Terms of Use | Airworthy Capital

Avestor Terms of Use

Last updated on May 1, 2022

Welcome to Avestor. Avestor Inc., a Delaware corporation (referred to as "Avestor," "we," or "us") provides the web site at www.avestorinc.com, including any subdomain thereof (the "Site", and together with the Avestor service and network, including any new features and applications, the “Service”), you signify that you have read, understand and agree to be bound by these terms of use (as they may be amended from time to time, the "Terms of Use"). For purposes of these Terms of Use, the term “you” includes you and any of your agents (such as a Registered Investment Advisor, financial planner, lawyer, accountant or anyone else using the Service and acting on your behalf), and any principal (such as an LLC or other entity) on whose behalf you are acting when accessing the Site. For the avoidance of doubt, if you are accessing the Service or applying for our products or services on behalf on an LLC, corporation, partnership, trust, or other person or entity, you represent that you have the authority to agree to our Terms of Service on behalf of the entity and that your use of the Site shall constitute the person or entity’s agreement.

Updates to Terms of Service
Eligibility
Registration & Account Security
Content
Non-Disclosure & Confidentiality
Restrictions
Trademarks/service marks, logos, slogans and taglines
Registered User or Client Disputes
Termination/exclusion
Visitor/Registered User/Client Suggestions
Links to other sites
Payment Functionality
Notifications and Communications
Reports and Complaints
Disclaimer of Warranty
Limitation of Liability
Exclusive Remedy
Indemnification
Governing Law and Jurisdiction
Miscellaneous
Disclaimer

1. Updates to Terms of Service

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Use at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Use.

In addition to these Terms of Use, you may enter into other agreements with us or others that will govern your use of the Service or related services offered by us or others. If there is any contradiction between these Terms of Use and another written agreement you enter into applicable to specific aspects of the Service, the other written agreement shall take precedence in relation to the specific aspects of the Service to which it applies.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitations, the Privacy Policy and the E-Sign Consent Agreement. All such terms are hereby incorporated by reference into these Terms of Use.

2. Eligibility

The Service is intended solely for Registered Users who, if they are a natural person, are eighteen (18) years of age or older, and any registration by, use of or access to the Service by anyone under 18 is unauthorized, unlicensed and in violation of these Terms of Use. The term “Registered User” means any individual, including you, as well as any business entity, who accesses or uses the Site themselves or through an agent. By using the Service, you represent and warrant that you are 18 or older and that you agree to abide by all of the terms and conditions of these Terms of Use. If you violate any of these Terms of Use, or otherwise violate an agreement between you and us, or for any other reason, we may terminate your account, delete your profile and any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service), at any time in our sole discretion, with or without notice, including without limitation if we believe that you are under 18. You agree that we will not be liable to you or any third party for any termination of your account.

Avestor provides platform capabilities to fund managers to manage their own investment funds using Avestor's infrastructure. Registered Users are eligible to become a Client of another fund on Avestor's platform. Qualifications for being accepted as a Client for those funds are determined by the Sponsors of those funds and Avestor does not participate in that decision making process. Clients may be requested to upload proof of accreditation as determined by the Sponsors.

In addition, Registered Users are eligible to become a Client of Avestor Ariel LP fund if you qualify as an Accredited Investor. An Accredited Investor is an Investor who has indicated, and we have made efforts to confirm, he or she has a net worth (individually or jointly) of at least $1,000,000 excluding the value of his or her primary residence or has individual income of at least $200,000 or has joint income of at least $300,000 for the past two years and reasonably expects to reach the same income level this year. In addition, you will be asked to provide identify verification information (e.g. driver’s license, government ID, etc) during the process to set up a client account.

For tax purposes, each Client will also be required to provide their social security number or tax ID number in order to meet Internal Revenue Service requirements.

3. Registration & Account Security

You will be required to register with us in order to access and use certain features of the Service. In consideration of your use of the Service, you agree to (a) provide accurate, current and complete information as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account.

