Last Updated: 2020-06-28
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THEY FORM A BINDING AGREEMENT BETWEEN YOU AND SAVVYSHARES, AND GOVERN YOUR USE OF THE SAVVYSHARES SOFTWARE, TECHNOLOGY, WEBSITE, AND MOBILE APPLICATION.
THESE TERMS AND CONDITIONS ARE SEPARATE FROM AND IN ADDITION TO THE PURCHASER CONSENT, OFFERING CIRCULAR, AND SAVVYSHARES OPERATING AGREEMENT, WHICH YOU MUST ALSO ACCEPT BEFORE BECOMING A MEMBER OF SAVVYSHARES, AND WHICH SEPARATELY GOVERN YOUR PURCHASE OF SECURITIES AND YOUR RIGHTS AS A MEMBER.
These Terms govern your use of the SavvyShares software, technology, mobile application (the “App”), and the SavvyShares website (collectively, the “Platform”), as accessed from time to time by the user, regardless of whether the user is also a Member. Even if you do not become a Member of SavvyShares, your use of the Platform constitutes acceptance of the applicable terms herein. If you do not agree with these Terms, do not use the Platform. Continued use of the Platform constitutes your freely given, specific, and informed consent and agreement to the terms herein.
Please note that other products or services are governed by separate terms, including without limitation any products or services under the SurveySavvy or Luth Research brand names. These Terms only apply to your use of the Platform.
Description of Services
SavvyShares seeks to build and offer customers access to a database of Member Data owned by a community comprised of its Members, which we refer to as our “Database,” and also seeks to build a business focused on growing and developing the Database.
Our Database will be comprised of various types of data captured or delivered depending on the methodology and submitted into the Database, including behavior data tracked through our App, data obtained from self-reported surveys and interviews, behavior data obtained from third parties with a Member’s consent, and any other social or related data satisfying our requirements.
In exchange for their participation in surveys and other tracking and data capture activities, Members will receive shares in SavvyShares LLC. Subject to the other terms and conditions in the Operating Agreement, Members will be entitled to distributions at least once annually. In order to receive payment of any distributions with respect to the shares, Members may be required to request them through their Member account.
Through community participation, we aim to create a dynamic, secure, and longitudinal database along with a supporting ecosystem geared towards the compilation of behavioral insights. By making the Database available to third parties, with our Members’ consent, we aim to facilitate insights which lead to greater predictive power of behavioral information for client applications.
The App is the intellectual property of and is owned by Luth Research LLC, a Delaware limited liability company with an address at 1365 Fourth Avenue, San Diego, CA 92101 (“Luth Research”) and its licensors and suppliers. Luth Research licenses the App to SavvyShares PBC, a Delaware public benefit corporation, our Manager (the “Manager”) which in turn licenses the App to us. The structure, organization and code of the App are the valuable trade secrets and confidential information of Luth Research and its licensors and suppliers. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the App and all rights not expressly granted are reserved by Luth Research and its licensors and suppliers.
All other materials, software, designs, technology, text, images, and other intellectual property (collectively, “Materials”) contained in the Platform are the property of SavvyShares, the Manager, Luth Research or a third-party licensor. You may not modify, alter or change any Materials, or distribute, publish, transmit, reuse, repost, or use the content displayed on the Platform for public or commercial purposes, including, without limitation, any text, images, audio, or video included in the Platform. Unauthorized use of the Materials is strictly prohibited and is a violation of the rights of SavvyShares, the Manager, Luth Research, and/or third parties, including, without limitation, under copyright laws, trademark laws, and the laws of privacy and publicity. SavvyShares neither warrants nor represents that your use of Materials displayed in the Platform will not infringe any third-party rights.
The Platform may also contain many of the valuable trademarks, names, titles, logos, images, designs, copyrights, and other proprietary materials (the “Trademarks”) owned and registered by SavvyShares, our Manager, Luth Research or other SavvyShares affiliates, or a third-party licensor. Nothing herein should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Platform, or any license or right to use any other Trademark. In the event that you misuse any Trademark in violation of these Terms, the trademark holders and their licensees intend to aggressively enforce their intellectual property rights to the fullest extent of the law.
As long as you comply with the terms of this Agreement, SavvyShares grants to you a non-exclusive, nontransferable, limited, personal license to use the Platform, including the App, for the purpose of allowing the Platform to monitor, collect, store, aggregate and distribute information regarding your internet activity.
Your Rights as a Member
SavvyShares is managed by SavvyShares PBC (the “Manager”). Our Manager’s principal executive office is located at 1365 Fourth Avenue, San Diego, California, 92101.
Our Manager may modify the terms of our Operating Agreement and our Management Agreement, including the compensation paid to the Manager, unilaterally. Such modifications generally, but not always, require advance notice to Members.
