Introduction

Welcome to FUNDSITION. While FUNDSITION operates this website, FUNDSITION is not a registered broker-dealer with the Financial Industry Regulatory Authority, Inc. (“FINRA”) or any other securities commission or regulator, nor is FUNDSITION registered as an investment adviser with the Securities and Exchange Commission (“SEC”) or any other securities commission or regulator. To that end, FUNDSITION does not endorse any securities made available through this website, and does not provide either analysis or recommendations related to any securities, whether made available through this website or otherwise. All securities listed on this website and all data, information, and other materials related to such securities has been prepared solely and exclusive by, and is solely the responsibility of, the applicable issuer of such securities. FUNDSITION takes no steps and employs no measures to verify the adequacy, accuracy, veracity, or completeness of any information related to any securities listed on this website.

All securities brokerage-related activity conducted through this website is handled exclusively by Andes Capital, an Illinois corporation, registered broker-dealer, and member FINRA, MSRB and the Securities Investor Protection Corporation. Andes Capital is not registered as an investment adviser with the SEC or any other securities commission or regulator, does not endorse any securities made available through this website, and does not provide either analysis or recommendations related to any securities, whether made available through this website or otherwise. Further, Andes Capital does not provide any custodial services in connection with its brokerage services.

By using FUNDSITION, including simply viewing content on this website, you and each person you allow to access this website are agreeing to be bound, and abide, by the Terms of Service and any other written policy of FUNDSITION. This website is not directed to any person in any jurisdiction where (by reason of a person’s nationality, residence, or otherwise) the publication or availability of this website is prohibited. Persons in respect of whom such prohibitions apply must not access this website.

IMPORTANT NOTICE REGARDING ARBITRATION: When you agree to the Terms of Service you are agreeing (with limited exception) to resolve any dispute between you and FUNDSITION through binding, individual arbitration rather than in court. Please review carefully the Terms of Service in full, including Section 7.2 (“Arbitration”), below for details regarding arbitration.

Terms of Services

As Of: January 1, 2020

This Terms of Services Agreement (this “Agreement”) is entered into by and between SME Funder, Inc., a Delaware doing business as FUNDSITION (“FUNDSITION”) and the countersigning party (“User”) as of the earlier of (i) the date of User’s execution or acceptance of the terms hereof, or (ii) the first date on which User uses the Service (as defined herein) (the “Effective Date”). Company and User may hereinafter be individually referred to as a “Party,” as appropriate, and collectively referred to as the “Parties.”

1. The following capitalized terms shall have the meanings specified in this Article 1. Terms otherwise defined throughout the text of this Agreement shall have the meanings respectively ascribed to them.

• “Company” means FUNDSITION, including its Subsidiaries.
• “Data” means all of User’s data, entered by User, or by Company on behalf of user, into the Service.
• “Information” means any and all information and materials regarding or relating to the Service and Company’s development, technology, manuals, instructions, marketing, and production activities with respect thereto, including, but not limited to, trade secrets and know-how, and copyrighted, patented, trademarked, or otherwise protected proprietary information, software, and processes.
• “Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization or other organization, whether or not a legal entity, and any governmental authority.
• “Service” means, collectively, the services, websites, and applications made available by Company to User.
• “Subsidiary” means of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.
• “Third-Party Software” means any software application used directly or indirectly by User in connection with its use of the Service, whether licensed or otherwise made available to User by Company, independently used by User, or otherwise.

2. Limitations of Use. In addition to the other provisions of this Agreement, User’s use of the Service is subject to and expressly conditioned upon:

