YIELDWINK, LLC TERMS AND CONDITIONS
SECTION I. INTRODUCTION
SECTION II. ACCESS AND USE OF THE SERVICE
Modifications to Service: Yieldwink reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Yieldwink will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
SECTION III: CONDITIONS OF USE
The following are examples of the kind of content and/or use that is illegal or prohibited by Yieldwink. Yieldwink reserves the right to investigate and take appropriate legal action against anyone who, in Yieldwink’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators, and reporting you to the law enforcement authorities. You agree to not use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; or (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- exploit, harm, or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
- use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including, monitoring or copying any of the material on the Website;
- use any device, software, or routine that interferes with the proper working of the Website;
- introduce any viruses, Trojan horses, logic bombs, or other materials that is malicious or technologically harmful;
- use this Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Fees: There are fees associated with investments you may make through the Service. Any such fees will be disclosed in the offering documents with respect to such investments.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Electronic Transactions and Disclosures: Because Yieldwink operates only on the Internet, it is necessary for you to consent to transact business with us online and electronically. As part of doing business with us and our affiliates (“Our Affiliates”), you are required to disclose certain information to us electronically, either via our Website or to the email address you provide to us. By agreeing to the Terms of Service, you agree to receive electronically all documents, communications, notices, contracts, and agreements (including any IRS Forms, including Form 1099 and Schedule K-1) arising from or relating to your use of the Site and Service, including any notes you have purchased, your use of this Service, and the servicing of any notes you have purchased as either an investor of Yieldwink (each, a “Disclosure”), from us, whether we are acting in the capacity as trustee or otherwise, or Our Affiliates. An IRS Form refers to any Form 1099, Schedule K-1 or other Form, Schedule or information statement, including corrections of such documents, required to be provided pursuant to U.S. Internal Revenue Service rules and regulations and that may be provided electronically (each, an “IRS Form”), provided that you consent to such electronic delivery, as more fully described in the subscription document(s) applicable to you.
Electronic Communications: Any Disclosures will be provided to you electronically through Yieldwink.com either on our Site or via electronic mail to the verified email address you provided. If you require paper copies of such Disclosures, you may write to us at the mailing address provided below and a paper copy will be sent to you at a cost of up to $5.00. A request for a paper copy of any Disclosure will not be considered a withdrawal of your consent to receive Disclosures electronically. Any IRS Forms provided electronically will remain accessible for twelve months following the end of the tax year to which the IRS Forms relate, or six months after the date of issuance of the IRS Forms, whichever is later; after that time the IRS Forms may no longer be accessible electronically. We may discontinue electronic provision of Disclosures at any time in our sole discretion, in which case we will provide you with paper copies.
How to Contact Us regarding Electronic Disclosures: You can contact us via email at firstname.lastname@example.org. You may also reach us in writing to us at the following address: Yieldwink, LLC, 3001 81Street, East Elmhurst, New York, 11370, Attention: Investments.
You will keep us informed of any change in your email or home mailing address so that you can continue to receive all Disclosures in a timely fashion. If your registered email address changes, you must notify us of the change via the Profile section on the Site (www.yieldwink.com), or by sending an email to email@example.com You also agree to update your registered residence address and telephone number on the Site if they change.
You will print a copy of this Agreement for your records and you agree and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or posted on the Site.
SECTION IV: SECURITIES OFFERING MATTERS
General. Notwithstanding anything to the contrary in these Terms of Service, in no event shall anything in these Terms of Service be deemed to be a waiver, and we will not assert there has been a waiver, that would not be permissible under Section 14 of the Securities Act of 1933, as amended (the “Securities Act”), Section 29(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or any other applicable provision of federal and state securities laws.
The securities offered on the Site have not been registered under the Securities Act, in reliance on the exemptive provisions of (i) Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder (“Regulation D” or “private placements”), and/or (ii) Regulation A promulgated under the Securities Act (“Regulation A”). Securities sold through private placements are restricted and not publicly traded, and are therefore illiquid. Neither the U.S. Securities and Exchange Commission nor any state securities commission or other regulatory authority has approved, passed upon or endorsed the merits of any offering on this Site.