You agree to (i) immediately notify us of any unauthorized use of your password or account or any other breach of security and (ii) ensure that you exit from your account at the end of each session when accessing the Service. You agree not to hold Avestor liable for any loss or damage arising from your failure to comply with this Section.

4. Content

The Site contains a wide variety of Content that is (1) proprietary to Avestor and its affiliates, or (2) proprietary to third parties. “Content” includes, but is not limited to text, data, files, documents, software, scripts, layout, design, function and “look and feel,” graphics, images, audio, videos, audiovisual combinations, interactive features and any other materials that you may view, access or download (but only as expressly permitted in paragraph C below) through the Site.

You acknowledge and agree that all Content, whether publicly posted or privately transmitted, as well as all derivative works thereof, are owned by Avestor or other parties that have licensed their material to Avestor, and are protected by copyright, trademark, and other intellectual property laws. Except as specifically permitted herein, Content may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the prior consent of Avestor or such third-party that owns the Content. All rights not expressly granted herein by Avestor and/or its licensors to you are reserved by Avestor and/or its licensors.

You may access and use Content solely for your information and personal, non-commercial use, as intended through the provided functionality of the Services and permitted under this User Agreement. Any modification of the Content, use of the Content on any web site or networked computer environment, or use of the Content for any purpose other than personal, non-commercial use, without the prior consent of Avestor or its licensors, as applicable, is a violation of the copyright, trademark, and other proprietary rights in the Content and is expressly prohibited. You agree not to circumvent, disable or otherwise interfere with security-related features of the Services that prevent or restrict the use or copying of any Content and not to alter, remove, or falsify any attributions or other proprietary designations of origin or source of any Content appearing on the Site. You shall not download any Content unless you see a “download” or similar link displayed by us on the Site for such Content. We do not have an obligation to detect the presence of Harmful Code (as defined in “Restrictions on the use of your Services” below). If you download any Content from the Site, you do so at your own risk. You agree that you are responsible for your own conduct while using the Site or Services and for any consequences thereof. You agree to use the Services only for purposes that are legal, proper and in accordance with this User Agreement, the Privacy Policy, and any applicable law, rules or regulations (including, without limitation, the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, any applicable state “Blue Sky” laws, any other applicable United States federal or state securities laws, regulations and rules, any securities exchange or self-regulatory organization’s rules or regulations, any consumer protection, unfair competition, and anti-discrimination laws or regulations and any applicable foreign laws).

Your use of the Services is at your sole risk and Content is provided to you on an AS IS and AS AVAILABLE basis. You understand that we do not guarantee the accuracy, safety, integrity or quality of Content and you hereby agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the Content, integrity, and accuracy of such Content. Nothing on the Site should be deemed to constitute a recommendation to purchase, sell or hold, or otherwise to constitute advice regarding, any registered or unregistered security.

5. Non-disclosure and confidentiality

In using the Services, you will have access to confidential information of Avestor and its affiliates that may include, but is not limited to the names, business and financial information, business plans, operating agreements, investment memorandums, and customer names of Avestor’s and its affiliates’ clients (collectively, “Confidential Information”). You agree to maintain and safeguard vigilantly the privacy and security of all Confidential Information. Without limiting the foregoing, you agree to undertake all necessary measures to ensure the privacy and security of all Confidential Information including without limitation: (i) to use the Confidential Information only for the purpose for which such Confidential Information was made available to you as a part of the Services (the “Permitted Purpose”) and for no other purpose whatsoever; (ii) not to access, use or disclose any Confidential Information that you have no legitimate authorization to access, use or disclose; (iii) not to access the Services or any Confidential Information for any other individual (except to the extent fully disclosed by you to Avestor) or any unauthorized third party; (iv) not to disclose Confidential Information to any third-party except to your attorneys and financial advisors who need to know such information to assist you to carry out the Permitted Purpose (the “Representatives”) and which Representatives are bound by a written confidentiality agreement containing disclosure and use provisions no less restrictive with respect to disclosure than those set forth herein; (v) to restrict physical and system access to the equipment which contains Confidential Information or which gives access to the Confidential Information (such as by diligently locking and monitoring office premises and requiring password verification to gain access to desktop computers); and (vi) to use Confidential Information in compliance with all applicable laws. You shall immediately notify, and cooperate fully with Avestor in the event you discover or suspect any unauthorized use of or access to the Services and/or Confidential Information. You hereby agree that you shall be responsible hereunder for any breach or threatened breach by the Representatives of the obligations set forth in this section as if such breach or threatened breach was committed by you. You acknowledge and further agree that all obligations relating to Confidential Information under this User Agreement will continue after termination of this User Agreement and termination of access rights hereunder.

