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DealMaker® Terms of Service
Last updated: February 28, 2025
1. Welcome to DealMaker, a website and software system (the “Site”), created and owned by Novation Solutions Inc. o/a DealMaker (“we”, “us”, or “DealMaker”). DealMaker is a software platform used primarily by corporations and limited partnerships to facilitate communications, transactions, and other capital markets activities. By using this Site, you acknowledge your understanding that DealMaker is not a (i) broker-dealer, (ii) registered funding portal or (iii) investment adviser and that DealMaker does not provide advice, guidance in making investment, nor recommendations.
PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE.
By logging in and using the Site, you represent that you (1) are over the age of 18, (2) have the right and authority to legally bind yourself or your company, firm and/or employer to these Terms, (3) have not been previously suspended or removed from the Site by DealMaker, and (4) are not a competitor of DealMaker or acting on behalf of any such competitor.
These Terms of Service include all of the terms contained herein, including the DealMaker Privacy Policy linked below (“Terms”).
IF YOU DO NOT AGREE TO ALL OF THESE TERMS OR CANNOT TRUTHFULLY MAKE SUCH REPRESENTATIONS, SELECT THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT AND DO NOT USE THE SITE OR SERVICE. By selecting “accept”, you agree on your and your company’s, firm’s or employer’s behalf to be legally bound by all these Terms, including any additional guidelines and future modifications hereto.
2. Users
Through this Site, we provide services and materials (“Services”) designed to assist: (i) Site visitors (“Site Visitors”); (ii) individuals or entities who have signed an order form or entered into a license to use our services and their authorized users (“Licensed Users”); and (iii) individuals or entities who are invited to create an account, including prospective or active investors, issuers, broker-dealers, lawyers, and others (“Account Users”). Site Visitors, Licensed Users, and Account Users are collectively referred to herein as “Users” (or, individually, “you”). All Users’ access and use of the Site, along with any services or materials contained or referenced herein, are governed by and subject to the Terms, as well as all applicable laws.
2.1 Licensed Users. If you are a Licensed User and are, or your organization is, bound by a separate license agreement with DealMaker (“Corporate Terms”), and any applicable subscription order (“Subscription Order”) that you have, or your organization has, entered into, as well as these Terms. In such case, these Terms will apply to use of the Site or any Services only to the extent such use is not already governed by the Corporate Terms. The Corporate Terms include restrictions and requirements that outline the features that a Licensed User will be able to access. For the avoidance of doubt, all references to the “Site” in these Terms also includes the Services. You agree that you shall be bound by these terms and the additional terms applicable to Licensed Users.
2.2 Account Users. To be an Account User, you must be invited to register for an account on the Site (“Account”). If you choose to use your Account to complete a transaction, you agree that your use of the Site will be self-directed and that you are solely responsible for all purchases, orders, investment decisions and instructions effectuated through the Site. Although the Site may provide data, information or content provided by third parties or us relating to opportunities to buy and/or sell securities, you should not interpret any such content as tax, legal, financial, or investment advice by us or a recommendation by us to invest in any offering. Any decision to invest should be based solely on your own consideration and analysis of the risks involving a particular offering and is made at your own risk. You acknowledge and agree that you are solely responsible for determining the suitability of an investment and accept the risks associated with such decisions, which include the risk of losing the entire amount of your investment. Your use of the Site or the Services does not create a fiduciary relationship with us. You agree and acknowledge that you are responsible for conducting your own legal, accounting and other due diligence review of any transaction you enter in to. The Site makes no promises, representations, guarantees or warranty, express or implied, of any kind whatsoever related to the potential success, or lack thereof, of a particular offering. You are strongly advised to consult a licensed legal professional and investment advisor for any legal, tax, insurance, or investment advice as the Site does not provide any of the foregoing advice or recommendations.
You are solely responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your Account or password. You agree that the information you provide on registration and at all other times will be true, accurate, current, and complete. You also agree that you will keep this information accurate and up-to-date at all times. If you have reason to believe that your Account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your Account identification, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify us. You may be liable for the losses incurred by us or others due to any unauthorized use of your Account. If you are an Account User, you agree not to impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Site, or perform any other similar fraudulent activity. You agree that you shall be bound by these terms and the additional terms applicable to Account Users.
2.3 Site Visitors. A Site Visitor is bound by these Terms and can terminate its use of the Site at any time by ceasing further use of the Site. We may terminate your use of the Site and deny you access to the Site in our sole discretion for any reason or no reason, including for violation of these Terms. A Site Visitor may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, features that prevent or restrict use or copying of any content accessible through the Site, or features that enforce limitations on the use of the Site.
TERMS APPLICABLE TO ALL USERS
3. Updates and Communications
3.1 Updates. We may revise these Terms or any additional terms and conditions that are relevant to a particular Service from time to time to reflect changes in the law or to the Services. We will post the revised terms on the Site with a “last updated” date. Those revised terms become part of these Terms. It is your responsibility to review the Site on a regular basis to obtain timely notice of any revisions. If you continue to use the Services after the revisions take effect, you are thereby bound by these Terms as revised. You agree that we shall not be liable to you or to any third party by reason of modification of the Terms.
3.2 Communications. Frequently, communications that are sent through our Service are initiated by Licensed Users. In order to use the Service, you must agree to receive electronically all communications, agreements and notices provided through the platform (“Communications”), including by e-mail, text, notifications by Messenger Feature, or by posting them on the Site or through any Services. You agree that all Communications that are provided to you electronically satisfy any legal requirement that Communications be in writing. You agree to keep your Account contact information current so that Communications can be sent to you. If you have any questions with respect to the Communications delivered to you by a Licensed User, please contact such Licensed User directly.
4. Additional Terms for Certain Services
4.1 Electronic Signature. If you use the electronic signature feature of the Services, you accept the additional terms applicable to the Electronic Signature feature (Schedule A, below)
4.2 Messenger Feature. If you use the Messenger Feature, you accept the additional terms applicable to the Messenger Feature (Schedule B, below)
4.3 Payments Services. If you use the payment functionality of the Services, you accept the additional terms applicable to the Payments features (Schedule C, below)
5. Limited License
Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site only as expressly permitted in these Terms and any applicable Corporate Terms or Subscription Order for the use of the Services. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor to us, you may not access or use the Services without our explicit, advance, written consent, and then only for the purposes authorized in writing. Except as otherwise restricted by these Terms, you may use, display, copy, and download content and materials on the Site provided that you: (a) retain all copyright and other proprietary notices on any content or materials uploaded or displayed by you; and (b) use such materials in accordance with any applicable laws or obligations you may have. Any violation by you of the license provisions contained herein may result in the immediate termination of your right to use the Site, as well as potential other claims depending on the circumstances.
6. Intellectual Property
6.1 General Rights. The Site contains materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties. The Site is also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Site. You acknowledge that the Site contains original works that have been developed, compiled, prepared, revised, selected, and arranged by us and others through the application of methods and standards of skill and judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of DealMaker and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, the technical and functional documentation for the Services (“Documentation”), any improvements, design contributions, or derivative works thereof, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Site, shall, as between you and DealMaker, at all times be and remain the sole and exclusive property of DealMaker.
6.2 Trademarks. The trademarks, logos, taglines and service marks displayed on the Site (collectively, the “Trademarks”) are registered and unregistered Trademarks of DealMaker and others (including Licensed Users and Account Users in some cases). The Trademarks may not be used in any advertising or publicity or otherwise to indicate DealMaker’s sponsorship of or affiliation with any product, service, event or organization without DealMaker’s prior express written permission. DealMaker acknowledges the Trademarks of other organizations for their respective products or services mentioned on the Site. Any rights not expressly granted in these Terms are reserved by DealMaker, Inc. Other than as provided in these Terms, your use of the Trademarks, or any other DealMaker content, is strictly prohibited.
6.3 Software Use Restrictions. Unauthorized reproduction or distribution of the software is expressly prohibited by law, and may result in civil and criminal penalties. Violators may be prosecuted. No User may reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
6.4 Document Content and Submissions/User Content.
(a) Submissions. The Site or Services may enable or require you to submit, post, upload, or otherwise make available (collectively, “Post”) content such as questions, public messages, ideas, product feedback, comments and other content (collectively, “User Content”) that may or may not be viewable by other users. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive, royalty-free, and fully sub-licensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit any other user to view, copy, access, store, or reproduce your User Content for that user’s personal use. You grant us the right to use your name and other information about you that you submit in connection with your User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. For the avoidance of doubt, User Content does not include any document, such as a contract, disclosure, notice that you deposit into the Electronic Signature service for processing.
(b) Screening & Removal. You acknowledge and agree that we and our designees have the right, but not the obligation, at our discretion, to pre-screen User Content before its appearance on the Site or Services. You further acknowledge and agree that DealMaker reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any of your User Content. Without limiting the foregoing, DealMaker and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in DealMaker’s sole discretion. You acknowledge and agree that DealMaker does not verify, adopt, ratify, or sanction User Content and is not obligated to do so, and you agree that you must evaluate and bear all risks associated with your User Content or your reliance on the accuracy, completeness, or usefulness of the User Content of third parties that is posted on the Site.
(c) Records Storage And Deletion. DealMaker will store User’s documents per these Terms or any applicable License Agreement. However, DealMaker may set and enforce limits for reasonable use in order to prevent abusive or unduly burdensome use of Electronic Signature. You may retrieve and store copies of transaction documents for storage outside of the Site at any time during the Term when you are in good financial standing under these Terms, and may delete or purge documents from the Site at its own discretion.
(d) Incomplete transactions. DealMaker may, at its sole discretion, delete from the Site transactions that have not been completed without notice upon the expiration of the Term. DealMaker assumes no liability or responsibility for a party’s failure or inability to electronically sign any documents within such a period of time.
(e) Deletion. DealMaker may delete an Account and User Data, including without limitation transaction documents (whether complete or not), upon the expiration of the Term or termination as described in the Terms.
(f) Retention of Transaction Data. DealMaker may retain Transaction Data for as long as it has a business purpose to do so.
7. Trial Period and Subscriptions
7.1 Terms Continue to Apply. These Terms, as modified, govern your use of the Site. If you choose to subscribe to the Services, then after any trial period ends, the Terms shall continue in effect and you will be required to pay the applicable subscription fee for the Services, and otherwise comply with the Terms and any other agreement between you and DealMaker.
