Effective March 2, 2015
TradeUp is not a registered broker, dealer, investment advisor, investment manager or crowdfunding portal, and does not conduct any activity that would require registration with the Securities and Exchange Commission or financial industry regulatory authority.
Summary of Services
TradeUp is an intermediary funding platform that brings together entrepreneurs and commercial enterprises that elect to create a profile for their company (“Companies”) for the purpose of raising capital, and investors who meet the criteria of an “accredited investor” as defined in the US Securities Laws (“Accredited Investors”, and together with Companies, “Users”). Users visit the Site to learn about, help, advise, create profiles for, browse, and/or fund Companies who have posted a campaign to raise funds (“Issuers”). TradeUp is a platform where Users can interact, network, learn about, and connect with other Users, and that permits Issuers to offer and sell securities directly to Accredited Investors (the “Accredited Platform”) which may be accessed at www.tradeupcapital.com.
The Accredited Platform permits a Company to contribute information about itself and its capital campaign. Accredited Investors can invest directly in a Company by purchasing securities issued by the Company.
TradeUp is not a registered broker-dealer and does not offer investment advice or advise on the raising of capital through securities offerings, nor is TradeUp an investment manager. TradeUp does not recommend or otherwise suggest that any investor make an investment in a particular Company, or that any Company offer securities to a particular investor. Crowdfunder takes 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. No transactions are executed or negotiated on or through the Site.
TradeUp reserves the right, in its sole discretion, without any obligation and without any notice requirement, to change, improve or correct the information, materials and descriptions on the Site and to suspend and/or deny access to the Site for any reason. The information and materials on the Site may contain typographical errors or inaccuracies. Any dated information is published as of its date only, and TradeUp does not undertake any obligation or responsibility to update or amend any such information. TradeUp may discontinue or change any product or service described in or offered on the TradeUp Site at any time. TradeUp further reserves the right, in its sole discretion, to block or otherwise discontinue your access and use of the Site at any time and for any reason. You agree that TradeUp and its subsidiaries and affiliates will not be liable to you or to any third party for any such modification, suspension or discontinuance.
ELIGIBILITY FOR USE OF THE SITE
The Service is available only to individuals who are at least 18 years old. You represent and warrant that if you are an individual, you are you are at least 18 years old, that you are fully able and competent to enter into the terms and conditions set forth in this and other agreements on the Site, and that all registration information you submit is accurate and truthful. If you are an entity applying to conduct a campaign to raise capital using the TradeUp platform, you represent and warrant that the campaign is being conducted by a legal US entity, including but not limited to limited liability companies, corporations, and limited liability partnerships. TradeUp may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity's behalf, and that such entity agrees to indemnify TradeUp for violations of this Agreement.
TradeUp welcomes U.S. and non-U.S. Issuers. “Non-U.S.” means, in the case of a natural person, a person who resides outside the United States, and in the case of an entity, an entity that is formed in a jurisdiction outside the United States. If you are a non-U.S. Issuer, by registering on the Site and listing securities for offer and sale on the Site, you represent that doing so does not conflict with the securities or other laws to which you are subject in your home jurisdiction, and that you agree to indemnify Tradeup as set for the below under “Indemnification.”
However, it is TradeUp’s policy to not allow non-U.S. residents to invest in offerings on the platform due to the complexities of complying with securities laws in non-U.S. jurisdictions. TradeUp may in the future make exceptions to this policy on a deal by deal, or investor by investor basis, where listed companies can provide adequate assurances of compliance with non-U.S. law. In these limited instances, the terms and conditions of non-U.S. investor participation will be included on the particular deal page. Accordingly, unless prior written consent is obtained from TradeUp, prospective investors who access the Service are deemed to represent and warrant that they are bona fide residents of the United States.
