Terms of Use
Effective Date: September 15, 2023
Welcome to the investor portal of BMC Investments and BLDG II Management Co, LLC (together with their respective affiliates, the “Company,” “we,” “our” or “us”). These Terms and Conditions (this “Agreement”) govern your access and use of the Company’s investor portal made available through websites owned or controlled by the Company (now or in the future), including at https://bmcinv.com and webpages available from that website (collectively, the “Website”) or any services provided by the Company through the Website (the “Services”) (collectively, the Website and the Services are referred to herein as the “Investor Portal”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING, USING, OR REGISTERING TO USE THE INVESTOR PORTAL, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AND ANY ADDITIONAL RULES AND REGULATIONS GOVERNING ACCESS TO OR USE OF THE INVESTOR PORTAL, INCLUDING, BUT NOT LIMITED TO, ANY APPLICABLE AGREEMENT BETWEEN YOU AND THE COMPANY, AS WELL AS ANY TERMS IMPOSED BY OUR THIRD PARTY SUPPLIERS AND OTHER BUSINESS PARTNERS (THE “RULES”). IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE INVESTOR PORTAL.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THIS AGREEMENT BEFORE YOU AGREE TO THIS AGREEMENT.
1. Eligibility
By accessing, using or registering to use the Investor Portal you represent and warrant that you are at least 18 years old and are lawfully able to enter into and agree to the Agreement. If you are accessing or using the Investor Portal or creating an account in the Investor Portal on behalf of an entity, you represent and warrant that you are authorized to enter into the Agreement on behalf of any entity if you are accessing, using or registering to use the Investor Portal on behalf of that entity.
2. Scope
In the event of any conflict between this Agreement and the Rules, this Agreement shall control unless expressly stated to the contrary. In the event any other terms and conditions are presented on the Website, the terms and conditions with the most recent effective date shall control. Without limiting the foregoing, if you have an Investor Portal account, the most current version of this Agreement is available in the Documents section of the Investor Portal.
3. Changes to Terms
This Agreement and the Rules (unless expressly stated otherwise in the applicable Rules) may be modified by us from time to time without notice to you. We will post the revised document on the Investor Portal. Your continued use of the Investor Portal after we publish any change to this Agreement and/or the Rules (unless expressly stated otherwise in the applicable Rules), whether or not we send out a notice about the change, means that you have agreed to the updated Agreement or updated Rules (unless expressly stated otherwise in the applicable Rules), as applicable.
4. Limited License
Subject to your acceptance of and compliance with this Agreement, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, and non-exclusive license right to access and use the Investor Portal, to download and print copies of any portion of the Content (as defined below) to which you have properly gained access, only for your own personal, non-commercial use, and only if you do not remove, modify, or obscure any copyright, trademark, or other proprietary notices from the Content you download or print.
5. Ownership
a. All right title and interest in and to the Investor Portal, including, but not limited to, all of the software and code that comprises and operates the Investor Portal and all of the text, photographs, images, illustrations, graphics, audio, video, audio-video clips, advertising copy, and other materials provided through the Investor Portal (collectively, the “Content”) are owned by the Company or by third parties who have licensed their content to us. The Investor Portal is protected under trademark, service mark, trade dress, copyright, patent, trade secret, and other intellectual property laws. In addition, the entire Content of the Investor Portal is a collective work under United States and international copyright laws and treaties, and the Company owns the copyright in the selection, coordination, arrangement, and enhancement of the Content of the Investor Portal.
b. We reserve all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to you or any third party any intellectual property rights or other right, title or interest in or to the Investor Portal the Content, or any and all intellectual property provided to you or any other user in connection with the foregoing.
c. The Company names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within the Investor Portal, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of the Company and/or those of its affiliates (collectively, the “Company Marks”). All other trademarks, product names, company names, logos, service marks, and/or trade dress (collectively, “Other Marks”) mentioned, displayed, cited, or otherwise indicated within the Investor Portal are the property of their respective owners. You are not authorized to display or use the Company Marks in any manner without our prior written permission. You are not authorized to display or use the Other Marks without the prior written permission of the applicable third party.
