EquityBender LLC (www.equitybender.com) ("Portal," "us," "our" or "we") is a funding portal registered with the United States Securities and Exchange Commission and member of the Financial Industry Regulatory Authority. The Portal provides an intermediary platform for investors to independently connect with certain issuers (the "Service") in certain limited transactions involving the offer or sale of securities pursuant to Section 4(a)(6) of the Securities Act of 1933, as amended, and Title III of the Jumpstart Our Business Startups Act of 2012 (collectively, "Regulation Crowdfunding"). Each authorized user and issuer ("Issuer") acknowledge and agree the Portal does not and will not: (1) offer investment advice or recommendations; (2) solicit purchases, sales or offers to buy the securities offered or displayed on the Portal; (3) compensate employees, agents or other persons for such solicitation or based on the sale of securities posted or referenced on the Portal; or (4) hold, manage, possess or otherwise handle investor funds or securities. None of the content or information provided on or through the Portal should be interpreted as being an investment recommendation, solicitation or advice of any kind by the Portal.
Acceptance, Change or Termination
Eligibility for Use of the Services
You agree that your Account will be self-directed and that you are solely responsible for all investment decisions and instructions placed through your Account. Although the Portal may provide data, information or content provided by third-parties relating to investment strategies and/or opportunities to invest in securities offering or raise capital, you should not interpret any such content as tax, legal, financial, or investment advice or a recommendation to invest in any offering posted on the Portal. Any decision to invest shall 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, your eligibility to invest or your investment strategy and accept the risks associated with such decisions, which include the risk of losing the entire amount of your principal. We have a limited fiduciary duties pursuant to Regulation Crowdfunding. You agree and acknowledge that you are solely responsible for conducting legal, accounting and other due diligence review on the Issuer's and the offerings posted on the Portal.
Issuer Offering Limitations
Securities offered pursuant to Regulation Crowdfunding are highly speculative and expose investors to higher risk of complete loss of their investment. Congress and the SEC impose certain restrictions under Regulation Crowdfunding limiting the amount that an investor can invest in such offerings to protect investors. Users are permitted, over a 12-month period, to invest in the aggregate across all offerings made pursuant to Regulation Crowdfunding (whether on the Portal or through other intermediaries) up to the following amount: (a) if either their annual income or net worth is less than $100,000, than the greater of $2,000 or 5 percent of the lesser of User's annual income or net worth; (ii) if both their annual income and net worth are equal to or more than $100,000, 10 percent of the lesser of User's annual income or net worth. Notwithstanding the foregoing, during the 12-month period preceding your proposed investment, the aggregate amount of such investments may not exceed $100,000. You represent and warrant that you are in compliance with the above limitations and rules under Regulation Crowdfunding each time you invest in an offering.
Issuer Offering Limitations
Issuer represents and warrants that it is eligible to conduct an offering pursuant to Regulation Crowdfunding and complies with all applicable rules, regulations and laws. Regulation Crowdfunding may not be relied upon by (i) non-U.S. companies, (ii) reporting companies under the Securities Exchange Act of 1934, as amended, (iii) certain investment companies, (iv) companies that are subject to disqualification under Regulation Crowdfunding, (v) companies that have failed to comply with the annual reporting requirements under Regulation Crowdfunding during the two years immediately preceding the filing of the offering statement, and (vi) companies that have no specific business plan or have indicated that their business plan is to engage in a merger or acquisition with an unidentified company or companies. Issuer represents and warrants that it has not raised up to a maximum aggregate amount of $1 million pursuant to Regulation Crowdfunding in a 12-month period (regardless of whether such securities are sold through the Portal or other intermediary).
