Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this TOS and the Additional Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TOS AND THE ADDITIONAL TERMS, YOU AND CAPITALIZE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.3.2. Exceptions. Despite the provisions of Section 15.3.1, nothing in this TOS or the Additional Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) to file suit in a court of law to address an intellectual property infringement claim; or (e) pursue any available remedies under federal or state securities law.
15.3.3 Arbitrator. Any arbitration between you and Capitalize will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this TOS, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Capitalize.
15.3.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"). Capitalize's address for Notice is: Capitalize Technologies LLC, 1885 Mission St., San Francisco, CA 94103. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Capitalize may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Capitalize must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Capitalize will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Capitalize in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.
15.3.5. Fees. If you commence arbitration in accordance with this TOS, Capitalize will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Capitalize for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
15.3.6 No Class Actions. YOU AND CAPITALIZE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Capitalize agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
15.3.7 Modifications to this Arbitration Provision. If Capitalize makes any future change to this arbitration provision, other than a change to Capitalize's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Capitalize's address for Notice, in which case your account with Capitalize will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.3.8. Enforceability. If Section 15.3.6 is found to be unenforceable or if the entirety of this Section 15.3 is found to be unenforceable, then the entirety of this Section 15.3 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15.1 will govern any action arising out of or related to the TOS or any Additional Terms.
You agree to defend Capitalize, its subsidiaries, affiliates, licensors and assignees and their respective officers, directors, managers, stockholders, members, agents, partners and employees (the "Capitalize Indemnitees"), from and against any and all claims, actions, suits, demands or other proceedings brought by or on behalf of any third party, and to indemnify and hold the Capitalize Indemnitees harmless against any losses, liabilities and other damages (including, but not limited to, reasonable attorneys' fees), in any case arising out of or related to (i) your access to and/or use of the Site and the Services, including, without limitation, your use of the Site and the Services in connection with any transaction in securities; (ii) a violation or breach by you, or any user of your account, of any provision of the TOS or of any Additional Terms, including, without limitation, a breach of any of the representations, warranties or agreements set forth in the TOS and the Additional Terms; and/or (iii) any content that you post on or through the Site or the Services. This defense and indemnification obligation will survive following the termination of your use of the Site and the Services.
17. Other Terms.
Capitalize has the right to assign the TOS and/or any Additional Terms and/or its rights thereunder, in whole or in part, to any third party. You do not have the right to assign the TOS or any Additional Terms, except if and to the extent explicitly permitted in the Additional Terms. If we assign these Terms and your rights materially change, we will notify you and you will have the right to cancel your agreement to these Terms by cancelling your account. The failure of Capitalize to exercise or enforce any right or provision of the TOS or Additional Terms shall not operate as a waiver by Capitalize of such right or provision. The section titles in the User Agreements are for convenience only and have no legal or contractual effect. The TOS and Additional Terms operate to the fullest extent permissible by law. If any provision of the TOS or Additional Terms are held by a court or other tribunal of competent jurisdiction to be unlawful, void or unenforceable, such provision (i) is deemed severable from the TOS and Additional Terms and does not affect the validity and enforceability of any remaining provisions which shall remain in full force and effect and (ii) shall be limited or eliminated to the minimum extent necessary to comply with the applicable law. Capitalize reserves all rights in and to the Site, including the Services and the other content posted thereon, unless otherwise expressly provided by this TOS or the Additional Terms. Capitalize reserves the right to modify or discontinue any aspect of the Services at any time without prior notice and without any liability to you.
We reserve the right to amend provisions of these Terms at any time, subject to the conditions set out below, if such amendment is reasonable for you, taking into account our interests, and provided that it does not change our main obligations under the contract to your disadvantage. This applies in particular if we have an amendment reason as outlined below.
A reason for the amendment exists:
- if the change is merely advantageous for you;
- if the change is purely technical or procedural, unless it has a material effect on you;
- to the extent that we are obliged to bring these Terms into conformity with applicable law, in particular if the applicable legal situation changes or we are obliged to do so by a court judgment or a decision of the authorities against us; or
- to the extent that we introduce additional services, services or service elements that require a service description in these Terms.
If we make changes to these Terms, we will notify you by email and by posting a notice to the Services prior to the effective date of the changes. We will also indicate at the top of these Terms the date that revisions were last made. Changes will be deemed approved if you do not object to them electronically within 4 weeks of the announcement of the respective change, provided that in the announcement, we will inform you that the amended Terms shall be deemed to have been accepted by you if you do not object to the new Terms within the aforesaid period after receipt of the e-mail.
Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, pandemic, government requirement, civil disturbances, or civil or military authority.
Notice Regarding Apple. If the Services that you use include a mobile application that you download, access and/or use and that runs on Apple's iOS operating system (an “iOS App”), you acknowledge and agree that: (i) the iOS App may only be accessed and used on a device owned or controlled by you and using Apple's iOS operating system; (ii) these Terms are between you and us, and not with Apple; (iii) Apple has no obligation to provide any support or maintenance services in relation to the iOS App, and if you have any maintenance or support questions in relation to the iOS App, please contact us, not Apple; (iv) except as otherwise expressly set forth in these Terms, any claims relating to the possession or use of the iOS App are between you and us (and not between you, or anyone else, and Apple); (v) in the event of any claim by a third party that your possession or use (in accordance with these Terms) of the iOS App infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim; and (vi) although these Terms are entered into between you and us (and not Apple), Apple, as a third party beneficiary under these Terms, will have the right to enforce these terms against you.
In addition, you agree that: (i) you are not, and will not be, located in any country that is the subject of a United States Government embargo or that has been designated by the United States Government as a “terrorist supporting” country; and (ii) you are not listed on any United States Government list of prohibited or restricted parties; and (iii) if the iOS App does not conform to any warranty applying to it, you may notify Apple, which will then refund the purchase price of the iOS App (if any) to you. Subject to that, and to the maximum extent permitted by law, Apple does not give or enter into any warranty, condition or other term in relation to the iOS App and will not be liable to you for any claims, losses, costs or expenses of whatever nature in relation to the iOS App or as a result of you or anyone else using the iOS App or relying on any of its content.
Notice Regarding Google. If the Services that you use includes a mobile application that you download, access, and/or use from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms are between you and us only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) we, and not Google, are solely responsible for our Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Terms as it relates to our Google-Sourced Software.
18. Additional Terms and Conditions Related to Cash Accounts
If you have any questions regarding a Cash Account, please contact Capitalize at [email protected].
A “Cash Account” is a virtual wallet used for making investments into companies on the Wefunder and Capitalize websites and applications, and receiving refunds and payouts from Wefunder and Capitalize investments. It can be accessed at www.wefunder.com/cash or www.capitalize.co/cash. You may fund your Cash Account by navigating to the Cash page and initiating a transfer from your bank account or sending a wire transfer. You may also fund your Cash Account during the investment flow, when making a reservation in a U.S. company on Wefunder that is in the “testing the waters” stage.
Once you have funded your Cash Account, you can choose to allocate those funds to any offering on Capitalize or any U.S. offering on Wefunder by selecting Cash as your payment option on the checkout screen. You may allocate such funds from your Cash Account only to the extent of your balance in the Cash Account at the time of your allocation. Any attempts to allocate to an offering or to withdraw amounts in excess of the balance in your Cash Account will be denied. All funds in your Cash Account are held in a third-party escrow account with Wefunder’s and Capitalize’s banking provider (“Cash Escrow Account”).
When you receive a payout or refund from an investment made on Wefunder or Capitalize, those funds may be automatically deposited into your Cash Account. You can then log in and choose whether to withdraw those funds or allocate them to a new offering on Wefunder or Capitalize.
18.2 Misuse of Cash Accounts
Cash Accounts are solely intended to be used to fund Wefunder or Capitalize investments and may not be used to transfer money from one person to another. Wefunder, Capitalize and/or their affiliates will monitor transactions for such activity or any other activity that may constitute misuse of a Cash Account or that is potentially suspicious or illegal, and reserve the right to coordinate and share information as needed to ensure transactional and system integrity. Wefunder and Capitalize reserve the right to change any of the above terms and conditions of these TOS to protect its customers and the integrity of its business, or as required by law.