8. Agreement Templates and Example Forms
8.1 DealMaker Does Not Constitute Legal or Financial Advice. The Site may provide examples of agreements, documents and other general legal information provided by us or third parties; however, any general legal information or sample templates provided as part of the Services are for example purposes only and may not be suitable to your circumstances. If you are not a lawyer, you should consult a lawyer regarding how any legal document may affect or impair your legal rights. The information, forms, and other resources available on or through the Site or as part of the Services are provided for example purposes only and in no way should be considered to be a substitute for the advice of a lawyer.
8.2 DealMaker is Not a Law Firm. DEALMAKER DOES NOT ENGAGE IN THE PRACTICE OF LAW. NOTHING ON THE SITE SHOULD BE CONSTRUED AS AN ATTEMPT TO OFFER OR RENDER LEGAL SERVICES AND OUR EMPLOYEES ARE NOT ACTING AS YOUR COUNSEL. No part of the Services should be applied to any specific or general factual situation. Use of the Site or the Services does not create or constitute an attorney-client relationship. All information, forms, and other resources available on or through the Site should be modified to meet all the applicable laws and regulations in your city, state, and county, as applicable. You understand that you are using any and all information, forms, and other resources available as part of the Services or on or through the Site at your own risk.
8.3 WITHOUT WARRANTY. ALL SAMPLE TEMPLATES AND RELATED MATERIALS, IF ANY, MADE AVAILABLE AS PART OF THE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS, COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
9. Pricing
9.1 The prices, features, and options of the Services depend on the type of license you have entered into. For example, if you are a Licensed User, pricing is based on tiers of use described in the Corporate Terms or Subscription Order. Users may purchase optional services on a periodic or per-use basis pursuant to a Subscription Order. We may change the prices for or alter the features and options without notice, and if you use such features or options after the price revisions take effect, you shall be bound by the revised pricing.
10. Restrictions on the Use of the Site
10.1 Restrictions on Use. By using the Site, or any Service, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
(a) Is illegal, or violates any federal, provincial, state, or local law, by-law or regulation;
(b) Advocates illegal activity or discusses illegal activities with the intent to commit them;
(c) Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
(d) Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libellous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
(e) Interferes with any other party’s use and enjoyment of the Services;
(f) Constitutes an attempt to impersonate another person or entity;
(g) Is commercial in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
(h) Falsely states, misrepresents, or conceals your affiliation with another person or entity;
(i) Accesses or uses the Account of another user without permission;
(j) Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
(k) Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site, or any of the Services;
(l) “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
(m) Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
(n) Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by applicable law, unless and then only to the extent permitted by applicable law without consent;
(o) Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Site;
(p) Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
(q) Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercializes any materials or content on the Site;
(r) Uses the Services for benchmarking, or to compile information for a product or service;
(s) Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site or Services, by any means except as provided for in these Terms or with the prior written consent of DealMaker; or
(t) Attempts to do any of the foregoing.If you believe content on the Site violates the above restrictions, please contact us immediately at info@dealmaker.tech.
10.2 Restrictions on Use By Third Parties. In addition, Users shall not, and shall not permit others to, do the following with respect to the Services:
(a) Use the Services, or allow others to use them, in a manner that circumvents contractual usage restrictions or that exceeds authorized use set forth in these Terms:
(b) License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Services or Documentation available for access by third parties except as otherwise expressly provided in these Terms; or
(c) Access or use the Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allow access by a direct competitor of DealMaker.
10.3 Restrictions on Use: Displaying and Linking the Site. You may not frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Site, provided that you acknowledge and agree that you will not link the Site to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Site effective immediately.
10.4 Monitoring. You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
11. Privacy
11.1 DealMaker Privacy Policy. You acknowledge that except as described in these Terms or applicable Corporate Terms, the information you provide to us or that we collect will be used and protected as described in the DealMaker Privacy Policy. You acknowledge that DealMaker may update its Privacy Policy from time to time and it is your responsibility to review the most recently available version of the privacy policy before using the Site.
11.2 Access & Disclosure. We may access, preserve, or share any of your information when we believe in good faith that such sharing is reasonably necessary to investigate, prevent, or take action regarding possible illegal activities or to comply with legal process (e.g. a subpoena or other legal process). We may also share your information in situations involving potential threats to the physical safety of any person, violations of the DealMaker Privacy Policy or our user agreements or terms; or to respond to the claims of violation of the rights of third parties and/or to protect the rights, property and safety of DealMaker, our employees, users, or the public. This may involve the sharing of your information with law enforcement, government agencies, courts, and/or other organizations.
12. Warranties and Disclaimers
12.1 No Warranties. The Services, Documentation, and Site are provided “as is” and “as available.” Your use of the Services, Documentation, and Site shall be at your sole risk. THE SERVICES, DOCUMENTATION AND THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS, COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DealMaker DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. You will be solely responsible for any damage resulting from the use of the Services, Documentation, or Site.
12.2 No Warranties. DealMaker makes no warranties or representations that Services, Documentation, and Site have been and will be provided with due skill, care and diligence or about the accuracy or completeness of the Services, Documentation, and Site content and assumes no responsibility for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of Services, Documentation, and Site; (iii) any unauthorized access to or use of our servers and/or any and all personal information and/or financial information stored therein; (iv) any interruption or cessation of transmission to or from the Site; (v) any bugs, viruses, Trojan horses, or the like that may be transmitted to or through the Site through the actions of any third party; (vi) any loss of your data or content from the Site; and/or (vii) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Services, Documentation, and Site. You will not have the right to make or pass on any representation or warranty on behalf of DealMaker to any third party. Because some jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you. In that event, such warranties are limited to the maximum extent permitted by, and for the minimum warranty period allowed by the mandatory applicable law.
12.3 No Endorsement. DealMaker does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Site, and DealMaker will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. You are solely responsible for all of your communications and interactions with other persons with whom you communicate or interact as a result of your use of the Site.
12.4 Application of Local Law. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as in this Section 11 or below in Section 13. Accordingly, some of these limitations may not apply to you.
13. INDEMNIFICATION OBLIGATIONS
13.1 Indemnity. You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, legal fees) arising from or related to, as applicable: (a) your access to and use of the Site; (b) violation of these Terms by you as applicable; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and content of all User Data uploaded or provided by you; (e) your use of or reliance upon any User Content uploaded by any third party; or (f) any products or services purchased or obtained by you in connection with the Site.13.2 Rights. DealMaker retains the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
14. Limitations of Liability
14.1 Disclaimer of Consequential Damages. Notwithstanding anything to the contrary contained in these terms, DealMaker will not, under any circumstances, be liable to you for any consequential, incidental, special, cover, punitive or exemplary damages arising out of or related to the transactions contemplated under these terms, including, but not limited to, goodwill, work stoppage, lost profits or loss of business, even if apprised of the likelihood of such losses, and whether such claims are made based on contract, tort (including negligence), or any other legal theory.
14.2 Limitations. To the fullest extent permitted by applicable law, in no event shall DealMaker be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from: (a) any use of the Site, Documentation, or Services; (b) any errors, mistakes, or inaccuracies of content; (c) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Site, Documentation, or Services; (d) your use of third party payment processing services (such as chargebacks) made available through the Site, Documentation or Services; (e) Users’ misdirected funds (such as lost funds or funds wired to the wrong location) (f) any unauthorized access to or use of our servers and/or any and all personal information and/or financial information stored therein; (g) any interruption or cessation of transmission to or from our servers; (h) any bugs, viruses, Trojan horses, or the like, which may be transmitted to or through the Site, Documentation, or Services by any third party; (i) any loss of your data or content from the Site, Documentation, or Services; (j) 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 posted, transmitted, or otherwise made available via the Site, Documentation, or Services, whether based on warranty, contract, tort (including negligence), or any other legal theory, and whether or not DealMaker is advised of the possibility of such damages; and/or (k) the disclosure of information pursuant to these Terms or our Privacy Policy.
14.3 Local Law. Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section 13.1 may not apply to you.
14.4 Cap on Damages. Our total liability to you for any cause of action arising out of or related to these terms or to your use of the Site (including without limitation warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort (including negligence), or any other legal or equitable theory, will not exceed the total amount paid by you to DealMaker for the Service(s) during the twelve (12) month period preceding the date of the first event giving rise to liability, or $100, whichever is greater. The existence of more than one claim shall not enlarge this limit.
14.5 Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. But for this allocation of risk, DealMaker would not be willing to provide the Services at the prices for which they are provided. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
14.6 Jurisdictional Limitations.
14.6.1 Because some jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).
15. General
15.1 Third Party Content. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. DealMaker IS NOT RESPONSIBLE FOR ANY USER CONTENT OR FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.
15.2 Relationship. At all times, you and DealMaker are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of DealMaker or is otherwise authorized to bind or commit DealMaker in any way without DealMaker’s prior written authorization.
15.3 Assignability. You may not assign your rights or obligations under these Terms without DealMaker’s prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. DealMaker may freely assign its rights, duties, and obligations under these Terms.
15.4 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the Services will be effective only if it is in writing and sent using: (a) the Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in your registration information or on the Site.
15.5 Force Majeure. Except for any payment obligations, neither you nor DealMaker will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
15.6 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at info@dealmaker.tech, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and DealMaker agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
15.7 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision in Section 15.6 above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) after serving on the other party written notice setting out the claim and subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of the Services, Documentation or Site shall be finally settled by binding arbitration pursuant to the rules of the American Arbitration Association.
15.8 Class Action Waiver. You further agree that the arbitration shall be conducted in a party’s respective individual capacities only and not as a class action or other representative action, and you expressly waive the right to file a class action or seek relief on a class basis. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
15.9 Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.
15.10 Entire Terms. These Terms, which include the language and paragraphs preceding above, are the final, complete, and exclusive expression of the agreement between you and DealMaker regarding the Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Services under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Unless any additional or conflicting terms appear in a purchase order or any other ordering materials submitted by you and accepted by DealMaker, then DealMaker hereby rejects and other additional or conflicting terms submitted by you. Except as explicitly permitted in these Terms, no modification or amendment of these Terms shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the Subscription Order; (b) any addenda or appendix(ices) to a Subscription Order(s); (c) the Service Schedule (defined below); and (d) these Terms.
15.11 Governing Law & Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the Province of Ontario, Canada, without reference to any conflict of law rules to the contrary.
15.12 Waiver. The waiver by either you or DealMaker of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a DealMaker of these Terms.
15.13 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
15.14 Modification of this Agreement. DealMaker reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms (including DealMaker’s Privacy Policy) at any time. Please check these Terms and our Privacy Policy periodically for changes. Your continued use of the Site after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective ten (10) days after they are initially posted on the Site.
