Terms and Conditions
Some rules you need to abide by when using our service.
Last Updated: December 9, 2017
These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other online products and services (collectively, our “Services”) provided by Upturn Corporation (“Upturn” or “we”). If you (“you” or the “client”) do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14, do not access or use our Services.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
Description of the Services
The firm currently has a mobile application, also called Upturn, that provides you with information to consider when making decisions about buying and selling publicly traded stocks and certain other assets. The firm also may offer desktop apps, website access, or REST APIs integrated into third party applications. Upturn uses a proprietary algorithm to provide you with a technical analysis of how certain selected stocks or other assets are performing. This algorithm alerts you as to when a stock might potentially be on an “Upturn,” based on a technical analysis of historical data. The recommendations are to be taken purely as “potential” upward indicators and are not guarantees on the stock movements and the user should further investigate before making any purchase or selling decisions. Users can access information regarding historical performance, star or similar rating (based on historical performance), upturn indication, ending of upturn, loss, and average-days-invested. Upturn is registered as an investment adviser with the U.S. Securities and Exchange Commission; such registration does not imply a certain level of skill or training. The services and various risks are further described in Upturn’s Form ADV Brochure which is available at the same website where these Terms and Conditions are found. By agreeing to this Agreement, you acknowledge and understand that you are an investment advisory client of Upturn, and you hereby confirm that you have read and understand Upturn’s Form ADV Brochure, including as to risks of the app and of investment.
You must be at least 18 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. In no event may the investment advisory services be used by an individual retirement account (“IRA”), any retirement plan including one subject to the Employee Retirement Income Security Act (“ERISA”), or any other tax-exempt investor or tax-deferred or tax-advantaged form of retirement account, insurance account or educational savings account. No non-U.S. person may use the Services unless agreed with Upturn in writing.
User Accounts and Account Security
You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account.
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Use or attempt to use another user’s account without authorization from that user and Upturn;
Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
Bypass or ignore instructions contained in our robots.txt file, accessible at [insert URL], that controls automated access to portions of our Services; or
Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Copyright and Limited License
Our Services and all content and other materials contained in the Services including, without limitation, all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Upturn Content”) are the proprietary property of Upturn or its licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use our Services for your informational, non-commercial and personal use only. Such license is subject to these Terms and does not include: (a) any resale or commercial use of our Services or the Upturn Content in the Services; (b) the distribution, public performance or public display of any Upturn Content; (c) modifying or otherwise making any derivative uses of our Services or the Upturn Content, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of our Services, the Upturn Content or any information contained therein, except as expressly permitted on the Services; or (f) any use of the Services or the Upturn Content other than for its intended purpose. Any use of our Services or the Upturn Content other than as specifically authorized in these Terms, without the prior written permission of Upturn, is strictly prohibited and will terminate the license granted in these Terms. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated in these Terms, nothing in these Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
UPTURN CORPORATION and any other name, slogan or logos contained in our Services are trademarks of Upturn, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Upturn or the applicable trademark holder. You may not use any meta tags or any other “hidden text” utilizing “UPTURN CORPORATION” or any other name, trademark or product or service name of Upturn without our prior written permission. In addition, the look and feel of our Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Upturn and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company or organization names or logos mentioned in our Services are the property of their respective owners. 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.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Upturn, its affiliates and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Upturn Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Services; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Upturn Parties of any third party Claims, cooperate with Upturn Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Upturn Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Upturn or the other Upturn Parties. No provision of this agreement waives any rights you may have under applicable securities laws with respect to investment advisory advice.
Upturn is not a registered or licensed broker-dealer, or funding portal in any state, district, county, territory or municipality of the United States, or in any other country or territory. Upturn disclaims any broker-customer relationship with respect to any person or entity using the Services. None of the Services, content or other information provided on or through the Services constitutes an offer to buy or sell any securities or financial instruments. You are strongly advised to consult appropriate counsel before making any investments in companies you learn about through the Services. You will obtain such professional advice as is appropriate to protect your interests, including legal, tax, investment, accounting and other advice. You acknowledge that you are solely responsible for conducting due diligence on a potential investment. You acknowledge that investments can and do lose money and you should be prepared to lose your entire investment in securities in such companies.