18.3 Cash Accounts Not Deposits Protected by FDIC
Cash Accounts may only be funded by U.S. currency and may not be funded with securities or other assets and instruments. While funds in any Cash Account are held in the Cash Escrow Account, a Cash Account is not interest-bearing and is not FDIC insured.
19. Your Responsibilities as an Investor.
You are a self-directed investor who is individually responsible for determining the suitability of your investment decisions. Capitalize is not responsible for the investment decisions made by you or on your behalf. Capitalize is not responsible for the strategies, actions or inactions taken with respect to your Capitalize investments. Capitalize is not responsible for the gains or losses you incur. The employees, agents and representatives of Capitalize are not authorized to give you investment advice, and any instructions you receive from Capitalize with respect to Capitalize investments will be limited to technical or administrative guidance.
You assume individual responsibility for determining the suitability of all investment decisions and strategies you make or implement. You must base your investment decisions upon all information reasonably available to you and your own assessment of risks and rewards. You are solely responsible for knowing the rights and terms for all investments you make in Capitalize investments.
For further information related to the risks associated with Capitalize investments, refer to the Investor Agreement.
20. Contacting Capitalize; Reporting of Violations.
You may contact Capitalize at [email protected]. Please report any misuse of the Site or the Services or any violation of the TOS or the Additional Terms by sending an email to Capitalize at [email protected].
B. Investor Agreement
PROVISIONS GOVERNING THE USE OF THE CAPITALIZE SITE BY INVESTORS AND INVESTMENTS IN OFFERINGS
Capitalize Technologies LLC and its affiliates operate the website located at www.capitalize.co and the Capitalize Android and iOS applications (together, the "Site"), which provides technology services to early stage, start-up companies ("Startups") and single and multi-asset venture capital funds (“Funds”) conducting securities offerings (the "Offerings").
Offerings on the Site are made pursuant to Regulation D of the Securities Act of 1933 ("Reg D Offerings"). Reg D Offerings by Startups are facilitated through the portion of the Site operated by Capitalize Technologies LLC. Reg D Offerings by Funds that are administered and/or advised by Capitalize Advisors LLC ("Capitalize Advisors"), a wholly-owned subsidiary of Capitalize Technologies LLC, itself a wholly-owned subsidiary of Wefunder Inc., are facilitated through the portion of the Site operated by Capitalize Advisors.
Your ability to participate in a particular Offering may depend on your income or net worth, your recent participation in certain other Offerings, your accreditation status, and/or your country of residence, as described further below. By using this Site, you are agreeing to the terms and conditions of this Capitalize Investor Agreement, which includes, by reference, the Capitalize Terms of Service (the “TOS” or "Terms of Service") and the other agreements listed in Section 1 below (collectively, this "Agreement"), and you are agreeing to the following terms, among others, with respect to your use of the Site as a registered member of the Site (a "Member").
TERMS OF THIS AGREEMENT
Table of Contents
- General; Documents Incorporated by Reference into this Agreement
- Agreements with respect to the Site and all Offerings
- Agreements with respect to Reg D Offerings
1. GENERAL; DOCUMENTS INCORPORATED BY REFERENCE INTO THIS AGREEMENT
This Agreement between you and Capitalize sets forth the terms and conditions for your access to the Site and your use of the information, features, products, services and tools on the Site (the "Services"). For the avoidance of doubt, if you participate in a Reg D Offering involving a Fund that is administered and/or advised by Capitalize Advisors, this Agreement is also between you and Capitalize Advisors. For ease of reference, when Capitalize Technologies LLC and Capitalize Advisors are referred to together in this Agreement, they are referred to as "Capitalize," "we," or "us."
This Agreement incorporates by reference the Terms of Service. You represent that you have read the Terms of Service and agree that the Terms of Service govern your use of the Site and the Services (as those terms are defined in the Terms of Service). Capitalized terms used in this Agreement that are not otherwise defined herein have the meaning given to them in the Terms of Service.
Your use of the Site is governed by the version of this Agreement in effect on the date of use. We may modify these terms and conditions at any time and without prior notice, and you agree to be bound by this Agreement as so modified. It is your responsibility to visit the link accessible on the Site home page periodically to review the most current terms and conditions of this Agreement for changes. You acknowledge that by accessing the Site after we have made changes to this Agreement, you are agreeing to the terms and conditions of this Agreement as modified.
The terms and provisions of the following agreements and other documents are incorporated into this Agreement by reference, to the extent applicable to a given Offering:
- The Site's Terms of Service;
- The information on the Site about the particular Startup or Fund (such information, the "Investment Information");
- The Capitalize Disclosure Statement, which sets forth general information about certain Reg D investments made through the Capitalize Site;
- The Indication of Interest and Subscription Agreement (together, the "Subscription Agreement") or Investment Contract, as applicable, agreed to by you with respect to a particular Offering (if applicable);
- The terms of each Offering (the "Offering Terms") in which you invest, as provided to you and set forth in the applicable documents;
- For a Reg D Offering that makes use of a Fund, this will include: (i) the applicable Series Appendix, an appendix to the LLC agreement (the “LLC Agreement”), which sets forth certain terms of the relevant Fund; and (ii) the LLC Agreement, which sets forth other terms applicable to each Fund;
- Any other information provided to you with respect to an Offering or the Site via the Site.
You should carefully read each of the above documents, to the extent relevant to the given offering, before subscribing to that Offering. You alone are responsible for ensuring that you are aware of all of the terms of this Agreement and your rights and responsibilities under it. You may have additional agreements with Capitalize, and you are responsible for understanding the content of those agreements.
2. AGREEMENTS WITH RESPECT TO THE SITE AND ALL OFFERINGS
2.1 GENERAL ACKNOWLEDGMENTS
- You understand and acknowledge that Capitalize is not responsible for any content on the Site provided by any third parties, including Startups, investments advisers other than Capitalize Advisors (“Third-Party Advisers”), founders of Startups (“Founders”), person or entities that act as lead investors (“Leads”), Investors, and any service providers or other third parties (referred to collectively as “Third Parties”), or any content provided to you in connection with your use of the Site even if that information is distributed to you on behalf of a third party by Capitalize, and is not liable for any type of loss or damage associated with your use of the Site.
- You acknowledge that nothing on the Site constitutes an endorsement, a recommendation to buy securities or any other type of investment advice to you by Capitalize, and any investment risk is solely your own. You are not a client of Capitalize or any of its affiliates, including, for the avoidance of doubt, Capitalize Advisors.
- You acknowledge that Capitalize does not independently verify information regarding Startups or Funds or endorse any Startup or Fund for direct or indirect investment, and that information on the Site has been prepared without reference to any particular Member’s investment requirements or financial situation. You agree to abide by this and other agreements between you and Capitalize and Third Parties that govern or relate to your use of the Site or the services available on the Site.
- You understand that the Site may offer different types of Offerings for investment, each of which may operate under different regulatory regimes and requirements, and that each type of Offerings may have its own unique risks and levels of regulatory involvement.
- You acknowledge that you have been provided access to additional sources of information regarding your investment in a Startup or Fund, including the information that is incorporated into this Agreement by reference, such as the Investment Information, the Subscription Agreement, the Offering Terms, and the Disclosure Statement, as applicable.