Your SavvyShares Member Account
To protect your SavvyShares Member account, keep your password confidential. You are responsible for the activity that happens on or through your SavvyShares Member account. Do not reuse your SavvyShares account password on third-party applications. If you learn of any unauthorized use of your password or SavvyShares Member account, contact us. We also require additional options to secure your Member account including two-factor authentication which you activate during the sign-up process and can update in settings.
A Member may elect at any time to terminate his or her Purchaser Consent for us to use his or her Member Data or to remove selected (or all) of his or her Member Data from our Database, which will have the effect of revoking his or her Purchaser Consent as it relates to such Member Data (but not any other Member Data not removed). Such an election will result in the redemption of all of the Member’s shares (in the event of termination of his or her Purchaser Consent) or of all of the shares purchased with the affected Member Data (in the case of removing Member Data).
No consideration will be paid to Members if their shares are redeemed. Upon certain other events, such as the death of a Member, a fraudulent data submission or an invalid data submission, or an attempted or involuntary transfer of shares, we will either automatically redeem the affected shares, or have the option to redeem them.
Subject to certain exceptions at the election of a Member, including the affirmative election by a Member to donate the Member Data to us, if any shares are effectively redeemed, either by a Member or by us, our right to use the associated Member Data will be cancelled and the data may be removed from our Database or archived. For more information on redemption, see the Purchaser Consent and Operating Agreement.
Third Party Content
The Platform may include links to other sites and resources on the Internet. These third-party links are governed by their own terms and privacy policies. Because SavvyShares has no control over such third-party sites and resources, you acknowledge and agree that SavvyShares is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that SavvyShares will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.
The Platform may otherwise display some content that is not from SavvyShares. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do.
Your Access to the Platform
You may not be able to access or use the Platform: (a) during planned downtime for upgrades and maintenance to the Platform (of which SavvyShares will attempt to use commercially reasonable efforts to notify you in advance); or (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, war, acts of government, acts of terror or civil unrest, strikes, pandemics, technical failures beyond our reasonable control (e.g., inability to access the internet), or acts undertaken by third parties, including without limitation distributed denial of service attacks.
Your Commitment to Data Quality
SavvyShares is a community-owned platform, and as such it is critical that Members act ethically and take their responsibilities to each other and to SavvyShares seriously. Without limitation, these responsibilities include sharing accurate and complete data, and ensuring that you have the right to share that data with SavvyShares (for example, you aren’t sharing someone else’s data). Where SavvyShares determines, through our internal quality control processes, that a Member’s Shared Data is not of sufficient quality, materially incomplete, or overly duplicative, the data will not be added to our platform, and the Member will not earn shares for that data. See also the Purchaser Consent.
Access and Interference
You may not use the Platform if (1) you are under 18 years of age, or (2) you are barred from using the Platform under the laws of the jurisdiction in which you are a resident. Furthermore, you agree you will not:
- Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Platform;
- Solicit login information or other Personal Data of another Member, or access an account, belonging to someone else without legal authorization to do so;
- Use the Platform for the purpose of gathering information to file a legal claim against a third party;
- Attempt to breach any security or authentication measures of the Platform;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by SavvyShares or any other third party to protect the Platform;
- Interfere or attempt to interfere with any other person’s use of the Platform;
- Defame, abuse, stalk, threaten, intimidate, harass or otherwise violate the legal rights of any Member or employee, staff or agent of SavvyShares, the Manager, or any affiliate of SavvyShares;
- Do anything that could disable, damage, tamper with, impair or otherwise cause interruptions to the proper working of the Platform;
- Use any robot, spider, scraper or other automated means to access, data-mine, data-crawl, scrap or index the Platform in any manner;
- Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Platform;
- Provide any false personal information in your account, create more than one account, transfer your account or create an account for anyone other than yourself (unless legally authorized to do so);
- Do anything that is illegal, infringing, fraudulent, malicious or could expose SavvyShares or Members to harm or liability; or
- Use the Platform, or facilitate or encourage anyone else to use the Platform, in any way that violates these Terms or any applicable law or regulation.
You shall not copy the any Materials or software underlying the Platform. You shall not modify, adapt, translate, distribute, disclose or create derivative works of the Materials or the software underlying the Platform. You shall not remove or modify any markings or any notice of proprietary rights contained on or in the Platform. You shall not make the Platform available in any manner to any third party. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code underlying the Platform. You may not rent, lease, sell, sublicense, assign or transfer your rights in the Platform, or authorize all or any portion of the Platform to be copied onto another user’s computer or mobile device.
By using the Platform and/or registering as a Member, you agree to indemnify and hold harmless SavvyShares, the Manager, and SavvyShares affiliates (including without limitation Luth Research) (collectively, the “SavvyShares Parties”) from and against any loss, damage or expense, including reasonable attorney’s fees, resulting or arising from your (i) gross negligence or willful misconduct; (ii) breach of any third-party intellectual property rights; or (iii) breach of these Terms or applicable law.
