Last Updated: July 26, 2019
We may change these Terms from time to time. If so, any such changes will be posted on this page and Vitellus will notify all registered users of the Services by email of those changes. We recommend that you review these Terms on a regular basis. Your continued use of the Site or the Services shall constitute your acceptance of such revised Terms. Vitellus reserves the right to deny access to anyone who violates these Terms.
THESE TERMS REQUIRE YOU TO ARBITRATE ANY AND ALL CLAIMS AGAINST VITELLUS OR ANY OF ITS SUBSIDIARIES OR AFFILIATES, INCLUDING WITHOUT LIMITATION, HAPPYNEST REIT, INC. AND HAPPYNEST ADVISORS, LLC, OR THEIR RESPECTIVE AFFILIATES, OR THEIR OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “VITELLUS PARTIES”), AND FURTHER REQUIRE YOU TO WAIVE IMPORTANT RIGHTS, INCLUDING THE RIGHT TO JOIN IN ANY CLASS ACTIONS AGAINST ANY VITELLUS PARTY AND A RIGHT TO TRIAL BY JURY.
INVESTING IN REAL ESTATE HAS SIGNIFICANT RISKS, WHICH ARE EXPLAINED IN DETAIL IN THE HAPPYNEST SECURITIES OFFERING DOCUMENTS, WHICH SHOULD BE REVIEWED CAREFULLY PRIOR TO INVESTING. ONLY “QUALIFIED PURCHASERS” (AS DEFINED BY REGULATION A) OVER 18 YEARS OF AGE WHO ARE RESIDENTS OF NEW YORK, NEW JERSEY OR CONNECTICUT MAY MAKE INVESTMENTS THROUGH THE SERVICES.
HappyNest is a real estate investment trust, or REIT, which allows individual investors like you to purchase shares in HappyNest. HappyNest invests in commercial real estate portfolios that receive income from a variety of properties. The specific types of real estate in which HappyNest invests is described in HappyNest’s Offering documents, as further explained below under Securities Investment and Risk Disclosure. You can access the Services and start investing by downloading the Application from the Google Play Store (Android) or Apple App Store (iOS) and registering for an account. All user accounts are subject to our and HappyNest’s final approval. Registration for an account and activation of the Application require you to accept these Terms.
We are always working on new ways to improve the Services. Vitellus reserves the right to modify or change the Site, or any of the Services, temporarily or permanently, with or without notice to you, and Vitellus is not obligated to support or update the Site, or any Services. You acknowledge and agree that the Vitellus Parties shall not be liable to you or any third party in the event that Vitellus exercises its right to modify, change or discontinue the Site, or any Services.
The Site is for informational and educational purposes only. None of the information provided through the Site constitutes investment tax, financial or legal advice or service to any person, and the views expressed on the Site should not be taken as advice to buy or sell any security. Decisions based on information provided through the Site are your sole responsibility and are made at your own risk.
The securities offering by HappyNest (the “Offering”) is presented by means of formal offering documents, including an Offering Statement on Form 1-A and an Offering Circular, each as may be amended from time to time (“Offering Documents”). The Offering Documents may be accessed through the website of the Securities and Exchange Commission (the “SEC”) at www.sec.gov. The Offering Documents contain complete information on the risks of the investment, fees and expenses, and other material facts, and should be read carefully before investing. To understand the risks associated with the Services, please review the Offering Circular filed with the SEC. The information in the Site must be read in conjunction with the Offering Documents in order to understand fully all the implications and risks of an investment in the securities to which it relates.
The Offering will initially be available only to “qualified purchasers” (as defined by Regulation A) over the age of 18 in the state of New York, New Jersey and Connecticut. Certain market and third-party information on the Site has been collected from sources that HappyNest believes to be reliable, but such information has not been independently verified by HappyNest. You should conduct your own due diligence investigation in connection with any prospective investment. Any investment in HappyNest will entail a high degree of risk. No investment in the securities being offered in the Offering should be made by any person who is not in a position to lose the entire amount of such investment. Neither the SEC nor any state securities regulator has passed on or endorsed the merits of the Offering. Any representation to the contrary is unlawful.
An investment in HappyNest is not a bank deposit and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. INVESTORS SHOULD BE ABLE TO BEAR THE RISK OF LOSING PART OR ALL OF THEIR INVESTMENT.
The information provided on the Site does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, securities in any state or jurisdiction in which in which such offer, solicitation or sale would be unlawful, or in which the person making such offer or solicitation is not qualified to do so, or to anyone to whom it is unlawful to make an offer or solicitation. The information provided through the Site is intended only to qualified recipients and is not intended for distribution to, or use by, any person in any jurisdiction where such distribution or use would be contrary to law or regulation, or that would subject Vitellus to any registration requirement within such jurisdiction.