2.2 CONFLICTS OF INTEREST ASSOCIATED WITH ALL OFFERINGS2.2.1 General
The Site includes Offerings utilizing the technology services offered by Capitalize Technologies LLC and includes offerings facilitated by Capitalize Advisors LLC. Each of these parties has divergent interests and duties or responsibilities with respect to Members that invest in the Offerings they sponsor. Capitalize Advisors LLC and Capitalize Technologies LLC, as well as other Capitalize affiliates, share members, managers, officers and/or employees that may perform services for various Offerings simultaneously that may take place on the Site and offerings that may take place on the Wefunder website and mobile applications. Each of these persons may take actions in the performance of their duties to their other clients that could differ from the timing and nature of action taken with respect to you or a Startup or Fund in which you invest.2.2.2 Members in Different Offerings May Invest in the Same Startup
A Startup may engage in a Fundraising (as defined below) on the Site and the Wefunder website and mobile applications (the “Wefunder Site”) with respect to multiple types of Offerings at the same time or sequentially over time. A conflict of interest may arise when Capitalize Advisors determines to sponsor a Reg D Offering with respect to a Fund that invests in a Startup that has engaged in, is currently engaged in, or will in the future engage in, a Regulation Crowdfunding Offering (Reg CF Offering), European crowdfunding offering (“ECSP Offering”), or Regulation A+ Offering (Reg A+ Offering) on the Wefunder Site. In this event, Capitalize Advisors will negotiate the terms of the investment in the Startup by the Fund, and in doing so it will not take into account the interests of Members that have or may invest in the Startup through other Offerings, and the interests of the Fund, on the one hand, and the interests of Members that have or may invest in the Startup through other Offerings, on the other, may be opposed. Further, in the event of a bankruptcy of a Startup, Capitalize Advisors will act in the interests of the Fund only and without regard to any Members that may have invested in the Startup through the Wefunder Site in another Offering.2.2.3 Different Fee Structures Associated with Different Offerings
Wefunder, Inc. and Capitalize Advisors will devote the time reasonably required to facilitate their respective Offerings. However, because Wefunder, Inc. and Capitalize Advisors each charge different fees with respect to their respective Offerings, and they each share officers and employees, this may create an incentive for their shared employees to favor and spend more time and effort with respect to Offerings that may result in higher fees.
2.3 RISKS GENERALLY ASSOCIATED WITH ALL OFFERINGS
You should consult your own legal, tax and financial advisers regarding the suitability, desirability and appropriateness of purchasing interests through an Offering. You should also carefully consider the following risks prior to investing through an Offering:2.3.1 Significant Risk of Loss; Not a Complete Investment Program
An investment in a Startup or Fund involves significant risks, only some of which are described in this Agreement, and is suitable only for investors who have limited need for liquidity in their investment, who can afford the potential loss of their investment and who otherwise meet the conditions for eligibility set forth in this Agreement. A direct or indirect investment in a Startup or Fund is not intended as a complete or diversified investment program and should represent only a small portion of a potential investor’s investment portfolio.2.3.2 Startups Are Early Stage Venture Companies with High Risk of Failure
Startups that Funds invest in are usually early stage venture companies. Venture investments involve a high degree of risk and many or most venture company investments lose money and fail at a particularly high rate. You may ultimately receive cash, securities, or a combination of cash and securities (and in some cases nothing at all). If you receive securities, the securities may not be publicly traded, and may not have any significant value.2.3.3 Lack of Operational Record
Most Startups and Funds will have limited or no operational record.2.3.4 Limitation on Liability; Indemnification
This Agreement, including the Terms of Service and the Subscription Agreement, limit the liability of Capitalize, and provide for indemnification in certain circumstances.
2.5 USE OF NAME
You consent to the disclosure by Capitalize of your name (or, if you are acting on behalf of a company or entity, the name of such entity) on the Site. Without limiting such consent, or any other lawful use of your name by Capitalize, you specifically consent to disclosure by Capitalize to potential investors in a Fundraising that you have submitted a Subscription Agreement with respect to that Fundraising, and to disclosure by Capitalize to any Startup, Fund, Third-Party Adviser, Founder, Lead, or Member, or combination of Startups, Funds, Third-Party Advisers, Founders, Leads, or Members, that you have invested in one or more Startups or Funds through the Site, and the number of such investments. You may withdraw this consent at any time by contacting Capitalize.
2.6 ELECTRONIC COMMUNICATIONS
Capitalize requires that you consent to delivery of all communications via electronic communications. Please see the Electronic Consent that is available on the Site and incorporated into this Agreement.
3. AGREEMENTS WITH RESPECT TO REG D OFFERINGS
3.1 GENERAL ACKNOWLEDGMENTS
- You understand and acknowledge that investments you make in a Reg D Offering on the Site may be made in a Fund administered and/or advised by Capitalize Advisors and not directly in any Startup on the Site and that Capitalize Advisors may receive compensation based on the returns of investments held by a Fund, and that the returns of your investment in a Fund, if any, will be reduced by such compensation paid to Capitalize Advisors.
- You understand and acknowledge that once you choose to invest in a Startup through a Fund administered and/or advised by Capitalize Advisors, Capitalize Advisors (and/or, if applicable, a Founder or Lead), and not you, will make all decisions with respect to your investment, including, but not limited to, decisions concerning the disposition of your investment.
3.2 INVESTOR REPRESENTATIONS
You represent and warrant to Capitalize that the answers you provided to the questions you answered when creating a Capitalize or Wefunder account and on the Settings page of the Site (together, the "Investor Certification") are correct and complete and may be relied upon by Capitalize and its affiliates in determining whether you are eligible to invest in Offerings that are listed on the Site.
You understand and acknowledge that certain offerings on the Site are available only to investors located in certain jurisdictions. You represent and warrant to Capitalize that the address you provided in your Investor Certification is a true and accurate representation of your location of residence. You agree that in the event your residence changes, you will promptly update your address on the Settings page of the Site.
You represent that you are using the Site with the intent to make any potential investments for yourself or your institution, and not with the view to sell or otherwise distribute your investment in a Startup or Fund. You agree if any event occurs or circumstance arises that materially adversely affects your annual income or net worth, or causes any other statement made in your Investor Certification to become untrue or misleading in any material respect, then prior to investing in a Startup or Fund through the Site you will complete a new Investor Certification to determine if you are still eligible to invest in Startups or Funds listed on the Site. You acknowledge that Startups and Funds in which you invest may rely, and that Capitalize, Startups, Funds, and their principals, affiliates, and other parties may rely, on the information you have provided in your Investor Certification to determine if you are eligible to invest in Startups or Funds. You represent that you have read and understand the risks contained in the Investment Information.
3.3 CHOOSING AND MAKING INVESTMENTS3.3.1 Services of Capitalize Advisors with Respect to Reg D Offerings
Capitalize Advisors is an exempt reporting investment adviser to Funds engaged in Reg D Offerings, each of which is a series of Capitalize Investments LLC, Capitalize Funds LLC, or other related entities (referred to as the "LLCs"), that invest in the Startups or other investments described on the Site. Each Fund is established as a series of one of the LLCs. Certain Capitalize affiliates – specifically, Wefunder Portal LLC and Wefunder EU BV, are not involved in any way in the portions of the Site through which Reg D Offerings are made or with any Funds. Members of the Site may invest in a Fund, but Members are not clients of any Wefunder or Capitalize entity. Although Capitalize Technologies LLC and its affiliate Capitalize Advisors evaluate potential Startups and Funds and determine which Startups and Funds will be available as potential investments on the Site, you acknowledge and agree that this evaluation does not constitute an endorsement of any particular Startup or Fund or a recommendation that Members invest in any particular Startup or Fund, and does not establish an advisory relationship between you and Capitalize or Wefunder.
Capitalize Technologies LLC performs a limited review of the information provided by each Startup or Fund to determine whether it is appropriate for inclusion on the Site; the information reviewed includes information regarding a Startup’s Founders, business plan, and its current and anticipated resources, and, if relevant, a Fund’s Third-Party Adviser and/or Lead. This review is not intended to verify any information provided by the Startups or Funds regarding their operations, assess the likelihood that a Startup or Fund will succeed or generate investment returns, or otherwise inform or influence any investment decisions by investors. Neither Capitalize Technologies LLC nor Capitalize Advisors performs any separate due diligence on the Startups or Funds either before or after they are listed on the Site.
You acknowledge that as a Member of the Site, you are not a client of or in an investment advisory relationship with Capitalize or its affiliates, including for the avoidance of doubt Capitalize Advisors.