6. Your Account
a. For your convenience, we have created an account for you in the Investor Portal based on our information for you that is on file. You are responsible for reviewing all information about you or your investment entities in your account the first time that you login to the Investor Portal and for immediately updating that information if it is outdated or otherwise incorrect. You must provide true, accurate, current, and complete information about you and/or your investment entities as may be prompted by any registration forms. If any information that you provide to the Company changes, you must promptly update the relevant registration information. All Personal Information (as such term is defined in the Company’s Privacy Policy) collected in the Investor Portal will be handled pursuant to our current Privacy Policy.
b. You are responsible for maintaining the confidentiality of your account username and password. The Company has the right to assume that anyone accessing the Investor Portal using a valid password associated with your account has the right to do so. You will be solely responsible for the activities of anyone who accesses the Investor Portal using a valid password associated with your account, even if the individual is not in fact authorized by you. You agree to take reasonable steps to prevent others from obtaining your account access information and to immediately change your username and password should you learn that these credentials have been lost or stolen and to promptly notify the Company of any unauthorized access to your account or any need to update or remove access for any of your employees or agents.
c. You acknowledge, understand, and agree that you do not have an expectation of privacy in activities related to the Investor Portal except as described in the Privacy Policy.
7. Account Termination
a. Cancellation by You. Subject to restrictions and other obligations set forth in this Agreement, you may, as applicable, withdraw your registration, unsubscribe and/or close your account at any time by providing written notice to the Company using any contact method in the Contact Us section of these Terms and following the instructions we provide. If you withdraw your registration, unsubscribe and/or close your account, these Terms will be terminated, your rights to access or use the Investor Portal shall immediately terminate. Any User Content you have Submitted using the Website may remain in our archives and continue to be accessible by other users. We have no obligation to return any User Content you have Submitted.
b. Suspension or Termination by Company. In addition to, and not in lieu of, any of our other rights set forth in this Agreement, we reserve the right, with or without notice and in our sole discretion, to, as applicable, terminate or suspend this Agreement, your registration, subscription, and/or account and/or your access to or use of the Investor Portal for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement, or in the case of any activity by you that may harm us or other users, including, but not limited to, fraud, abuse of privileges or misuse of the Investor Portal. You agree that we will not be liable to you or any third party for any such termination or suspension. If we exercise our termination rights available under this Agreement, your rights to access and use the Investor Portal shall immediately terminate and you must discontinue your access to and use of the Investor Portal.
c. Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive or illegal activity, we may refer such matter to appropriate law enforcement authorities.
d. Survival. The provisions of this Agreement which by their nature are intended to survive the termination or cancellation of this Agreement shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity, limitations of liability and dispute resolution shall survive the termination or cancellation of this Agreement.
8. Acceptable Use of the Investor Portal; Internet Access Required
You may only use the Investor Portal for lawful purposes, in accordance with this Agreement, and only for intended purposes, as determined in the Company’s sole discretion, as documented in the following (“Acceptable Use Restrictions”).
You must notify us immediately should you become aware of anyone violating the Acceptable Use Restrictions and shall reasonably assist us with any investigations that we may conduct in light of the information you provide.
a. You are specifically prohibited from using the Investor Portal to defame, abuse, harass, bully, threaten or otherwise violate the legal rights (such as the rights of privacy and publicity) of others, and/or publish, post, distribute or disseminate any defamatory, infringing, obscene, pornographic, sexual, indecent or unlawful material or information, including hate speech, to an individual or group of individuals based on the basis of religious belief, race, gender, age, disability, or otherwise, or engage in criminal behavior, or cause others to engage in any of the aforementioned conduct.
b. You shall not use the Investor Portal to engage in any of the following activities:
i. accessing, using, or uploading content to, or attempt to access, use, or upload content to another user’s account without permission;
ii. violating any federal, state, local, or other laws;
iii. transmitting or uploading to the Investor Portal any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs, or other items of a destructive nature;
iv. engaging in commercial activity, including, without limitation, commercial use of the Investor Portal, including but not limited to, sending spam, except for the purposes of engaging in the activities for which the Investor Portal was designed;
v. creating user accounts by automated means or under false, misleading, or fraudulent pretenses.