By applying for access to the Accredited portion of the Site, you represent that you understand the risks and are willing to bear the consequences. You promise to act responsibly when using the Accredited portion of the Site, and you promise to conduct yourself in a professional manner in all your interactions with TradeUp and any User of TradeUp. If you are not an Issuer looking for advice and an introduction to potential Investors or you do not think that you are both an Accredited Investor and sophisticated enough to protect your own interests, then you should not access the Investment portion of the Site. By applying for access to the Accredited portion of the Site, you agree (i) that you are an Accredited Investor, (ii) that all information you input or agree to is truthful, and (iii) to be bound by this entire Agreement, including the following terms:
Federal Securities Law – Federal securities law requires securities sold in the United States to be registered with the Securities and Exchange Commission, unless the sale qualifies for an exemption. Issuers of securities may use one or more of the “private placement” exemptions that allow them to raise capital without complying with the costly and time-consuming registration process. If you are an Issuer, you are responsible for complying with any and all Federal securities laws, you acknowledge that it is your responsibility (and not the responsibility of TradeUp or any of its affiliates, officers, or employees) to take reasonable steps to verify the accredited investor status of any investor if you are conducting an offer and sale of securities in reliance on Rule 506(c) of Regulation D of the Securities Laws.
Accredited Investors - “Accredited Investor” is defined by the SEC in Rule 501 as any of the following:
YOU MUST MEET ONE OF THE ABOVE CRITERIA IN ORDER TO INVEST IN ANY SECURITIES OFFERED ON THE SITE.
As an Accredited Investor on the Site, you also are agreeing to certain representations, warranties and agreements relating to the any potential interaction with an Issuer or Company on TradeUp or the purchase of securities by you from a Company in a transaction (“Transaction”). You agree that:
We will require all Users of TradeUp who identify themselves as an Accredited Investor to execute an Accredited Investor Questionnaire and related documents. In these documents, an Accredited Investor warrants it meets one of the tests necessary to qualify as an Accredited Investor and has the necessary knowledge and sophistication to evaluate companies, opportunities, and content. We do not verify its representations. The questionnaire will be maintained by TradeUp in a file which is available for inspection by the appropriate Federal agency; filing a false statement with an agency of the Federal government is a crime under 18 U.S.C. § 1001. If you are an Accredited Investors you understand, acknowledge and agree that other parties are relying on the statements made therein and that any willfully false statement is sufficient cause for removal from the Site, rejection of Accredited Investor status, along with other legal causes of action. If you are an investor you agree that the accredited investor questionnaire that you submit will be disclosed to every Issuer in which you indicate an interest in investing, and may also be disclosed to be third party service who is retained to handle the verification process.
Company listings on this Site are only suitable for Accredited Investors who are familiar with and willing to accept the high risk associated with private investments. Securities sold through private placements are not publicly traded and, therefore, are illiquid and may not resold unless registered with the Securities and Exchange Commission or sold pursuant to an exemption from registration. Additionally, Investors may receive restricted stock that may be subject to holding period requirements. Some companies seeking private placement investments tend to be in earlier stages of development and have not yet been fully tested in the public marketplace. Similarly there can be unique risks facing companies operating in international markets as opposed to the U.S. market alone. Investing in private placements requires high risk tolerance, low liquidity concerns, and long-term commitments. Investors must be able to afford to lose their entire investment. For those reasons, these offerings may be made available only to Accredited Investors who meet certain eligibility tests to qualify as purchasers.
THE SECURITIES BEING OFFERED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ARE OFFERING AND SOLD IN RELIANCE ON THE EXEMPTIVE PROVISIONS OF SECTION 4(A)(2) OF THE SECURITIES ACT AND REGULATION D UNDER THE SECURITIES ACT. 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.
The value of investments and the income from them can fall as well as rise. Past performance is not a guarantee of future performance. The contents of this Site do not constitute financial, legal, or tax advice. Investors are solely responsible for conducting any legal, accounting or due diligence review. You should obtain investment and tax advice from your advisers before deciding to invest. Investment products are not FDIC insured, may lose value, and there is no bank guarantee.
None of the information contained in the publicly available portions of the Site constitutes a recommendation, solicitation or offer buy or sell any securities, options or other financial instruments or other assets or provide any investment advice or service. The information contained in the Site has been prepared without reference to any particular User's investment requirements or financial situation. The information and services provided on the Site are not provided to, and may not be used by, any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where TradeUp is not authorized to provide such information or services. Some products and services described in the Site may not be available in all jurisdictions or to all clients.
Modification of Agreement
Our Services and certain pages of the Site are available only to Investors who have been authorized by us to access those Services and web pages on the Site. Such authorization may require completion of an accredited investor questionnaire and satisfactory background information screening and/or identification verification. Only users of TradeUp with a valid User ID and password are authorized to access such services and web pages.