Disclaimer of Warranties
THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SAVVYSHARES PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SAVVYSHARES PARTIES MAKE NO WARRANTY THAT (A) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (B) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS; OR (D) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SAVVYSHARES OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. SAVVYSHARES DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR USE OF THE PLATFORM AND, THEREFORE, THE SAVVYSHARES PARTIES SPECIFICALLY DISCLAIM ANY LIABILITY WITH REGARD YOUR USE OF THE PLATFORM, EXCEPT FOR YOUR RIGHTS UNDER THE OPERATING AGREEMENT AND LIABILITIES ARISING UNDER U.S. SECURITIES LAWS (AS DEFINED BELOW).
Limitation of Liability
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SAVVYSHARES PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE SAVVYSHARES PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE PLATFORM; (B) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE PLATFORM; (C) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (E) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (F) THE IMPROPER AUTHORIZATION TO USE THE PLATFORM BY SOMEONE CLAIMING SUCH AUTHORITY; OR (G) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM. NOTHING IN THIS LIMITATION OF LIABILITY SHALL LIMIT THE LIABILITY OF ANY SAVVYSHARES PARTY UNDER U.S. SECURITIES LAWS (AS DEFINED BELOW).
Updates to the Platform
SavvyShares may update the Platform from time to time and you may receive notifications of such upgrades, enhancements or updates. Any new or modified features added to or augmenting or otherwise modifying the App or other updates, modifications or enhancements to the Platform are also subject to these Terms and we reserve the right to deploy updates at any time.
Additionally, SavvyShares may also change content on the Platform at any time. However, please note that any of the content on the Platform may be out of date at any given time, and we are under no obligation to update it.
If the Platform is an update to a previous version of the Platform, you must possess a valid license to such previous version in order to use such update. All updates are provided to you on a license exchange basis. You agree that by using an update you voluntarily terminate your right to use any previous version of the Platform.
You agree that the Platform, including the Materials contained therein, will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Platform is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Platform or any of the Materials contained therein. All rights to use the Platform and the Materials are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
Notice to U.S. Government End Users
Our software and documentation are “Commercial Item(s), ” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. SavvyShares LLC, 1365 Fourth Avenue, San Diego, CA 92101 USA.
You agree that when licensing the software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §§227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, SavvyShares agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in these Terms.
Except were prohibited or limited by law (for example, in the case of private rights of action under the California Consumer Privacy Act), any dispute under these Terms (the “Covered Claims”) between a Member and SavvyShares shall be governed by California law regardless of your country of origin or where you access the Platform, and will be resolved by final and binding arbitration in San Diego, California, in accordance with Section 10.2 of the Operating Agreement.
Any Covered Claims involving a non-Member user and SavvyShares shall be governed by California law regardless of your country of origin or where you access the Platform, and the parties will submit all disputes arising under these Terms to arbitration in San Diego, California, before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law in California. No party to these Terms will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent either party from obtaining an injunction.
Any arbitration of any Covered Claim will take place on an individual basis without resort to any form of class or representative action.
THE PARTIES HERETO, INCLUDING EACH MEMBER AND THE MANAGER, WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST ANY OTHER PARTY TO AN ARBITRATION AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AS AGAINST PUBLIC POLICY (for example, in the case of private rights of action under the California Consumer Privacy Act). TO THE EXTENT ANY SUCH PARTY IS PERMITTED BY LAW OR ANY COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST ANY OTHER SUCH PARTY, THE PARTIES HEREBY AGREE THAT THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THESE TERMS).
Violation or Suspected Violation of Terms. If you violate these Terms, or if SavvyShares has a reasonable ground to suspect that you have violated these Terms, SavvyShares has the right to suspend or terminate your future use of the Platform (or any portion thereof).
Term for Cause of Action. To the maximum extent allowed by law, you agree that any claim or cause of action arising out of or related to your contribution of Personal Data or your use of the Platform must be filed within one (1) year after such claim or cause of action arose or be forever barred. For the avoidance of doubt, the forgoing sentence will not apply to claims or counterclaims brought pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or the rules and regulations thereunder (collectively, “U.S. Securities Laws”).
Admissibility of Printed Version. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Severability. If any portion of the Terms is found to be unenforceable, the remaining portion will remain in full force and effect.
Assignment. You may not assign or delegate any rights or obligations under the Terms. Any purported assignment and delegation shall be ineffective.
Changes to these Terms
SavvyShares reserves the right to update these Terms from time-to-time. We may update the Terms by notifying you of the proposed changes at least thirty (30) days before their effectiveness to provide you with the opportunity to terminate your Purchaser Consent or remove some or all of your Member Data if you do not want your Member Data to be bound by the revised Terms. When these changes are made, SavvyShares will make a new copy of the Terms available on the Platform. Such changes will not apply retroactively but may be effective immediately on being made available. You acknowledge and agree that if you use the Platform after the effective date of the change, SavvyShares will treat your use as acceptance of the updated Terms.