15.15 Claims. YOU AGREE THAT ANY CAUSE OF ACTION, CLAIM and/or ARBITRATION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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Schedule A – Electronic Signature Feature
This Service Schedule was last updated on August 1, 2021. Unless otherwise defined in this Schedule, capitalized terms will have the meaning given to them in the Terms.
1. Definitions
“Electronic Signature” means the electronic signature Service, which provides online display, acknowledgement, electronic signature, and storage services in respect of binding agreements via the Internet.
“Site” refers to the software Sites and programs, the communication and network facilities, and the hardware and equipment used by DealMaker or its agents to provide the Electronic Signature service.
“Transaction Data” means the metadata associated with a transaction (such as transaction history, image hash value, method and time of receipt and information input, recipient names, email addresses and signature IDs) and maintained by DealMaker in order to establish the digital audit trail.
2. Additional Usage Limitations and your Responsibilities
2.1 DealMaker’s provision of the Electronic Signature service is conditioned on User’s acknowledgement of and agreement to the following:
(a) Electronic Signature facilitates the execution of documents between the parties to those documents. Nothing in this Schedule may be construed to make DealMaker a party to any document processed through Electronic Signature, and DealMaker makes no representation or warranty regarding the transactions sought to be affected by any document signed via Electronic Signature;
(b) Between DealMaker and Licensed Users, Licensed User has exclusive control over and responsibility for the content, quality, and format of any document. Documents and transaction information stored by DealMaker on the Site are maintained in an encrypted form, and DealMaker has no control of or access to their contents;
(c) Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills, deeds, transfers of land and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. DealMaker is not responsible for determining whether any particular document is (i) subject to an exception to applicable electronic signature laws; (ii) subject to any particular agency promulgations; or (iii) whether it can be legally formed by electronic signatures;
(d) DealMaker is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, DealMaker is not responsible for providing transaction documents or other documents to third parties;
(e) Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers,” such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. DealMaker does not and is not responsible to: (i) determine whether any particular transaction involves a “consumer;” (ii) furnish or obtain any such consents or determine if any such consents have been withdrawn; (iii) provide any information or disclosures in connection with any attempt to obtain any such consents; (iv) provide legal review of, or update or correct any information or disclosures currently or previously given; (v) provide any such copies or access, except as expressly provided in the Documentation for all transactions, consumer or otherwise; or (vi) otherwise to comply with any such special requirements.
3. Information Security and Personal Data
3.1 User Responsibilities. Electronic Signature provides Users with certain features and functionalities that Users may elect to use, including the ability to retrieve and delete documents on the Site. Licensed Users are primarily responsible for properly:
(a) configuring transaction documents, including indicating and configuring Electronic Signature;
(b) using and enforcing controls available in connection with Electronic Signature (including any security controls); and
(c) taking such steps, in accordance with the functionality of Electronic Signature, that such Users deem adequate to maintain appropriate security, protection, deletion, and backup of User Data, which include controlling the management of authorized Users’ access and credentials to Electronic Signature, controlling User Data that is processed by Electronic Signature, and controlling the archiving or deletion of documents in the Site. All Users acknowledge that we have no obligation to protect User Data that Users elect to store or transfer outside of the Site (e.g., offline or on-premise storage).
3.2 Information Security. We employ commercially reasonable technical and organizational measures that are designed to prevent unlawful or unauthorized access, use, alteration, or disclosure of User Data.
4. Accounts & Organizational Administration
4.1 Each Account is associated with a single email address. If the domain of the primary email address associated with an Account is owned by a business or other organization (“Entity”) and was assigned to a User as an employee, contractor or member of the Entity, such as yourname@youremployer.com or yourname@nonprofit.org (“Entity Email Address”), User grants that Entity and its administrator(s) permission to: (a) identify Accounts created with an Entity Email Address; and (b) restrict or terminate access to an Account created with an Entity Email Address. User acknowledges and agrees that we may assist Entity with such administration.
* * * *Schedule B – Messenger Feature
This Service Schedule was last updated on August 1, 2021. Unless otherwise defined in this Schedule, capitalized terms will have the meaning given to them in the Terms.
1. Definitions
“Messages” means the online text messages which Users may input, access, retain, share with, and receive from other Users via the Messenger Feature.
“Messenger Feature” means the service within the Site that facilitates the input, access, retention, and sharing of Messages.
2. Additional user Responsibilities for use of Messenger Feature
2.1 DealMaker’s provision of the Messenger Feature for use within the Site is conditioned on User’s acknowledgement of, and agreement to, the following:
(a) User is solely responsible for registering and maintaining Account in order to facilitate the communication functionality via Messenger Feature;
(b) As between DealMaker and User, User is solely responsible for complying with all laws applicable to the content, communications, and use of Messenger Feature and User represents and warrants it will use and permit use of Messenger Feature solely for lawful purposes and only in accordance with the terms of the Terms;
(c) User covenants not to use Messenger Feature for any of the following purposes: The unsolicited sending of spam/unsolicited commercial electronic messages, third party advertisements, derogatory, racist, sexist, homophobic or other objectionable language, slander, libel and threats; and
(d) All other terms and conditions of the Terms apply to User’s use of Messenger Feature as part of the Services.
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Schedule C – Payments Functionality
This Service Schedule was last updated on August 1, 2021. Unless otherwise defined in this Schedule, capitalized terms will have the meaning given to them in the Terms.
1. Definitions
“Ancillary payment fees” are payment processing fees charged by the issuer and unique to each Purchase made by a User. DealMaker does not set or control Ancillary Fees.
2. User Acknowledgements regarding Payments
(a) All payment processing is powered by a third party, on behalf of the issuer.
(b) Payments made over the platform are submitted to the applicable merchant, who may or may not accept such payment in their full discretion.
(c) If you are requesting a refund of your investment or Ancillary payment fees, contact the issuer. Refunds are made at the discretion of the issuer. We do not set or control the issuer’s refund policy.
(d) Any ancillary payment fees are levied by the issuer. Ancillary payment fees may not be refundable, at the issuer’s discretion.
(e) If you pay by credit card in a foreign currency, you may incur foreign exchange costs. Foreign exchange costs incurred by the user are not DealMaker’s responsibility. DealMaker holds no liability in refunding losses due to partial refunds as a result of exchange rate fluctuations or otherwise.
(f) Any User submitting a payment may be required to submit additional information related to identity verification or anti-money laundering compliance. Failure to submit such information may result in the purchase being denied and any payment submitted being refunded.
3. Disputes
(a) All disputes between a User and an issuer should be resolved between the two parties without resorting to chargebacks. By submitting payment in respect of a purchase made via DealMaker.tech, User is entering into a legally binding contract with the receiver of the payment directly. User should contact the issuer for a refund as described above, but in no case is a User permitted to initiate a credit card chargeback or ACH dispute.
(b) Users acknowledge that once payment has been submitted, the issuer may choose to accept or not. If the issuer chooses to accept, a contract is formed. Issuer can and will pursue its remedies against any User who submits a payment and then engages in a chargeback. IN SUCH CASES, A USER’S LOSSES MAY BE GREATER THAN THE AMOUNT OF THE PURCHASE.
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ADDITIONAL TERMS APPLICABLE TO “ACCOUNT USERS”
16. Restrictions on Use
16.1 Restrictions on Use. Your use of the Site is subject to all applicable local, provincial, state and federal laws and regulations. You may not use, allow, or enable others to use the Site, or knowingly condone use of the Site by others, in any manner that is, attempts to, or is likely to: be obscene, fraudulent, defamatory, libelous, indecent, discourteous, racially or ethnically offensive, harassing, threatening, abusive, pornographic or discriminatory; affect us adversely or reflect negatively on us, the Site, our goodwill, name or reputation or cause duress, distress, or discomfort to us or anyone else, or discourage any person, firm, or enterprise from using all or any portion, features, or functions of the Site, or from advertising, linking, or becoming a supplier to us in connection with the Site; send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”; transmit, distribute, or upload content or programs that contain any viruses, Trojan horses, worms or other disabling devices or harmful components intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any Site, data or personal information; modify, disrupt, impair, alter, or interfere with the use, features, functions, operation, or maintenance of the Site or the rights or use and enjoyment of the Site by any other user; advocate or encourage any illegal activity; infringe upon or misappropriate the copyright, patent, trademark, trade secret, publicity rights or other intellectual property or proprietary rights of ours or any third party; violate the privacy of any individual, including users of the Site; or violate any applicable local, provincial, state or national laws or regulations (anywhere in the world).
16.2 No Sharing. You agree to keep your Account information current and safeguard your Account password for Services we provide. You will not share your Account credentials or give third parties access to your Account or to information which would jeopardize your Account security. We do not permit group, shared, transferred or general accounts. If we find one, you agree that we may remove it.
17. Privacy and Personal Information
17.1 Use of Email. We may use your email address to verify your identity, protect against fraud, and contact you. In addition, we may use it to send you updates about your Account, new products and services, and Services updates. Please see our Privacy Policy for further information on how we use your data.
17.2 Personal Information. Personal information submitted by Users to the Site may be employed for the purposes of maintaining the integrity of the Site and its contents, contacting our Users when necessary, improving the quality of Services, and/or fulfilling essential elements of the Service. As such, you may be asked to provide sensitive personal information that is required in order for Account Users to use the Services. For example, you may be asked for information or documentation that verifies your identity, net worth, marital status or eligibility to participate in securities transactions, etc. Information that you submit will be viewable by certain third parties who have a legitimate business need to view such information (for example, for verification purposes or by a third party payment processor). Such information may be viewable by subsequent issuers with whom you are transacting. Please see our Privacy Policy for further information on third party access to information. We may also collect information specific to how you use the Internet. Services we use note details such as the server you are logged onto and your IP address. This information is obtained for the purpose of providing certain of our Services (such as the audit trail for our electronic signature feature). We may ask you for more personal information from time to time in a survey format. This information is specifically used to ensure that the Services are up-to-date and relevant, and that the products and services provided to you in advertising format are relevant and of interest to you. Any information used as demographics will not reveal the source, and will be kept secure. This further information provided by you is on an optional basis.
17.3 Data Generally. Account Users shall be responsible for data that is provided or used in the Services. Users are solely responsible for determining the suitability of the Services for their business or organization and complying with any regulations, laws, or conventions applicable to the data provided, and use of the Services and the Site.
17.4 Disclosure by Law. We reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process served on our Site(s); or to protect our company. While we make every effort to ensure the integrity and security of our network and Sites, we cannot guarantee that our security measures will prevent third-party “hackers” from illegally obtaining this information.
