ii. Release. You hereby release any claims you may have against KushAngel and any Company Person that are in any way related to the Services or your use of Content, including any representations,
recommendations or referrals you may receive as a result of your registration with KushAngel. You are solely responsible for your use of the Services, for any Content you provide, and for any consequences
thereof, including the use of your Content by other users and third party partners.
iii. KushAngel Employees and Affiliates. You understand that Company Persons may participate in the Services as Entrepreneurs or Investors, and that KushAngel 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.
c. Confidentiality. By registering with KushAngel, or otherwise using the Services or viewing content made available through KushAngel in any way, you may have an opportunity to see Locked Information. It is expected that you will use discretion in determining what you do with that information. You agree, however, that you will not republish any information you acquire through the Services via an Internet website,for which one of the principal purposes is to compete with KushAngel.
d. Other User Obligations.
i. You promise to comply with the terms of the license set forth in Section IV (Company Services and License) of this Agreement.
ii. You are licensing to us the right to publish all Content you upload to KushAngel, including any comments or other forum posts you may offer on the Site in order to provide the Services. Your Content will be viewable by other users of the Services and through third party services and websites. You should only provide Content that you are comfortable sharing with others.
iii. To the extent that KushAngel is determined, for any reason, not to be the licensee of any material you have provided to us, including all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”), you hereby ratify and consent to any action that may be taken with respect to such Moral Rights by or authorized by KushAngel and agree not to assert any Moral Rights with respect thereto. You further agree that you will confirm any such ratifications, consents and agreements from time to time as requested by the Company.
iv. You acknowledge that KushAngel is not obligated to pay you or to cause any other party to pay you any compensation with respect to your activities on KushAngel, or to feature or otherwise display your Content on any web page.
v. You acknowledge that you do not rely on the Company to monitor or edit the Services (including emails initiated by individuals, regardless of whether those individuals are otherwise associated with the Company) and that the Services may contain Content which you find offensive or which is untrue or misleading and you hereby waive any objections you might have with respect to viewing such content.
vi. You agree that this Agreement does not entitle you to any support, upgrades, updates, add-ons, patches, enhancements, or fixes for the Services (collectively, “Updates”). The Company, however, may occasionally provide automatic Updates to the Services at its sole discretion (and without any advanced notification to you). Any such Updates for the Services shall become part of the Services and subject to this Agreement.
vii. If you operate, manage or otherwise control a search engine or robot, or you republish a significant fraction of KushAngel Content (as we may determine in our reasonable discretion), you must additionally follow these rules:
1. You must use a descriptive user agent header.
2. You must follow robots.txt at all times.
3. You must make it clear how to contact you, either in your user agent string, or on your website if you have one.
e. APIs available through the Service. We may make available one or more APIs for interacting with the Services. Your use of any KushAngel API on the Site is subject to this Agreement and the KushAngel API Rules, which will be posted before we make these APIs available (and which will then become part of this Agreement).
III. PRIVACY AND PROTECTION OF PERSONAL INFORMATION
IV. COMPANY SERVICES AND LICENSE
a. License to Use the Service. All right, title, and interest in and to the Services (excluding Content provided by users) is and will remain the exclusive property of KushAngel and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Except as expressly provided herein, nothing in this Agreement gives you a right to use the KushAngel name or any of the KushAngel trademarks, logos, domain names or other distinctive brand features. Subject to your acceptance of this Agreement, KushAngel grants to you a worldwide, non-assignable, non-exclusive, non-transferable, revocable limited license to use the Services and related software and to display any non-confidential results of such Services anywhere on the rest of the web, provided that you:
i. do not use the license to engage in any commercial activity;
ii. do not modify the content, except as described below;
iii. attribute KushAngel with a human and machine-followable link (an anchor tag) linking back to the page displaying the original source of the Content on KushAngel;
iv. make a reasonable effort to update a particular piece of Content to the latest version on KushAngel; and
v. make a reasonable attempt to delete Content that has been deleted on KushAngel.