• User acknowledges that Company makes no representation that the Service is appropriate or available in any specific location or jurisdiction. The Data and Information provided on or through the Service is not intended for distribution to, or use by, any Person in any location or jurisdiction where such distribution or use would be contrary to applicable law, or which would subject the Company to any requirement to register as an “investment adviser” (as that term is used and defined in the Investment Advisers Act of 1940, as amended, and similar or equivalent laws of jurisdictions other than the United States) or “broker” or “dealer” (as those terms are respectively used and defined in the Securities Act of 1933, as amended, and similar or equivalent laws of jurisdictions other than the United States). Further, Data and Information may not be downloaded, exported, or re-exported into any location or jurisdiction to which the United States has embargoed goods. By using the Service, User represents and warrants it is not located in, under the control of, or a national or resident of, any such location or jurisdiction.
• Counter-License. User grants to Company the non-exclusive right to access, process, aggregate, compile, publish, and otherwise use in any manner and for any reasonable purpose all Data, Information, or other materials provided by User to Company (the “Counter-License”). To the extent Company is determined, for any reason, to not be the licensee of any of the foregoing, 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”), User hereby ratifies and consents to any action that Company may take, during the Term and thereafter, with respect to such Moral Rights, agrees not to asset any Moral Rights with respect thereto, and agrees to confirm any such ratification and consent as may be requested by Company.
• Lawful Activity. User shall not (i) host or transmit on any website or over the internet any libelous, obscene, or otherwise unlawful information of any kind regarding the Service or Company, (ii) use the Service in any manner that would constitute a criminal offense or give rise to civil liability under the laws of the United States or any jurisdiction other than the United States, or (iii) provide Company with inaccurate or fraudulent Information or Data in using the Service.
• No Reverse Engineering. Except as otherwise provided by law, User may not decompile, reverse engineer, disassemble, modify, or create “derivative works” (as that term is defined and used under the Copyright Act of 1976, as amended) or improvements (as that term is defined and used under the Patent Act of 1970, as amended) from, the Service or any portion thereof, or seek to obtain any form of intellectual property rights with respect to the Service or any portion thereof.
• Third-Party Licenses.
  • Company Third-Party Licenses. User acknowledges and understands that at any time during the term of this Agreement, the Service may include integrated Third-Party Software, and that Company may, at any time during the term, remove any existing, integrated Third-Party Software from the Service or integrate new Third-Party Software into the Service. User further acknowledges and agrees that its use of the Service shall not grant it a license or any other form of interest in such Third-Party Software separate and apart from that interest, if any, granted to User through its use of the Service. Company shall be solely responsible for obtaining and maintaining any necessary license or other interest in Third-Party Software which it integrates into the Service throughout the term.
  • User Third-Party Licenses. Subject to Company’s prior written consent, User may integrate Third-Party Software into the Service. User shall be solely responsible for obtaining and maintaining any necessary license or other interest in Third-Party Software which it integrates into the Service throughout the term of this Agreement.

3. Term; Termination. Company may terminate this Agreement for any reason in its sole and absolute discretion. Unless terminated by the Company, this Agreement will be of full force and effect from the Effective Date until terminated by User. User may terminate this Agreement at any time by (i) deleting all Data and Information which User has provided to Company through its use of the Service, and (ii) ceasing to use the Service. Upon termination of this Agreement by either Company or User, User shall destroy and remove from all computers, mobile devices, and any other storage media all copies of any intellectual property of Company or any other user of the Service that User acquired through using the Service.

• Effect of Termination. Upon the effective termination of this Agreement for any reason:
  • Return of Data and Information. Each Party shall return to the other Party, as immediately as possible, all Data and Information furnished by a Party to the other Party; provided, however, that either Party may retain Data and Information, or duplicates thereof, to the extent necessary to comply with applicable law.
  • Survival of the Counter-License. The Counter-License shall survive the termination of this Agreement; provided, however, that Company shall have no further obligation to process any Data or Information previously provided, existing, or newly provided by User to Company hereunder.

4. Limitation; Waivers of Liability. User acknowledges and understands that:

• “As-Is.” The Service is provided to User on an “as-is” basis, without warranty of any kind, either express or implied, including, but not limited to, warranties of title, 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 being limited to the shorter of (i) thirty (30) days from the date of User’s first use of the Service, or (ii) the minimum period required. Without limiting the foregoing, neither the Company, the directors, executive officers, employees, agents, attorneys, third-party content providers, distributors, licenses, or licensors of any (collectively, “Company Parties”) warrant that User’s use of the Service will be uninterrupted, bug-free, or error free.

To the fullest extent permitted by applicable law, the disclaimers of liability contained herein apply to any and all damages or injury whatsoever causes by or related to the use of, or inability to use, the Service under any claim, cause of action, or proceeding whatsoever of any jurisdiction. The Company Parties shall not be liable for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages in any way whatsoever arising out of the use of, or inability to use, the Service or otherwise in connection with this Agreement. Further, the Company Parties are not liable for, and User shall not seek to hold the Company parties liable for, the conduct of third-parties, including other users of the Service or operators of external websites.