17.5 Further Information. For more information about our treatment and protection of personal information, please read our Privacy Policy.
ADDITIONAL TERMS APPLICABLE TO “LICENSED USERS”
18. Payment Terms
18.1 Subscription Order. The prices, features, and options of any of the Services depend on the Subscription Order selected as well as any changes instigated by User. DealMaker does not represent or warrant that a particular Subscription Order will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Order without prior notice.
18.2 No Refunds. User will timely pay DealMaker all fees associated with its Subscription Order, Account or use of the Services, including, but without limitation, by authorized Users. PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS. Charges for pre-paid Subscription Orders will be billed to User in advance. Charges for per-use purchases and standard Subscription Order charges will be billed in arrears unless otherwise specified in the Subscription Order.
18.3 Recurring Charges. When a User purchases a Subscription Order, the User must provide accurate and complete information for a valid payment method, such as a credit card, that User is authorized to use. User must promptly notify DealMaker of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A Subscription Order, USER AUTHORIZES DealMaker OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G., MONTHLY OR YEARLY) BASIS FOR: (a) THE APPLICABLE Subscription Order CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH USER’S USE OF THE SERVICES. The authorization continues through the applicable Subscription Term and any Renewal Term (as defined in Section 19.11, below) until User cancels as set forth these Terms.
18.4 Invoices. DealMaker will provide billing and usage information in a format we choose, which may change from time to time. DealMaker reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment in respect of the period invoiced. User agrees to notify DealMaker about any billing problems or discrepancies in writing within thirty (30) days after they first appear on an invoice. If DealMaker does not bring such problems/discrepancies to DealMaker’s attention within thirty (30) days, User will be conclusively deemed to have waived any right to dispute such problems or discrepancies.
18.5 Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, DealMaker may make reasonable adjustments and/or prorations. User agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from User’s payment card issuer until submission of the accumulated charge(s).
18.6 Tax Responsibility. All payments required by these Terms are exclusive of all taxes, duties, levies or similar payment imposed, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, (collectively, “Taxes”). User shall be responsible for Taxes associated with its purchase of, payment for, access to or use of the Portal Services. Taxes shall not be deducted from the payments to DealMaker, except as required by law, in which case User shall increase the amount payable as necessary so that after making all required deductions and withholdings, DealMaker receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. User hereby confirms that DealMaker can rely on the name and address set forth in its registration for a Subscription Order as being the place of supply for sales tax purposes. User’s obligations under this Section (Tax Responsibility) shall survive the termination or expiration of these Terms.
18.7 Free Trial and Special Offers for Services. If any person registers for a free trial, promotional offer or other type of limited offer for use of Services (“Free Trial”), there may be additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into these Terms by reference and are legally binding. This Section (Free Trial and Special Offers for Portal Services) supersedes and applies notwithstanding any conflicting provisions with regard to access and use of a Free Trial. DealMaker reserves the right to reduce the term of a trial period or end it altogether without prior notice.
18.8 Terms of Free Trial. The version of the Services that is available for a Free Trial may not include or allow access to all features or functions. ANY DATA THAT A USER ENTERS INTO THE SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A USER, DURING THE FREE TRIAL MAY BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE USER: (a) PURCHASES A Subscription Order THAT IS EQUIVALENT TO OR GREATER THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
18.9 No Warranties with a Free Trial. Notwithstanding any other provision of these Terms, including without limitation the warranties described in Section 11 (Warranties and Disclaimers) or any service-specific terms and conditions applicable to a particular Portal Service, including exhibits and attachments accompanying such schedule (“Service Schedule”), DURING A FREE TRIAL, THE SERVICES, DOCUMENTATION AND THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS, COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DealMaker DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION, OR SITE, DURING A FREE TRIAL, ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE.
18.10 Payment Processing Services. DealMaker partners with Stripe, a third party payments processor, to manage and process payments for subscriptions made on the DealMaker platform. Any Licensed User leveraging Stripe’s services must review and agree to the applicable Stripe terms prior to opening an Account. Users leveraging these services will be subject to the underlying Stripe terms, for each respective service:
Stripe Treasury
Stripe Treasury - Connected Accounts
Stripe Connected Account Agreement
Stripe Issuing Accountholder Terms
DealMaker is neither a bank nor a money transmitter. DealMaker partners with Stripe Payments Company for money transmission services and account services with funds held at Fifth Third Bank and Evolve Bank and Trust, Members FDIC.
TERM AND TERMINATION
19.1 Term. The period of effectiveness of these Terms (“Term”), with respect to Services, begins on the date the User accepts it and continues until the User’s Subscription Order expires or its use of the Services ceases (including as a result of termination in accordance with this Section 14), whichever is later.
19.2 Subscription Term and Automatic Renewals. Subscription Orders automatically renew unless otherwise noted. If User purchases a Subscription Order it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Order (“Subscription Term”): (a) User terminates its Account; (b) Users sets up its Account not to auto-renew; (c) DealMaker declines to renew a Subscription Order; or (d) these Terms are otherwise properly terminated as expressly permitted herein. Each renewal period is a “Renewal Term.” Subscription Order fees and features may change over time and we may recommend a new Subscription Order that is comparable to your previous Subscription Order that is ending. If you accept the new Subscription Order, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
19.3 Default; Termination by DealMaker. An Account User will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it breaches any provision of these Terms or violates any published policy applicable to the Services; (c) if, in our sole discretion, we believe that continued use of the Services by the Account User (or its authorized Users or signers) creates legal risk for DealMaker or presents a threat to the security of the Services or DealMaker’s other customers. If a User is in default, we may, without notice: (i) suspend its Account and use of the Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. A DealMaker “Affiliate” means any legal entity that DealMaker owns or that is under common control with DealMaker.
19.4 Effect of Termination. If these Terms expires or are terminated for any reason: (a) User will pay to DealMaker any amounts that have accrued before, and remain unpaid, as of the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of User’s liabilities to DealMaker that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to User with respect to the Site and Services and intellectual property will immediately terminate; (d) DealMaker’s obligation to provide any further services to User under these Terms will immediately terminate, except any such services that are expressly to be provided following expiration or termination of these Terms.
ADDITIONAL TERMS APPLICABLE TO ACCOUNT USERS WHO ARE ALSO ISSUERS OR BROKER-DEALERS
These Terms of Services (“Terms”) govern access to the software and services provided by any of the DealMaker entities such as Novation Solutions Inc., O/A DealMaker (“DealMaker.tech”), DealMaker Reach, LLC (“DM Reach”), DealMaker Securities LLC (“DMS”) and DealMaker Transfer Agent LLC, O/A DealMaker Shareholder Services (“DMTA”) (individually, each a “DealMaker Entity” and collectively, the “DealMaker Entities”). Each of the entities may be referred to as “DealMaker” or the “Company” in these Terms.
These Terms have legal implications. It is important that you read these terms carefully, and consult legal counsel if you determine that is appropriate, in order to understand these Terms.
The Terms, together with the DealMaker order form from which this page was linked (“Order Form”), form an agreement between the Customer (as defined in the order form) and the applicable DealMaker entit(ies) being engaged for technology or services (each an “Agreement”). Each of these Agreements may be referred to as “an Agreement” or “the Agreement” in these Terms. Each Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. Each Agreement also contains an arbitration provision which is enforceable against the parties and may impact your rights and obligations. By signing the Order Form and using the DealMaker Entity services described in such Order Form, Customer accepts and agrees to be bound by these Terms.
These Terms apply to all DealMaker Entities unless a DealMaker Entity is explicitly excluded or alternative terms are supplemented, as indicated below.
Definitions
“Account” means Investment funds deposited in Customer’s account with a financial institution by (i) Customer’s investors directly, funded via wire or check or (ii) a third party payment processor, prior to the Closing of any transaction involving such investments (each, a “Transaction”)
“Closing” means the resolution of all applicable AML-related exceptions or discrepancies identified through any searches provided by third parties through Company or otherwise identified by or to Company for all transactions associated with an investment and the acceptance by the Customer of the investment associated with such transactions.
“Closing Date” means the date of each Closing.
“Commencement Date” occurs in the month the Customer begins paying monthly subscription fees. If no Commencement Date is stated on the Order Form, monthly subscription fees are payable in the month following the Effective Date.
“DM Shareholder Management Technology” means DealMaker’s investor communication functionality technology and/or services provided by DealMaker.tech.
“Effective Date” is the date the Agreement is signed.
“Improvements” means any improvements, updates, variations, modifications, alterations, additions, error corrections, enhancements, functional changes or other changes to the Software, including, without limitation: (i) improvements or upgrades to improve software efficiency and maintainability; (ii) improvements or upgrades to improve operational integrity and efficiency; (iii) changes or modifications to correct errors; and (iv) additional licensed computer programs to otherwise update the Software.
“Intended Purpose” means Customer’s use of the Software to raise capital online via technology or services provided by DealMaker.tech.
“Offerings” refers to online capital formation transactions completed by Company’s Customers or Customer’s clients, using the Software.
“Software” means the DealMaker™ cloud-based software program developed by Company, including its features, functionality, performance, application and use, any related printed, electronic and online documentation, manuals, training aids, user guides, system administration documentation and any other files that may accompany the Software used by the Customer.
“TOS” means the DealMaker.tech website terms of service located at https://www.dealmaker.tech/terms
2. Term and Termination
2.1 Term. Unless otherwise stated in the Order Form, the Agreement will remain in effect from the Effective Date until the first day of the month following the completion of an Offering (“Term”). The Term for DMTA is set forth in the DMTA terms.
2.2 Renewal
2.2.1 Activation Fees: Unless otherwise specified in the Order Form, activation fees do not renew. Activation fees are one-time fees. These may also be referred to as “Launch Expenses” or “Setup,” if they precede the Offering launch or commencement of Services
2.2.2 Monthly Subscription Fees: Unless otherwise specified in the Order Form, Monthly Subscription Fees (“Subscription Fee”) automatically renew each month.
2.2.3 DM Shareholder Management Technology Fees: DM Shareholder Management Technology is a service offered by DealMaker.tech. Unless otherwise specified in the DealMaker.tech or DMTA fee schedules to your Order Form, fees for use of the DM Shareholder Management Technology, when applicable, will automatically renew each month and the services can be canceled within any month upon written notice, effective the month following cancellation of DealMaker.tech services, except for DMTA Customers. Cancellation of fees for use of DM Shareholder Management Technology for DMTA customers is governed by the DMTA terms.