b. No Claim to Any Rights in Your Information. We are promising not to claim any ownership interest in the Content provided by you to us solely because you have provided it, although we will claim a license sufficient to display such items through KushAngel.
c. All New Investors Must Execute an “Accredited Investor Questionnaire”. We will require all new users of KushAngel who identify themselves as Investors to execute an Accredited Investor Questionnaire. We have designed the questionnaire to make Investors think about whether they really are accredited and sophisticated, but we do not verify the representations they make.
d. Company Will Display Content and Allow Communications Based on Filters. When you create an account with KushAngel, and at any time thereafter, you are able to set a variety of filters that are intended to control who can see your information and what information you will be shown. We promise not to intentionally violate those filters, although you must recognize that we cannot guarantee that there will never be a software bug or a hacker attack that will allow unauthorized viewing of material or unsolicited contacts to occur.
V. RESERVATION OF THE COMPANY'S RIGHTS
a. Right to Control Content. KushAngel may, but is not required to, monitor or control the Content posted via the Services. Our failure to exercise this right does not give you any right to make a claim against KushAngel. Any Content that has been uploaded through the Services may be deleted at any time without notice to you.
b. Right to Discontinue the Services. KushAngel reserves the right to discontinue the Services or to change the Services in any way and at any time, with or without notice to you, without liability.
c. Right to Terminate User Access. KushAngel reserves the right to terminate your access to the Services without notice and, if you violate this Agreement, to pursue other remedies at law or in equity. We may delete your account for any reason or for no reason at all, and if we delete your account you will lose all access to any information, connections or other features that may have value to you that may have been associated with your account.
d. Right to Refuse or Cancel Registration. The Company has the right to refuse registration of or cancel your user account in its discretion for any reason or for no reason. In addition, the Company reserves the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users and/or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement (including investigation of potential violations hereof), (iii) detect, prevent or otherwise address fraud, security or technical issues, (iv) respond to user support requests or (v) protect the rights, property or safety of KushAngel, its users and the public.
e. User Acknowledgement. Without limiting the generality of the foregoing, you specifically acknowledge that the Company is exempt from liability to any person for any claim based upon its termination of an account or disabling of access to or removal of any Content, including material it believes, in its sole discretion to violate this Agreement, regardless of whether the material ultimately is determined to be infringing or otherwise prohibited, and regardless of whether such termination or disabling has the effect of reducing the value of any Content or opportunities that might otherwise have been available to you. By using the Services, you agree that notice to you through an email to the email address you provided in your profile constitutes reasonable efforts to notify you of any removal or disabling if such notice is required.
VI. LIMITS ON THE COMPANY'S OBLIGATIONS
a. Introductions. We are not obligated to introduce you to any Entrepreneur, Investor or Job Seeker.
b. Verifying Due Diligence. We are not responsible for doing diligence on the Entrepreneurs, Investors, Job Seekers or other users you meet through KushAngel or verifying any representations, materials or other information provided by Entrepreneurs, Investors, Job Seekers or other users to you.
c. Verifying Accredited Investor Status. We are not responsible for verifying that that any Investor is accredited or is a Qualified Purchaser, or otherwise authorized or appropriate to invest in you, or for determining whether any use of KushAngel constitutes a general solicitation of securities under the securities laws of the United States, or the laws of any state or other jurisdiction, including foreign jurisdictions.
d. No Recommendations. We do not recommend any startups for investment, endorse their fitness for investment or verify or claim the accuracy of information provided by startups on the Site or in our emails. In particular, we do not act as an investment adviser to any Investor(s) and no part of this Site is intended to constitute investment advice.
e. Client Confidentiality. We are not obligated to maintain the confidentiality of any Content you give us, other than Locked Information, and with respect to Locked Information, we are not obligated to protect it other than by designating it as such.
f. Intellectual Property Rights. The Company has no obligation to monitor or enforce any intellectual property rights that may be associated with Content you provide to us, but the Company does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.
g. Business Opportunities. In the event that the Company invests in any business, we are not obligated to make that investment opportunity available to anyone else.