Unauthorized use of the Site and our Service, including, but not limited to the misuse or sharing of passwords or misuse of any other information, is strictly prohibited. You may not use the Site in any manner that could damage, disable, overburden, or impair the Site or Service or interfere with any other party's use and enjoyment of the Site or Service. You agree that you will not engage in any activities related to the Site that are contrary to applicable laws or regulations. You further agree that you are responsible for any unauthorized use of your password that is made before you have notified us and we have had a reasonable opportunity to act on that notice. TradeUp reserves the right at its discretion to suspend or cancel your password, even without receiving such notice from you, if we suspect that it is being used in an unauthorized or fraudulent manner.
Notwithstanding the above, you are responsible for monitoring your account and should promptly report any unauthorized or suspicious activity in your account to us at email@example.com.
The TradeUp logo is a trademarks and service mark of TradeUp. TradeUp or its licensors own and retain all proprietary rights in the Site, the Service and all material and information posted thereon (“Content”). The Site contains the copyrighted material, trademarks and other proprietary information of TradeUp and its licensors. You may not alter, modify, publish, distribute, publicly display or sell any Content or other such proprietary information, or otherwise copy or transmit any Content or other such proprietary information without the express written permission of TradeUp.
In addition, to the extent you receive information from TradeUp, Issuers or other Investors with respect to any Investment activity on the Site, you may not further disclose or otherwise provide such information to another party in any way that allows a personal identification of such Issuer or Investor. You agree that TradeUp may, at its sole discretion and to the extent permitted by law, access, read, preserve and disclose your account information, usage history and submitted Content in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) respond to claims that any Content violates the rights of third parties, including intellectual property rights; (c) enforce this Agreement and investigate potential violations thereof; (d) detect, prevent, or otherwise address fraud, security, or technical issues; (e) respond to your requests for customer service; or (f) protect the rights, property, or personal safety of TradeUp, its users, or the public.
You understand that, should you apply to place your Company on Tradeupfund.com, that TradeUp requires your materials to meet certain standards to ensure the quality of its platform and the integrity of its social network. To this end, you understand that materials submitted must:
Responsibility for Investment Decisions, and Operating a Capital Raise Campaign
You will use your own judgment before making any decision to invest or to accept an investment involving what is to you a material amount of money. In particular:
You will be solely responsible for complying with applicable law regarding any transaction, including without limitation the determination of whether any investor is an Accredited Investor and whether any investment complies with the terms of local law (whether the law of a US state, or the law of any foreign government with jurisdiction over you or any investor).
You will obtain such professional advice as is appropriate to protect your interests, including legal, accounting and other advice.
You understand and acknowledge that TradeUp is not a broker-dealer or investment adviser and that it cannot and does not offer investment advice.
Do not use TradeUp to market services, particularly investment advisory services, which might cause TradeUp to have to register as a broker-dealer with the SEC, or to be treated as an underwriter.
You acknowledge and agree that TradeUp is relying on your representations, warranties and agreements herein as a condition to allowing you access onto the Site and Service.
Companies that may want to register on the site to raise capital acknowledge and accept that there are certain business segments that are difficult for the TradeUp to assess, and therefore, TradeUp will not support on the Site. Therefore, companies related to or offering guns, firearms, tobacco, cigarettes, pyramid marketing, gambling, contests, raffles, or any illegal activities shall not be permitted on the Site. TradeUp only supports for-profit companies and campaigns that are for for-profit businesses. TradeUp may not support Companies or capital campaigns that are simultaneously running crowdfunding campaigns on other crowdfunding platforms.
Companies, and each representative of a Company that contributes to the information supplied to the Site on behalf of such Company, acknowledge and agree that by submitting a Company Profile or a campaign to raise capital on TradeUp, that such person is representing and warranting that such company owns or licenses the rights to produce, sell or promote the products and services in which it engages. The Company agrees to indemnify and hold harmless TradeUp from any and all claims, threats, allegations, or suits related to a failure of such Company to have the rights to produce, create, distribute, sell or otherwise transact in its goods and services.
TradeUp reserves the right to reject, cancel, interrupt, remove, or suspend a capital raise campaign at any time and for any reason. TradeUp is not liable for any damages as a result of any of those actions. TradeUp’s policy is not to comment on the reasons for any of those actions.