2.2.4 DealMaker Transactional Fees are incurred at the time of each transaction and charged on a per use basis, as specified in the Order Form.
2.3 Termination
2.3.1 Termination for Cause. Customer or any DealMaker Entity may terminate this Agreement immediately for Cause, as to any or all Subscription services. “Cause” includes a determination that a party is acting, or have acted, in a way that has negatively reflected on or impacted, or may negatively reflect on or impact the other party, its prospects, or its customers, including without limitation in a way that violates or causes a violation of applicable law or regulation. Upon termination for cause, there are no additional fees incurred. All prepaid unused fees would be returned.
2.3.2 Otherwise, an Agreement may only be terminated as follows:
a) Material Breach: A party may terminate this Agreement upon sixty (60) days written notice if the breaching party fails to perform or observe any material term, covenant, or condition to be performed or observed by it under this Agreement and such failure continues to be unremedied after sixty (60) days’ written notice of such failure from Company to Customer.
If the breach has not been cured within the sixty day period, the non-breaching party may terminate this Agreement forthwith and may immediately exercise any one or more of the remedies available to it under the Terms of this Agreement, in addition to any remedy available at law.
b) Customer Default. If Customer defaults in performing its obligations under an Agreement, Company may terminate this Agreement (i) upon written notice if any material representation or warranty made by Customer proves to be incorrect at any time in any material respect or (ii) upon written notice, in order to comply with a legal requirement, if such compliance cannot be timely achieved using commercially reasonable efforts, after Company has provided Customer with as much notice as practicable.
c) Right of Termination – Insolvency/Bankruptcy: A party may terminate an Agreement immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors, reorganization or other relief, or is adjudged bankrupt or insolvent or has entered against it a final and unappealable order for relief, under any bankruptcy, insolvency, or other similar law. In the event of Company insolvency, all of the Customer’s assets are immediately released.
(collectively, “Termination Reasons”) Other than the Termination Reasons, unless explicitly stated otherwise, an Agreement may not otherwise be terminated prior to the end of the Term.
2.3.3 The termination of an Agreement as described herein shall not exclude the availability of any other remedies. Any delay or failure by either party to exercise, in whole or in part, any right, power, remedy or privilege shall not be construed as a waiver or limitation to exercise, in whole or in part, such right, power, remedy or privilege.
2.3.4 All terms of an Agreement, which should reasonably survive termination, shall survive, including, without limitation, confidentiality, limitations of liability and indemnities, arbitration and the obligation to pay fees relating to services provided by the DealMaker Entity prior to termination.
3. Payment & Billing
DealMaker shall be compensated as set out in the Order Form. Unless otherwise specified in the schedules to the Order Form, Customer will be invoiced on a monthly basis. Payment will be automatically debited from the Customer’s bank account or credit card on file, with a receipt to be automatically delivered. Invoices will be available for the Customer to review upon request. In the event that any Customer payment fails, in respect of any invoice due and payable to a DealMaker Entity (“Arrears”), Customer must re–connect its bank account or update credit card within fourteen (14) days and submit payment for any Arrears. Unless Arrears are cleared and accounts are brought back into good standing within 14 days, automated payouts and reconciliation reporting will be disabled. In the event the Arrears are not cleared or accounts are not brought back into good standing within 30 days, all services will be paused until payment is received and the Customer’s bank account or credit card authorization is restored. DealMaker reserves the right to debit from Customer’s payment account in respect of any Arrears aged beyond thirty days unless the Customer disputes the charges in writing.
4. Intellectual Property
4.1 Title. Company retains title to and sole ownership of the Software and all Improvements.
4.2 Cloud-Based Software. The Software is cloud based. As such, the source and object code are located on servers outside of the Customer’s premises. Customer shall have no access to the facilities at which the Software is hosted.
4.3 Intellectual Property. All Intellectual Property, Intellectual Property Rights and distribution rights associated with or arising from Company’s Confidential Information including but not limited to the Software, remain exclusively with Company. “Intellectual Property” includes, without limitation, with respect to all DealMaker Products: all technical data, designs, specifications, software, data, drawings, plans, reports, patterns, models, prototypes, demonstration units, practices, inventions, methods and related technology, processes or other information, and all rights therein, including, without limitation, patents, copyrights, industrial designs, trade-marks and any registrations or applications for the same and all other rights of intellectual property therein, including any rights that arise from the above items being treated by the parties as trade secrets (the rights being “Intellectual Property Rights.”)
4.4 Restrictions.
4.4.1 Customer may not: (i) modify, enhance, reverse-engineer, decompile, disassemble or create derivative forms of the Software; (ii) copy the Software; (iii) sell, sub-license, lease, transmit, distribute or otherwise transfer rights in/to the Software; (iv) allow third-party use of the Software installed at the Site; or (v) pledge, hypothecate, alienate or otherwise encumber the Software to any third party.
4.4.2 Use of the Software is restricted to the Intended Purpose only. Customer agrees not to engage in any activity restricted by the TOS or transfer any information restricted by the TOS.
4.4.3 Customer acknowledges that unauthorized reproduction or distribution of the Software is expressly prohibited by law, and may result in civil and criminal penalties. Violators may be prosecuted. Customer may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, DealMaker website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
4.5 Customer represents and warrants that any Customer assets or materials provided and the intended use thereof in accordance with the terms of each Agreement, will not infringe, violate, or misappropriate any third party rights, including without limitation, any copyrights, trademarks, trade secrets, privacy, publicity, or other proprietary or intellectual property rights.
5. Confidential Information
5.1 “Confidential Information” means any and all confidential or proprietary information of DealMaker or Customer, including affiliates thereof, which has been or may be disclosed by one party to this Agreement ( “Disclosing Party”) to the other party (“Receiving Party”), at any time prior to and during the Agreement Term, including, without limitation, the names of employees and owners, the names or other personally identifiable information of customers, business and marketing information, technology, know-how, ideas, reports, techniques, methods, processes, uses, composites, skills, and configurations, intellectual property of any kind and all documentation provided by investors in the Offering. Without limiting the generality of the foregoing, DealMaker’s Confidential Information includes: (i) the Software; (ii) the computer code underlying the Software, including source and compiled code and all associated documentation and files; (iii) information relating to the performance or quality of the Software and services provided by the DealMaker Entity; (iv) the details of any technical assistance provided to Customer during the Term; (v) any other products or service made available to Customer by DealMaker during the Agreement Term; and (vi) information regarding DealMaker’s business operations including its research and development activities. All work product, pricing, Agreement terms and process information of either party exchanged with the other party to perform the terms of the Agreement is agreed to be Confidential Information, except that any logos or marketing references are not Confidential Information.
5.2 “Confidential Information” does not include information that: (i) is or has become generally known to the public without any action by the non-disclosing party; (ii) was known by either party prior to entering into the Agreement; (iii) was independently determined by either party; or (iv) was disclosed to the relevant party without restriction by a third party who, to the best of such party's knowledge and belief, had no obligation not to disclose such information.
5.3 Neither party may disclose Confidential Information without the express written consent of the other party, except as specifically contemplated in this Agreement.
5.4 By executing this Agreement, the Customer is providing written consent for DealMaker to disclose Confidential Information but only to the extent required to carry out the terms of this Agreement. Customer’s investors will be required to sign-in to the DealMaker.tech portal and agree to the DealMaker.tech TOS. The parties agree that this process shall not constitute a disclosure of “Confidential Information” as described in this section.
5.5 Notwithstanding anything in this section, Customer and DealMaker hereby agree that each party may use the other party’s logo for promotional purposes (“Logo Use”). The parties acknowledge that Logo Use does not include the use of any descriptive copy, all of which must be approved by Customer and DealMaker in writing. Except as provided for in this paragraph, nothing contained in this Agreement will be construed as granting Customer or DealMaker any right, title or interest in or to any or to use any of the other party’s Confidential Information. Customer or DealMaker may terminate Logo Use at any time, with or without cause, upon written notice to the other party. For any Customer conducting a public offering on the DealMaker platform (i.e. Regulation A or Regulation CF offerings), in which the offering is already in the public domain, Customer agrees that DealMaker may disclose Customer name and offering proceeds to third party data aggregators for the purpose of generating industry reports. Industry reports shall not include publication of Customer name or the amount raised.
5.6 Authorized Disclosure. Each party may, without the consent of the other party, disclose Confidential Information to the extent reasonably necessary to comply with applicable regulatory demands or orders in connection with the purpose for which the Customer enters into this Agreement. Each party may disclose the existence of this Agreement and any relationship between the parties.
6. Exclusion of Warranties.
6.1 Except as expressly stated in this Agreement, DealMaker makes no representations or warranties or covenants to Customer, either express or implied, with respect to the Software, services provided by the DealMaker Entity or with respect to any Confidential Information disclosed to Customer. DealMaker specifically disclaims any implied warranty or condition of non-infringement, merchantable quality or fitness for a particular purpose. Customer acknowledges that the Software is in continuous development and that it has been advised by DealMaker to undertake its own due diligence with respect to all matters arising from this Agreement. All services are provided on an "as is" and "as available" basis without any warranties, express or implied, including, without limitation, implied warranties of merchantability or fitness for a particular purpose, and DealMaker expressly disclaims all warranties. Customer agrees and understands that no DealMaker entity has any fiduciary duty to Customer.
6.2 No Improvements. Company is under no obligation to provide Improvements to the Software during the Term.
6.3 Any Improvements Gratuitous. Any Improvements provided by DealMaker to Customer from time to time during the Term shall be, unless otherwise stated, construed as being provided on a purely gratuitous basis and shall not give rise to any right or entitlement on the part of Customer, except as otherwise specifically provided in this Agreement. Any Improvements so provided shall be governed by the same terms and conditions applicable to the Software, as described herein, unless otherwise outlined in a fee schedule or addendum to this Agreement.
6.4 No Future Entitlement. Nothing in this Agreement shall be construed as creating any obligation on DealMaker to continue to develop, commercialize, offer, make available or support (i) the Software; or (ii) any feature, functionality or Improvement as may be encompassed in the Software from time to time during the Term, beyond the duration of the Term.