h. No Endorsement of Content. The Company does not control or endorse the Content, messages or information found in the Services or external websites that may be linked to or from KushAngel and, therefore, the Company specifically disclaims any responsibility with regard thereto.
i. No Obligation to Display Content. The Company has no obligation to accept, display, review, verify, monitor or maintain any Content submitted by users, user forum posts, commentary, ratings or compliments (“Comments”). We have the right to delete Content or Comments from the Services without notice for any reason at any time. The Company may move, re-format, edit, alter, distort, remove or refuse to exploit Content or Comments without notice to you and without liability. Notwithstanding the forgoing rights, the Company reserves the right to treat Content provided by users and Comments as content stored at the direction of users for which the Company will not exercise editorial control except as required to enforce the rights of third parties and applicable Content restrictions when violations are brought to the Company’s attention.
j. Verifying Advertisement Accuracy. The Services may contain or deliver advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in an advertiser’s or sponsor’s Content.
VII. COPYRIGHT POLICY
a. KushAngel respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. The Digital Millennium Copyright Act (“DMCA”) provides recourse to copyright owners who believe that their rights under the U.S. Copyright Act have been infringed by acts of third parties over the Internet.
b. If you believe that your copyrighted work has been copied without your authorization and is available on or in the Services in a way that may constitute copyright infringement, or if you believe that any material on the Services violates this Agreement or your intellectual property rights, please notify the Company as soon as possible by sending an email to firstname.lastname@example.org, or by mailing a letter to the KushAngel Copyright Agent (listed below) containing the following information in accordance with the DMCA: (i) 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; (ii) identification of the copyrighted work claimed to have been infringed; (iii) your contact information, including your address, telephone number, and an email address; (iv) 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; (v) 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; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf.
c. Our KushAngel Copyright Agent for notice of alleged copyright infringement or other legal notices regarding Content appearing on the Services is:
1228 University Ave
San Diego, CA 92103
d. Please note that in addition to being forwarded to the person who provided the allegedly illegal content, we may send a copy of your notice (with your personal information removed) to Chilling Effects for publication and/or annotation. You can see an example of such a publication. A link to your published notice will be displayed on KushAngel in place of the removed Content.
e. 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, KushAngel will also terminate a user’s account if the user is determined to be a repeat infringer.
VIII. TERM AND TERMINATION
Unless terminated by the Company, this Agreement will remain in full force and effect while you use any of the Services. Subject to the last sentence of this Section VIII, you may terminate this Agreement at any time by deleting all Content you have provided to KushAngel and ceasing to use the Services. The Company may terminate this Agreement at any time, particularly if you are suspected of violating any provision of this Agreement. Upon termination of this Agreement for any reason, you shall destroy and remove from all computers, and other storage media all copies of any intellectual property owned by the Company or any other user of the Services that you acquired via use of the Services. Your representations in this Agreement and the provisions of Section II (User Obligations) and any other provision of this Agreement which by their nature are designed to survive termination shall survive any termination or expiration of this Agreement.
IX. DISCLAIMERS; LIMITATIONS; WAIVERS OF LIABILITY
a. YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER THE LAWS APPLICABLE TO TERMS OF SERVICE WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “COMPANY PARTIES”) WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
b. TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT AND THAT THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICES AND OPERATORS OF EXTERNAL WEBSITES, AND THAT THE RISK OF THE SERVICES AND EXTERNAL WEBSITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
c. The Company is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or media players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to your or to any other person’s computer, mobile phone or other hardware or software, related to or resulting from using or downloading materials in connection with the web and/or in connection with the Services, including any mobile software. Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any content or personal injury or death, resulting from anyone’s use of the Services, any Content or third party applications, software or content posted on or through the Services or transmitted to users or any interactions between users of the Services, whether online or offline.
d. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content thereon or any content you receive as a result of your relationship with KushAngel. KushAngel will not be responsible or liable for any harm to your computer system, loss of data or other harm that results from your access to or use of the Services or any Content. You also agree that KushAngel has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from KushAngel or through the Services, will create any warranty not expressly made herein.
e. UNDER NO CIRCUMSTANCES WILL ANY COMPANY PERSON BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID THE COMPANY IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
f. To the extent any provision(s) relating to arbitration, disclaimer, waiver of liability or any other rights and obligations set forth herein is not permissible or enforceable under foreign laws as applied to users from such foreign jurisdictions, each such provision shall be deemed removed and invalid, but all remaining provisions shall be in full force and effect.
