Last updated: November 21, 2019
High Yield Management, Inc. is pleased to provide you its site where these terms are posted, and the software, applications, content, products, and services accessible from the site (“Services”). These terms govern your use and our provision of the Services. Please read these terms carefully before using the Services.
ANY DISPUTE BETWEEN YOU AND US MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION IN THESE TERMS AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
This is a contract between you and High Yield Management, Inc.. If you are using the Services on behalf of a business or other entity, then “you” refers also to the business or entity for which you are acting and which is also bound by this contract.
You must read and agree to these terms before using the Services, regardless of whether you are a registered member of the Services. If you do not agree, you may not use the Services. These terms describe the limited basis on which the Services are available and supersede prior agreements or arrangements.
Supplemental terms and conditions may apply to some Services, or to other agreements that you may have with us, such as investment or borrowing agreements. Supplemental terms and conditions will be disclosed to you in connection with those other activities or relationships. Any supplemental terms and conditions are in addition to these terms and, in the event of a conflict, prevail over these terms.
We may amend these terms from time to time. If we do this, we will post the changed terms in the Services and will indicate at the top of this page the date the terms were last revised. Any amendment will be effective when posted. If you do not agree to any change in these terms, you may not continue using the Services.
We may immediately terminate this contract with respect to you (including your access to the Services or any portion of the Services) if you fail to comply with any provision of these terms, if you violate any other agreement between you and us, or for any other reason, at any time in our sole discretion, with or without notice.
Who Is Eligible
You may use the Services only if you are a natural person aged 18 or older, or a business or other entity in good standing in each jurisdiction in which you are registered to conduct business.
If you are using the Services on behalf of a business or other entity, you represent and warrant that you are authorized to do so by the business or other entity, that you have the power and authority to enter into binding agreements on behalf of the business or entity or in the capacity in which you are acting, and that the business or entity is in good standing in each jurisdiction in which it is registered to conduct business.
Proprietary Rights in Services; Limited License
All content included in the Services is our copyrighted property, and all trademarks, service marks, trade names and other intellectual property rights in the Services are owned by us. No element of the Services may be used or exploited in any way other than as part of the Services. We retain full ownership of the Services.
If a Service is configured to enable you to use content we own, we grant you a limited, non-exclusive, non-sublicensable, non-transferable license to access and use such content for your personal, non-commercial use only, provided that you keep all copyright and other proprietary notices intact.
No content included in the Services may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, except as provided in the preceding sentence. No other license is granted or implied by these terms.
You may not:
- use any automated means to access the Services or collect any information from the Services (including, without limitation, robots, spiders, scripts or other automatic devices or programs);
- frame the Services, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over the Services, or otherwise affect the display of the Services;
- engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
- use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; or
- use, copy, or imitate our trademarks or trade dress, including as part of trademarks or domain names, in connection with any product or service in any manner that is likely to cause confusion.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Any use of the Services that is not specifically authorized in these terms is strictly prohibited and will terminate the license. We may revoke this license at any time without notice and with or without cause.
Your Registration Data
You agree to:
- provide accurate, current and complete information about you as may be prompted by the Services or that we may otherwise request, for example, to establish or verify your identity or authority to enter into binding agreements, or to establish or verify an entity’s legal existence, good standing in any jurisdiction and eligibility to use the Services (“Registration Data”);
- maintain the security of your password and identification;
- maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current and complete;
- promptly notify us regarding any material changes to information or circumstances that could affect your eligibility to continue to use the Services or the terms on which you use the Services; and
- be fully responsible for all use of your account and for any actions that take place using your account.
Limitations on Your Use of Services
You agree not to use the Services to:
- register for more than one user account, register for a user account on behalf of an individual other than yourself, operate a user account on behalf of or for the benefit of any person who is not eligible to register for or operate a user account in their own name;
- conduct activities that are prohibited by law or regulation (including United States export control and economic sanctions laws), that you are not duly authorized to conduct, or that are prohibited by any other agreement between us;
- violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or transmit libelous, defamatory or otherwise unlawful material;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with or authority to act on behalf of any person or entity; or
- use or attempt to use another’s account, service or system without authorization from that person and us, or create a false identity on the Services.
Consent to Electronic Transactions and Disclosures
Some users of the Services will have other business relationships with us, for example, as our prospective or active investors or borrowers. We expect to transact business electronically with users of the Services. You agree to receive electronically all documents, communications, notices, contracts, and other materials arising from or relating to your use of the Services, including any investment or borrowing agreements, IRS forms, account information, or disclosures (“Communications”). IRS forms include, for example, IRS Form 1099 and other forms, schedules, or information statements, and corrections of such documents, required to be provided pursuant to U.S. Internal Revenue Service rules and regulations and that may be provided electronically. These terms set forth our agreement with you regarding Communications.
Scope of Consent. Your consent to receive Communications and transact business electronically, and our agreement to do so, applies to any transactions to which such Communications relate. Your consent will remain in effect for so long as you are a user of the Services or are transacting business with us as an investor or borrower, and will continue until all Communications relating to transactions that occurred while you were a user have been made.
Electronic Communications. Any Communications will be provided to you electronically through our Services or via electronic mail to the email address you provided. If you require paper copies of such Communications, you may write to us at the mailing address provided below and a paper copy will be sent to you at a cost of up to $5.00. A request for a paper copy of any Communications will not be considered a withdrawal of your consent to receive Communications electronically. Any IRS forms provided electronically will remain accessible through at least October 15 of the year in which such IRS form is made available; after that time the IRS form may no longer be accessible electronically. We may discontinue electronic provision of Communications at any time in our sole discretion. You will print or otherwise save a copy of these terms and you will print or otherwise save all Communications.