You also acknowledge that none of Capitalize or its affiliates, including for the avoidance of doubt Capitalize Advisors, advises Members on the merits of a particular investment or transaction or provide legal, tax, transactional, investment, financial, or other advisory services to Members. The information, materials and services made available on the Site do not constitute a recommendation, endorsement, or any other form of investment advice to Members by Capitalize or its affiliates, including for the avoidance of doubt Capitalize Advisors, to buy or sell any securities or other financial instruments. The content of the Site has been prepared without reference to any particular Member’s investment requirements or financial situation. You expressly agree that the information, materials and services made available on the Site are not a substitute for the exercise of independent judgment and expertise. You should always seek the assistance of a professional for advice on investments, tax, the law, or other similar matters.3.3.2 Investments in Funds
In Reg D Offerings, Capitalize provides Startups and/or Funds an opportunity to raise funds by allowing Members to invest in these Startups or Funds seeking capital from accredited investors. Members may choose to invest in a Fund or Startup (each such opportunity, a "Fundraising"). If you decide to invest in a Fund, the Fund will invest in securities issued by one or more underlying assets, which may include Startups or other assets (“Assets”). If the Fund is advised by Capitalize Advisors, the terms of the Fund’s investment in the Assets will be negotiated between Capitalize Advisors, on behalf of the Fund, and the owners of the Assets. If the Fund is advised by a Third-Party Adviser, that adviser will negotiate the Fund’s terms. The terms of your investment in the Fund will be governed by the Subscription Agreement between you and the Fund, pursuant to which you will make certain representations to the Fund and Capitalize. The Fund’s adviser may reject your investment in a Fund for any reason or for no reason in its discretion. Information regarding the terms of a Fund’s investment in Assets will be made available on the Site, and together with the Terms of Service, this Agreement, and the Subscription Agreement will govern your investment in a Fund (as well as the Fund’s LLC Agreement and Series Appendix).
Once you complete and submit a Subscription Agreement, you will be asked to transfer funds from your bank account into a bank account maintained at a third party service provider ("Bank Service Provider"). You agree to comply with the terms of the Subscription Agreement and to provide all funds required to complete the transaction promptly. If you do not submit funds at the time that you submit your Subscription Agreement, your investment in the Fund may not be processed. If your investment is rejected, your funds will be returned to you without interest.
Your investment into a Fund may be processed only if a predetermined minimum amount of funds are raised from Members on the Site, either in the aggregate or for investment in the Fund, during the Fundraising (the "Funding Target"). If there is a Funding Target, it will be established by agreement between the Fund’s adviser and, if relevant, the Founder and/or Lead. If there is a Funding Target, no funds designated for investment in a Fund will be invested in the Fund until and unless the Funding Target is reached. If the Funding Target is not reached, your funds will be returned to you without interest. A Fund’s adviser may close the Fundraising at any time after the Funding Target has been reached, and may consult with the Founder and/or Lead, if relevant, to determine whether, and for how long, the Fundraising will remain open. A Fund’s adviser may also enter into an agreement with a Founder or Lead, as relevant, to close a Fundraising once a certain amount of funds have been raised in the Fundraising, either through a Fund or in the aggregate, including direct investments (the "Maximum Amount"), or after the Fundraising has been open for a predetermined period of time. If the value of the funds raised from Members in a Fundraising exceeds the Maximum Amount, the amounts in excess of the Maximum Amount will be returned to investors without interest in a manner determined by the Fund’s adviser in its sole discretion. You will receive notice from the Fund’s adviser when a Fund for which you have submitted a Subscription Agreement has closed, and whether your subscription in the Fund will be processed. Upon closing, each investor who becomes an investor in a Fund will be deemed to have again entered into the Subscription Agreement, including (without limitation) to have agreed to each representation therein.
You may revoke your subscription into the Fund during the Fundraising by providing notice to Capitalize Advisors, as administrator to the Funds, as provided on the Site. You agree and understand that your ability to revoke your subscription may be time-limited, as provided on the Site, and that if you do not revoke during such time period you may be unable to revoke your subscription. After you have received notice that a Fundraising has closed, or at any time thereafter, at Capitalize Advisors’ discretion, your investment in a Fund will be processed. Neither Capitalize nor any Third-Party Adviser will take physical custody of your funds.
You acknowledge that none of Capitalize, any Fund, any of their affiliates, or any Third Party has represented to you that securities of any Fund or Startup are being sold on an "all or none" basis. You acknowledge that, if a Funding Target is established, the Funding Target is not reached, your funds will be returned to you without interest.3.3.3 Limitation on Subscriptions
Capitalize Advisors, acting as either administrator or adviser to a Fund, may, in its sole discretion: (a) refuse to permit any person to invest in a Fund, or may limit the amount a person may invest in any Fund; and (b) compulsorily redeem an investor’s interest in one or more Funds, in whole or in part, on terms that the Capitalize Advisors determines are reasonable. You acknowledge that no Fund for which you submit a Subscription Agreement has any obligation to accept your investment, and that any fraction of the investment amount stated on your Subscription Agreement may be accepted, or your subscription may be rejected entirely, for any reason. You acknowledge and agree that, in the event that only a portion of the investment amount stated in your Subscription Agreement is accepted, such Subscription Agreement will be treated for all purposes as a Subscription Agreement to invest the amount ultimately accepted. If you submitted funds in excess of the investment amount accepted, the excess funds will be returned to you without interest in a manner determined in the sole discretion of Capitalize Advisors.3.3.4 Direct Investments in Startups
It is possible that you may be invited by a Startup or one of its Founders to invest directly in the securities of a Startup rather than through a Fund. In this case, you will indicate on the Site that you intend to invest in the particular Startup, and Capitalize or its affiliate will provide your information, including the information you provided in the Investor Certification and your intended investment amount, to the Startup. You agree and understand that your ability to withdraw your investment may be time-limited, as provided on the Site, and that if you do not withdraw your investment during such time period you may be unable to withdraw it subsequently.
3.4 INFORMATION REGARDING FUNDS3.4.1 Venture Capital Fund Structure
Each Fund is a series of one of the LLCs and is treated as a separate and distinct fund with its own assets and liabilities.
Funds may be advised by Capitalize Advisors or by a Third-Party Adviser. Each Fund advised by Capitalize Advisors is a venture capital fund. Each Fund advised by Capitalize Advisors will implement a venture capital strategy in pursuing its investment objective, which is to invest substantially all of its assets in securities issued by privately-held Startups, with the objective to seek investment returns through investments in Startups. Funds advised by Third-Party Adviser may invest in Startups and pursue a venture capital strategy, or they may invest in other asset classes and/or using other strategies. The entity advising a given Fund and the investment strategy of that Fund will be listed in the Investment Information and/or the Series Appendix.3.4.2 Funds’ Investment Process
a. Funds Advised by Capitalize Advisors
For Funds advised by Capitalize Advisors, the investment process is as follows. After a Fundraising closes and the aggregate investment amount for the Fund has been established, all investments in the Fund will be processed, and the Fund will begin operations. At the launch of the Fund, the Fund will acquire securities of one or more Startups through privately negotiated transactions directly with the Startup. Each Fund’s investment program generally involves: (i) the investment of substantially all Fund assets (except for funds reserved for administrative expenses) in securities of one or more Startups, (ii) holding such securities until (a) they are redeemed by the Startup in accordance with their terms, (b) they come due and are paid by the Startup in accordance with their terms, or (c) Capitalize Advisors identifies an opportunity to dispose of securities owned by the Fund, which may include sales in a secondary market transaction, resale of the securities back to the Startup, or an offer or sale of securities of the Startup to the public or to other affiliated or third-party investors (a "Liquidity Event") and (iii) distribution of funds paid by the Startup, or of securities or proceeds from a cash sale or other Liquidity Event. Capitalize Advisors will generally seek to identify Liquidity Events that maximize the total return to investors.
In managing a Fund, Capitalize Advisors may exercise management rights negotiated with a Startup on behalf of a Fund as set forth in the agreement between the Startup and the Fund. In addition, subject to the terms of the agreement between the Fund and the Startup and any applicable laws, Capitalize Advisors, in its sole discretion, may, without limitation: (i) exercise any voting rights associated with securities of the Startup; (ii) exercise conversion or other rights associated with securities of the Startup; (iii) decide when and on what terms to dispose of securities owned by the Fund, which may include sales in a secondary market transaction, resale of the securities back to the Startup, or an offer or sale of securities of the Startup to the public or to other affiliated or third-party investors; (iv) decide whether to participate in any tender offer offered by the Startup; (v) decide when to dissolve the Fund, and administer such dissolution; and (vi) decide whether the Fund should distribute cash and/or securities to investors. In some cases, Capitalize Advisors may enter into an agreement with a Founder or a Lead requiring the Founder or the Lead to act on behalf of Capitalize Advisors to (i) exercise any voting rights associated with securities of the Startup, and/or (ii) exercise conversion or other rights associated with securities of the Startup.