6. Restrictions

You agree not to access or use the Services in an unlawful way or for an unlawful or illegitimate purpose, including without limitation any violation of the antifraud or registration provisions of the securities laws of the U.S. or any state therefore. You shall not post or transmit via the Services (a) a message or information under a false name; (b) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening or hateful to any person; or (c) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. You shall not attempt to disrupt the operation of the Services in any manner, including, but through the use of methods such as denial of service attacks, flooding or spamming and you will not transmit, distribute, introduce or otherwise make available in any manner through the Services any computer virus, keyloggers, spyware, worms, Trojan horses, time bombs or other malicious or harmful code (collectively, “Harmful Code”). You shall not use the Services in any manner that could damage, disable or impair our services or networks. You shall not attempt to gain unauthorized access to any user accounts or computer systems or networks, through hacking, password mining or any other means. You shall not use any robot, scraper or other means to access the Services.

7. Trademarks/service marks, logos, slogans and taglines

All trademarks, service marks, logos, slogans and taglines displayed on or through the Services are the property of Avestor or their respective owners and nothing contained herein should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on or through the Services without the express written permission of Avestor, or such third-party that may own the trademark, service mark, logo, slogan or tagline.

8. Registered User or Client disputes

You are solely responsible for your interactions with other Registered Users/Clients or fund managers of the Site both within the Site and outside of the Site. It is prohibited for Registered Users/Clients to contact each other outside of the Site for purposes related to the activities on the Site. Consistent with this prohibition, Avestor and its affiliates expressly disclaim any responsibility for interactions between Registered Users/Clients outside of the Site. We reserve the right, but have no obligation, to monitor interactions on the Site between you and other Registered Users/Clients, as well as any disputes between you and other Registered Users/Clients.

9. Termination/exclusion

You understand that the Services are provided as a courtesy to you and that we may modify, suspend or terminate all or a portion of the Services at any time in our discretion without prior notice to you. We reserve the right, in our sole discretion, to revoke, terminate or suspend any privileges associated with accessing the Services for any reason or for no reason whatsoever, including improper use of the Services or failure to comply with these Terms of Use, and to take any other action we deem appropriate. You agree that Avestor shall not be liable to you or any third party for any termination of your access to the Services. Account termination may result in the forfeiture and destruction of all information associated with your account.

10. Visitor/Registered User/Client suggestions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information provided by you to Avestor (collectively, “Feedback”) are not confidential and you hereby grant to Avestor a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Feedback as it deems appropriate, for any and all commercial or non-commercial purposes, in its sole discretion.

11. Links to other sites

The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third party websites, you do so at your own risk. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party. We do not exercise control over third party websites, and you acknowledge that Avestor is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. These other websites may place their own cookies or other files on your computer, collect data or solicit personal information from you. Other websites follow different rules regarding the use or disclosure of the personal information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit. Please be aware that the terms of our Privacy Policy do not apply to these third party websites.

12. Payment Functionality

Clients of Avestor’s fund or Sponsor funds may have access to payment functionality. In order to use the payment functionality of Avestor’s application, you must open a "Dwolla Account" provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla's financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla Account activity, and can be reached at www.avestorinc.com, support@avestorinc.com and/or 1-844-917-3929.

