STARTUPWIND TERMS OF SERVICE

Last Updated: February 16, 2017

These Terms of Service (“Terms”) apply to your access to and use of the websites, mobile applications and other online products and services (collectively, our “Services”) provided by StartupWind, Inc. (f/k/a FundMyUpside, Corp.) (“StartupWind” or “we”). By clicking “I Accept”, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 17, do not access or use our Services.

If you have any questions about these Terms or our Services, please contact us by email at legal@startupwind.com.

1. Description of Services

StartupWind is a social network for entrepreneurs, investors and advisors from premier schools. It helps entrepreneurs quickly raise seed capital from the trusted alumni network. It enables them to bring their ideas to life by connecting them to a trusted alumni network of like-minded peers, advisors, mentors and their investments and by providing them a rapid ideation platform. StartupWind does this by connecting entrepreneurs with potential investors by leveraging connections in the network. The Services include features which, among other things, enable users to connect with individuals within their alumni network, to send messages and receive feedback about their ideas, business plans, equity crowd-funding campaigns and connect potential investors with start-ups.

2. Eligibility

You must be at least 13 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person's or entity's behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

3. User Accounts and Account Security

You may need to register for an account or use your credentials (e.g., username and password) from a third-party social media platform to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission.

4. Privacy

Please refer to our Privacy Policy at https://www.startupwind.com/legal/SUW_Privacy_Policy.htm for information about how we collect, use and disclose information about you. We may combine contact information we collect from you with information we collect from third-party sources to enrich your user profile visible through the Services, as further described in our Privacy Policy.

5. User Content

Our Services may allow you and other users to create, post, store and share content, including messages, text, feedback, photos, videos, ideas, business plans, crowd-funding campaigns, presentations in Powerpoint or PDF formats, and other materials (collectively, “User Content“). Except for the license you grant below, you retain all rights in and to your User Content, as between you and StartupWind.

You grant StartupWind a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) will be visible to other users of the Services.

You may not create, post, store or share any User Content that violates these Termsor for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms; (ii) the posting and use of your User Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms.

6. Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
  • Use or attempt to use another user's account without authorization from that user and StartupWind;
  • Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  • Use our Services to solicit our users to join other services;
  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
  • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
  • Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data (including but not restricted to email addresses of our users) from our Services;
  • Bypass or ignore instructions contained in our robots.txt file, accessible at [https://startupwind.com/robots.txt], that controls automated access to portions of our Services; or
  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
  • Impersonates, or misrepresents your affiliation with, any person or entity;
  • Contains any unsolicited promotions, political campaigning, advertising or solicitations;
  • Contains any private or personal information of a third party without such third party's consent;
  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
  • Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose StartupWind or others to any harm or liability of any type.

In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

7. Additional Services; Investment Opportunities

From time to time, we may (but are not obligated to) make available additional services for our users, including services related to identification of startups listed through the Services, user investment in such startups, and other securities related transactions typically offered by “crowdfunding” platforms. At StartupWind's sole discretion, we may or may not charge fees for some of all of these services.

When you sign up for an account, you will have the option to complete a questionnaire to determine whether you qualify to learn about companies that might have investment opportunities available (the “Questionnaire”). The Questionnaire will be based upon the definition of “Accredited Investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933. You acknowledge and agree that all information you provide in response to the Questionnaire will be complete and accurate and you will immediately cease to view investment opportunities or update the information to the extent it becomes incomplete or inaccurate. Based on your responses to the Questionnaire, you may be able to view information on companies participating in the Services that are conducting crowdfunding campaigns. These Terms are designed to minimize the risk to StartupWind if any unsophisticated/non-accredited individuals try to become investors in such companies, and to protect StartupWind in the event that anyone claims he, she or it was damaged by using any Services.

If you have been granted access to view information on companies participating in the Services that are conducting crowdfunding campaigns, and you would like to obtain information on investing in such a company, StartupWind will provide such company your name, user name, and email address. However, any investment in such company cannot be made through the Services, and must be made outside the Services. StartupWind provides only your contact information to any such company and is not involved in any transaction between you and such company. The Services are not an offer to buy or sell any securities or financial instruments and StartupWind is not a funding portal in any state, district, county, territory or municipality of the United States, or in any other country or territory. See further information under “Disclaimers” below.

By accessing information on companies participating in the Services that are conducting crowdfunding campaigns, you represent that you are an Accredited Investor and that you understand risk and are willing to bear the consequences. If you do not think that you are (a) an Accredited Investor and (b) sophisticated enough to protect your own interests and understand risk, then you should not access the crowdfunding campaign portion of the Services. StartupWind does not provide investment advice. StartupWind does not endorse any company or its founders or make any representation regarding the quality of any potential investment in such companies. You are strongly advised to consult appropriate counsel before making any investments in companies you learn about through the Services. You acknowledge that investments can and do lose money and you should be prepared to lose your entire investment in securities in such companies.

You acknowledge and agree that we do not provide any representation, warranty or assurance that any securities made available by companies that you have learned about through the Services are being offered and sold in accordance with applicable state and/or federal securities laws, rules and regulations and/or exemptions.