6.5 Company Templates and Samples are Provided with No Warranties. Customer may request access to DealMaker’s templates and resources to help organize and set up an offering or any communications related thereto. These resources may include template communications, educational packages, resources for the management of administrative and collaborative tasks, and best practices observed from other offerings and industries. Customer acknowledges and agrees that, by providing access to any documents, training, or resources, DealMaker is not rendering and shall not be deemed to have rendered any legal, tax, investment, or financial planning advice. Customer shall, as it deems necessary or advisable, consult its own legal, tax, investment, or financial planning advisers. All templates and samples are provided with no warranties whatsoever and by making use of such materials, Customer is agreeing to voluntarily assume any liability with respect thereto.
7. Limitation and Exclusion of Liability.
Unless otherwise specified herein, in no event is DealMaker’s liability for any damages on any basis, in contract, tort or otherwise, of any kind and nature whatsoever, arising in respect of this Agreement, howsoever caused, including damages of any kind and nature caused by DealMaker’s negligence or by a breach of contract or any other breach of duty whatsoever, to exceed the fees actually paid to DealMaker by Customer during the Term. Customer acknowledges that DealMaker has set its fees under this Agreement in reliance on the limitations and exclusions of liability set forth in this Agreement and such reliance forms an essential basis of this Agreement.
8. Indemnification.
Applicability of Indemnification Clause: Customers of DMTA are bound by the separate indemnification clauses applying only to DMTA.
8.1 Indemnification by Customer. Customer shall indemnify and hold each DealMaker Entity, its affiliates and their respective members, officers, directors and agents (“Indemnified Parties”) harmless from any and all actual or direct losses, liabilities, claims, demands, judgements, arbitrations awards, settlements, damages, direct fees, costs and expenses ( including attorney fees and costs) (collectively “Losses”), resulting from or arising out of any third party suits, actions, claims, demands, investigations or similar proceedings (collectively “Claim”) to the extent they are based upon (i) a breach of this Agreement by Customer, (ii) the wrongful acts or omissions of Customer, (iii) Customer, or Customer’s clients’ engagement with DealMaker and any actions taken in conjunction therewith, including but no limited to usage of the Software, whether or not such activities are in accordance with Intended Usage or (iv) the Offering. “Losses” includes, losses arising from payment processing which are losses arising from chargebacks, clawbacks, payment reversals, fraudulent charges, insufficient credit, unauthorized charges, claims of Customer or third parties regarding payment disputes, and any other problems relating to card or ACH payments made for the benefit of Customer (“Payment Processing Losses”).
8.2 Indemnification by Company. The applicable DealMaker Entity shall indemnify and hold Customer, Customer’s affiliates and Customer’s representatives and agents harmless from any Losses resulting from or arising out of Claims to the extent they are based upon (i) such DealMaker Entity’s breach of this Agreement (ii) the negligence, fraud, bad faith or willful misconduct of the DealMaker Entity or (iii) DealMaker Entity’s failure to comply with any applicable laws in the performance of its obligations under this Agreement.
8.3 Indemnification Procedure. If any proceeding is commenced against a party entitled to indemnification under this section, prompt notice of the proceeding shall be given to the party obligated to provide such indemnification. The indemnifying party shall be entitled to take control of the defense, investigation or settlement of the Proceedings and the indemnified party agrees to reasonably cooperate, at the indemnifying party’s cost in ensuing investigations, defense or settlement. The indemnifying party shall reimburse the indemnified party for all expenses (including reasonable fees, disbursements and other charges of counsel) as they are incurred in connection with investigating, preparing, pursuing, defending, or settling a Claim (including without limitation any shareholder or derivative action); provided, however, that indemnifying party will not be liable to indemnify and hold harmless or reimburse an indemnified party pursuant to this paragraph to the extent that an arbitrator (or panel of arbitrators) or court of competent jurisdiction will have determined by a final non-appealable judgment that such Claim resulted from the gross negligence or willful misconduct of such indemnified party. The Indemnifying Party will not settle, compromise or consent to the entry of a judgment in any pending or threatened Claim unless such settlement, compromise or consent includes a release of the indemnified parties satisfactory to the indemnified parties.
8.4 Indemnified Party Limitation Of Liability. In no event shall the Indemnified Parties be liable or obligated in any manner for any consequential, exemplary or punitive damages or lost profits incurred by Customer arising from or relating to the Agreement, an Offering, or any actions or inactions taken by an Indemnified Parties in connection with the Agreement, and the Customer agrees not to seek or claim any such damages under any circumstances.
8.5 Recovery of Payment Processing Losses. Notwithstanding anything to the contrary in this Agreement, upon giving Customer prior written notice of no less than five business days, DealMaker.tech shall have the right, in its sole discretion, to deduct funds from Customer’s Account to reimburse DealMaker.tech for any Payment Processing Losses. Customer acknowledges and agrees that recovery of Losses from Customer’s Account will not serve as any limitation on the indemnification obligations of Customer under this Agreement or any remedy or claim that Company may be entitled to pursue against Customer in respect of such Losses.
9. Third Party Services
Customer may request introductions to DealMaker’s network of partners and vendors for the purpose of sourcing additional services (including but not limited to, a call center, marketing support, investment relations). Unless otherwise specified in writing, all engagements with third parties in this respect are to be made directly between the Customer and the vendor at the Customer’s discretion. Customer acknowledges and agrees that, by making such introductions, DealMaker is not recommending and shall not be deemed to have recommended any partner or vendor’s products or services or to have assumed any responsibility for Customer’s selection of any partner or vendor or procurement of such products or services.Without limiting any other protection of DealMaker under this Agreement and notwithstanding anything to the contrary, DealMaker shall bear no responsibility or liability whatsoever in connection with any third party services provided by a vendor engaged by Customer, the decision to engage such vendors rests solely with the management of the Customer on the terms contracted between the Customer and such parties.
10. Escrow Customer acknowledges that if Customer opens a third-party escrow account (either by Customer’s choice or as necessary to comply with applicable laws or regulations) in connection with the Company services, Customer will apply for escrow account with a DealMaker-approved escrow provider.
11. Customer Obligations
11.1 General
11.1.1 Customer shall be responsible for providing Offering terms to its subscribers. Such disclosure shall include, but is not limited to the following material information: a method of Customer valuation, a description of the security available in the Offering, the risks related to the investment, whether there are existing investors and any additional capital expectations.
11.1.2 Customer is solely responsible for ensuring that the funds raised in the Offering are used, allocated or invested in accordance with the use of funds described in the Offering disclosure.
11.1.3 Customer acknowledges that following the final closing for the Offering, Customer will have sufficient liquidity (from the proceeds raised in the Offering or alternate Customer funds) to sustain Customer operations for that period of time which is clearly identified in the Offering disclosure or alternatively, until the next Customer funding round.
11.1.4 Nothing in this Agreement shall be construed to relieve the managers or officers of Customer from the performance of their respective duties or limit the exercise of their powers in accordance with the Customer's bylaws, operating and constituent documents, written supervisory procedures, applicable law or otherwise. The Customer bears ultimately responsibility for all decisions with regard to any matter upon which Company has rendered its services. The Company shall not, and shall have no authority to control Customer or Customer's day-to-day operations, whether through the performance of the Company's duties hereunder or otherwise. The Customer's directors, managers, officers and employees shall retain all responsibility for Customer, and its operations as and to the extent required by Customer’s bylaws, operating and constituent documents, and applicable law. In furtherance and not in limitation of the above, and notwithstanding any other provision of this Agreement or of any other agreement, understanding or document that purports to have any contrary effect or meaning, the DealMaker shall not control, or have the right to control, directly or indirectly, the wages, hours, or terms and conditions of employment of the Customer.
11.2 Privacy.
11.2.1 Notwithstanding any other provision of this Agreement, Customer shall not take or direct any action that would contravene, or cause the other party to contravene, applicable legislation that addresses the protection of individuals’ personal information (collectively, “Privacy Laws”). Customer shall, prior to transferring or causing to be transferred personal information to Company, obtain and retain required consents of the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents either have previously been given upon which the parties can rely or are not required under the Privacy Laws, including any consents required from third parties pursuant to applicable Privacy Laws.
11.2.2 Customer acknowledges that, when used for an Offering, the Customer’s personalized Software dashboard (“Software Dashboard”) will contain personal identifying information (“PII”) of Customer’s investors. Customer is solely responsible for ensuring compliance with all applicable Privacy Laws when Customer (a) downloads and stores any PII obtained from the Software Dashboard and (b) provides Customer’s representatives with access to the Software Dashboard.
11.2.3 Customer is solely responsible for notifying Company when any Customer representative is no longer working for the Customer and/or authorized to access the Software Dashboard for the Offering.
11.2.4 Customer shall cause all third parties with access to PII obtained from the Software Dashboard to execute agreements acknowledging the third parties’ obligation to comply with applicable Privacy Laws.
11.3 Bad Actor Checks
Customer agrees to provide DealMaker Entity with documentation verifying completion of bad actor checks in compliance with all applicable regulations (“Bad Actor Checks”). Customer shall provide DealMaker Entity with a copy of Customer’s Bad Actor Checks within thirty (30) days of the Effective Date of this Agreement, failing which, DealMaker Entity shall notify Customer in writing that it shall take steps to complete Customer’s Bad Actor Checks at Customer’s sole expense.
12. General Terms
12.1 Publications. Each party acknowledges that its name, logo(s) and a description of the general nature of this Agreement may be used in any press release, public announcement or public communication during and following the Term. Without limiting the generality of the foregoing, Company may publish such information on its websites and in its promotional materials.
12.2 General Cooperation. The parties shall with reasonable diligence do all such things and provide all such reasonable assurances and execute all such documents, agreements and other instruments as may reasonably be necessary for the purpose of carrying out the provisions and intent of any Agreement. The parties further acknowledge that the implementation of each Agreement will require the co-operation and assistance of each of them.
12.3 No Books And Records Obligations. Any and all obligations of Customer related to the storage of books and records remains the sole obligation of Customer. Company expressly disclaims any and all responsibility with respect to any regulatory or industry requirements with respect to the Customer’s obligations related to record keeping and maintenance.
12.4 Survival. These terms shall continue in effect until the expiration or termination of the Agreement, whichever is earlier. The provisions of these Terms of Service which should by their nature survive expiration or termination of this Agreement shall so survive.
12.5 Currency. All currencies referred to herein are in US dollars.
12.6 Amendment and Waiver. Amendments to any Agreement, including any schedule or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of each of the applicable parties. A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. No waiver of any breach of any terms or provisions of this Agreement is effective or binding unless made in writing and signed by the authorized representative of each of the parties.
12.7 Assignment: No party may assign an Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld.
12.8 Inurement. Each Agreement inures to the benefit of and is binding on each of the parties and their respective successors and permitted assignees, heirs and legal representatives.