The Issuer represents and warrants to the Portal that it has complied with the disclosure requirements under Rule 201(d) of Regulation Crowdfunding and complied with all filing requirements under Form C. Each issuer is solely responsible for the material it posts on this Portal and, by posting such material, represents that: (i) it has complied in all material respects with all applicable rules and regulations; and (ii) such information will not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make such statements not misleading in light of the circumstances under which they are made. The Portal and its Users are entitled to and will rely upon any representations made by each Issuer. Portal makes no representations regarding whether any offering materials or content on the Portal are complete, truthful and accurate; nor is Portal responsible for verifying or investigating the completeness, truthfulness and accuracy of such representation or offering materials. The information and materials on the Portal may contain typographical errors or inaccuracies. Any dated information is published as of its date only, and does not undertake any obligation or responsibility to update or amend any such information. Users of the Portal acknowledge that Portal is not liable for and will not verify or investigate the accuracy and completeness of the offering material and other information posted on the Portal.
No Disqualifying Events
Each Issuer warrants and represents that none of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Issuer participating in the offering, any beneficial owner of 20% or more of the Issuer's outstanding voting equity securities, calculated on the basis of voting power, any promoter (as defined in Rule 405 of the Securities Act) connected with the Issuer in any capacity at the time of sale nor any compensated solicitor or any director, executive officer, other officer of the compensated solicitor participating in the Offering (each, an "Issuer Covered Person" and collectively, "Issuer Covered Persons") is subject to any of the "Bad Actor" disqualifying events described in Section 302(d)(2) of Regulation Crowdfunding (a "Disqualifying Event"). Each Issuer warrants and represents that it has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualifying Event. Issuer shall cooperate with the Portal in its due diligence obligation pursuant to Regulation Crowdfunding. The Issuer agrees to promptly notify Portal in writing should any Disqualifying Events occur or prior Disqualifying Events come to the Issuer's notice despite its reasonable efforts to discover.
The securities offerings posted on the Portal are only appropriate for sophisticated investors who are familiar with and willing to accept the high risks associated with private investments. Securities sold through Regulation Crowdfunding are not publicly traded and, therefore, are illiquid unless registered with the Securities and Exchange Commission. Additionally, securities are subject to restrictions on resale or transfer including holding period requirements. Investing in private placements requires high risk tolerance, low liquidity need, and long-term commitments. Users must be able to afford to lose their entire investment without a change in their lifestyle. Securities offered on the Portal are not FDIC insured, may lose value, and there is no guarantee of any success whatsoever. The securities being offered have not been registered under the Securities Act, in reliance, among other exemptions, on the exemptive provisions of Regulation Crowdfunding. Similar reliance has been placed on apparently available exemptions from securities registration or qualification requirements under applicable state securities laws. No assurance can be given that any offering currently qualifies or will continue to qualify under one or more of such exemptive provisions due to, among other things, the adequacy of disclosure and the manner of distribution, the existence of similar offerings in the past or in the future, or a change of any securities law or regulation that has retroactive effect. Although the offering materials have been filed with the Securities and Exchange Commission, no governmental agency has reviewed the offerings posted on this Portal and no state or federal agency has passed upon either the adequacy of the disclosure contained herein or the fairness of the terms of any offering. The exemptions relied upon for such offerings are significantly dependent upon the accuracy of the representations of the Users to be made to the Portal and Issuers on the Portal in connection with the offering, including compliance with investment limitations. In the event that any such representations prove to be untrue, the registration exemptions relied upon by an Issuer in selling the securities might not be available and substantial liability to such Issuer would result under applicable securities laws for rescission or damages. These risks are non-exhaustive and are intended to highlight certain risks associate with investing in securities that are not registered with the Securities and Exchange Commission. We strongly advise you to consult a legal, tax and financial professional before investing, and carefully review all the specific risk disclosures provided as part of any offering materials and ask the Issuer directly any questions or request any additional information through the Portal.
We take no part in the negotiation or execution of transactions for the purchase or sale of securities and at no time has possession of funds or securities. We cannot guarantee that Issuers on the Portal will use the proceeds of any offering in accordance with the stated purpose. Users acknowledge and agree that we make no representations, warranties or provide any assurances that the offering posted on the Portal are made in accordance with Federal and/or state securities law, including the exemption to the sale of unregistered securities, or the legality of any offerings therein. Regulation Crowdfunding only requires us to conduct limited due diligence on the offering and issuer. Portal is not engaged to serve as an underwriter or placement agent.