X. DISPUTES WITH OTHERS
We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Services. If you have a dispute with other users, you release the Company and hereby agree to indemnify the Company from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of, or in any way connected with, such a dispute.
a. Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and the Company agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to 814 Montgomery St., San Francisco, CA 94133, ATTENTION: LEGAL DEPARTMENT. The Company will send its notice to your address as set forth in the books and records of the Company, or if no such address has been provided, by email to the email address provided by you in connection with your use of the Services.
b. Binding Arbitration at Option of Either Party. If you and the Company are unable to resolve a Dispute through informal negotiations, either you or the Company may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by confidential binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court of proper jurisdiction rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, the Company will pay all arbitration fees and expenses. The arbitration may be conducted, at the option of the claimant, either in person or by video conference. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged within a reasonable period of time (not to exceed 30 days) if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and the Company may litigate in court to compel arbitration, stay proceedings pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Judgment upon any award rendered by the arbitrator(s) may be entered and enforcement obtained thereon in any court having jurisdiction. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. Each party shall have the right to participate by video conference in order to minimize travel and expense burdens. Subject to Section IX of this Agreement (Disclaimers; Limitations; Waivers Of Liability), the arbitrator shall have authority to grant any form of appropriate relief, whether legal or equitable in nature, including specific performance.
c. Restrictions/No Class Actions. You and the Company agree that any arbitration shall be limited to the Dispute between the Company and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) no Dispute between you and the Company is to be arbitrated on a class-action basis or will utilize class action procedures; and (3) you may not bring any Dispute in a purported representative capacity on behalf of the general public, other users of the Services or any other persons.
d. Exceptions to Informal Negotiations and Arbitration. You and the Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or the Company’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
a. Availability of Services.
i. The Company operates and controls the Services from its offices in the United States. The Company makes no representation that the Services are appropriate or available in other locations. The information provided on or through the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
ii. Certain information provided by Entrepreneurs or Investors may be subject to U.S. export controls. Thus, no such materials may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List. By downloading any material available through the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
b. Injunctive Relief. You acknowledge that the rights granted and obligations made hereunder to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone, so that the Company shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
c. Amendments to this Agreement. We may amend this Agreement at any time in our sole discretion, effective upon posting the amended Terms of Service at the domain of www.kushkushangel.comm where the prior version of this Agreement was posted or by communicating these changes through any written or other contact method we have established with you. Your use of the Services following the date on which such amended Terms are published will constitute consent to such amendments. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement.
d. Venue and Governing Law. This Agreement and all aspects of the Services shall be governed by and construed in accordance with the internal laws of the United States and the State of Delaware governing contracts entered into and to be fully performed in Delaware (i.e., without regard to conflict of law’s provisions) regardless of your location except that Section XI (Arbitration) of this Agreement shall be governed by the Federal Arbitration Act. For the purpose of any judicial proceeding to enforce an arbitration award or incidental to such arbitration or to compel arbitration, or if for any reason a claim proceeds in court rather than in arbitration, you hereby submit to the non-exclusive jurisdiction of the state and Federal courts sitting in San Francisco County, California, and agree that service of process in such arbitration or court proceedings shall be satisfactorily made upon a party if sent by certified, express or registered mail addressed to it at the address set forth in the books and records of the Company, or if no such address has been provided, by email to the email address provided by the relevant party to the Company in connection with its use of the Services. With respect to any Disputes not subject to informal dispute resolution or arbitration (as set forth above), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in San Francisco County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in San Francisco County, California. To the extent non-U.S. laws mandate a different approach with respect to governing law, venue, statute of limitation, and dispute resolution method with respect to certain non-U.S. persons, each such required standard shall be applied, but all other provisions under this section shall remain in full force.