In addition to securities of a Startup, a Fund may also hold cash or short-term investments. A Fund will not borrow for investment purposes.b. Funds Advised by Third-Party Advisers
For Funds advised by Third-Party Advisers, the Fund may follow an investment and management process similar to the structure described above, or may follow a different strategy, investment process, and/or management process. Such strategy, investment process and/or management process will be described in the Investment Information and/or the Series Appendix for each relevant Offering.3.4.3 Limitation of Liability and Indemnification
The Terms of Service, this Agreement, and the Subscription Agreement limit the liability of Capitalize Advisors and/or its affiliates, and provide for indemnification in certain circumstances. You acknowledge that Capitalize, and any of its affiliates, or any member, manager or employee thereof, shall not be liable in connection with any information or omission of information contained in materials prepared or supplied by a Startup or Third Party or developed in reliance on information provided by a Startup or Third Party. You acknowledge that such materials may include, but are not limited to, information available through the Site, and materials distributed to investors by Capitalize or an affiliate (or member, manager, or employee) thereof. You acknowledge that the information regarding Startups presented on the Site is provided by the Startups and not by Capitalize or any of its affiliates. You acknowledge that none of Capitalize, its affiliates, or their members, managers, or employees approves or reviews information prepared or supplied by a Startup or Third Party or otherwise undertakes any due diligence with respect to a Startup, Third Party, or Fund and shall not be liable with respect to the past, present, or future performance or non-performance by a Startup or Fund of the activities described in such information. You acknowledge that you understand that the information provided by Startups on the Site may not be sufficient or suitable to support an informed investment decision.3.4.4 Management and Administration of a Fund
If you invest in a Fund, you will not be a recordholder of securities of the Startup or other underlying Assets. You may not vote, exercise management rights, or dispose of securities of the Startup or Assets.
Pursuant to the terms of the LLC Agreement, Capitalize Advisors is the administrator of each Fund. As administrator, Capitalize Advisors is responsible for carrying out each Fund’s non-advisory affairs, and enter into an advisory agreement, on behalf of each Fund, with that Fund’s investment adviser, which is either Capitalize Advisors or a Third-Party Adviser (as appropriate, the “Advisor”).
As adviser, Capitalize Advisors is a venture capital fund adviser that is an exempt reporting adviser that has filed notice of its status as such with the U.S. Securities and Exchange Commission ("SEC"). The sole owner and member of Capitalize Advisors is Capitalize Technologies LLC.
The relevant Advisor to a Fund is responsible for the implementation of that Fund’s investment program, including but not limited to deciding when and on what terms to dispose of securities owned by the Fund, when to participate in any tender offer by a Startup, whether and when to dissolve the Fund, and whether the Fund should distribute cash and/or securities to investors in the Fund. The management rights exercised by an Advisor may vary on a Fund-by-Fund basis.
The Advisor may, in its sole discretion, determine whether to offer follow-on and offer other related investment opportunities in a Startup, if such opportunities are made available, to some or all of the investors in a Fund that previously invested in securities of that Startup or to investors who did not invest in that prior Fund.3.4.5 Fund Expenses
A portion of the money invested in a Fund may be reserved to pay administrative fees, details of which will be disclosed to you when you invest. These fees may vary on a Fund-by-Fund basis and generally include expenses of operating the Fund and organizational expenses ("Organizational Expenses"). Fund expenses may include, without limitation, (i) fees and expenses for advisors, including tax advisors, attorneys, auditors and consultants; (ii) all third party costs and expenses incurred in developing, negotiating, structuring, acquiring, or otherwise transacting in investments, including brokerage, third-party finders’ fees, background checks and custodial fees and expenses; (iii) the costs of any litigation, directors’ and officers’ liability or other insurance and indemnification obligations or extraordinary expense or liability relating to the affairs of the Fund; (iv) expenses for indemnity or contribution; (v) expenses incurred in connection with the collection of amounts due to the Fund; (vi) the costs of liquidating or dissolving the Fund; and (vii) any taxes, fees or other governmental charges levied against the Fund and all expenses incurred in connection with any tax audit, investigation, settlement or review of the Fund. Organizational Expenses encompass those incurred in connection with (i) the formation and organization of the Fund, and (ii) the offering of interests in the Fund, including related travel, accommodation, legal, accounting, consulting, filing, registration, marketing, publishing, selling and printing costs. No administrative fees are paid to Capitalize or any of its affiliates or principals, although these entities may be reimbursed by the Fund for documented Fund expenses.
For accounting purposes, a Fund may amortize its Organizational Expenses for up to 60 months. A Fund will generally limit the amount of Organizational Expenses that are amortized so that the audit opinion issued with respect to its financial statements (if any) will not be qualified. Capitalize, or one or more of its affiliates, may, at their sole discretion, pay any such excess Organizational Expenses directly, or they may be expensed by the Fund in the year in which they are incurred.
The investment returns experienced by investors in Funds will be reduced by these expenses, which may have a material effect on such returns. Members that are invited by a Startup or its Founders to invest directly in the Startup on similar terms as a Fund will not pay similar expenses, and are likely to experience better investment returns as a result.
3.5 ADDITIONAL INFORMATION REGARDING INVESTMENTS IN FUNDS3.5.1 Subscribing for Interests
The Fund interests offered to Members are securities of each Fund and not of a Startup. These securities will not be registered under the 1933 Act or the securities laws of any state or any other jurisdiction.
A Fund may set a minimum subscription amount for investment for each Fundraising.
No certificates will be issued for interests in a Fund. You will, however, receive written confirmation of your holdings.
Each Fund will establish and maintain on its books a capital account ("Capital Account") for you, which will reflect your investment and certain other transactions.3.5.2 Investor Eligibility Requirements
In order to invest in a Fund, you must be (i) an "accredited investor" as defined in Regulation D under the 1933 Act, and (ii) a United States citizen or resident, unless Capitalize Advisors determines, in its sole discretion, to admit investors that are not United States persons.3.5.3 Redemption of Interests
You will have no right to redeem your interests in a Fund, unless permitted by prior written consent of Capitalize Advisors, in its sole discretion. Capitalize Advisors may, in its sole discretion, compulsorily redeem your interest, in whole or in part, on terms that Capitalize Advisors determines are reasonable. There is no secondary market for interests in the Fund and none is contemplated, and if one were to develop, you could not sell your interests without the prior written consent of Capitalize Advisors, in its sole discretion. See Section 3.6.6 – "Restrictions on Transfer" below.3.5.4 Determination of Net Asset Value
A Fund’s Advisor will not calculate or report a net asset value or similar calculation for the Fund. From time to time, the Advisor may calculate an estimated value of Fund assets when making important investment decisions for the Fund, but that value will only be one factor the Advisor may consider in making its decisions.3.5.5 Transfer Restrictions
You may not sell, pledge, assign or otherwise transfer any Fund interest without the prior written consent of Capitalize Advisors, which may be withheld or conditioned upon the payment of certain fees or transaction costs in Capitalize Advisors’ discretion. In addition, interests will not be registered under the federal or state securities laws and, therefore, will be subject to restrictions on transfer under those laws.3.5.6 Distributions
Distributions from a Fund, if any, generally will result from the Fund’s receipt of the proceeds from the sale, redemption, or liquidation of the Assets in which the Fund has invested. When authorized by the relevant Advisor, in its discretion, distributions generally will be made in cash as available, net of fees and expenses and reasonable reserves for future Fund expenses, but may be made in-kind at the Advisor’s discretion. It is not anticipated that distributions will be made until the end of the term of the Fund. Distributions when declared will be made to investors in proportion to their Capital Account balances and will be subject to performance-based compensation due to the Advisor, the Founder or Lead, or other third parties indicated in the Investment Information and/or the Series Appendix. Each Fund’s LLC Agreement and Series Appendix contains detailed information regarding the terms of the performance-based compensation payable to the Advisor.3.5.7 Reports
After the end of each fiscal year, if the Fund incurred a taxable gain or loss in that fiscal year, you will receive a Schedule K-1 (IRS Form 1065) reporting your share of the items of the Fund’s income, gain, loss and deduction for that fiscal year.3.5.8 Term
Each Fund will terminate after the occurrence of a Liquidity Event so that all or substantially all of the Fund’s investments are converted to cash or publicly-traded securities, unless otherwise terminated in the sole discretion of the Advisor. In winding up the Fund, the Advisor has sole discretion to determine if and when to liquidate securities, and investors may lose money depending on the decisions made by the Advisor.