Vitellus makes no recommendations regarding the appropriateness of an investment in HappyNest for any investor. Each investor must review and evaluate the investment in HappyNest in the investor’s own discretion and determine the suitability of making the investment. Past performance is not indicative of future performance. There is a potential for the loss of part or ALL of an investor’s investment capital, and each investor should understand that all capital invested may be lost. Investors should only consider an investment in the Offering if they have no need for liquidity and can bear the risk of losing their entire investment.
PLEASE BE ADVISED THAT VITELLUS LLC IS NOT THE ISSUER OF THE OFFERING. THE SOLE ISSUER OF THE OFFERING IS HAPPYNEST. ANY QUESTIONS REGARDING THE OFFERING SHOULD BE DIRECTED TO HAPPYNEST.
HappyNest makes statements in the Site that are forward-looking statements within the meaning of the federal securities laws. The words “believe,” “estimate,” “expect,” “anticipate,” “intend,” “plan,” “seek,” “may,” and similar expressions or statements regarding future periods are intended to identify forward-looking statements. These forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause actual results, performance or achievements, or industry results, to differ materially from any predictions of future results, performance or achievements that HappyNest expresses or implies in the Site. The forward-looking statements included in the Site are based upon HappyNest’s current expectations, plans, estimates, assumptions and beliefs that involve numerous risks and uncertainties. Assumptions relating to the foregoing involve judgments with respect to, among other things, future economic, competitive and market conditions and future business decisions, all of which are difficult or impossible to predict accurately and many of which are beyond the control of HappyNest. These statements also involve known and unknown risks, uncertainties and other factors that may cause HappyNest’s actual results to be materially different from those expressed or implied by any forward-looking statement. Additionally, all forward-looking statements are subject to the risk factors detailed from time to time in HappyNest’s filings with the SEC, including without limitation, the Offering Documents. Because of these and other risks, uncertainties and assumptions, undue reliance should not be placed on these forward-looking statements. In addition, these statements speak only as of the date hereof and, except as may be required by law, Vitellus undertakes no obligation to revise or update publicly any forward-looking statements for any reason. Before you decide whether or not to invest in HappyNest, you should read the Offering Documents for more complete information about HappyNest and any investment in HappyNest.
By submitting any unsolicited information and materials, including comments, ideas, questions, designs, and other similar communications (collectively, “Unsolicited Information”) to Vitellus, you agree to be bound by the following terms and conditions. All Unsolicited Information is governed by these Terms. All Unsolicited Information will be considered NONCONFIDENTIAL and NON-PROPRIETARY. You grant to Vitellus a perpetual, worldwide, royalty-free, non-exclusive, irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, broadcast, sublicense, re-post, create derivative works from, transfer and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information. Such right and license includes use of any Unsolicited Information for any lawful purpose whatsoever, including, but not limited to the Services and for related marketing and advertising purposes. Further, the Vitellus Parties are free to use any ideas, concepts, know-how, or techniques contained in any Unsolicited Information you send to us for any lawful purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products, and related marketing and advertising purposes.
The Vitellus Parties are not responsible for any damages or losses of any kind resulting from any unauthorized use of your account, including without limitation any misuse of your user name and password. You agree to indemnify the Vitellus Parties and hold the Vitellus Parties harmless for any improper, unauthorized or illegal uses of your account, as further set forth in the Indemnification section of these Terms.
We may charge an administrative fee of up to $1 per month in connection with your subscription to the Application. The administrative fee, if any, will be deducted from the bank account that is linked to your account, on a monthly basis.
Use of Personal Data
HappyNest™ Intellectual Property
The Site and the Services contain materials, such as software, text, graphics, images, sound recordings, audiovisual works, domains, and other material provided by or on behalf of HappyNest™ that are protected by copyright, trademark and other intellectual property laws (collectively, the “HappyNest™ Intellectual Property”). The HappyNest™ Intellectual Property is owned by Vitellus, and licensed by Vitellus to HappyNest, and is protected under both United States and foreign laws. The HappyNest™ Intellectual Property includes the HappyNest™ registered and/or unregistered trademarks, service marks and logos that are used and displayed on the Site and owned by Vitellus. You are granted a limited, non-exclusive, non-transferable and terminable license to download, install and use the Application solely for purpose of accessing the Services, as further set forth in these Terms. Except as expressly permitted in these Terms, you have no rights in or to the HappyNest™ Intellectual Property. Site page content and images may be downloaded by you solely for reference or comment for personal, non-commercial use, or for uses that qualify as “fair use” under Section 107 of the United States Copyright Act.