e. Waiver and Severability.
i. The failure of the Company to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of the Company’s right to assert or rely upon any such provision or right in that or any other instance. In fact, the Company may choose to enforce certain portions of this Agreement more strictly or to interpret certain provisions more strictly against certain users than it does against users in general, and such disparate treatment shall not be grounds for failing to comply with all this Agreement as so interpreted.
ii. You and the Company agree that if any portion of this Agreement, except any portion of Section XI.b (Binding Arbitration at Option of Either Party) is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which shall continue to be in full force and effect. If Section XI.b is found to be illegal or unenforceable, then neither you nor the Company will elect to arbitrate any Dispute falling within that portion of Section XI.b found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within San Francisco County, California, and you and the Company agree to submit to the personal jurisdiction of that court.
f. Section Headings; Verification Documentation; Waiver of Execution Defenses. The section headings used herein are for convenience only and shall not be given any legal import. Upon the Company’s request, you will furnish the Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against the Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
g. Prohibition of Assignment. You may not assign this Agreement without the Company’s prior written consent.
h. Entire Agreement. This Agreement contains the entire understanding of you and the Company, and supersedes all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except as posted on the Services by the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
j. No Third Party Beneficiaries. This Agreement is between you and the Company. No user has any rights to force the Company to enforce any rights it may have against any you or any other user, except to the extent that Entrepreneurs may enforce their own intellectual property rights related to Content offered through the Services.
k. Government Use. If you are a part of an agency, department or other entity of the U.S. Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of any of our products or Services is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Services and any related software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Services by the Government shall be governed solely by this Agreement.
l. California Users and Residents. Under California Civil Code Section 1789.3, California users of the Services receive 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., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.”
a. "Accredited Investor"
i. “Accredited Investor” is defined by the SEC in Rule 501 of Regulation D under the Securities Act of 1933 as follows:
1. a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year;
2. a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase, excluding the person’s primary residence;
3. a director, executive officer or general partner of the company selling the securities;
4. a business in which all the equity owners are accredited investors;
5. a charitable organization, corporation or partnership with assets exceeding $5 million;
6. a bank, insurance company, registered investment company, business development company or small business investment company;
7. an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million; or
8. a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.
ii. With respect to persons accessing the Site from outside of the United States, references to “Accredited Investor” status shall include all relevant investor sophistication standard(s) applicable to persons in each such jurisdiction seeking to make private venture investments of such nature as enabled by the Site. Specifically, references to “Accredited Investors” accessing this Site from the United Kingdom are those persons who have been certified as a High Net Worth Individual or Self Certified Sophisticated Investor in accordance with the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.
b. "Community Rules": Participants in the KushAngel community will not, in connection with the Services:
i. defame, libel, disparage, threaten, harass or intimidate anyone, including by the use of offensive comments related to race, national origin, gender, sexual preference or physical handicap;
ii. use any profane, obscene, pornographic or otherwise objectionable content or language;
iii. promote or describe how to perform violence, illegal drug or substance abuse, or any other illegal activity;
iv. violate the personal, privacy, contractual, intellectual property or other rights of any person;
v. reveal, with respect to personal or privacy rights, any personal information about another individual, including an address, phone number, email address, credit card number or other information that could be used to track, contact or impersonate that individual;
vi. violate this Agreement or any local, state, federal or non-U.S. law, rule or regulation;
vii. trick, defraud, deceive or mislead the Company or other users, such as by submitting false reports of abuse or misconduct to the Company’s support services, disguising the source of materials or other information you submit to the Services or using tools which anonymize your Internet protocol address to access the Services;
viii. interfere with or disrupt (or attempt to interfere with or disrupt) access and enjoyment of the Services of other users or any host or network, including, without limitation, creating or transmitting unwanted electronic communications such as “spam” to other users, overloading, flooding or mail-bombing the Services, or scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services;
ix. disparage, tarnish or otherwise harm, in the Company’s opinion, the Company and/or the Services;
