Terms & Policies

Sfumato Terms of Service

Effective Date: May 10, 2021


These Terms of Service (“Terms”) govern your use of our website (the “Site”) and related products and services, including any content or information provided as part of the Site or such related products, services or websites (collectively with the Site, the “Services”), which are owned or operated by Sfumato, Inc., a Delaware corporation (“Sfumato”, “we”, “our” or “us”).

Note: These Terms include your agreement to arbitrate most disputes and a waiver of your right to bring class action lawsuits, which affects your rights. Please see Section 13.

Note: Your subscription will automatically renew unless you tell us to cancel your subscription before the start of the next subscription period as described in Section 5.

Our Privacy Policy, available at https://www.sfumato.io/privacy-policy, is incorporated by reference into these Terms. Please read these Terms and the Privacy Policy carefully before you access the Services, as these Terms form a binding legal agreement between you and Sfumato.

If you are using the Site or Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity.  By accessing,  registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICES. YOUR USE OF OUR SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE SFUMATO PRIVACY POLICY.

1. Overview of Services; Disclaimer.

1.1

Overview of Services. Sfumato is a data analytics company founded to service both the venture capital investors with a market leading startup application pre-screening tool, and startup companies with a platform that will help them find and raise investor capital. Startup companies may use the Services to complete Sfumato’s proprietary company assessment tool (“Sfumato Assessment”) to render a metric for potential investment (“Sfumato Score”). The specific features and functionality of our Services are dynamic and may change from time to time.

1.2

Disclaimer. We reserve complete and sole discretion with respect to the operation of our Services.  We reserve the right to change terms and warranties without notice. We also reserve the right to withdraw, suspend, or discontinue any functionality or feature of our Services at any time.

2. Your Eligibility; Your Responsibility

2.1

General. To be eligible to use the Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to Sfumato; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of Sfumato or a third party. You assume all responsibility for your use of, and access to, the Services. Accounts are for either: (a) venture capital or other early stage investors (collectively, “Investors”); or (b) early stage or startup companies (collectively, “Startups”). Any multiple-party use, other than individual use on behalf of an Investor or Startup, is prohibited. For example, sharing a login between an Approved Investor (as defined in Section 2.2) and any non-Approved Investor is prohibited.

2.2

Investor Eligibility. Sfumato, in our sole discretion, shall establish the criteria for your eligibility to access the Services as an Investor, as may be updated from time to time. Factors that will be used to determine your access to the Services as an Investor include, without limitation, referral by an Approved Investor, your business email matching the name of your fund, and your social media history validating your status as an Investor. Any Investor that meets the criteria to access the Services as an Investor set forth by Sfumato will be deemed an “Approved Investor.”

2.3

Startup Eligibility. In order to have access to the Services as a Startup, you must either (a) obtain a free assessment code from an Approved Investor (“Referred Startup”); (b) purchase our Paid Services, as further described in Section 5 (“Active Startup”); or (c) receive permission from us to use and access a more limited set of Service features and functionality than Referred Startups and Active Startups (“Pre-Active Startup”). The Approved Investor that sends the Referred Startup its free assessment code shall have exclusive right to view the Content (as defined in Section 3) of such Referred Startup for thirty (30) days (“Exclusive Period”). Each Referred Startup will be given access to the Sfumato Assessment. Upon completion of the Sfumato Assessment, each Referred Startup will receive a Sfumato Score. If you are a Referred Startup, you immediately lose access to the Services at the end of the Exclusive Period, unless you become registered for Paid Services (as defined in Section 5).

3. Personal Information; Your Content; Your Account

3.1

Accuracy. By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us. Sfumato shall undertake reasonable efforts to verify the identity of Investors. You hereby release Sfumato from all claims, demands, or damages of every kind, known or unknown, in any way connected with any false information or otherwise misrepresented information provided to Sfumato from any Investor (including Approved Investors) or Startup. If you are a California resident, you shall and hereby do 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 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.”

3.2

Privacy. To use our Services, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the Sfumato Privacy Policy, available at https://www.sfumato.io/privacy-policy.

3.3

Your Content. As between you and Sfumato, you own the information, materials, or other content (the “Content”) you provide Sfumato under this Agreement. Any Content that you upload or otherwise provide to Sfumato in connection with the Services may be used by Sfumato in order to provide and promote the Services or Sfumato’s business. Accordingly, you grant to Sfumato, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. You authorize us to use, forward, or post your profile or related information on other sites and services. Additionally, you authorize us to use your corporate logo and corporate name, if applicable, for any promotional purposes (to opt-out, email us at opt-out@sfumato.io). Notwithstanding the foregoing, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and Sfumato. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). Sfumato may also remove or delete your Content from the Services at any time in its sole discretion.