By accessing the Site and/or using the Services, you hereby agree that:
- You will not use the Services for any unlawful purpose;
- All information provided through your account must be truthful and accurate, and you have a duty to update any information previously provided in order to keep it truthful and accurate;
- You will not “stalk” or otherwise harass another user of the Services;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; and
- You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means.
Vitellus does not warrant that the Application will be compatible or interoperable with particular mobile device models or operating systems, or any other hardware, software, equipment or device installed, or any mobile devices utilized, by you to access the Services. You acknowledge that compatibility and interoperability problems may cause the performance of the Application to diminish or fail completely, and may result in loss of data located on such mobile devices or corruption of software and files located on such devices. You acknowledge and agree that the Vitellus Parties and their business partners shall have no liability to You for any losses suffered resulting from or arising in connection with Application compatibility or interoperability problems. You are solely responsible for your own Internet, WiFi and cell service connections and bandwidth to access and use the Application.
Modifications and Updates to the Application
Vitellus reserves the right, in its sole discretion, at any time to (a) correct any errors or omissions in any portion of the Application, or (b) update, modify or discontinue, temporarily or permanently, the Application (or any part thereof), without prior notice and without any liability to You. Vitellus reserves the right, in its sole discretion, but has no obligation, to provide notice of any of the foregoing at any time by sending you an email to your email address associated with your account or posting the changes through a link within the Application itself. You are therefore required to keep current your Application account email address and other contact information provided to Vitellus.
Application updates may include patches, bug fixes, enhanced functionality, modified interface and new Application versions (collectively, “Updates”). By installing the Application, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the Application and any Updates will continue to be governed by these Terms and any amendments that may be provided with Updates.
No Vitellus Party shall be liable to you or to any third party for any of the actions or inactions of its third-party business partners regarding modification, price changes, suspension or discontinuance of the services of such third-party business partners that may work or integrate with the Application and the Services. Updates may add, modify and/or remove features from the Application. These Updates may be pushed out automatically with little or no notice, although Vitellus will make commercially reasonable efforts to notify you in advance of an upcoming Update, including an explanation on what the Update includes.
Disclaimer and Limitation of Liability
NONE OF THE VITELLUS PARTIES ENDORSE ANY INVESTMENT IN THE OFFERING. YOU ACKNOWLEDGE AND AGREE THAT THE SITE AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND FUNCTIONS, IS PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NONE OF THE VITELLUS PARTIES WARRANT THAT THE SITE OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. THE VITELLUS PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SITE OR THE SERVICES.
When you sign up for an account on the Application, you will also be prompted to sign up for a Dwolla account. You are responsible for complying with Dwolla Terms when using your Dwolla account. IT IS YOUR RESPONSIBILITY TO READ AND UNDERSTAND THE DWOLLA TERMS AS THEY CONTAIN IMPORTANT PROVISIONS RELATING TO YOUR DWOLLA ACCOUNT, INCLUDING BUT NOT LIMITED TO YOUR RIGHTS, LIMITATIONS, REVERSAL AND OTHER LIABILITIES, LIMITATION OF LIABILITY AND BINDING ARBITRATIONS PROVISIONS.
You agree to indemnify the Vitellus Parties for any losses we incur (including reasonable legal fees and expert fees) based on your failure to provide accurate, truthful, or complete information to Dwolla, or to use the Site or the Dwolla platform for any unauthorized or illegal purposes. Further, you agree to indemnify the Vitellus Parties for any Reversal Fee (as defined in the Dwolla Terms) assessed against Vitellus due to insufficient funds in your bank account(s) or due to any reason within your control.
Applicable to Escrow Users Only: By creating an account on the Site, you expressly authorize Dwolla to originate credit transfers to your financial institution account.
Your agreement and license to use the Application and Services is effective until cancelled by you or terminated by Vitellus. Vitellus has the right, in its sole discretion and without notice or liability to you or any third party, to terminate your account, without limitation, based upon (a) breach by you of these Terms or other agreements or guidelines of Vitellus; (b) your use of the Application or Services for any unauthorized or illegal purpose; (c) requests by law enforcement or government agencies; (d) discontinuance of the Application and Services; and (e) unexpected technical or security issues.
Upon termination of your account for any reason, (a) your license to use and access the Application will immediately end, and (b) you will be remotely disconnected from the Application, which will be disabled on all mobile devices and any other hardware on which the Application was loaded by you. Upon termination, you shall delete all copies, full or partial, of the Application that were loaded on all such devices and hardware.