• Business Opportunities. In the event that any of the Company Parties invests in any third-party business opportunity, neither Company nor any the other Company Parties shall have the obligation to make such an opportunity available to User.
• Disputes with Others. Company reserves the right, but at no point during or after the term of this Agreement shall have any obligation, to observe or manage any dispute between User and any other licensee of the Service.
• Intellectual Property Rights. During the term and thereafter, Company shall have no obligation to monitor or enforce any intellectual property rights that may be associated with Data, Information, or other materials provided by User to Company.
• Legal Compliance. The laws and regulations of the United States concerning corporate financial transactions are complicated and may be ambiguous. In general, such laws are designed to protect unsophisticated people from making poor investment decision, and do so, in part, by requiring that securities offered for sale in the United States be registered with the Securities and Exchange Commission (“SEC”) unless the offering qualified for an exemption from registration. User understands and acknowledges that it must make its own assessment regarding compliance with such laws through its use of the Service, and that Company is making no assessment and offering no advice with respect to User’s compliance with such laws, nor any other laws, through its license of the Service to User or otherwise. User shall obtain such professional advice as appropriate to protect its interests in using the Service.
• Third-Party Content. Company makes no warranty concerning, and disclaims all responsibility and liability for, the completeness, accuracy, availability, timeliness, security, or reliability of any information, data, or content provided to User by any third-party, including, but not limited to, other licensees of the Service or third-party advertisers or sponsors (collectively, “Third-Party Content”) either through User’s use of the Service or which User receives as a result of its relationship with Company.
• Third-Party or Hardware Failure. Company is not responsible 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 User 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 internet or in connection with the Service, including any mobile software. Under no circumstances will 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 Service or third-party applications, software or content posted on or through the Service or transmitted to users or any interactions between users of the Service, whether online or offline.

5. Indemnity. User agrees to indemnify and hold harmless Company and its directors, executive officers, employees, legal counsel, and other agents (collectively, the “Company Indemnified Parties”) from and against any and all losses, liabilities, deficiencies, costs, damages and expenses (including without limitation, reasonable attorneys’ fees and costs) incurred by the Company Indemnified Parties which, excluding Company’s gross negligence or willful misconduct, arise from or relate to: (i) User’s breach of this Agreement; (ii) any inaccuracy in or breach of the representations, warranties, and covenants made by User herein; (iii) any failure of User to comply with applicable law; (iv) User’s use of the Service in a manner inconsistent with this Agreement or any other written policy of Company; (v) User’s infringement or misappropriation by it or any Person using the Service on its behalf, of intellectual property or other right of any other Person. Further, User hereby releases any claims it may have against Company now or following the termination of this Agreement which in way relate to the Data or Information provided by User to Company through its use of the Service, and any consequences thereof, including the such of such Data and Information by other users of the Service.

6. Representations and Warranties. As applicable, and in addition to any and all other representations and warranties of User hereunder, User represents and warrants to Company as follows:

• User has all requisite power and authority to execute, deliver, and perform its obligations under this Agreement, and when so duly executed by User, this Agreement, shall constitute a legal, valid, and binding agreement of User enforceable against User in accordance with its terms.
• User is duly incorporated or organized and validly existing and in good standing under the laws of the state of its incorporation or organization, and is qualified to do business in all other jurisdictions in which User does business with respect to those jurisdictions where the failure to be so qualified would have a materially adverse effect on the business of User.

7. Miscellaneous.

• This Agreement may only be amended by the Company, and may be amended by the Company at any time by (i) posting of such amendment to Company’s website located at https://sbmdevtest.spicybroccoli.com/fundition, or (ii) written notice to User. User’s continued use of the Service following the date on such amendment is published or the subject of written notice to User shall constitute consent to such amendment. Neither the course of conduct between the Parties nor trade practice will act to modify this Agreement.
  • Informal Negotiations. Except as otherwise provided herein, for any dispute, controversy, or claim arising from or related to this Agreement, including, but not limited to, the breach, termination, enforcement, interpretation, or validity thereof (each, a “Dispute”), the Parties shall first attempt to negotiate a Dispute informally for at least thirty (30) calendar days before initiating any formal legal action, including arbitration hereunder. Such informal negotiations shall commence upon written notice from one (1) Party to the other Party. Such notice shall be sent in accordance with this Agreement.
  • Optional Binding Arbitration. Except as otherwise provided herein, if the Parties are unable to resolve a Dispute through informal negotiations, either may elect to have the Dispute finally and exclusively resolved by confidential, binding arbitration, and not in a class, representative, or consolidated action or proceedings. Any election to arbitrate by one (1) Party shall be final and binding on the other.

The arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in San Diego, California before one (1) arbitrator, who shall be a retired judge, selected by the Parties. The arbitration shall be conducted in accordance with either (i) the JAMS Streamlined Arbitration Rules or Procedures, if the amount in controversy is less than one hundred thousand dollars ($100,000.00), or (ii) the JAMS Comprehensive Arbitration Rules & Procedures if the amount in controversy exceeds one hundred thousand dollars ($100,000.00); provided, however, that each party shall have the right to participate in the arbitration through video conference as is reasonably necessary to minimize travel and costs. Each Party shall bear its own fees and expenses in such arbitration; provided, however, that the arbitrator may assess the prevailing Party’s fees and costs of arbitration, including the prevailing Party’s reasonable attorneys’ fees and costs, against the non-prevailing Party as part of the arbitrator’s award.