x. upload or transmit (or attempt to upload or transmit) any material that acts as a passive or active information collection or transmission mechanism, such as viruses, worms, Trojan horses, spyware, adware or any other malicious or invasive code or program;
xi. reverse engineer, decompile, reverse assemble, modify or attempt to discover or copy any software, source code or structure that the Services utilize to generate web pages or any software or other products or processes accessible through the Services;
xii. access or search (or attempt to access or search) the Services by any means, such as any automated system or unauthorized script or software, other than currently available, published interfaces provide by KushAngel, unless you have been specifically allowed to do so in a separate Agreement with KushAngel (note crawling the Services is permissible in accordance with this Agreement, but scraping the Services is expressly prohibited without the prior consent of KushAngel);
xiii. remove, obscure or change any copyright, trademark, hyperlink or other proprietary rights notices contained in or on the Services or any website on which the Services are offered or on a third party website and/or Company software on which Company code is embeddable or embedded on;
xiv. remove, obscure or change any notice, banner, advertisement or other branding on the Services;
xv. submit any Content or material that falsely expresses or implies that such Content or material is sponsored or endorsed by the Company;
xvi. interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on use of or access to the Services, such as probing or scanning the vulnerability of any system, network or breach; or
xvii. sell access to the Services or any part thereof other than through a mechanism approved by the Company.
c. "Content" means any information, text, graphics or other materials uploaded, downloaded or otherwise appearing on the Services. You retain ownership of all Content you submit, post, display or otherwise make available on the Services.
d. "Locked Information" means, all information acquired by, through or in connection with your use of the Services or the Site that was provided by another person and which is identified as “Locked” in any manner reasonably designed to identify the character of such information.
e. "Qualified Purchaser" is defined under Section 2(a)(51) of the Investment Company Act of 1940.
i. In particular, Qualified Purchasers include:
1. any natural person (including any person who holds a joint, community property, or other similar shared ownership interest in an issuer that is excepted under section 3(c)(7) of the Investment Company Act with that person’s Qualified Purchaser spouse) who owns not less than $ 5,000,000 in “Investments” (as defined below);
2. any company that is wholly owned directly or indirectly by or for two or more individuals who are related as siblings, spouses (including former spouses) or direct lineal descendents by birth or adoption, spouses of such persons, the estates of such persons, or foundations, charitable organizations or trusts established by or for the benefit of such persons, that owns not less than $ 5,000,000 in Investments;
3. any trust that is not covered by clause (2) and that was not formed for the specific purpose of acquiring the securities offered, as to which the trustee or other person authorized to make decisions with respect to the trust, and each settlor or other person who has contributed assets to the trust, is a person described in clause (1), (2), or (4);
4. any person, acting for its own account or the accounts of other qualified purchasers, who in the aggregate owns and invests on a discretionary basis, not less than $ 25,000,000 in Investments;
5. any company (regardless of the amount of such company’s Investments) beneficially owned exclusively by Qualified Purchasers or by a company’s “knowledgeable employees” (as defined under Rule 3c-54 of the Investment Company Act);
6. any company that, but for the exceptions provided for in Sections 3(c)(1) or 3(c)(7) under the Investment Company Act, would be an investment company (hereafter in this paragraph referred to as an “excepted investment company”), provided that all beneficial owners of its outstanding securities (other than short-term paper), determined in accordance with Section 3(c)(1)(A) thereunder, that acquired such securities on or before April 30, 1996 (hereafter in this paragraph referred to as “pre-amendment beneficial owners”), and all pre-amendment beneficial owners of the outstanding securities (other than short-term paper) or any excepted investment company that, directly or indirectly, owns any outstanding securities of such excepted investment company, have consented to its treatment as a qualified purchaser;
7. any qualified institutional buyer as defined in Rule 144A under the Securities Act, acting for its own account, the account of another qualified institutional buyer, or the account of a qualified purchaser, provided that (1) a dealer described in paragraph (a)(1)(ii) of Rule 144A shall own and invest on a discretionary basis at least $25,000,000 in securities of issuers that are not affiliated persons of the dealer; and (2) a plan referred to in paragraph (a)(1)(D) or (a)(1)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(F) of Rule 144A that holds the assets of such a plan, will not be deemed to be acting for its own account if investment decisions with respect to the plan are made by the beneficiaries of the plan, except with respect to investment decisions made solely by the fiduciary, trustee or sponsor of such plan; or
8. any person (“Transferee”) who acquires interests from a person (“Transferor”) that is (or was) a Qualified Purchaser other than the Company, provided that the Transferee is: (i) the estate of the Transferor; (ii) a person who acquires the interests as a gift or bequest pursuant to an agreement relating to a legal separation or divorce; or (iii) a company established by the Transferor exclusively for the benefit of (or owned exclusively by) the Transferor and the persons specified in this paragraph.