Each founder of a company using the Services acknowledges and agrees that by posting information about such company on the Services, such founder is representing and warranting that such company (a) owns or licenses the rights to produce, sell or promote the products and services in which it engages, (b) is a legal U.S. entity, such as, but not limited to, a limited liability company, corporation, or limited liability partnership, (c) is registered to conduct business in its state of incorporation or formation, (d) is responsible for compliance with applicable federal, state and other securities laws, and (e) is responsible for determining whether any investor is a suitable investor for such company, including whether an Accredited Investor. Each Founder of a company using the Services acknowledges and agrees that StartupWind is not obligated to perform, and has not performed, an analysis of investor suitability for companies using the Services.

8. Limited License; Copyright and Trademark

Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans, and other content contained therein (collectively, the “StartupWind Content”) are owned by or licensed to StartupWind and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, StartupWind and our licensors reserve all rights in and to our Services and the StartupWind Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and StartupWind Content for your business purposes; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or StartupWind Content; (b) copy, reproduce, distribute, publicly perform or publicly display StartupWind Content, except as expressly permitted by us or our licensors; (c) modify the StartupWind Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or StartupWind Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or StartupWind Content other than for their intended purposes. Any use of our Services or StartupWind Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

10. Geographic Restrictions

Unless expressly provided otherwise, we provide the Services primarily for the use by persons located in the United States. We make no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access of the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

12. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless StartupWind, our licensors, and service providers, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “StartupWind Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Services; (b) your User Content or feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify StartupWind Parties of any third party Claims, cooperate with StartupWind Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the StartupWind Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and StartupWind or the other StartupWind Parties.

13. Disclaimers

StartupWind is not a registered or licensed broker-dealer, funding portal, investment adviser or investment manager in any state, district, county, territory or municipality of the United States, or in any other country or territory. StartupWind is not acting in a fiduciary capacity with respect to you, and StartupWind disclaims any broker-client or adviser-client relationship with respect to any person or entity using the Services.

None of the Services, content or other information provided on or through the Services constitutes an offer to buy or sell any securities or financial instruments or is intended to provide any investment advice or related services. StartupWind cannot guarantee the authenticity of any data or information that users of the Services provide about themselves or their companies. You release StartupWind from all liability for your having acquired or not acquired User Content on or through the Services. You understand and acknowledge that StartupWind does not provide investment advice. You will obtain such professional advice as is appropriate to protect your interests, including legal, tax, investment, accounting and other advice. You acknowledge that you are solely responsible for conducting due diligence on a potential investment.

You will be solely responsible for complying with applicable laws regarding any transaction, including, without limitation, the determination of whether (a) any potential investor you meet on or through the Services is an Accredited Investor, and (b) any investment complies with other applicable state or federal laws, or the law of any foreign government with jurisdiction over you or any investor.

You acknowledge and agree that StartupWind does not provide any representation or warranty that any securities or financial instruments offered by companies are being offered and sold in accordance with applicable state and/or federal securities laws, rules and regulations and/or exemptions therefrom. StartupWind makes no representation or warranty regarding the legality or compliance of any offering posted on or through the Services with such laws, rules and regulations.

We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services. You acknowledge and agree that any User Content you make available on or through the Services is visible to other users, and that by posting such User Content you may lose your right to claim ownership in any intellectual property rights in such User Content. StartupWind shall not be liable for any investment decisions made based upon User Content.

Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, StartupWind does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While StartupWind attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.

14. Limitation of Liability

StartupWind and the other StartupWind Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if StartupWind or the other StartupWind Parties have been advised of the possibility of such damages.

The total liability of StartupWind and the other StartupWind Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services.

The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of StartupWind or the other StartupWind Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

15. Release

To the fullest extent permitted by applicable law, you release StartupWind and the other StartupWind Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

16. Transfer and Processing Data

By accessing or using our Services, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.

17. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with StartupWind and limits the manner in which you can seek relief from us.

Except for small claims disputes in which you or StartupWind seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or StartupWind seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and StartupWind waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Santa Clara County, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

You and StartupWind agree that any dispute arising out of or related to these Terms or our Services is personal to you and StartupWind and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and StartupWind agree that these Terms affect interstate commerce and that the enforceability of this Section 17 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and StartupWind agree that the state or federal courts of the State of California and the United States sitting in the City of Santa Clara and Santa Clara County have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and StartupWind will not have the right to assert the claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 17 by emailing us at legal@startupwind.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 18.

18. Governing Law and Venue

These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in the City of Santa Clara and Santa Clara County.

19. Changes to these Terms

We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.

20. Termination

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.

21. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

22. Additional Terms Applicable to iOS Devices

The following terms apply if you install, access or use the Service on any device that contains the iOS mobile operating system (the “App”) developed by Apple Inc. (“Apple”).

Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple, and StartupWind, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.

Scope of License. The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.

Maintenance and Support. You and StartupWind acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of StartupWind. However, you understand and agree that in accordance with these Terms, StartupWind has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.

Product Claims. You and StartupWind acknowledge that as between Apple and StartupWind, StartupWind, not Apple, is responsible for addressing any claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.

Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringe that third party's intellectual property rights, StartupWind, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.

Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

Developer Name and Address. Any questions, complaints or claims with respect to the App should be directed to:

StartupWind, Inc.

C/O James Jensen
Perkins Coie LLP,
3150 Porter Drive PA209
Palo Alto, CA 94304

legal@startupwind.com

Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the Service.

Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).

23. Miscellaneous

These Terms constitute the entire agreement between you and StartupWind relating to your access to and use of our Services. The failure of StartupWind to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

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