12.9 Force Majeure. Excluding any obligations of a party to pay monies due hereunder, neither party will be responsible for any delay or failure in its performance or obligations under this Agreement due to causes beyond its reasonable control, including, without limitation, labor disputes, strikes, civil disturbances, government actions, fire, floods, acts of God, war, terrorism, or other similar occurrences (each, a “Force Majeure Event”); provided that the party affected by such Force Majeure Event (a) is without fault in causing such delay or failure, (b) notifies the other party of the circumstances causing the Force Majeure Event, and (c) takes commercially reasonable steps to eliminate the delay or failure and resume performance as soon as practicable.
12.10 Governing Law. Each Agreement is made in New York governed by and construed in accordance with the laws of the state of New York and the federal laws applicable therein. In connection with each Agreement, the Parties attorn to the jurisdiction of the courts of the State of New York.
12.11 Arbitration. Any and all controversies, claims, or disputes arising out of or relating to each Agreement, or the interpretation, performance, or breach thereof, including the scope or applicability of this provision to arbitrate (“Dispute”) shall be referred to senior management of the parties for good faith discussion and resolution. In the event the parties cannot resolve any Dispute informally, then such Dispute shall be submitted to confidential, final, and binding arbitration with venue in New York, NY, pursuant to the rules of the American Arbitration Association.
12.11.1 Arbitration Procedure. The arbitration shall take place in New York. The arbitration shall be before a single, neutral arbitrator who is a former or retired New York state or federal court judge. The arbitration may be initiated by any party by giving to the other party written notice requesting arbitration, which notice shall also include a statement of the claims asserted and the facts upon which the claims are based. Customer and Company each consent to this method of dispute resolution, as well as jurisdiction, and consent to this being a convenient forum for any such claim or dispute and waive any right it may have to object to either the method or jurisdiction for such claim or dispute. In the event of any dispute among the parties, the prevailing party shall be entitled to recover damages plus reasonable costs and attorney’s fees and the decision of the arbitrator shall be final, binding and enforceable in any court.
12.11.2 Compelling Arbitration. Any party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. Notwithstanding this arbitration provision, either party shall be entitled to seek injunctive relief (unless otherwise precluded by any other provision of this Agreement) from any court of competent jurisdiction. If for any reason an action proceeds in court rather than in arbitration, it shall be brought exclusively in a state or federal court of competent jurisdiction located in New York and the parties expressly consent to personal jurisdiction and venue therein and expressly waive any right to trial by jury.
12.11.3 EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION, ACTION, PROCEEDING, CROSS-CLAIM, OR COUNTERCLAIM IN ANY COURT (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH (I) THIS AGREEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF OR (II) THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
12.12 Entire Agreement: Each Agreement including all schedules thereto, constitutes the entire agreement between the parties concerning the applicable subject matter and supersedes all prior or collateral agreements, communications, presentations, representations, understandings, negotiations and discussions, oral or written.
12.13 Headings: Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement.
12.14 Number and Gender. Words importing the singular mean the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa.
12.15 Severability. If any term, covenant, condition or provision of an Agreement is held by a court or arbitrator(s) of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court or arbitrator(s) only to the extent deemed necessary by that court or arbitrator(s) to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
12.16 Notices. Any notice required to be given pursuant to an Agreement shall be in writing and delivered by electronic mail, addressed to the appropriate party. Any notice given is deemed to have been received on the date on which it was delivered if a business day, or,failing that, on the next business day.
12.17 Testimonials. Customer acknowledges that DealMaker’s materials may from time to time include testimonials, real world experiences and insights or opinions about other people’s experiences with DealMaker (“Examples”) and that this information is for illustration purposes only. Customer further acknowledges that campaigns are affected by a variety of factors including but not limited to time, external global events, varying business plans, different industries, and that these Examples are in no way a representation or guarantee that current or future customers will achieve the same or similar results.
DealMaker Additional Terms Applicable to Certain DealMaker.tech Services: Third Party Payment Processing, AML/KYC Background Checks, Accreditation Verification and Analytics
The following sections of the Terms only apply to those DealMaker.tech Customers who purchase the specific services noted.
13. Background Checks: AML compliance and “clearing”DealMaker’s integrated AML searches are tools provided to Customer to assist Customer (or its agents) in complying with applicable obligations related to KYC/AML regulations. Company is not engaged to perform and will not perform, and shall not be deemed responsible for performing, any services related to reviewing or analyzing search results, sources of funds or wealth, or making any determination as to whether Customer has complied with its obligations under applicable anti-money laundering legislation and regulations or as to whether any prospective investor poses any risk of money laundering, terrorist financing, or other criminal or suspicious activity. Customer and/or its agents (including counsel or broker dealer as applicable) shall bear primary responsibility to determine compliance with applicable AML legislation and regulation and shall assist in the clearing of any AML exceptions. Customer’s KYC/AML clearing obligations may require Customer to undertake efforts to ensure that individual and corporate investors provide applicable identity verification, explanations of adverse regulatory/disciplinary/bankruptcy history or media reports, confirmation of false positive results, or other documents or information required for AML purposes. DealMaker.tech’s AML searches are limited by capabilities and design of products and services of the third parties DealMaker.tech engages to perform such searches, including limitations on the search methodology, matching logic, data sources, and information accuracy.
14. Regulation D, 506(c) Accredited Investor Verification
14.1 Customer may engage either Company or a third party (each a "Reviewer") to assist Customer in complying with applicable obligations related to accredited investor verification pursuant to Rule 506(c) of Regulation D promulgated under the Securities Act (“Regulation D”). If Reviewer is Company, Company shall review investor submissions and uploaded documentation on the DealMaker portal and make a determination as to whether Customer has complied with its obligations to verify accredited investors (as defined by Rule 501 of Regulation D promulgated under the Securities Act) (“DM Verification”). Customer acknowledges that Company may contact investor for the purpose of accredited investor verification and that Customer has obtained investor’s consent to receive communications from Company and/or DealMaker regarding investor’s accreditation verification. If Reviewer is a third party, Company will not perform, and shall not be deemed responsible for performing, any services related to reviewing or analyzing search results, sources of funds or wealth, or making any determination as to whether Customer has complied with its obligations to verify accredited investors (as defined by Rule 501 of Regulation D promulgated under the Securities Act).
14.2 Company does not make and hereby disclaims any warranty, expressed or implied with respect to the information provided through DM Verification. Company does not guarantee or warrant the correctness, merchantability, or fitness for a particular purpose of the information provided through DM Verification. Customer acknowledges that:
14.2.1 DM Verification shall not include accreditation verification of non-U.S. investors (“foreign accredited investors”) who may be subject to foreign accreditation verification requirements.
14.2.2 DM Verification is conducted using a variety of third party database searches, public record services and user submissions. Company cannot represent or warrant that the data provided will be 100% accurate, complete or up to date. The data is time sensitive and Company provides the information as is. Public records may be incomplete, out of date or have errors.
14.2.3 The results of a DM Verification search for any type of personal verification should be interpreted cautiously. Criminal and civil record search results may not provide a complete or accurate representation of a person's criminal background or civil judgment history. Records are available for the majority, but not all, of states and counties. Records can be incomplete, contain inaccuracies or false matches.
14.2.4 Company is not a consumer reporting agency as defined in the Fair Credit Reporting Act ("FCRA"), and the information in DealMaker.tech’s databases has not been collected in whole or in part for the purpose of furnishing consumer reports, as defined in the FCRA. CUSTOMER SHALL NOT USE DM VERIFICATION SERVICES AS A FACTOR IN (1) ESTABLISHING AN INDIVIDUAL'S ELIGIBILITY FOR PERSONAL CREDIT OR INSURANCE OR ASSESSING RISKS ASSOCIATED WITH EXISTING CONSUMER CREDIT OBLIGATIONS, (2) EVALUATING AN INDIVIDUAL FOR EMPLOYMENT, PROMOTION, REASSIGNMENT OR RETENTION, OR (3) ANY OTHER PERSONAL BUSINESS TRANSACTION WITH ANOTHER INDIVIDUAL.
14.2.5 Customer assumes all risks arising from its use or disclosure of DM Verification information Company provides to Customer.
14.2.6 DM Verification Services are provided in english only. Customer acknowledges that data provided in any other language will require a certified translation which Customer shall pay for, or alternatively, reject the investment.
14.2.7 Notwithstanding anything in the DealMaker Terms of Service, Customer agrees that it shall indemnify, defend and hold harmless Company, its officers, directors, employees and agents, and the entities that have contributed information to or provided services for DM Verification against any and all direct or indirect losses, claims, demands, expenses (including attorneys' fees and cost) or liabilities of whatever nature or kind arising out of Customer’s use of the information provided by DM Verification and Customer’s use or distribution of any information obtained therefrom, except for losses caused exclusively and directly by Company’s gross negligence, fraud, bad faith or wilful misconduct.
14.2.8 THE DM VERIFICATION SERVICES AND INFORMATION ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND NEITHER COMPANY NOR ANY OF ITS DATA SUPPLIERS REPRESENTS OR WARRANTS THAT THE INFORMATION IS CURRENT, COMPLETE OR ACCURATE. COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE PERFORMANCE OF THE WEBSITE OR OUR SERVICES, AND THE ACCURACY, CURRENCY, OR COMPLETENESS OF THE INFORMATION, INCLUDING (WITHOUT LIMITATION) ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges that these disclaimers are an integral part of this Agreement and that Company would not provide DM Verification services if Customer did not agree to these disclaimers.
14.3 Third-Party Payment Processing
14.3.1 For the processing of electronic payments (including bank-to-bank payments, credit card, etc.), the Company may submit material(s) and or application(s) to partner third-party payment processors on behalf of the Customer. Upon approval, the Company will enable the partner processors’ intake form/system within the Customer’s online DealMaker.tech portal.
14.3.2 Customer acknowledges that Company makes no guarantee that Customer will be approved by any third party, and approval is subject to each third party’s sole discretion, including, to the extent applicable, its due diligence and compliance policies and procedures. Use of payment processing service(s) is further contingent on the mutual acceptance by Company and Customer of each third party’s respective fees, to be included as an addendum to this Agreement and/or presented to Customer for acceptance from time to time (including fees for merchant processing account and ongoing maintenance, which may be applied on a per-issuer basis). Note holdback periods may apply for electronic payment transfer methods, as enforced by processors. Company shall not be deemed responsible for delivery or any interruption or cessation of any services provided by any third party.