User Conduct Guidelines
Users are expressly prohibited from doing the following acts: (a) using the Portal, or any services and or tools if you are temporarily, or indefinitely, suspended from using the Portal, services or any tools; (b) collecting personal information about other Users; (c) interfering with other Users' listings; (d) posting false, inaccurate, misleading, defamatory, or libelous content. Portal grants you a limited, revocable, non-exclusive, non-transferrable license to view, copy and print content on the Portal for personal, non-commercial purposes. Portal grants the operators of public search engines a limited, non-exclusive, non-transferrable license to copy materials from the Portal for the purpose of creating publicly available, searchable indices of Portal content. We reserve the right to terminate or limit your access to the Portal and/or the licenses granted herein for any reason and in our sole discretion. You agree not to modify, damage, disrupt, disable, overburden, impair, alter or interfere with the use, features, functions, operation, security or maintenance of the Portal or the rights or use and enjoyment of the Portal by any other person or entity in any manner.
The Portal allows registered Users to post publicly viewable messages regarding securities offerings posted on the Portal. This feature allows Users to communicate with other registered users regarding an offering as well as to ask the Issuer questions. We believe that providing a forum where prospective investors can share their views on the offering will enhance "crowd diligence" or the collective review by a group of prospective investors with the aim to better understand the terms of an offering and share their opinion. The message boards and forums we provide on the Portal are intended to allow information exchanges, and for Users to express their opinions in good faith.
Notwithstanding anything to the contrary, you acknowledge and agree that the Portal permits the posting of messages by Users only and such function may not be used by Users in connection with any commercial endeavors, including business solicitation of any type, including advertising a product or service, offering a product or service for sale, or directing readers to a location for more information about a product or service. User shall not post offensive, illegal, harmful, threatening or personally identifying content on or through the Portal, including the following types of content, as determined by Portal in its discretion that is (a) patently offensive content and/or content that may promote racism, bigotry, hatred or physical harm of any kind against any group or individual, (b) harasses or advocates harassment, (c) solicits personal information from another User, (d) promotes information that User know is false or misleading or conduct that is abusive, threatening, obscene, defamatory or libelous, offensive, fraudulent, unlawful, threatening, disingenuous, obscene, scandalous, inflammatory, pornographic or profane, or any material that could constitute or encourage conduct that would be considered a criminal offense, gives rise to civil liability, or otherwise violates any law, (e) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities, and/or (f) contradicts the purpose of permitting prospective investors to an offering to share concerns, ideas or personal opinions regarding a prospective offering. Issuer and Users agree that Portal shall not remove content which provide negative constructive criticism of an offering or an Issuer, including its management team, if done in good faith and in furtherance of crowd-diligence. Permitting or removing a post shall not be deemed an endorsement, adoption of the content or investment advice under any circumstances. Portal will retain a log content for the purposes of its books and records, investigations or for purposes of facilitating periodic reviews to ensure adherence to our policies. Portal will fully cooperate with any law enforcement authorities or court order requesting or directing Portal to disclose the identity of anyone posting any such information or materials on the Portal.
No Representations or Warranties
Portal makes no representation or warranties as to the completeness or accuracy of the information posted on the Portal by Issuers or any third-party, including offering materials. To the maximum extent permissible by applicable law, Portal assumes no liability or responsibility whatsoever for any errors or omissions in the content on the Portal. Portal does not endorse or represent the reliability or accuracy of any content or information distributed through or accessed from the Portal, and has not performed any investigation into such information. Portal shall not be liable for any investment decisions made based upon such information. You agree that any reliance upon any content or information distributed through or accessed from the Portal is at your sole risk. Portal is entitled to rely upon the information provided by its users. You acknowledge and agree that Portal does not provide any representation, warranty or assurance that the offerings on the Portal are made in accordance with state and/or Federal securities law, including the exception to the sale of unregistered securities. Each Issuer, and not the Portal, is responsible for disclosing all material facts pertaining to the offering and that the offering is done in accordance with federal law and regulations promulgated by the Securities and Exchange Commission. Portal has not reviewed all of the links provided on the Portal and is not responsible for the content of any off-Portal pages. Clicking on hyperlinks and visiting any off-Portal pages is done at your own risk.