13. Notifications and Communications

For purposes of communicating with you regarding the Service, notice shall consist of an email from us to an email address associated with your account. You also agree that we may communicate with you through other means including email, cellular telephone, telephone or delivery services including the U.S. Postal Service. You agree that we shall have no liability associated with or arising from your failure to maintain accurate contact information.

You may contact us via email at: support@avestor.us or via U.S. mail or courier at:

Avestor Inc.
515 NW Saltzman Rd., #674

Portland, OR 97229

14. Reports and Complaints

If you believe that a Visitor, Registered User or Client has acted inappropriately, such as by violating these Terms, you may report your concerns either via the links we have included on the Service, or by contacting us by the means described above. If we are notified by a Registered User that he or she believes that certain Content at the Website is in violation of these Terms, we may investigate the allegation and determine in good faith, in our sole discretion, whether to remove or block access to such Content, or to take action with respect to person or persons responsible for posting the Content. We have the right (but not the obligation), in our sole discretion, to remove, relocate, or otherwise block or restrict any Content, with or without notice, and without liability.

15. Disclaimer of warranty

Access to the Services is provided “as is” and “as available” without any warranty of any kind, express or implied. To the fullest extent permissible pursuant to applicable law, Avestor, its affiliates and any person associated with Avestor and its affiliates, disclaims all warranties of any kind, either express or implied, statutory or otherwise, including but not limited to any implied warranties of title, merchantibility, fitness for a particular purpose or non-infringement. Without limiting the foregoing, Avestor does not warrant that access to the Services will be uninterrupted or error-free, or that defects, if any, will be corrected; nor does Avestor, its affiliates, nor any person associated with Avestor or its affiliates, make any representations about the accuracy, reliability, currency, quality, completeness, usefulness, performance, security, legality or suitability of the Services, that defects will be corrected, that our Site or the server that makes it available are free of viruses or other harmful components or that the Site or any Services or items obtained through the Site will otherwise meet your needs or expectations. You expressly agree that your use of the Services is at your sole risk. You shall be solely and fully responsible for any damage to any computer system, any loss of data, or any improper use or improper disclosure of information caused by you or any person using your login credentials. Avestor cannot and does not assume any responsibility for any loss, damages or liabilities arising from the failure of any telecommunications infrastructure, or the internet or for your misuse of any of advice, ideas, information, instructions or guidelines accessed through the Services.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Site for any reconstruction of any lost data. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Site or any Services or other proprietary material due to your use of the Site or any Services or items obtained through the Site or to your downloading of any material posted on it, or any website linked to it.

16. Limitation of liability

Avestor and its parents, subsidiaries, affiliates, officers, directors, agents or employees are not liable to you or any other person for any punitive, exemplary, consequential, incidental, indirect or special damages (including, without limitation, any personal injury, lost profits, business interruption, loss of programs or other data on your computer or otherwise) arising from or in connection with your use of the Services, whether under a theory of breach of contract, tort, negligence, strict liability, malpractice, any other legal or equitable theory or otherwise, even if Avestor has been advised of the possibility of such damages. You hereby release Avestor and hold it and its parents, subsidiaries, affiliates, officers, directors, agents and employees harmless from any and all claims, demands, and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services. You waive the provisions of any state or local law limiting or prohibiting a general release.

The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. This limitation of liability also applies with respect to damages incurred by you by reason of any products or services sold or provided on any linked sites or otherwise by third parties other than Avestor and received through the Services or any linked sites.