14.3.3 All transactions must clear prior to being made available to Customer. US Federal regulations provide investors with 60 days to recall funds. Customer remains liable to immediately and without protestation or delay return any funds recalled by investors for whatever reason.
14.3.4 Customer agrees that funds deposited into Customer’s Account shall remain in Customer’s Account and shall not be withdrawn by Customer or a person authorized by Customer, from the Customer’s Account prior to Closing.
14.3.5 Company reserves the right to deny, suspend or terminate participation of any investor in the offering to the extent Company, in its sole discretion, deems it advisable or necessary to comply with applicable laws or to eliminate practices that are not consistent with laws, rules, regulations, best practices, or the protection of its reputation.
14.5.6 Holdbacks. The Customer hereby acknowledges that certain terms apply in respect of electronic or credit card payment to cover against charge-backs and/or rescission (“Chargeback”). Chargeback windows can vary in duration and amount. For this reason, a holdback is applied to all funds processed online. Company shall have the right, in its sole discretion, to revise the amount and duration of any holdback. Unless otherwise advised in writing prior to the Effective Date, the holdback is 5.00% of payments processed, for a ninety (90) day period.
15. Analytics
15.1 Data and Analytics. Company reserves the right to collect data relating to Customer’s usage of the Software during the Term. Without limiting the generality of the foregoing, Company may collect information relating to: (i) Software use (including the number of users, duration of usage sessions, and number of transactions initiated or completed using the Software); (ii) error information (including error messages and any feedback text submitted via any in-application feedback form); (iii) performance data (including software run time); (iv) user experience information (including time spent on each page of the user interface); and (v) license status information (including confirmation of license activation status). Customer shall have the right to access and use data relating to its usage of the Software for its own purposes, as available through the online dashboard or other reports provided by Company.
Enterprise Customer Terms
For DealMaker Customers who have signed an Enterprise Order Form, the Terms apply, as well as the following additional terms. If you are not an Enterprise Customer, these additional terms do not apply to you:
16. Definitions
“Enterprise Customer” means a Customer that has entered into an Enterprise Order Form.
“License” means the Company’s grant to Enterprise Customer of a non-exclusive, non-transferable license for use of the Software by an unlimited number of individual users. Company will designate a DealMaker Enterprise Account to Enterprise Customers with a License.
“Intended Purpose” For the purposes of this section, Intended Purpose also includes usage by issuers invited by Enterprise Customer to use Enterprise Customer’s Enterprise Account for the above-described purpose.
“Software” as it pertains to this section, shall also include any related printed, electronic and online documentation, manuals, training aids, user guides, system administration documentation and any other files that may accompany the Software licensed by Enterprise Customer.
17. SLA
17.1 It is expressly understood and agreed that the Company shall determine its capacity to offer consulting services, only to such extent and at such times and places as may be mutually convenient to the parties. Company shall be free to provide similar services to such other business enterprises or activities as the Company may deem fit without any limitation or restriction whatsoever.
18. Licensed Intermediary Terms.
If Enterprise Customer is a licensed Intermediary (as defined below), the following additional terms apply:
A. Books and RecordsBooks and Records. Any and all obligations of Customer related to the storage of books and records including but not limited to, obligations in accordance with Sections 17(a)(1), 17(a)(3) and 17(a)(4) of the Securities Exchange Act of 1934 ("Exchange Act" or "SEA") remain the sole obligation of Customer and its clients. Company expressly disclaims any and all responsibility with respect to any regulatory or industry requirements with respect to the Customer and its clients’ obligations related to record keeping and maintenance.
B. Regulation CF Offerings
i. Obligations of the Customer (acting as an Licensed Intermediary):
Where Customer using the Software has been engaged by its client to (i) act as a Broker-Dealer and a licensed Intermediary pursuant to Regulation CF, 17 C.F.R. Part 227 (the “Regulation CF”), or (ii) act as a registered Funding Portal and licensed Intermediary pursuant to Regulation CF, in a transaction involving the offer or sale of securities in reliance on section 4(a)(6) of the Securities Act (15 U.S.C. 77d(a)(6)), Customer shall comply with the requirements of Regulation CF (“Licensed Intermediary”). For greater certainty, this includes the requirements that Customer shall:
1. Register with the Securities and Exchange Commission (“Commission”) as either (i) a broker or (ii) a Funding Portal under section 15(b) of the Exchange Act (15 U.S.C. 78o(b)), pursuant to Regulation CF, §227.400;
2. If registering with the Commission as a Funding Portal, refrain from:
a. Offering investment advice or recommendations;
b. Soliciting purchases, sales or offers to buy the securities displayed on its platform;
c. Compensate employees, agents, or other persons for such solicitation or based on the sale of securities displayed or referenced on the DealMaker platform; or
d. Hold, manage, possess, or otherwise handle investor funds or securities.
(Regulation CF, §227.300(2)(c))
3. Verify that no director, officer or partner of Customer, or any person occupying a similar status or performing a similar function has a prohibited “financial interest in an issuer” as the term is defined in Regulation CF, §227.300(b);
4. Have a reasonable basis for believing that Customer’s client seeking to initiate an offering of securities under the Regulation has a reasonable basis for keeping accurate records of security holders and is not disqualified to offer securities pursuant to Regulation CF, §227.301(c);
5. Make available to SEC and to the public, the disclosure required by Regulation CF, §227.201 and §227.303;
6. Provide educational materials to all investors, pursuant to Regulation CF, §227.302(b);
7. Verify that Customer’s clients are not disqualified from offering securities pursuant to Regulation CF, §227.100(b);
8. Only accept an Investor into an offering after (1) the Investor opens an account with Customer, (2) the Investor consents to electronic delivery and the review of the educational materials regarding the offering and (3) Customer has a reasonable basis to believe that the Investor meets the investment limitations in Regulation CF pursuant to Regulation CF, §227.302 and §227.303.;
9. Provide communication channels by which Investors who have opened accounts can communicate with one another and with representatives of the Customer about offerings made available through the Customer or its clients, pursuant to Regulation CF, §227.303(c); and
10. Provide Investors the opportunity to reconsider their investment decision and to cancel their investment commitment until 48 hours prior to the new offering deadline, pursuant to Regulation CF §227.304
11. Provide Investors with notice of material changes as described in Regulation CF, §227.304 (“Notice”), including but not limited to notice that the investor's investment commitment will be canceled unless the investor reconfirms his or her investment commitment within five business days of receipt of the Notice.
12. If registering with the Commission as a Funding Portal, comply with the Conditional Safe Harbor provisions in Regulation CF, §227.402; and
13. If registering with the Commission as a Funding Portal, implement written policies and procedures reasonably designed to achieve compliance with federal securities laws and the rules and regulations thereunder, relating to its business as a Funding Portal, as required by Regulation CF, §227.402(a).
14. If registering with the Commission as a Funding Portal, manage any reconciliation or reporting questions with the Issuer directly.
(“Regulation CF Requirements”)
For greater certainty, the parties acknowledge that Company shall bear no responsibility for or liability whatsoever in connection with the Regulation CF Requirements and Customer shall be solely responsible for ensuring that Customer and its clients comply with Regulation CF.
Further Assurances.
When Customer or its clients use the Software for an offering in reliance on Regulation CF, Customer shall verify that:
1. The issuer has filed a Form C Offering Statement with the SEC, as described in Regulation CF, §227.203(a), prior to making an offering to the public pursuant to Regulation CF;
2. Issuer complies with marketing and advertising requirements of Regulation CF, §227.204;
3. Provider is notified of any investor who, having received Customer's Notice pursuant to Regulation CF §227.304, opts-out of their investment and whose investment must therefore be refunded;
4. Signed and funded subscription agreements, executed by investors who have cleared AML/KYC, are reviewed by the Customer prior to countersignature;
5. The aggregate amount of all securities sold to all Investors by the Issuer in a single offering during a 12 month period shall not exceed $5,000,000; and
6. Non-accredited Investors (as defined by Rule 501, CFR §230.301) investing in the offering pursuant to Regulation CF do not exceed the maximum investment permitted in a 12 month period per Regulation CF, §227.100.
Payments To Escrow.
Customer acknowledges that it shall direct all payments from Investors in respect of a Regulation CF offering to Issuer’s escrow account (“Escrow Account”). Customer is responsible for (1) applying for escrow account with a DealMaker-selected Escrow Provider; (2) configuring instructions on the DealMaker platform to ensure that all payments are directed to the appropriate Escrow Account; (3) using the DealMaker.tech application to manage closings pursuant to the DealMaker user guide and (4) coordinating with the escrow company managing the Escrow Account to disburse funds upon request from the issuer.
C. Regulation A/A+ Offerings
Obligations of the Customer.
Where Customer has been engaged by its client as a broker-dealer in connection with an offering pursuant to Regulation A, 17 C.F.R. Parts 230.251-230.263 (“Regulation A”), the Customer shall verify that:
1. Customer shall complete a reasonable due diligence ensuring no anti-fraud or civil liabilities provisions of federal securities laws have been violated. As such, Customer shall maintain a Due Diligence file including the Issuer Agreement (or Selling Agreement); organizational, constating, financial, and administrative support to accept such Issuer engagement; and Issuer’s Offering Memoranda, Subscription Document. Further, the Due Diligence folder shall evidence the collection of such documents in a form as described in Customer’s Written Supervisory Procedures (“WSPs”). Customer shall create and maintain customer files, including new account, accredited investor, or qualified purchaser questionnaires, including Investor attestations.
2. Issuer has filed a Form 1-A Offering Statement with the SEC, as described in Regulation A, §230.252 and §239.90, prior to making an offering to the public pursuant to Regulation A;
3. Issuer complies with marketing and advertising requirements of 17 C.F.R. Part II, Securities and Exchange Commission and the SRO, FINRA, including but not limited to, setting up the issuer landing page for the Offering website.
4. Signed and funded subscription agreements, executed by investors who have cleared AML/KYC, are reviewed by the Customer and a recommendation is made by Customer to Issuer regarding countersignature.
5. Prior to enabling countersignature:
a. Issuer has provided written confirmation to Customer that it has BlueSky notice filed in each state, as applicable depending on the states in which the securities are offered and whether the offering is conducted pursuant to Tier 1 or Tier 2 of Regulation A §230.252; and
b. For the first 25 days of an offering, Customer will monitor investors until the issuer has provided written confirmation that all state BlueSky requirements have been met for the 53 US jurisdictions.
6. Issuer and Issuer counsel have taken the steps required to review non-US investors, as required by the applicable international regulations.