Hardware and Software Requirements. In order to access and retain Communications electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet with email attachments of at least 10 megabytes; supported Web browsing software (Chrome version 32.0 or higher, Firefox version 26.0 or higher, Internet Explorer version 8.0 or higher, or Safari version 7.0 or higher); and hardware capable of running this software.
TCPA Consent. You consent to receiving calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, agents and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). Your cellular or mobile telephone provider will charge you according to the type of plan you carry.
Additional Mobile Technology Requirements. If you are accessing the Services and the Communications electronically via a mobile device (such as a smart phone or tablet), in addition to the above requirements you must make sure that you have software on your mobile device that allows you to print or otherwise save the Communications presented to you. These applications can be found for most mobile devices in the device’s respective “app store.” If you do not have these capabilities on your mobile device, please access the Services through a device that provides these capabilities.
How to Contact Us regarding Electronic Communications. You can contact us via email at [email protected]. You may also reach us in writing to us at the following address: 100 Harbor Drive, Suite 3206, San Diego, CA 92101.
Ensure Your Contact Information is Current. You will keep us informed of any change in your email, mailing address, or telephone number so that you can continue to receive all Communications in a timely fashion. If your contact information changes, you must notify us of the change by sending an email to [email protected].
The Services include access to information regarding securities we are proposing to offer for sale, including one or more Private Placement Memorandums (“PPM(s)”).
Information contained in a PPM is subject to completion or amendment. A PPM shall not constitute an offer to sell or the solicitation of an offer to buy nor may there be any sales of these securities in any state in which such offer, solicitation or sale would be unlawful before registration or qualification under the laws of any such state.
Any written communication regarding solicitations of interest in a contemplated offering will include a means by which you may indicate to us that you are interested in a potential offering. We may require your name, address, telephone number, and/or email address in any response form included pursuant to this paragraph.
If solicitation of interest materials are used and such solicitation of interest materials contain information that is inaccurate or inadequate in any material respect, revised solicitation of interest materials will be redistributed in a substantially similar manner as such materials were originally distributed.
Investing in our securities involves a high degree of risk, including risks associated with income tax, use of proceeds and conflicts of interest. Before buying any securities, you should carefully read the discussion of material risks of investing in the securities in the “Risk Factors” section of a PPM.
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION DOES NOT PASS UPON THE MERITS OF OR GIVE ITS APPROVAL TO ANY SECURITIES OFFERED OR THE TERMS OF THE OFFERING, NOR DOES IT PASS UPON THE ACCURACY OR COMPLETENESS OF ANY PPM OR OTHER SOLICITATION MATERIALS. THESE SECURITIES ARE OFFERED PURSUANT TO AN EXEMPTION FROM REGISTRATION WITH THE COMMISSION; HOWEVER, THE COMMISSION HAS NOT MADE AN INDEPENDENT DETERMINATION THAT THE SECURITIES OFFERED ARE EXEMPT FROM REGISTRATION.
Some of the content included in the Services summarizes information regarding the contemplated securities offering. Such summaries do not contain all of the information you should consider before deciding whether to purchase our securities. The summaries are subject to, and qualified in its entirety by reference to, the detailed provisions of the applicable PPM, and the other agreements associated with this offering. You should carefully read the entire applicable PPM, including the information under the heading “Risk Factors.”
We prepared the content included in the Services without reference to any particular user’s investment requirements or financial situation. Potential investors are urged to consult with professional tax, legal and financial advisors before making any investment.
We cannot guarantee and do not promise any specific results from use of the Services.
The Services include links, or you may be sent through the Services, to other web sites (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the “Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or Third Party Content accessed through the Services. Inclusion of or linking to any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to access the Third Party Sites, you do so at your own risk and you should be aware that our terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you may navigate from the Services.
The Services may be temporarily unavailable from time to time for maintenance or other reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, your communications. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Services or combination thereof, including injury or damage to users or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Services. Under no circumstances will we be responsible for any loss or damage, financial damages or lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Services or Third Party Content posted through the Services or transmitted to users, or any interactions between users of the Services, whether online or offline.
We reserve the right to change any and all content contained in the Services at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply our endorsement, sponsorship or recommendation thereof, or any affiliation therewith.
Limitation on Liability
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL WE OR OUR MEMBERS, MANAGERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF THE CONTENT INCLUDED IN THE SERVICES, EVEN IF WE ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES DURING THE TERM OF MEMBERSHIP. IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $1000. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.
SECTION 14 OF THE SECURITIES ACT OF 1933, SECTION 29(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AND CERTAIN OTHER FEDERAL AND STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to indemnify and hold us, our subsidiaries and affiliates, and each of their members, managers, directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with your use of the Services, your conduct in connection with the Services, or any violation of these terms or of any law or the rights of any third party. The previous sentence shall not apply to any extent to users while acting as an investor or while registering as an investor in connection with their use of the Services.
Governing Law; Venue and Jurisdiction; Arbitration
By visiting or using the Services, you agree that the laws of the State of California, without regard to any principles of conflict of laws that would require or permit the application of the laws of any other jurisdiction, will govern these terms. By agreeing to the terms and using the Services, you agree to submit to personal jurisdiction in California for all purposes, and you agree to waive, to the maximum extent permitted by law, any right to a trial by jury for any matter. Unless otherwise agreed in writing by you and us, any dispute arising out of or relating to the terms, or any breach thereof, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, or such arbitration body as required by law, rule or regulation, and final judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language before a single arbitrator in California Such arbitration must be commenced within one year after the claim or cause of action arises.
Notwithstanding the foregoing, either we or you may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision.
Any failure to exercise or enforce any right or provision of these terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these terms is held invalid, the remainder of these terms shall continue in full force and effect. If any provision of these terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. The provisions of these terms which by their nature should survive the termination of these terms shall survive such termination.