TradeUp is not liable for any damages or loss incurred related to a capital raise canmpaign or any other use of the Service. All dealings are solely between Users. TradeUp is under no obligation to become involved in disputes between any Users, or between Users and any third party. This includes, but is not limited to, delivery of goods and services, and any other terms, conditions, warranties, or representations associated with capital raise canpaigns on the Site. TradeUp does not oversee the performance or punctuality of a capital campaign. TradeUp does not guarantee the completion of any capital campaign stated to be undertaken by any Company or warrant the outcome or success of any capital campaign or any Company. TradeUp does not endorse any User Submissions or User Content or Accredited Investor status.
TradeUp Employees and Affiliates
You understand that TradeUp employees and affiliates may participate in the Service as Companies or Investors, and that TradeUp is not responsible for any of their activities, including statements or other information in any emails or other communications such individuals make in that capacity.
Use of Links
Third Party Content
Certain portions of the Site may contain third party content and may provide links to webpages and content of third parties (collectively "Third Party Content"). TradeUp does not control, endorse, investigate, or adopt any Third Party Content, and makes no representations or warranties of any kind regarding the Third Party Content, including with respect to its accuracy or completeness. You acknowledge and agree that TradeUp is not responsible or liable in any manner for any Third Party Content or your reliance upon Third Party Content. Users use such Third Party Content at their own risk.
If you believe that any material on the Site violates this Agreement or your intellectual property rights, please notify TradeUp as soon as possible by sending an email to firstname.lastname@example.org, with the following information in accordance with Section 512(c) of the Copyright Act: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. In appropriate circumstances, TradeUp will also terminate a User's account if the user is determined to be a repeat infringer.
TradeUp may terminate your access to all or any part of the Site and Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your account, you may do so by following the instructions on the Site. All provisions of this Agreement shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
TradeUp has no special relationship with or fiduciary duty to you. You acknowledge that TradeUp has no control over, and no duty to take any action regarding: which users gains access to the Site; what Content you access via the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release TradeUp from all liability for you having acquired or not acquired Content through the Site. TradeUp makes no representations concerning any Content contained in or accessed through the Site, and TradeUp will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Service.
TradeUp neither represents, warrants, covenants guarantees, nor promises any specific results from use of the Site.
THE SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE OR ADVICE PROVIDED IN CONNECTION WITH THE SERVICE, IS PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE AND SITE-RELATED SERVICES.
TradeUp makes no representation or warranty, express or implied, with respect to any third party data provided to TradeUp or its transmission, timeliness, accuracy or completeness, including but not limited to implied warranties or warranties of merchantability or fitness for a particular purpose. TradeUp will not be liable in any way to you or to any other person for any inaccuracy, error or delay in or omission of any third party data or the transmission or delivery of any such third party data and any loss or damage arising from (a) any such inaccuracy, error, delay or omission, (b) non-performance or (c) interruption in any such third party data due either to any negligent act or omission by TradeUp or "force majeure" or any other cause beyond the control of TradeUp.
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
Electronic Communication Privacy Act Notice (18usc 2701-2711): TradeUp makes no guaranty of confidentiality or privacy of any communication or information transmitted on the site or any website linked to the site. TradeUp will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on TradeUp's equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.
You shall defend, indemnify, and hold harmless TradeUp, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to (i) your use or misuse of, or access to, the Site, Service, Content or otherwise from your User Submissions, violation of the Agreement, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, and (ii) if you are an Issuer, violation of the US Securities Laws in connection with the offer or sale of your securities, (iii) if you are a non-U.S. company listing securities for sale on the Site, violation of any non-U.S. securities laws or other laws related to the sale of securities, and (iv) if you are a non-U.S. investor, your failure to identify yourself as a non-U.S. person resulting in circumvention of TradeUp’s policy against allowing non-U.S. investors to register on the site or invest. TradeUp reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with TradeUp in asserting any available defenses.
Limitation of Liability
IN NO EVENT SHALL TRADEUP, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-HUNDRED U.S. DOLLARS ($100.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Governing Law; Arbitration
This Agreement (and any further rules, policies or guidelines incorporated by reference herein) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by User and TradeUp, any dispute arising out of or relating to the Agreement, or the breach hereof, shall be finally resolved by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. If parties are unable to select an arbitrator then AAA shall select the arbitrator. Judgment on any award entered by the arbitrator may be entered in any court having jurisdiction thereof. User agrees that it may bring claims against TradeUp only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
Registration Data; Account Security
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the registration Data, and any other information that you provide to TradeUp, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to TradeUp.
Integration and Severability