17. Exclusive remedy

Without limiting the limitation of liability above, in the event of any problem with the Services, you agree that your sole and exclusive remedy is to cease using the Services. Under no circumstances shall Avestor, its parents, subsidiaries, affiliates, officers, directors, agents or employees be liable in any way for your use of Services, including, but not limited to, any errors or omissions in the Services, any infringement by the Services of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of the use of the Services. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

18. Indemnification

Without limiting the generality or effect of other provisions of this User Agreement, as a condition of use, you agree to indemnify, hold harmless, and defend Avestor and its parents, subsidiaries, affiliates, suppliers, lenders, licensors or service providers and, in each case, their officers, directors, affiliates, subcontractors, agents and employees, lenders, licensors and suppliers and their parents, subsidiaries, affiliates, suppliers and their officers, directors, affiliates, subcontractors, agents and employees (collectively, “Indemnified Parties” and each, individually, an “Indemnified Party”) against all costs, expenses, liabilities and damages (including reasonable attorney’s fees) incurred by any Indemnified Party in connection with any third party claims arising out of: (i) your use of the Services; (ii) your failure to comply with any applicable laws and regulations; and (iii) your breach of any obligations set forth in this User Agreement. You shall not settle any such claim without the written consent of the applicable Indemnified Party.

If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

This defense and indemnification obligation shall survive this User Agreement and your use of the Service. Avestor reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Avestor in asserting any available defenses.

19. Governing law and jurisdiction

This User Agreement shall be governed by the laws of the State of Delaware without regard to its rules on conflicts or choice of law that would require or permit the application of the laws of any other jurisdiction. By agreeing to these Terms of Use and using the Site and the Services, you agree to submit to personal jurisdiction in Delaware for all purposes, the exclusive jurisdiction of the Delaware courts and you agree to waive, to maximum extent permitted by law, any right to a trial by jury for any matter. You and Avestor agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this User Agreement. You understand that you may consult with counsel about agreeing to this User Agreement, and you agree that by using the Site, and the Services, you are voluntarily accepting the User Agreement.

20. Miscellaneous

Until you become a Client of Avestor, review the confidential offering documents and sign the required partnership agreements, this User Agreement constitutes the sole agreement between you and Avestor for your use and the provision of the Services and the subject matter hereof, and no representations, statements or inducements, oral or written, not contained in this User Agreement shall bind either you or Avestor. Any of the terms of this User Agreement which are determined to be invalid, unlawful, void, or for any reason unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable any of the remaining terms of this User Agreement or affecting the validity or enforceability of this User Agreement as a whole. Failure to insist on performance of any of the terms of this User Agreement will not operate as a waiver of any subsequent default. No waiver by Avestor of any right under this User Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. You may not assign, transfer or delegate your rights or obligations hereunder, in whole or in part. This User Agreement shall be binding upon and inure to the benefit of each of the parties and the parties’ respective successors and permitted assigns. A printed version of this User Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this User Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

21. Disclaimer

No communication by Avestor, through the Site or any other medium, should be construed or is intended to be a recommendation to purchase, sell or hold any security or otherwise to be investment, tax, financial, accounting, legal, regulatory or compliance advice. Nothing on the Site is intended as an offer to extend credit, an offer to purchase or sell securities or a solicitation of any securities transaction. Investing in securities described in the Content on the Site poses risks, including but not limited to credit risk, interest rate risk, and the risk of losing some or all of the money you invest. Before investing in any securities you should: (1) conduct your own investigation and analysis; (2) carefully consider the investment and all related charges, expenses, uncertainties and risks, including all uncertainties and risks described in offering materials; and (3) consult with your own investment, tax, financial and legal advisors. The securities described in the Content on the Site are only suitable for accredited investors who understand and are willing and able to accept the high risks associated with private investments. Investing in private placements requires long-term commitments, the ability to afford to lose the entire investment, and low liquidity needs. This Site provides preliminary and general information about such securities and is intended for initial reference purposes only. It does not summarize or compile all the applicable information. This Site does not constitute an offer to sell or buy any securities. No offer or sale of any securities will occur without the delivery of confidential offering materials and related documents. The information contained herein is qualified by and subject to more detailed information in the applicable offering materials. Avestor is not registered as an investment adviser or broker-dealer. Avestor does not make any representation or warranty to any prospective investor regarding the legality or suitability of an investment in any securities.