You acknowledge that the information provided through the Services is based on a mathematical model and is not guaranteed to be accurate, complete, reliable, current or error-free. You acknowledge that star ratings provided through the Services for a stock are based on historical data with respect to Upturn, rather than a rating by a financial analyst, and are not a guarantee or prediction of future performance for such stock. Further, you acknowledge that the information provided through the Services does not take into account balance sheet, quarterly earnings performance, and other characteristics of a company, which might affect such company’s stock performance.
You will be solely responsible for complying with applicable laws regarding any transaction, including, without limitation, the determination of whether any investment complies with other applicable state or federal laws, or the law of any foreign government with jurisdiction over you or any investor. You acknowledge and agree that Upturn does not provide any representation or warranty that any securities or financial instruments offered by companies are being offered and sold in accordance with applicable state and/or federal securities laws, rules and regulations and/or exemptions therefrom.
We do not control, endorse or take responsibility for any third-party content available on or linked to by our Services.
Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Upturn does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Upturn attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
Limitation of Liability
Upturn and the other Upturn Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Upturn or the other Upturn Parties have been advised of the possibility of such damages.
To the consistent with the securities law, the total liability of Upturn and the other Upturn Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services.
The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Upturn or the other Upturn Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Upturn and the other Upturn Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Dispute Resolution; Binding Arbitration
The following applies to the extent permitted by law but is not intended to modify any rights you may have under the Advisers Act and does not affect the fiduciary duty that Upturn owes you upon your acceptance as an investment advisory client.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Upturn and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or Upturn seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Upturn seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Upturn waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Alameda County, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Upturn agree that any dispute arising out of or related to these Terms or our Services is personal to you and Upturn and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Upturn agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Upturn agree that for any arbitration you initiate, you will pay the filing fee and Upturn will pay the remaining JAMS fees and costs. For any arbitration initiated by Upturn, Upturn will pay all JAMS fees and costs. You and Upturn agree that the state or federal courts of the State of California and the United States sitting in Alameda County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Upturn will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by emailing us at email@example.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 14.
Governing Law and Venue
THESE TERMS AND YOUR ACCESS TO AND USE OF OUR SERVICES WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAW RULES OR PRINCIPLES (WHETHER OF CALIFORNIA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. ANY DISPUTE BETWEEN THE PARTIES THAT IS NOT SUBJECT TO ARBITRATION OR CANNOT BE HEARD IN SMALL CLAIMS COURT WILL BE RESOLVED IN THE STATE OR FEDERAL COURTS OF CALIFORNIA AND THE UNITED STATES, RESPECTIVELY, SITTING IN ALAMEDA COUNTY, CALIFORNIA.
By creating an Upturn account, if applicable, you also consent to receive electronic communications from Upturn (e.g., via email or by posting notices on our Services). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
Changes to these Terms
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account, if applicable, or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
Either party may terminate this agreement with immediate effect, and not requiring any prior notice. We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services. Neither party may, without the consent of the other party, assign this Agreement to any other person; for purposes of this provision “assignment” shall have the meaning given it under the Advisers Act and shall include only an actual change of control. In the event that Upturn is acquired, otherwise has a change of control, or otherwise requires a consent to assignment, such consent shall be deemed granted by the client if notice of such event is provided to the client and, after 45 days after such notice, the client has not objected to such assignment. Any such objection shall result in a termination of this Agreement and the client agrees in such event to discontinue use of the Services. Continued use of the Services shall be considered a renewal of this Agreement made after the assignment in question.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
These Terms constitute the entire agreement between you and Upturn relating to your access to and use of our Services. The failure of Upturn to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
Additional Terms Applicable to iOS Devices
The following terms apply if you install, access or use our Services on any device that contains the iOS mobile operating system (the “App”) developed by Apple Inc. (“Apple”).
Acknowledgment: You acknowledge that these Terms are concluded solely between us, and not with Apple, and Upturn, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
The scope of License: The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Warranty: You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Upturn. However, you understand and agree that in accordance with these Terms, Upturn has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
Product Claims: You and Upturn acknowledge that as between Apple and Upturn, Upturn, not Apple, is responsible for addressing any claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
Intellectual Property Rights: The parties acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, Upturn, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
Legal Compliance: You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address: Any questions, complaints or claims with respect to the App should be directed to:
1240 Gershwin Ter, Unit 201
Fremont, CA - 94538
Third-Party Terms of Agreement: You agree to comply with any applicable third-party terms when using the Services.
Third-Party Beneficiary: The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).