Persons who are residents outside of the United States are not allowed access to investment opportunities on the Website, unless Regulation S exemption applies to the investment opportunity. Our services (and certain pages of the Site) that relate to the viewing of actual investment opportunities or to making investments in the securities offered therein may not be used by any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where Yieldwink is not authorized to provide such information or services.
Investment overviews on the Site contain summaries of the purpose and principal business terms of the investment opportunities. Such summaries are intended for informational purposes only and do not purport to be complete, and each is qualified in its entirety by reference to the more detailed discussions contained in the investor document package relating to such investment opportunity, the most current version of each such document package may be found under each offering on the Site. The information contained in the Site has been prepared by Yieldwink without reference to any particular user’s investment requirements or financial situation, and potential investors are encouraged to consult with professional tax, legal and financial advisors before making any investment.
SSECTION V: ELIGIBILITY
Private Placements. Only "accredited investors" as defined in Rule 501 of Regulation D are authorized to access such services and web pages relating to offerings conducted under Regulation D (such persons being "Accredited Investors"). In general, to qualify as an Accredited Investor, individuals must have a net worth of more than $1 million (excluding their primary residence), or gross income for each of the last two years of at least $200,000 ($300,000 jointly with their spouse) with the expectation of a similarly qualifying income during the current year.
Regulation A. "Tier II" Investment opportunities registered pursuant to Regulation A of the Securities Act, including real estate investment trusts and other funds sponsored by one of Our Affiliates, are offered only to "Qualified Purchasers" as defined in Regulation A. "Qualified Purchasers" include: (i) Accredited Investors and (ii) all other investors so long as their investment in one of our offerings does not represent more than 10% of the greater of their annual income or net worth (for natural persons), or 10% of the greater of annual revenue or net assets at fiscal year-end (for non-natural persons).
Documentation. You may be required to provide supporting documents to Yieldwink and its issuers that provide proof that you are an Accredited Investor or Qualified Purchaser and as to your status with respect to being an Issuer Covered Person. Such proof will require your completion of a subscription agreement and may require completion of a questionnaire and satisfactory background information screening. Your failure to provide any information and documentation requested to confirm your status will be cause for Yieldwink to immediately discontinue your use of the Service by preventing your access to the Website and the Service.
SECTION VI: INTELLECTUAL PROPERTY RIGHTS
The Yieldwink name and logos are trademarks and service marks of Yieldwink (collectively the “Yieldwink Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Yieldwink. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Yieldwink Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Yieldwink Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Yieldwink be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for 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 such content. You acknowledge that Yieldwink does not pre-screen content, but that Yieldwink and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Yieldwink and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Yieldwink, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the
User Content Transmitted Through the Service: With respect to the content, data or other materials you input or upload through the Service (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You hereby grant and will grant Yieldwink and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service, and the advertising, marketing and promotion thereof.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Yieldwink are non-confidential and Yieldwink will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Yieldwink may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Yieldwink, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
SECTION VII: THIRD-PARTY LINKS
You may be able to link from the Site to third party web sites and third-party web sites may link to the Site ("Linked Sites"). You acknowledge and agree that we have no responsibility for the content, products, services, advertising or other materials which may be provided by or through Linked Sites, even if they are owned or run by affiliates of ours. Links to Linked Sites do not constitute an endorsement or sponsorship by us of such websites or the information, content, products, services, advertising, code or other materials presented on or through such websites. Any reliance on the contents of a third-party web site is done at your own risk and you assume all responsibilities and consequences resulting from such reliance.
SECTION VIII: INDEMNITY AND RELEASE
You agree to release, indemnify and hold Yieldwink and its affiliates and their officers, employees, directors, agents, licensors, successors, and assigns (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
SECTION IX: DISCLAIMERS
YOUR USE OF THE SERVICE AND THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
YIELDWINK MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
SECTION X: LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YIELDWINK WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF YIELDWINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL YIELDWINK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID YIELDWINK IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
SECTION XI: GOVERNING LAW/ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY.