vi. inciting violence, or posting images containing nudity or graphic or gratuitous violence or
vii. identifying any person without their consent or disclosing anyone else’s personal contact details or invading their privacy
c. You shall not engage in, or attempt to engage in, any of the following:
i. reformatting or framing any portion of the Investor Portal;
ii. using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of the Investor Portal;
iii. taking any action that imposes, or may impose in the Company’s sole discretion, an unreasonable or disproportionately large load on our information technology infrastructure;
iv. modifying, adapting, translating, or reverse engineering any portion of the Investor Portal;
v. disrupting or otherwise interfering with the Investor Portal or the networks or servers used by the Company;
vi. impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity;
vii. creating an account for another person;
viii. selling, assigning, transferring, sublicensing, pledging, renting or otherwise sharing your rights under this Agreement;
ix. creating any derivative works based on the Investor Portal;
x. modifying, obscuring or removing any proprietary notices on the Investor Portal or copies thereof;
xi. harassing, annoying, intimidating or threatening any of our employees or agents engaged in providing any portion of the Services to you;
xii. collecting or storing, or attempting to collect or store, personal information about other users of the Investor Portal; or
xiii. any activity that is illegal under federal, state, local, or other laws.
d. Those portions of the Investor Portal that relate to current investment opportunities or to making investments offered therein are available only to certain qualified, registered and authorized users. Therefore, such portions may not be available in all jurisdictions.
e. For persons residing in the United States, only “accredited investors,” as defined in Rule 501 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), with a valid username and password, are authorized to access certain services and web pages (such persons being referred to as “Accredited Investors”). In general, to qualify as an Accredited Investor, (I) individuals must have a net worth of more than $1 million (excluding their primary residence), or gross income for each of the last two years of at least $200,000 ($300,000 jointly with their spouse) with a reasonable expectation of a similarly qualifying income during the current year, and (II) entities generally must not be formed for the specific purpose of acquiring the investment and have total assets in excess of $5,000,000. Prior to making any investment through the Investor Portal, you will be required to provide supporting documents proving that you are an Accredited Investor. Alternatively, you may use one of our third-party verification providers. Your failure to provide any information and documentation requested to confirm your status as an Accredited Investor will be cause for us to discontinue your access to the Investor Portal.
f. Access to the Investor Portal requires access to the Internet. You are responsible for providing and maintaining all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless or other connection and service fees associated with such access. Using the Investor Portal may allow you to receive Content on your mobile phone or other wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges from your wireless carrier, which are your sole responsibility.
9. Securities Offerings; No Professional Advice Provided
a. The documents you may access by using the Investor Portal contain information about a proposed offering of securities that will not be registered under the Securities Act, in reliance on the exemptive provisions of Section 4(a)(2) of the Securities Act, Rule 506(c) of Regulation D, and/or Regulation S, promulgated thereunder. Securities sold through private placements are restricted and not publicly tradeable, and are therefore illiquid. Neither the U.S. Securities and Exchange Commission nor any state securities commission or other regulatory authority has approved, passed upon or endorsed the merits of any offering on the Investor Portal. The offering of securities will only be made by means of a final private placement memorandum.
b. The Company is not a registered broker-dealer, funding portal, or investment adviser and does not conduct any activity that would require registration as such.
c. Investment overviews on the Investor Portal contain summaries of the purpose and principal business terms of the investment opportunities. Such summaries are intended for informational purposes only and do not purport to be complete, and each is qualified in its entirety by reference to the more detailed discussions contained in the investor document package relating to such investment opportunity. The information contained in the Investor Portal has been prepared by the Company without reference to any particular investment requirements or financial situation, and potential investors should consult with their own professional tax, legal and financial advisors before making any investment.
d. You may not become a beneficial owner of 20% or more of any issuer’s outstanding voting equity securities (an “Issuer Covered Person”) without becoming subject to certain “bad actor” disqualifying events described in Rule 506(d) of Regulation D (a “Disqualifying Event”). You represent that you are not subject to a Disqualifying Event and that you will promptly notify us in writing should any Disqualifying Events be applicable to you. To the extent you are subject to a Disqualifying Event, we reserve the right to cancel your investment and return any funds held in escrow or otherwise paid or submitted by you.