Digital Millennium Copyright Notice
We respect the intellectual property of others, and we ask you to do the same. If you or any user of our Portal believes its copyright rights have been infringed on our Portal, the copyright(s) owner ("Complaining Party") should send notification to Our Designated Agent (as identified below) immediately. To be effective, the notification must include:
- A physical or electronic signature of the Complaining Party or such person authorized to act on behalf of the Complaining Party;
- Identification of the copyrights claimed to have been infringed;
- Information reasonably sufficient to permit us to contact the Complaining Party or such person authorized to act on behalf of the Complaining Party, such as address, telephone number and, if available, an electronic mail address at which the Complaining Party may be contacted;
- Identification of the material that is claimed to be infringing the Complaining Party's copyrights(s) that is to be removed and information reasonably sufficient to permit us to locate such materials;
- A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or by law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, the Complaining Party or such person authorized to act on behalf of the Complaining Party is the owner of an exclusive copyrights that is allegedly infringed. Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA"), Portal's Designated Agent for notice of claims of copyrights infringement can be contacted at the addresses below.
Designated Agent for Claimed Infringement:
12 Skysail Drive, Corona Del Mar, CA 92625
You acknowledge, accept and agree that if we receive a notice of a claim of copyright infringement, we may immediately remove the identified materials from our Portal without liability to you or any other party and that the claims of the Complaining Party will be referred to the United States Copyright Office for adjudication as provided in the DMCA. Please note that this procedure is exclusively for notifying Portal and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. Allegations that other intellectual property right is being infringed should be sent to [email protected] Portal may, in its sole discretion, terminate the accounts of those who are accused of copyright infringement or other intellectual property rights.
Disclaimer of Liability
Issuer’s and User’s use of the Portal is solely at your own risk. Without limiting the generality of the foregoing, to the fullest extent permissible by applicable law, everything on the Portal is provided to you "as is," "as available," and "when available" without warranty of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Please note that some jurisdictions may not allow the exclusion of implied warranties or limitation of incidental or consequential damages, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. To the fullest extent permissible by applicable law, Portal assumes no responsibility for, and shall not be liable for, any damages to or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Portal or your downloading of any materials, data, text, images, video, or audio from the Portal.
Portal makes no representations that the Service is appropriate or available for use in any other jurisdictions. Accessing the Service is prohibited from territories where such services are prohibited. Securities offerings are only directed at, or intended for purchase or investment by investors in jurisdictions that permit general solicitation of unregistered securities.
You acknowledge and agree that it is solely your responsibility to be aware of the applicable laws and regulations of your country of residence. Subscriptions to invest in any offering referred to on this Portal must only be made on the basis of the offering document relating to the specific investment and through a registered entity. The Content contained on the Portal does not constitute an offer or solicitation and may not be treated as an offer or solicitation (i) in any jurisdiction where such an offer or solicitation is against the law; (ii) to anyone to whom it is unlawful to make such an offer or solicitation: (iii) if the person making the offer or solicitation is not qualified to do so. The securities offered on this Portal can only be marketed in certain jurisdictions only. You acknowledge and agree that it is solely your responsibility to be aware of the applicable laws and regulations of your country of residence. The content provided on this Portal does not constitute an offer or solicitation to sell securities referred to on this Portal, by anyone in any jurisdiction in which such offer, solicitation or distribution would be unlawful or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation. Applications to invest in any offering referred to on this Portal must only be made on the basis of the offering document relating to the specific investment and through a registered entity. You should satisfy yourself before accessing the Portal that we would be allowed to advertise investment products to you under the law of the jurisdiction in which you reside.