Additionally, You agree that data derived by us from our performance of the Services or input by or feedback from you may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis may be used by us for any lawful purpose both during and following the termination or expiration of these Terms.

3.4

Interactions with Other Users. You are solely responsible for all interactions with other users. You acknowledge and agree that we do not have an obligation to verify any Content or other information provided by users on the Services. Sfumato offers various forums which allow you to post comments. Sfumato also enables sharing of information by allowing users to post content and information, including links and other information. Pursuant to the license granted by you above, Sfumato may grant other users of the Services access and share rights to your Content in accordance with these Terms, your settings and the nature of your connection with such other users; provided, however, Sfumato will not share the rights to your Content to any Investor without your express permission. Notwithstanding the foregoing, a Referred Startup automatically grants express permission to Sfumato to grant access and share rights to such Referred Startup’s Content to the Approved Investor from which such Startup received a free assessment code, during the Exclusivity Period, in accordance with these Terms and as described above. Information you share may be seen and used by other users of the Services. Sfumato cannot guarantee that users of the Services will not use the information that you share on Sfumato, nor the manner of use. Sfumato is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. You are solely responsible for your interactions with other users. Additionally, Sfumato is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content (including, without limitation, the Sfumato Score derived from such Content) or any other information provided by other users or any other third party. You hereby release Sfumato from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Services, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Services or were otherwise provided by a user (including, without limitation, a Sfumato Score). If you are a California resident, you shall and hereby do 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 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.” Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Services.

3.5

Your Account. Except for your Content licensed to us as set forth above, the account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.

3.6

Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Services or otherwise relating to Sfumato (“Feedback”) to Sfumato. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Sfumato shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Sfumato under any circumstances relating to such Feedback.

4. Personal Use; Limited License; Ownership

Subject to the terms and conditions herein, Sfumato grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Services through a generally available mobile device, web browser or Sfumato authorized Site to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host content for others. You may not copy or download any content from the Services except with the prior written approval of Sfumato. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and Sfumato.

Furthermore, without the prior written approval of Sfumato, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Services. Any commercial use not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using. The Services provided by Sfumato are licensed, not sold. The Services, and all copies of the Services, are owned by Sfumato or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. Sfumato reserves all rights not expressly granted to you herein. You agree that you have no right to any Sfumato trademark or service mark and may not use any such mark in any way unless expressly authorized by Sfumato.

Making unauthorized copies or distribution of Site content or otherwise violating these Terms may result in the termination of your Sfumato account, prohibition on use of the Services, and further legal action. Sfumato reserves the right to limit your use of or access to the Services, in its sole discretion in order to maintain the performance and availability of the Services and to enforce these Terms of Service.

Sfumato is not liable for the loss, corruption, alteration or removal of any content transmitted using our Services. By using our Services, you expressly waive the right to seek damages and agree to hold Sfumato harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Services.

5. Fees; Payment Terms; Credits

If you purchase any Services that we offer for a fee (“Paid Services”), you agree to pay the applicable fees for the Paid Services when due plus all related taxes. For any Referred Startup that wishes to continue access to the Services, the fees for the Paid Services will be $29.95/month. For any Active Startups, fees for the Paid Services will be as follows: (a) $99.00 for thirty (30) days of access to the Services; (b) $149.00 for ninety (90) days of access to the Services; (c) $199.00 for six (6) month of access to the Services; or (d) $299.00 for twelve (12) month of access to the Services. Unless you select the Paid Services described in Section 5(d) above, payment of all fees must be paid in total and prior to receiving access to the Services. If you select the Paid Services described in Section 5(d) above, you may pay fees for the Paid Services either (i) monthly in advance to receiving access to the Services at $27.95/month; or (ii) in total and prior to receiving access to the Services. Fees for the Paid Services for each Active Startup includes access to the Sfumato Assessment. Upon completion of the Sfumato Assessment, each Active Startup will receive a Sfumato Score.

All applicable taxes are calculated based on the billing information you provide us at the time of purchase. Unless otherwise denoted, all fees are assessed in U.S. dollars. You also agree that Sfumato and its third-party service providers providing payment processing services may store your payment information. We may charge your payment information for subsequent charges you authorize, such as account upgrades or other special charges authorized by you. If the payment method you use with us reaches its expiration date and you do not edit the applicable information or cancel such Paid Service, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts. If you purchase a subscription to a Paid Service, you will be billed for your first month immediately upon purchasing or upgrading to a subscription account. Unless otherwise set forth on an applicable ordering document incorporating these Terms, the Services are billed in advance on a monthly basis and are non-refundable. For any upgrade or downgrade in plan level, your payment information will automatically be charged the new rate on your next billing cycle in addition to the prorated change in the amount of your subscription for the remainder of the current billing cycle (downgrading your plan level may cause the loss of features or capacity of your account; Sfumato does not accept any liability for such loss). Your subscription account shall automatically renew, provided that you may cancel the subscription any time before the end of the current billing period and the cancellation will take effect on the next billing period. You shall retain access to such Paid Services from the time you cancel until the start of the next billing period, but you will not receive a refund or credit for any days remaining in your current billing period. You agree to reimburse us for all collection costs and interest for any overdue amounts.