IN THE EVENT OF CANCELATION BY YOU OR TERMINATION BY US OF YOUR ACCOUNT, THE REPURCHASE OF SHARES BY HAPPYNEST WILL BE SUBJECT IN ALL RESPECTS TO THE TERMS OF THE HAPPYNEST SHARE REPURCHASE PROGRAM. SHARE REPURCHASES MAY BE SUBJECT TO A SIX MONTH HOLDING PERIOD. IN ADDITION, HAPPYNEST IS NOT REQUIRED TO REPURCHASE SHARES IF SUCH REPURCHASE WOULD MATERIAL IMPACT HAPPYNEST’S CAPITAL OR OPERATIONS. IN THE EVENT THAT SHARES ARE REPURCHASED BY HAPPYNEST, SUCH REPURCHASE WILL TAKE PLACE ON A SEMI-ANNUAL BASIS, WITH EFFECTIVE DATES OF REPURCHASE ON MARCH 31, AND SEPTEMBER 30 OF EACH YEAR. SHARES WILL BE REPURCHASED AT THE NAV PER SHARE CALCULATED AS OF SUCH DATE, AS FUTHER DISCUSSED IN THE OFFERING DOCUMENTS. AS A RESULT, IN THE EVENT OF TERMINATION OR CANCELATION, YOU MAY BE REQUIRED TO WAIT AN INDEFINITE AMOUNT OF TIME BEFORE YOUR SHARES ARE REPURCHASED FOR CASH. PLEASE REVIEW THE SECTION ENTITLED “SHARE REPURCHASE PROGRAM” IN THE OFFERING STATEMENT. IN THE EVENT THAT YOUR ACCOUNT IS CANCELLED OR TERMINATED AT THE TIME THAT YOUR SHARES ARE REPURCHASED, A CHECK WILL BE MAILED TO YOU AT THE ADDRESS PROVIDED BY YOU TO VITELLUS.
This section, the sections entitled HappyNest™ Intellectual Property, Indemnification, Disclaimer and Limitations of Liability, Indemnification, Governing Law, Mandatory Arbitration, Class Action Waiver, Exclusive Jurisdiction/Jury Waiver, and any other provisions of these Terms that by their nature are intended to survive termination or expiration, shall so survive.
Compliance with Applicable Laws
The Site and the Services are based and hosted in the United States, and the Services are intended to be used only by residents of New York, New Jersey and Connecticut who are age 18 years or older. No Vitellus Party makes any claims concerning whether the Site, the Services, or the HappyNest™ Intellectual Property may be appropriate for use outside of those states or the United States. If you access the Site, the Services, or the HappyNest™ Intellectual Property from outside those states or the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
THE ARBITRATION SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”) AND THE SPECIFIED RULES OF JAMS THAT ARE NOT INCONSISTENT WITH THE FAA.
CLASS ACTION WAIVER
YOU EXPRESSLY WAIVE ANY RIGHT TO BE NAMED AS A PLAINTIFF OR PARTICIPATE IN ANY CLASS ACTION AGAINST THE VITELLUS PARTIES. YOU AND THE VITELLUS PARTIES AGREE THAT ANY ARBITRATION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
EXCLUSIVE JURISDICTION/JURY WAIVER
TO THE EXTENT ANY RELIEF IS NECESSARY IN THE FORM OF COURT ACTION TO COMPEL ARBITRATION OR SEEK EQUITABLE RELIEF IN AID OF ARBITRATION, YOU AND THE VITELLUS PARTIES CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN THE STATE AND COUNTY OF NEW YORK, AND WAIVE ANY DEFENSE OR OBJECTION BASED ON SUCH JURISDICTION AND VENUE.
Vitellus may communicate with you in various ways, including by e-mails, text messages, and other means of electronic communications. You consent to receive communications from Vitellus electronically, and you should retain copies of these communications for your own records. You agree that all agreements, notices and other communications that we provide to you electronically satisfy any state and federal legal requirements that such communications be in writing.
In the event that any portion of these Terms is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of these Terms shall remain in full force and effect. Your HappyNest account and these Terms are not assignable or transferable, and any such assignment without Vitellus’s consent shall be void. No waiver of any provision of these Terms shall be effective unless it is in writing by the party waiving such provision. Neither the course of conduct between parties nor trade practice shall act to modify any provision of these Terms.
These Terms (including the Dwolla Terms and Offering Documents) contain the entire agreement between you and Vitellus concerning its subject matter, and supersede all existing agreements and all other oral, written or other communication between us concerning the subject matter of these Terms. In the event of a conflict between these Terms and the Offering Documents, the Offering Documents (including, for the avoidance of doubt, the Subscription Agreement) shall govern.
Please contact us at [email protected] with any questions.
© 2019 Vitellus, LLC. All rights reserved worldwide.