3.6 RISKS ASSOCIATED WITH REG D OFFERINGS
You should consult your own legal, tax and financial advisers regarding the suitability, desirability and appropriateness of purchasing interests in a Fund. You should also carefully consider the following risks prior to investing in the Fund:3.6.1 General
An investment in a Fund involves significant risks, only some of which are described in this Agreement, and is suitable only for sophisticated investors who have limited need for liquidity in their investment, who can afford the potential loss of their investment and who meet the conditions for eligibility set forth in this Agreement. An investment in a Fund is not intended as a complete investment program. There can be no assurance that the investment objective of any Fund will be met. For Funds that invest in early stage venture companies, venture investments involve a high degree of risk and many or most venture company investments lose money. You may ultimately receive cash, securities, or a combination of cash and securities (and in some cases nothing at all). If you receive securities, the securities may not be publicly traded, and may not have any significant value.3.6.2 No Guarantee of Investment Returns
Neither Capitalize nor any of its affiliates guarantee the future performance or financial results of any Startup or any Fund, and an investment in a Startup through a Fund may result in a gain or loss upon termination or liquidation of your investment.3.6.3 Limited Financial Information About Funds
You will not receive audited financial statements with respect to any Fund, and you will receive only limited information about each such Fund and the Assets to which that Fund relates. You will not receive ongoing information about the value or valuation of the Fund, the Assets held by the Fund, and you understand and agree that any such valuation information would in any event be of limited reliability and use.3.6.4 Privately-Offered Security Risk
Investing in privately offered securities entails a significant degree of risk and, therefore, should be undertaken only by investors capable of evaluating and bearing those risks. Venture company investments, such as those in the Startups, involve a high degree of risk and many or most venture company investments lose money.3.6.5 Limited Market for Interests in Funds and Startup Securities
The interests in Funds have not been registered under the 1933 Act or any other law of the United States, or under the securities laws of any state or other jurisdiction. Therefore, interests in Funds cannot be resold, pledged, assigned or otherwise disposed of unless they are so registered or an exemption from registration is available. A limited market exists for the sale of a Startup's securities, and the transferability of those securities is generally restricted. In the event that the relevant Advisor determines to distribute Startup securities to investors in a Fund, there may be no market through which the Startup securities may be sold, and even if there were such a market, the transfer of Startup securities may be subject to significant legal and contractual restrictions, including Federal and state securities laws and regulations. Neither Capitalize Advisors nor any of its affiliates, is under any obligation to register interests in a Fund on your behalf or to assist you in complying with an exemption from registration under the 1933 Act.
In addition, if a distribution of Startup securities to investors in a Fund is made prior to the existence of a public market for such securities, the securities distributed would not be registered under Federal securities laws or qualified under any state securities law. Any sale would be required to be made in reliance upon exemptions under those laws. Unless a Startup’s securities are registered with the SEC and any required state authorities, or an appropriate exemption from registration is available, if you receive Startup Securities in a distribution from a Fund, you may be unable to liquidate those securities, even though your personal financial condition may dictate such liquidation. Moreover, the resale of any Startup securities may be subject to Section 4(a)(7) of the 1933 Act or Rule 144 of the 1933 Act. If you intend to sell Startup securities distributed to you by a Fund, you may be required to aggregate your sales with sales made by other investors for some period of time following the distribution, which may restrict your ability to liquidate the Startup securities. Therefore, if you require liquidity in your investment, you should not invest in a Fund.3.6.6 Restrictions on Transfer
Interests in Funds generally cannot be traded and cannot be redeemed. Your ability to transfer interests in Funds is subject to contractual, legal and regulatory restrictions. Your interest in a Fund can only be transferred with the prior written authorization of Capitalize Advisors, which may be withheld in Capitalize Advisors’ absolute discretion. You may not be able to transfer your interests in a Fund at the time or at the price you seek to make a transfer of your interests. You typically must hold your interest in a Fund until a liquidation event has occurred.3.6.7 No Control Over Management of Funds
You will not have any right to manage, influence or control the management or operations of Funds. In particular, you will have limited voting rights associated with your interests in a Fund, but in any event will not have voting powers to direct the management of the Startup. Further, for Funds advised by Capitalize Advisors, Capitalize Advisors typically will not obtain representation on the board of directors or have any control over the management of any Startup. The success of any Fund or Startup investment depends on the ability and success of the management of the Startup, in addition to economic and market factors.
As investment manager of each Fund, the relevant Advisor (or in some cases, a Founder or a Lead) makes the investment and other decisions for each Fund, including (without limitation) whether and on what terms to dispose of Startup securities held by a Fund, whether to exercise any conversion, warrant or similar rights on any Startup securities held by a Fund, and whether and how to vote on any proxy or other voting matters related to the Startup. Except as required by law, you have no right to remove the Advisor from its role with respect to a Fund. You should not invest in a Fund unless you are willing to entrust all aspects of the management of the Fund to the Advisor (and any relevant Founder or Lead). Any determination as to whether to distribute securities, or sell the securities and distribute cash, will be made by the Advisor, in its sole discretion.
The Advisor may, in its sole discretion, determine whether to offer follow-on and other related investment opportunities in a Startup to some or all of the investors in a Fund that previously invested in securities of that Startup, or to investors who did not invest in that prior Fund.3.6.8 No Control Over Startup Future Valuation
Valuations may fluctuate considerably and the price paid for Startup securities by a Fund may bear limited or no relationship to future valuations of the Startup’s securities in any market that may develop for such securities, whether private or public.3.6.9 Investor Expenses That May Not Be Incurred through Other Offerings and/or Direct Purchases of a Startup Securities
In general, by purchasing interests in Funds through the Site, investors will be charged certain fees that they may not have been charged if making such investments without the use of the Site. Each Fund will allocate to the Fund’s Advisor performance-based compensation in the form of an incentive allocation, representing a portion of any investment gains realized by the Fund. In addition, investors are required to pay administrative expenses of the Fund, which would not otherwise be incurred by an investor making a direct investment in securities of the Startup. Each Fund may bear all or part of its own organizational, operating and third party expenses, which may be significant in terms of the size and assets of the Fund. The expenses and incentive allocation will reduce the amount received by investors in each Fund, and the incentive allocation could give the Advisor an incentive to reject offers to purchase securities held by a Fund if the purchase price would not be sufficient to generate a significant (or any) incentive allocation.3.6.10 Expenses Charged to a Fund
Each Fund may allocate certain extraordinary fees and expenses under the terms of its governing documents. Such fees and expenses will be allocated among the investors in a Fund in accordance with terms of the governing documents. Such fees or expenses may reduce, perhaps materially, your return on investment.3.6.11 Limited Information About Startups
Due to the nature of private companies, there may be limited information—financial, operating or otherwise—regarding each Startup. Any decision to purchase Startup securities indirectly through a Fund must be made without certainty of the Startup’s financial and operating data. In the context of other investment decisions, such data might be a necessary part of an investor’s appraisal of the advisability of making an indirect investment in the Startup. Investors considering an investment in a Fund must be aware that there is a risk that: (i) there are facts or circumstances pertaining to a Startup that the public, the Fund and you are not aware of, and (ii) publicly available information and information on the Site concerning the Startup upon which you and/or the Fund rely may prove to be inaccurate, and, as a result, you may suffer a partial or complete loss of the investment.