ii. The term Qualified Purchaser does not include a company that, but for the exceptions provided for in paragraph (1) or (7) of section 3(c) of the Investment Company Act, would be an investment company (here after in this paragraph referred to as an ‘‘excepted investment company’’), unless all beneficial owners of its outstanding securities (other than short-term paper), determined in accordance with section 3(c)(1)(A), that acquired such securities on or before April 30, 1996 (hereafter in this paragraph referred to as ‘‘pre-amendment beneficial owners’’), and all pre-amendment beneficial owners of the outstanding securities (other than short-term paper) of any excepted investment company that, directly or indirectly, owns any outstanding securities of such excepted investment company, have consented to its treatment as a qualified purchaser. Unanimous consent of all trustees, directors, or general partners of a company or trust referred to in clause (2) or (3) of subparagraph (i) shall constitute consent for purposes of this subparagraph.
iii. For the purposes of the definition of Qualified Purchaser, the term Investment (as defined under Rule 2a51-1 of the Investment Company Act) means:
1. securities (as defined by section 2(a)(1) of the Securities Act of 1933), other than securities of an issuer that controls, is controlled by, or is under common control with, the prospective qualified purchaser that owns such securities, unless the issuer of such securities is: (i) an investment vehicle; (ii) a public company; or (iii) a company with shareholders’ equity of not less than $50 million (determined in accordance with generally accepted accounting principles) as reflected on the company’s most recent financial statements, provided that such financial statements present the information as of a date within 16 months preceding the date on which the prospective qualified purchaser acquires the securities of a section 3(c)(7) company;
2. real estate held for investment purposes;
3. commodity interests held for investment purposes;
4. physical commodities held for investment purposes;
5. to the extent not securities, financial contracts (as such term is defined in section 3(c)(2)(B)(ii) of the Investment Company Act entered into for investment purposes;
6. in the case of a prospective qualified purchaser that is a Section 3(c)(7) Company, a company that would be an investment company but for the exclusion provided by section 3(c)(1) of the Investment Company Act, or a commodity pool, any amounts payable to such prospective qualified purchaser pursuant to a firm agreement or similar binding commitment pursuant to which a person has agreed to acquire an interest in, or make capital contributions to, the prospective qualified purchaser upon the demand of the prospective qualified purchaser; and
7. cash and cash equivalents (including foreign currencies) held for investment purposes. For purposes of this section, cash and cash equivalents include: (i) bank deposits, certificates of deposit, bankers' acceptances and similar bank instruments held for investment purposes; and (ii) the net cash surrender value of an insurance policy.
The Company is an entity offering the transmission, routing or providing of connections for digital online communications, between or among points specified by a user of material of the user’s choosing, without modification of the content of the material sent or received, as well as system caching, storage of material residing on a system or network at the direction of a user, and referral or linkage of users to an online location using information location tools, each through the Site located at https://kushangel.com and any linked pages or applications owned and operated by the Company.
The Services are operated and provided by KushAngel Inc, 1228 University Ave, San Diego, CA 92310. If you have questions about this Agreement, please contact us.