Sfumato may offer certain customers free trials to Paid Services. If you purchase a subscription to a Paid Service that includes a free trial, you will receive free access to such Paid Service for the duration of the free trial period. At the end of the applicable free trial period, you will be charged the price of the subscription for such Paid Service and may continue to be charged until you cancel your subscription. To avoid charges, you must cancel before the end of the free trial period.

Failure to pay may result in the termination of your subscription. You may cancel or suspend your Paid Services by contacting Sfumato at billing@sfumato.io. Unless expressly stated to the contrary, we do not guarantee refunds for lack of usage, dissatisfaction or any other reason.

Paid Services may be subject to additional terms, in addition to these Terms, related to the provision of the Paid Service.

6. Acceptable Use Policy

You agree to comply with all applicable laws and regulations in connection with your use of the Services. You may not use our Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:

  • Using the Services while operating a motor vehicle;
  • The transmission or posting of chain letters or pyramid schemes, or other acts that involve deceptive online marketing practices or fraud;
  • Acts that may materially and adversely affect the quality of other users’ experience;
  • Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
  • Introducing malicious programs into Sfumato’s Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
  • Engaging in any monitoring or interception of data not intended for you without authorization;
  • Attempting to circumvent authentication or security of any host, network, or account without authorization;
  • Using or attempting to use any deep-link, scraper, robot, bot, spider, data mining, computer code or any other device, program, tool, algorithm, process or methodology to systematically access, acquire, copy, or monitor any portion of the Content or Site;
  • Using the Content in conjunction with any machine learning, neural network, deep learning, predictive analytics or other artificial intelligence computer or software program;
  • Using the Content as a factor in establishing an individual’s eligibility for employment, or for credit or insurance to be used primarily for personal, family, or household purposes;
  • Using the Services, or Site in such a way as to be deemed to be engaging in the offering or solicitation of investments in securities or to be using the Services or Site for any other improper investment purposes;
  • Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
  • Adapt, modify or create derivative works based on the Services, technology underlying the Services, or other users’ content, in whole or part;
  • Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by Sfumato in writing;
  • Using any method, software or program designed to collect identity information, authentication credentials, or other information;
  • Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
  • Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
  • Transmitting, receiving, uploading, using or reusing material that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • Falsifying user identification information;
  • Using the Services for anything other than lawful purposes including, but not limited to, intentionally or unintentionally violating any applicable local, state, national or international law; or
  • Impersonating any person or entity, including, but not limited to, an Sfumato representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.

Sfumato enforces a zero-tolerance SPAM policy regarding information transmitted through our network. Sfumato may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following:

  • Bulk unsolicited e-mail, promotional material, or other forms of solicitation sent via the Services, or e-mail that advertises any IP address belonging to Sfumato or any URL (domain) that is hosted by Sfumato.
  • The use of web pages set up on ISPs that allow SPAM-ing that directly or indirectly reference customers to domains or IP addresses hosted by Sfumato.
  • Forging or misrepresenting message headers, whether in whole or in part, to mask the true origin of the message.

If Sfumato determines that you have posted one or more articles of SPAM, we may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.

You agree not to use the Services for the purpose of recruiting for another website or service that offers competing functionality to the Services.

7. Copyright Protected Materials

Sfumato respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Sfumato has the right, but not the obligation, to remove from the Services any files, material, information, software or other material Sfumato believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.

If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: admin@sfumato.io

8. Right to Restrict or Terminate Access

Sfumato may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Sfumato in its reasonable discretion believes violates the letter or spirit of any of these Terms. If Sfumato denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.

In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, Sfumato reserves the right to delete all of your Content, data, and other information stored on Sfumato’s servers. Sfumato will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by Sfumato pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Sfumato will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Services, or the termination thereof.

You may terminate these Terms by terminating your use of the Services and any related account. Sfumato, in our sole discretion, may terminate these Terms or suspend your use or access of the Services at any time upon written notice to you, which may be provided via email. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. Termination of these Terms or the Services does not relieve you from your obligation to pay Sfumato any amounts owed to Sfumato.

9. Security

You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to Sfumato any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords. Sfumato shall not be liable for any unauthorized use of payment accounts.

10. Disclaimer of Warranty

Actual service coverage, speeds, locations and quality may vary. Sfumato will attempt to provide the Services at all times, except for limited periods for maintenance and repair. However, the Services may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Services or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users or the Services. The accuracy and timeliness of data received is not guaranteed.