You should read and understand the risk factors contained in the Investment Information before investing in a Startup through a Fund. Each Startup is solely responsible for providing risk factors, conflicts of interest, and other disclosures that you should consider when investing in the Startup through a Fund. Neither Capitalize Advisors nor any of its affiliates has any ability to assure, and has not in any way assured, that any or all such risk factors, conflicts of interest and other disclosures have been presented fully and fairly, or that all applicable risk factors or conflicts of interests have been presented at all.3.6.12 No Assurance of Profit Distributions
An investment in interests of a Fund may not generate profits for you. A return on investment will depend upon successful liquidity of a Startup’s securities and thus, the ultimate value of any investment depends upon factors beyond your or the Fund Advisor’s control. You will typically not receive distributions, if any, until a Liquidity Event, which may not occur for many years. You must therefore bear the economic risk of an investment for an indefinite period of time.3.6.13 Lack of Performance Record
Each Fund is a newly formed entity with no performance record.3.6.14 A Fund Does Not Offer a Complete Investment Program
A Fund investment is not a complete or diversified investment program and should represent only a small portion of a potential investor's investment portfolio.3.6.15 Potential Liability to Return Prior Distributions
Under the Delaware Limited Liability Company Act, members of a series of a limited liability company such as a Fund may be liable to return prior distributions made to them by a Fund in the event that such Fund becomes insolvent subsequent to the date of such distributions.3.6.16 Possibility of Phantom Income
It is possible that your investment will result in "phantom income," which could require you to pay taxes on your investment even though the Fund does not distribute any income (or does not distribute sufficient income to pay the taxes).3.6.17 Lack of Regulatory Oversight Regarding Reg D Offerings and Offering Materials
Offering documents provided by Startups and Funds engaging in Reg D Offerings are not required to be reviewed by, and are not reviewed by, the SEC or any other federal or state regulatory body. Neither the interests in Funds nor the underlying Startup securities in which Funds invest have been registered under the 1933 Act or any other law of the United States, or under the securities laws of any state or other jurisdiction. Capitalize Advisors is an exempt reporting adviser and therefore is not registered as an investment adviser with the SEC or any state or other jurisdiction.
3.7 CONFLICTS OF INTEREST ASSOCIATED WITH REG D OFFERINGS3.7.1 General
Generally, Capitalize Advisors will be the administrator to the Funds and will advise many of the Funds as well as other funds, and its affiliates, members, managers, officers and/or employees will manage other businesses, including, without limitation, those associated with Wefunder, Inc., Wefunder Advisors, Wefunder Portal and Wefunder EU. Each of Capitalize Technologies, Capitalize Advisors, Wefunder Advisors, Wefunder, Inc., Wefunder Portal, Wefunder EU, and each Fund are affiliated and related parties. Certain inherent conflicts of interest arise from the activities of Capitalize Advisors and its affiliates. You should carefully consider the conflicts of interest described in the Terms of Service, this Agreement, and on the Site prior to investing in a Fund.
Capitalize Advisors will devote the time reasonably required to administer and/or advise the Funds. Capitalize Advisors and its affiliates, members, managers, officers and/or employees may be engaged in other businesses and activities, including exercising investment advisory and management responsibility and buying, selling or otherwise dealing with investments for their own accounts, for the accounts of family members, and for the accounts of other clients, including with respect to some of the types of investments that Capitalize Advisors will purchase or sell on behalf of a Fund.
Each of these persons may give advice and take action in the performance of their duties to their other clients that could differ from the timing and nature of action taken with respect to a Fund. Capitalize Advisors will have no obligation to purchase or sell for a Fund any investment that Capitalize Advisors or its affiliates, members, managers, officers and/or employees purchase or sell, or recommend for purchase or sale, for its or their own accounts, for the account of any other client. A Fund will not have any rights of first refusal, co-investment or other rights in respect of the investments made by Capitalize Advisors and its affiliates for other clients, or in any fees, profits or other income earned or otherwise derived from them. If a determination is made that a Fund and another client of Capitalize Advisors should purchase or sell the same investments at the same time, Capitalize Advisors will allocate these purchases and sales as it considers equitable to each. You will not, by reason of being an investor, have any right to participate in any manner in any profits or income earned or derived by or accruing to Capitalize Advisors or its affiliates from the conduct of any business (other than the Fund’s business) or from any transaction in investments effected by Capitalize Advisors or any of its affiliates for any account other than that of the Fund.3.7.2 Performance-Based Compensation Paid to Capitalize Advisors
Capitalize Advisors, a Third-Party Adviser, a Founder, or a Lead (collectively referred to as “Incentive Comp Recipients”) may receive a portion of any returns available for distribution to Fund investors that exceed the initial aggregate investment in the Fund. If a Fund sells or otherwise disposes of Startup securities, an Incentive Comp Recipient may be entitled to receive compensation measured as a portion of the appreciation or net returns on that investment upon a disposition resulting in a distribution of assets to Fund investors. This incentive allocation could give an Incentive Comp Recipient an incentive to reject offers to purchase securities held by a Fund if the purchase price would not be sufficient to generate a significant (or any) incentive allocation. Before you submit a Subscription Agreement for a Fund, you will receive information regarding the specific terms of the compensation payable to Capitalize Advisors and other parties with respect to the Fund.
The investment returns experienced by investors in Funds will be reduced by any performance-based compensation paid to Capitalize Advisors and other parties, which may have a material effect on such returns. Members that are invited by a Startup or its Founders to invest directly in the Startup on similar terms as a Fund will not pay any such compensation, and are likely to experience better investment returns as a result.
3.8 EMPLOYEE BENEFIT PLAN CONSIDERATIONS
Individual retirement accounts ("IRAs") are "benefit plan investors," as that term is defined by the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and are permitted to invest in the Fund. However, it is not expected that the assets of a Fund will be treated as "plan assets" of such benefit plan investors for purposes of the fiduciary responsibility standards and prohibited transaction restrictions of ERISA and the parallel prohibited transaction excise tax provisions of Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"). Each Fund will limit investments by IRAs and other benefit plan investors so that such investments constitute less than 25% of the value of Fund’s assets.
3.9 TAX CONSIDERATIONS3.9.1 Partnership Taxation
Capitalize Advisors intends that each Fund will be classified for federal income tax purposes as a partnership that is not a "publicly traded partnership" treated as a corporation. As a partnership, the Fund will not be subject to U.S. federal income tax, but you will be required to take into account your distributive share of items of Fund income, gain, loss and deduction substantially as though you had directly realized such items.
It is not anticipated that any Fund will provide tax distributions to its investors.
If you are a tax-exempt entity, such as an individual retirement account, generally you will not be subject to U.S. federal income tax on your distributive share of items of income or on gains you recognize on the sale, exchange or redemption of your interest, unless such items of income or such gain constitute unrelated business taxable income ("UBTI") for you under the Code. A tax-exempt investor of a Fund may have UBTI if the Fund engages in borrowing or if that investor incurs debt to acquire its interest. The Fund will not borrow for investment purposes; accordingly, Capitalize Advisors does not anticipate that a tax-exempt investor will have UBTI from debt-financed property as a result of its investment in a Fund unless that investor incurs debt to acquire its interest. Tax-exempt investors should consult their tax advisers about the tax consequences of an investment in a Fund.3.9.2 Taxation of Non-United States Investors
The following considerations apply to any investor who is not a United States person as defined in the Code (a "Non-US Investor"). Non-US Investors are allowed to invest in a Fund only with the permission of Capitalize Advisors.
In general, a non-US Investor’s allocable share of US-source dividends and certain other types of passive income earned by the Fund will be subject to US federal withholding tax at a rate of 30% or such lower rate as may be provided under an applicable tax treaty.
A non-US Investor that is not otherwise subject to US taxing jurisdiction will not be subject to US federal income tax on its allocable share of gains of the Fund so long as the Fund is not engaged in a trade or business within the United States. The Fund does not anticipate that its investment activities will cause it to be treated as being engaged in the conduct of a trade or business in the United States. If the Fund were considered to be engaged in a U.S. trade or business, a non-US Investor would be required to file a U.S. federal income tax return and pay tax on its allocable share of the Fund’s income that was treated as effectively connected with that U.S. trade or business. In the case of a non-US Investor that is a foreign corporation, an additional 30% branch profits tax might be imposed. In addition, in such event the Fund would be required to withhold taxes from the income or gain allocable to such non-U.S. Investor. Any amounts so withheld would reduce amounts otherwise distributable to such non-U.S. Investor.