10. Privacy Policy
We may collect certain Personal Information from you when you access or use the Investor Portal, including through the use of technology. For information about how we collect, use, share and secure your Personal Information, and to learn how to make choices regarding certain Personal Information collection and processing activities, please see our Privacy Policy.
11. Disclaimers
a. Disclaimer of Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE INVESTOR PORTAL, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, CONTENT, OR ANY INVESTMENT AVAILABLE ON OR PROMOTED THROUGH THE INVESTOR PORTAL. THE INVESTOR PORTAL, AND ALL OF THE INFORMATION, INVESTMENTS, AND SERVICES MADE AVAILABLE THROUGH THE INVESTOR PORTAL ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE INVESTOR PORTAL, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, CONTENT OR INVESTMENTS MADE AVAILABLE THROUGH THE INVESTOR PORTAL. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THE INVESTOR PORTAL; (D) THAT THE CONTENT OF THE INVESTOR PORTAL IS ACCURATE, COMPLETE, CURRENT, RELIABLE; (E) THAT THE INVESTOR PORTAL WILL MEET YOUR OR ANY THIRD PARTY’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; AND (F) THAT THE INVESTOR PORTAL WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MIS-DELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING, WITHOUT LIMITATION AND AS APPLICABLE, YOUR USER CONTENT OR OTHER INFORMATION YOU SUBMIT THROUGH OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE INVESTOR PORTAL.
WE ARE NOT RESPONSIBLE OR LIABLE FOR, NOR DO WE REPRESENT OR OTHERWISE WARRANT THE PERFORMANCE OF ANY DEVICE YOU USE TO ACCESS OR USE THE INVESTOR PORTAL, INCLUDING, WITHOUT LIMITATION, THE CONTINUING COMPATIBILITY OF ANY DEVICE WITH THE INVESTOR PORTAL.
b. Exceptions
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
12. Indemnity
a. YOU AGREE TO INDEMNIFY AND HOLD THE COMPANY, ITS AFFILIATES, AND EACH OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS AND AGENTS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITY, LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE LEGAL FEES) INCURRED BY ANY INDEMNIFIED PARTY ARISING OUT OF, AS A RESULT OF OR IN CONNECTION WITH ANY BREACH OR ALLEGED BREACH BY YOU OR ANYONE ACTING ON YOUR BEHALF OF ANY OF THE PROVISIONS OF THIS AGREEMENT OR YOUR USE OF THE INVESTOR PORTAL, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR ACCESS TO OR USE OF THE INVESTOR PORTAL. YOUR VIOLATION OF THESE TERMS OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
b. Additional Remedies. The Released Parties reserve the right to seek all remedies available at law and in equity for your violation of these Terms, including the right to block access from a particular Internet address to the Investor Portal and report misuses to law enforcement.
13. Limitations of Liability
a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THIS AGREEMENT, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO THE USE OF THE INVESTOR PORTAL SHALL BE THE AMOUNT OF $100.
b. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE INVESTOR PORTAL OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE INVESTOR PORTAL.
c. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
e. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATE “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
f. IF YOU ARE ACCESSING THE INVESTOR PORTAL FROM NEW JERSEY, YOU (I) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF, OR INABILITY TO USE, THE INVESTOR PORTAL; (II) IRREVOCABLY WAIVE ALL LOSSES OF INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE INVESTOR PORTAL; (III) EXPRESSLY AGREE TO RELEASE AND DISCHARGE THE COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE INVESTOR PORTAL; AND (D) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST THE COMPANY FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF THE COMPANY AND ITS AFFILIATES AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
14. Confidentiality
a. Should you receive information from the Company or through the Investor Portal with respect to any investment activity, you may not further disclose or otherwise provide such information to another party.