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL SITE CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. SFUMATO DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. SFUMATO DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, SFUMATO’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

11. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL SFUMATO, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“SFUMATO PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.

AN SFUMATO PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID SFUMATO FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.

SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE SFUMATO PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SFUMATO TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE SECTION ABOVE WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

12. Indemnity

You agree to defend, indemnify and hold the Sfumato Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any rights of another; or (iv) your use of the Services. Sfumato reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.

13. Arbitration Agreement

13.1

Mandatory Arbitration; Exceptions and Opt-Out. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at admin@sfumato.io or by regular mail to 500 W 30th Street, New York, NY 10001within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Services. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of Georgia and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.

13.2

NO CLASS ACTIONS. Further, unless we otherwise agree in a writing signed by an authorized representative, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this agreement to arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in the Northern District of Georgia. All other claims will be arbitrated.

13.3

Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

13.4

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and may provide a separate form for Demand for Arbitration for residents of a particular state, such as California. The arbitrator will be either a retired judge or an attorney licensed to practice law with at least 15 years of experience and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

13.5

Arbitration Location and Procedure. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

13.6

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

13.7

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

13.8

Changes. Notwithstanding anything to the contrary in these Terms, if we change this “Arbitration Agreement” section after the date you accepted these Terms or access our Services, you may reject any such change by sending us written notice (including by email to admin@sfumato.io) within 30 days of the date such change became effective, as indicated in the “Effective Date” listed at the beginning of these Terms or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Arbitration Agreement” section as of the date you accepted these Terms, or accessed our Services.

13.9

Survival. This “Arbitration Agreement” section will survive any expiration or termination of these Terms.

14. Electronic Notices and Disclosures

You acknowledge and agree that Sfumato may provide notices and other disclosures to you electronically by posting such notices or other disclosures on Sfumato’s website or by emailing it to you at any email address provided to Sfumato by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.

15. Changes to the Terms

We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to the Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.

Your use or continued use of the Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.

16. Third-Party Terms & Content

We do not control, and we are not responsible for, any data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service or derived from third-party content and accessed through the Services.

From time to time, the Services may contain references or links to third-party materials not controlled by Sfumato or its suppliers or licensors. Sfumato provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that Sfumato is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that this Agreement does not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.

17. Securities Matters

17.1

No Offer of Securities. The Site, Services, Sfumato Score, and Content are for informational purposes only. Nothing in the Content constitutes, and nothing in the Content should be construed as: (a) a solicitation or offering of any investment or securities or a recommendation to acquire or dispose of any investment or security; or (b) the provision of any financial, tax, legal, or other advice.

17.2

No Investment Advice. Nothing in the Site, Services, Sfumato Score, or Content will be deemed to constitute: (a) information that specifically addresses any specific individual’s investment objectives, financial situation, or the particular needs of any specific person who may receive the Services or Content; (b) establishing an advisory relationship; or (c) a transaction in securities for the account of others.

17.3

Independence. None of our directors, officers, employees, or agents (i) acts on behalf of any Investor or Startup in providing information in the Content, (ii) is paid to market securities to investors, (iii) participates in negotiations between a Startup providing information in the Content and any Investor, (iv) handles any money or securities in transactions between Investors and any Startup providing information in the Content, or (v) assists any Startup providing information in the Content with the completion of any securities transactions between such Startup and an Investor.

18. Miscellaneous

These Terms, along with any rules, guidelines, or policies published on the Sfumato homepage constitute the entire agreement between Sfumato and you with respect to your use of our Services. The Site, Services, and Content are for informational purposes only. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose. The Services are intended for use only within the United States and its territories. We make no representation that the Services are appropriate, or are available for use outside the U.S. Those who choose to access and use our Services from outside the U.S. do so on their own initiative, at their own risk, and are responsible for compliance with applicable laws. We will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond our reasonable control. If there is any conflict between the Terms and any other rules or instructions posted on the Services, the Terms shall control. No amendment to these Terms by you shall be effective unless acknowledged in writing by Sfumato. Notwithstanding the foregoing, Sfumato reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. These Terms shall be governed by, and construed in accordance with, the laws of the state of Georgia, without reference to its choice of law rules. Subject to the arbitration provisions above, exclusive venue for any action arising out of or in connection with this agreement shall be in Atlanta, Georgia. The parties each hereby consent to the jurisdiction and venue in Atlanta, Georgia and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Sfumato shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect. You may not assign your rights or obligations under these Terms without the prior written consent of Sfumato. Sfumato’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms. These Terms do not limit any rights that Sfumato may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Sfumato, pursuant to this Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Sfumato. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services. Except as otherwise expressly set forth herein, there shall exist no right of any person, other than you and Sfumato, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by this Agreement.

If you have any questions, complaints, or claims, you may contact Sfumato at admin@sfumato.io.