Unless otherwise agreed to in writing with an Account holder, in the event of any claim, controversy or alleged dispute between you and Portal, its members or affiliates ("Dispute"), you hereby agree to attempt in good faith to amicably resolve any Dispute at least thirty (30) days before instituting any legal proceeding. Each party agrees to submit any Dispute for resolution by final binding arbitration after serving written notice, which notice shall set forth in detail the controversy, question, claim or alleged breach along with your attempt to resolve such Dispute. Upon such notice and attempt to resolve, the party may then commence an arbitration proceeding pursuant to the rules of the American Arbitration Association ("AAA") to be held in the State of New York, New York City, before an arbitrator to be selected by the AAA. Any such arbitration may only be commenced within one year after the party requesting arbitration obtains knowledge of the cause of action forming the basis of the controversy or claim accrued.
In any arbitration and subject to the ultimate discretion of the presiding arbitrator, each side will be limited to a maximum of one (1) day of argument (including rebuttal), and the parties agree in good faith to minimize discovery burdens (e.g. confine the scope to actual areas in dispute and limit the topics and number of pages on which information is requested to matters directly relevant). The decision(s) of the arbitrator shall be final and binding and may not be appealed to any court of competent jurisdiction, or otherwise, except upon claim of fraud or corruption as by law provided, provided, however, that implementation of such decision(s) shall in no way be delayed or otherwise impaired pending the outcome of any such appeal. Judgment upon the award rendered in such arbitration may be entered by any court having jurisdiction thereof. You agree that all Disputes will be limited between you, individually, and Portal. To the full extent allowable by law, you agree that no arbitration proceeding or other dispute resolution proceeding shall be joined with any other party or decided on a class-action basis.
Notwithstanding the foregoing, you agree that the following matters shall not, at the election of Portal, be subject to binding arbitration: (1) any Dispute related to, or arising from allegations of criminal activity; (2) any Disputes concerning Portal's intellectual property rights; and (3) any claim for injunctive relief. All arbitration proceedings will take place in the State of New York, New York City, United States of America. Any Dispute not subject to arbitration shall be decided by a court of competent jurisdiction within New York City. Each party hereby waives any claim that such venue is improper or inconvenient.
You agree that Portal may send communications to you via your mailing address, email, telephone or facsimile number provided by you on your Account. You agree to notify us of any changes in your address or contact details. Portal may also deliver information verbally. Communications shall be deemed delivered to you when sent and not when received. You agree that any information that you transmit to the Portal or Portal in any manner including, but not limited to, pictures, videos, questions, comments, suggestions, website addresses and links to other website/articles, etc. is non-confidential and non-proprietary and can be used by Portal or its affiliates for any purpose.
Electronic Signatures in Global and National Commerce Act/Uniform Electronic Transactions Act
The Federal Electronic Signatures in Global and National Commerce Act ("ESIGN") and similar state laws, particularly the Uniform Electronic Transactions Act ("UETA"), authorize the creation of legally binding and enforceable agreements utilizing electronic records and signatures. ESIGN and UETA require businesses that want to use electronic records or signatures in consumer transactions to obtain the consumer's consent to receive information electronically. When an Issuer or potential Investor registers on the platform, we obtain his or her consent to transact business electronically and maintain electronic records in compliance with ESIGN and UETA requirements. Your use of electronic signatures to sign documents legally binds you in the same manner as if you had manually signed such documents. The use of electronic versions of documents fully satisfies any requirement that such documents be provided to you in writing. If you sign electronically, you represent that you have the ability to access and retain a record of such documents. You agree that you are responsible for understanding these documents and agree to conduct business by electronic means. You are obligated to review the Portal periodically for changes and modifications and agree not to contest the admissibility or enforceability the Portal's electronically stored copy of this Agreement in any proceeding arising out of this Agreement.
Although you consent to electronic delivery, you may elect to deliver communications by other means and such delivery shall not affect your consent. You may revoke consent to electronic delivery of communications and receive a paper version at your election. Portal shall have a reasonable period to effect such a change and Portal may charge you a reasonable fee for sending such paper copies. If you elect to use electronic delivery, you agree and represent that you have a suitable computer with Internet access, an email address and the availability to download, save and/or print communications to retain a record of such communications. You agree that you are solely responsible for maintaining such equipment and services required for online access.
Integration and Severability