b. You are entrusted with any information you receive on this Investor Portal from the Company, or other investors with respect to any investment activity. You acknowledge and agree to keep such information confidential. To the extent you opt not to review such confidential documents about potential investments, you acknowledge and agree that you assume the risk that such additional information may be relevant to your decision to invest in a particular investment opportunity, and you knowingly accept the risks of not reviewing such information.
c. You agree that the Company, at its sole discretion and to the extent permitted by law, may access, read, preserve and disclose your account information, usage history and submitted content in order to: (i) comply with any applicable law, regulation, legal process, or governmental request; (ii) respond to claims that any such content violates the rights of third parties, including intellectual property rights; (iii) enforce this Agreement and investigate potential violations thereof; (iv) detect, prevent, or otherwise address fraud, security, or technical issues; (v) respond to your requests for customer service; or (vi) protect the rights, property, or personal safety of the Company, users of the Investor Portal, or the public.
15. User Content
a. By providing, creating, posting, transmitting, displaying, publishing, distributing, broadcasting, uploading, or otherwise submitting (“collectively “Submit”) comments, data, images, text, photos, files, audio, voices, private messages, public messages and posts, and other content and materials, and to respond to content provided by others, collectively (“User Content”) to or through the Investor Portal, you hereby grant the Company a perpetual, irrevocable, worldwide right and license to copy, use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, broadcast, modify, alter and create derivative works of such content through the Investor Portal.
b. You acknowledge that the Company prohibits Submitting to the Investor Portal any User Content that infringes on any patent, trademark, copyright, trade secret, right of privacy, right of publicity, or any other applicable law or proprietary right.
c. By uploading, posting, blogging, or otherwise providing content to the Investor Portal, you represent and warrant that:
i. you have the legal capacity and authority to grant the rights and license set forth herein;
ii. the content that you submit to the Investor Portal does not infringe any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and
iii. the content that you submit to the Investor Portal is or was not obtained in an unlawful way that can lead to civil or criminal liabilities.
d. You indemnify and hold the Company harmless from any claims concerning or relating to User Content you Submit to the Investor Portal.
e. The Company reserves the right to take any actions that it deems necessary to protect its rights, all rights of which are specifically reserved.
16. DMCA Notice
a. The Company respects the intellectual property rights of others and has established the following procedure for receiving notice of infringement in compliance with the Digital Millennium Copyright Act (“DMCA”). Notices should be submitted to the Company’s copyright agent via email: investors@bmcinv.com (subject line: “DMCA Takedown Request”).
b. To be effective, the notice should include:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material on the Investor Portal;
iv. Information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an email address;
v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
17. Third Party Websites
Solely for your convenience, the Investor Portal may include links to websites and other online resources operated or provided by third parties. These links are provided for your convenience only. We have no control over the content of those websites or resources. We are not responsible for examining or evaluating the content or accuracy of, and does not warrant or endorse, any third-party website, resource, or any programs, products, or services made available through those websites or resources. If you decide to access any of the third-party websites that are linked to the Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
18. Your Consent to Electronic Transactions & Disclosures
a. As part of doing business with the Company, you consent to our provision of certain disclosures electronically, either via our Investor Portal or to the email address you provide to us. You further agree to receiving electronically all documents, communications, notices, contracts, and agreements, including any IRS tax forms, schedules or information statements, arising from, in connection with or relating to your registration as an investor on the Investor Portal, any investments you may make, your use of the Investor Portal, and the servicing of any investment you may make (each, a “Disclosure”), from the Company or any service provider we may use. The decision to do business with the Company electronically is yours. You agree that this Agreement sufficiently informs you of your rights concerning Disclosures.
b. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transaction to which such Disclosures relate. Your consent will remain in effect for as long as you have an account with the Investor Portal.