Either Party 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.

Such arbitration shall be confidential and neither Party nor the arbitrator shall disclose the existence, contents, or results of such process without the prior written consent of the other, except where necessary or compelled by a court of law to enforce this arbitration provision or an award from such arbitration or otherwise in a legal proceeding.

User understands and acknowledges that, absent this provision, User would have the right to take legal action against Company, or defendant a legal action brought by the Company against user, in a court of law subject to User’s right to a jury trial (if any).

• The Parties acknowledge and agree that specifically excluded from the necessity of informal negations and the right to binding arbitrated hereunder are (i) any Dispute seeking to enforce or protect, or concern the validity of, either Party’s intellectual property rights, or (ii) and claim for injunctive relief permitted hereunder.
• No Class Actions. The Parties agree that any claim brought in connection with a Dispute, whether resolved through arbitration or not, will be brought between Company and User individually, and that User may not assert any such claim against Company as class member or other form of representative party in any purported class or representative proceeding. To the fullest extent of the law: (i) no arbitration shall be joined with any other; (ii) no Dispute between Company and User is to be arbitration on a class action or representative basis, or to utilize such procedures; (iii) User may not bring any Dispute in a purported class action or representative capacity on behalf of the general public, other users of the Service, or any other Persons. Should this Section 7.2(d) be unenforceable, then the entirety of this Section 7.2 (“Arbitration”) shall be deemed null and void, and of no force or effect.

• California Residents. Under California Civil code section 1789.3, California residents who use the Service 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.”

• Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties, and supersedes all prior agreement between them, whether oral or written, relating to the subject of this Agreement.
• Governing Law; Venue. This Agreement shall be deemed to have been made and delivered in the State of California, and construed in accordance with its laws without regard to principles of conflicts of law. In the event that Section 7.2 herein is found to be illegal or unenforceable, any Dispute shall be decided by a court of competent jurisdiction within San Diego, California, and each Party waives any and all defenses of lack of personal jurisdiction and forum non conveniens with respect to such venue and the jurisdiction thereof.
• The captions and heading used in this Agreement are included for convenience of reference only, and in no way define or limit the terms of this Agreement. As used in this Agreement, the singular use of any work shall include the plural use of such word, and any pronoun shall include the corresponding masculine, feminine and neuter forms. Whenever the term “including” is used in this Agreement, it shall include “but not limited to.” Whenever the terms “and” or “or” are used in this Agreement, they shall be deemed to include the other, to the effect of “and/or.”
• No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, this Agreement shall be binding upon and inure solely to the benefit of the Parties, and their permitted successors and assigns, and nothing herein is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. User may not assign its rights or interests in this Agreement without the prior written consent of Company.
• Any notice or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (i) the date and time of transmission, if such notice or communication is delivered by email; (ii) the second (2nd) calendar day from the date of transmission, if such notice or communication is delivered by mail; or (iii) upon actual receipt by the Party to whom such notice or communication is being directed. And notice of communication to Company shall be sent to: FUNDSITION 4901 Morena Blvd, Suite 121 San Diego, CA 92117, info@andescap.com. Any notice to be sent to User shall be sent to its address as set forth in the books and records of the Company, or, if not such address has been provided, by email to the email address provided by User to Company in connection with its use of the Services.
• Except as otherwise provided herein, if any portion of this Agreement 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 without affecting the validity or enforceability thereof in any manner or in any other jurisdiction, and without affecting the remaining provisions of this Agreement, which shall continue to be of full force and effect.
• Specific Performance. The Parties recognize that irreparable injury will result from User’s breach of any provision of this Agreement and that money damages will be inadequate to fully remedy the injury. Accordingly, in the event of a breach or threatened breach of one (1) or more of the provisions of this Agreement by User, Company (in addition to any other remedies which may be available to Company) shall be entitled to one (1) or more preliminary or permanent orders (i) restraining and enjoining any act which would constitute a breach or (ii) compelling the performance of any obligation of User which, if not performed, would constitute a breach.
• As applicable, the representations and warranties of User shall survive any expiration or termination of this Agreement.
• The failure of a Party to terminate or enforce the terms of this Agreement upon the occurrence of any event of breach of this Agreement by the other Party will not be construed as a waiver or relinquishment of rights or obligations of the Party, and this Agreement shall remain of full force and effect.