The laws of the state of New York shall govern this Agreement without giving effect to conflict of laws principles. We agree that any dispute, claim, or disagreement between us shall be resolved exclusively by arbitration. Arbitration is a process in which persons with a dispute(s): (i) agree to submit their dispute(s) to a neutral third person (an “arbitrator”) for a decision; and (ii) waive their rights to file a lawsuit in court to resolve their dispute(s). Each party to the dispute(s) has an opportunity to present some evidence to the arbitrator. pre-arbitration discovery may be limited. Arbitration proceedings are private and less formal than court trials. The arbitrator will issue a final and binding decision resolving the dispute(s), which may be enforced as a court judgment. A court rarely overturns an arbitrator’s decision.
THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
For purposes of this Arbitration Provision the words “dispute” and “disputes” are given the broadest possible meaning and include, without limitation (i) all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, the validity and scope of this Arbitration Provision and any claim or attempt to set aside this Arbitration Provision; (ii) all federal or State law claims, disputes or controversies, arising from or relating directly or indirectly to this Agreement (including the Arbitration Provision), the information you gave us before entering into this Agreement, and/or any past agreement or agreements between you and us; (iii) all counterclaims, cross-claims and third-party claims; (iv) all common law claims, based upon contract, tort, fraud, or other intentional torts; (v) all claims based upon a violation of any state or federal statute or regulation; (vi) all claims asserted by us against you, including claims for money damages to collect any sum we claim you owe us; (vii) all claims asserted by you individually against us and/or any of our employees, agents, directors, officers, shareholders, managers, or affiliated entities (hereinafter collectively referred to as “related third parties”), including claims for money damages and/or equitable or injunctive relief; (viii) all claims asserted on your behalf by another person; and/or (ix) all claims asserted by you as a private attorney general, as a representative and member of a class of persons, or in any other representative capacity, against us and/or related third parties.
All disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association in effect at the time of the dispute. The cost of the arbitration will be born equally by the parties. The arbitration award will be final and binding and may be enforced by any court in New York jurisdiction.
Only disputes involving you and Yieldwink may be addressed in the arbitration. This means that the arbitration may not address disputes involving other persons with disputes similar to the disputes between you and Yieldwink.
The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under this agreement. All statutes of limitations that apply to any dispute shall apply to any arbitration between us. The Arbitrator will issue a decision or award in writing, briefly stating the essential findings of fact and conclusions of law.
Binding Effect. This Arbitration Provision is binding upon and benefits you, your respective heirs, successors, and assigns. The Arbitration Provision is binding upon and benefits us, our successors and assigns, and related third parties. The Arbitration Provision continues in full force and effect, even if your obligations have been prepaid, paid, or discharged through bankruptcy. The Arbitration Provision survives any termination, amendment, expiration, or performance of any transaction between you and us and continues in full force and effect unless you and we otherwise agree in writing.
Severability. If any portion of this Arbitration Provision is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Provision, unless the provision precluding the arbitrator from conducting a class arbitration as set forth above is deemed invalid or unenforceable, in which case this entire Arbitration Provision shall be deemed void.
SECTION XII: LIMITATION ON TIME TO FILE CLAIMS
SECTION XIII: COMPLIANCE WITH FEDERAL SECURITIES LAWS
BY AGREEING TO BE SUBJECT TO THE ARBITRATION PROVISION CONTAINED IN THIS AGREEMENT, INVESTORS WILL NOT BE DEEMED TO WAIVE YIELDWINK’S COMPLIANCE WITH THE FEDERAL SECURITIES LAWS AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
SECTION XIV: COPYRIGHT NOTICES
If you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Website (and such description must be reasonably sufficient to enable Company to find the alleged infringing material);
- your address, telephone number and email address;
- a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
- Notice of claims of copyright infringement should be provided to Company’s Copyright Agent at firstname.lastname@example.org.
SECTION XV: TERMINATION
You agree that Yieldwink, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Yieldwink believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Yieldwink may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be affected without prior notice, and acknowledge and agree that Yieldwink may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Yieldwink will not be liable to you or any third party for any termination of your access to the Service.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. You waive and hold harmless Yieldwink and our affiliates, licensees, and service providers from any claims resulting from any action taken Yieldwink during, or taken as a consequence of, investigation by either us or law enforcement authorities.
SECTION XVI: NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Yieldwink, LLC, 3001 81Street, East Elmhurst, New York, 11370.
SECTION XVII: QUESTIONS? CONCERNS? SUGGESTIONS?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.