19. Termination
a. Notwithstanding anything in this Agreement, the Company reserves the right, without notice and in its sole discretion, to terminate this Agreement and/or your account, to block your use of the Investor Portal and/or to remove any Content. Further, the Company may also in its sole discretion and, at any time, discontinue providing the Investor Portal, or any part thereof, with or without notice.
b. You agree that the Company will not be liable to you or any third party for any termination of your access to the Investor Portal. Upon termination of this Agreement for any reason, all rights to the Investor Portal granted by the Company to you will immediately cease to exist and you shall discontinue all use of the Investor Portal.
c. If we suspect that you are engaging in any fraudulent, abusive, or illegal activity, we may refer such matter to appropriate law enforcement authorities.
d. The following provisions of this Agreement shall survive the termination of this Agreement for any reason: paragraphs a. and d. of Section 5 (Ownership); Section 11 (Disclaimers); Section 17 (Third Party Websites); Section 12 (Indemnity); Section 13 (Limitations of Liability); Section 14 (Confidentiality); Section 15 (User Content); Section 19 (Termination); Section 20 (Dispute Resolution); Section 21 (Violation of Agreement); Section 24 (Severability) and Section 25 (Headings).
20. Dispute Resolution
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
a. YOU AGREE THAT BY ACCESSING OR USING THE INVESTOR PORTAL YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE COMPANY ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
b. NOTWITHSTANDING SECTION 20.i., YOU AGREE, THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, YOUR USE OF THE INVESTOR PORTAL, OR YOUR DEALINGS WITH THE COMPANY SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. IF THIS SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE THEN NEITHER YOU NOR COMPANY WILL ELECT TO ARBITRATE ANY DISPUTE FALLING WITHIN THAT PORTION OF THIS SECTION FOUND TO BE ILLEGAL OR UNENFORCEABLE AND SUCH DISPUTE SHALL BE DECIDED BY A COURT OF COMPETENT JURISDICTION WITHIN THE COURTS LISTED FOR JURISDICTION BELOW, AND YOU AND COMPANY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT.
c. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FEDERAL ARBITRATION ACT. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
d. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND THE COMPANY AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.
e. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS YOU MUST ABIDE BY THE FOLLOWING RULES: (I) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (II) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN THE CITY AND COUNTY OF DENVER, COLORADO. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. IN ANY ARBITRATION PROCEEDING BETWEEN YOU AND THE COMPANY IN CONNECTION WITH THIS AGREEMENT, YOUR USE OF THE INVESTOR PORTAL, OR YOUR DEALINGS WITH THE COMPANY, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
f. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
g. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, YOUR USE OF THE INVESTOR PORTAL, OR YOUR DEALINGS WITH THE COMPANY MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
h. YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE CITY AND COUNTY OF DENVER, COLORADO, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THIS AGREEMENT. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE INVESTOR PORTAL AND YOUR RELATIONSHIP WITH THE COMPANY. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1–16 (“FAA”), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG.
i. IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE INVESTOR PORTAL, YOU MUST SEND US A LETTER STATING, “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING ADDRESS: 205 Detroit Street, Suite 400, Denver, Colorado 80206.
j. In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state and federal courts located within the City and County of Denver, Colorado, as appropriate, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
k. This Agreement will be governed by the laws of the State of Colorado, without giving effect to any principles of conflicts of laws.
21. Violation of Agreement
a. The Company reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including the right to block access from a particular Internet address to the Investor Portal, or report misuses to law enforcement.
b. The failure of the Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
22. Third-Party Beneficiaries
Except as otherwise provided in this Agreement, this Agreement does not confer any rights, remedies, or benefits upon any person other than you and Company.
23. Force Majeure
The Company shall not be liable for any delay in performing, or failure to perform its obligations under this Agreement or the performance of any portion of the Investor Portal resulting from any cause beyond its reasonable control, including, without limitation, acts of God, fire, strikes, energy interruptions, labor disputes, natural disaster, flood, earthquake, epidemics, inability to obtain equipment, supplies or other facilities, terrorism, criminal activity, governmental demands or requirements, war (declared or undeclared), or the acts of government (each, a “Force Majeure Event”). If affected by a Force Majeure Event, the Company shall be excused from performance to the extent prevented by such event.
24. Severability
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
25. Headings
The section headings and sub-headings contained in this Agreement are for convenience only and have no legal or contractual effect.
26. Contact Us
If you have any questions or concerns about the Investor Portal, any of our Services or this Agreement, please email us at investors@bmcinv.com.