Special rules may apply to a non-US Investor that (1) has an office or other fixed place of business in the United States to which such gain is attributable, (2) is a former citizen or resident of the United States, a controlled foreign corporation, a foreign insurance company that holds interests in connection with its US business, a passive foreign investment company, or a corporation that accumulates earnings to avoid U.S. federal income tax, or (3) is present in the United States for 183 days or more during a taxable year. These persons in particular are urged to consult their U.S. tax advisers before investing in the Fund.
Non-US Investors may need to provide additional certifications to avoid a 30% U.S. withholding tax that applies to US-source dividends and certain other types of passive income starting after June 30, 2014 and to gross proceeds from the sale after December 31 2018 of assets producing US-source dividends and interest under recent legislation commonly referred to as the "Foreign Account Tax Compliance Act" or "FATCA."
YOU SHOULD CONSULT YOUR OWN LEGAL AND TAX ADVISERS REGARDING THE POSSIBLE TAX AND OTHER CONSEQUENCES OF BUYING, HOLDING, TRANSFERRING AND REDEEMING INTERESTS IN A FUND.
C. Fund Sponsor Agreement
I have read the Capitalize Terms of Service (the "Terms of Service") and understand that the Terms of Service govern my use of the Site and the Services (as those terms are defined in the Terms of Service). If I am accessing the Site and/or using the Services on behalf of a Startup or a Fund (as defined in the Terms of Service), my agreement to this Fund Sponsor Agreement will be treated as the agreement of both me as an individual and for my Startup or Fund (as applicable), and all references to “I” or “you” herein shall include my Startup or Fund.
I agree to the following terms and conditions regarding my use of the Site and the Services:
- License of Software. Capitalize Technologies LLC and its affiliates (“Capitalize”) grants you a non-exclusive, non-transferable license to use the Site and Services to conduct an offering of securities (the “Offering”) to eligible investors under Regulation D (“Reg D”).
- Support and Services. Capitalize will provide customer support to you regarding the Site and the Services via instant message, email, and/or telephone. Capitalize staff will also assist with administrative aspects of the Offering, such as assisting investors with payments and contract signatures; however, Capitalize will under no circumstances provide investment advice, recommend investments to investors, or perform any services required to be performed by a registered broker or dealer.
- Investment Structuring. Capitalize will form and administer a Fund for use in the Offering. You agree that investors in the Offering will purchase interests in the Fund, which will subsequently purchase securities of one or more underlying assets. Notwithstanding the above, you may choose to allow one or more investors to bypass the Fund and invest directly in one or more underlying assets. You hereby authorize and appoint Capitalize to administer the Fund (including but not limited to making filings, receiving and distributing funds to investors, and creating and distributing tax documents) and take any necessary actions in connection therewith.
- Investment Advice. Unless otherwise agreed in writing between you and Capitalize, you agree that Capitalize Advisors LLC, an exempt reporting adviser that files reports with the U.S. Securities and Exchange Commission, will serve as investment advisor to the Fund.
- Costs. For use of the Site and Services and setup and administration of the Fund, you agree to pay the fees identified on the Capitalize website and in the Series Appendix for the Fund. Such fees may include flat up-front fees, yearly fees, reimbursement for filing fees that Capitalize incurs or reasonably expects to incur on the Fund’s behalf, management fees, and/or carried interest (together, the “Fees”).
- Representations and Warranties. I represent and warrant to Capitalize as follows:
- All information provided by me (or to be provided in the course of the transactions contemplated herein) to Capitalize is accurate and complete in every material respect, and that I have not omitted any fact regarding the Fund or the Startup that is reasonably material. I also represent and warrant to Capitalize that the information provided you meets the requirements of Reg D and the Investment Advisers Act of 1940 in every material respect, and I will not rely on Capitalize to ensure that such requirements are met. I understand and agree that if any event occurs or circumstance arises that causes the information in Startup's or Fund’s profile to be untrue or misleading in any material respect, then I must update such information to make it true and correct in all material respects prior to using the Site or any Services to raise capital. I agree that I am fully responsible for the accuracy of any information related to Startup or Fund that I upload, and I am fully responsible for any and all consequences and claims related to any investment that is made in Startup or Fund through the Site in reliance upon such information.
- I UNDERSTAND THAT THE OFFER AND SALE OF SECURITIES – INCLUDING, WITHOUT LIMITATION, STOCK, OPTIONS, CONVERTIBLE DEBT,
WARRANTS AND OTHER SIMILAR INSTRUMENTS – IS REGULATED BY FEDERAL, STATE, AND INTERNATIONAL LAW ("SECURITIES LAWS"), AND THAT IF I
USE THE SERVICES AVAILABLE THROUGH THE SITE TO CONDUCT ANY TRANSACTION INVOLVING SECURITIES I MUST DO SO IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS.
I UNDERSTAND THAT CAPITALIZE MAKES NO REPRESENTATION OR WARRANTY THAT TRANSACTIONS CONDUCTED THROUGH THE SITE WILL BE IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS. I ACKNOWLEDGE THAT USE OF THE SERVICES AVAILABLE THROUGH THE SITE TO CONDUCT ANY TRANSACTION INVOLVING SECURITIES DOES NOT CONSTITUTE COMPLIANCE WITH APPLICABLE SECURITIES LAWS, AND MAY VIOLATE APPLICABLE SECURITIES LAWS IN CERTAIN JURISDICTIONS.
I UNDERSTAND THAT CAPITALIZE TECHNOLOGIES LLC AND WEFUNDER INC. ARE NOT A "BROKER", "DEALER" OR "FUNDING PORTAL," AS THOSE TERMS ARE DEFINED IN SECTION 3(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. I UNDERSTAND THAT CAPITALIZE ADVISORS LLC IS AN EXEMPT REPORTING INVESTMENT ADVISOR BUT IS NOT A "BROKER" OR A "DEALER."
- Indemnification and Limitation of Liability.
- IN ADDITION TO, AND NOT IN LIMITATION OF, THE DISCLAIMERS, EXCLUSIONS ON WARRANTIES AND LIMITATIONS ON LIABILITY SET FORTH IN THE TERMS OF SERVICE, I AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW CAPITALIZE SHALL HAVE NO LIABILITY FOR ANY LOSSES ARISING FROM OR RELATED TO ANY TRANSACTION IN SECURITIES CONDUCTED THROUGH THE SITE.
- In addition to, and not in limitation of, the indemnity set forth in the Terms of Service, I agree to defend Wefunder Inc., Capitalize Technologies LLC, Capitalize Advisors LLC, Wefunder Advisors, LLC, Wefunder Portal, LLC, Wefunder EU, B.V., and their subsidiaries, affiliates, licensors and assignees and their respective officers, directors, managers, stockholders, members, agents, partners and employees (the "Capitalize Indemnitees"), from and against any and all claims, actions, suits, demands or other proceedings brought by or on behalf of any third party, and to indemnify and hold the Capitalize Indemnitees harmless against any losses, liabilities and other damages (including, but not limited to, reasonable attorneys' fees), in any case arising out of or related to my use of the Site and the Services in connection with any transaction in securities. I understand this defense and indemnification obligation will survive following the termination of my use of the Site and the Services.
- Listing on Site. I agree that Wefunder, Inc., Capitalize Technologies LLC, or Capitalize Advisors LLC, as the case may be, shall have the right, but not the obligation, to list Startup or Fund on the Site as a customer who uses the Services and in other materials promoting the Services. I further agree that if I use the Site to raise capital for Startup or Fund, Wefunder Inc., Capitalize Technologies LLC, or Capitalize Advisors LLC, as the case may be, has the right, during and after the term of this Fund Sponsor Agreement, to list Startup or Fund and details of the transaction on the Site and in other materials promoting the Services.