Effective July 19, 2024
When you access https://www.gowhale.com and our mobile applications (collectively, the "Platform") you are unconditionally agreeing to be bound by the following Terms and Conditions, as well as the Build Whale, Inc. Privacy Policy linked here, all of which may be updated by us from time to time without notice to you. Please review them carefully. If you do not agree to these Terms and Conditions (or any updates to or modified versions thereof), you should discontinue the use of the Platform immediately.
The section below titled "Arbitration Clause" requires all claims to be resolved by way of binding arbitration. The section below titled "Class Action Waiver" contains a binding class action waiver. Please read both sections carefully, as they affect your legal rights.
The provision of advisory and brokerage services to Build Whale, Inc. advisory clients is governed by the Build Whale, Inc. investment advisory agreements. Brokerage services are provided to advisory clients of Build Whale, Inc. by Alpaca Securities LLC, a third-party SEC registered broker-dealer and member FINRA/SIPC, and is governed by the Alpaca Securities LLC customer agreement. (individually and collectively, the "Client Agreement(s).") You should read any applicable Client Agreements carefully before determining whether to engage Build Whale, Inc. to provide you with advisory, brokerage, and/or other financial services. References to "Build Whale" on the Platform refer to Build Whale, Inc., as well as their respective affiliates, partners, agents, and employees.
You can apply for a deposit account through the Platform. The account is powered by Evolve Bank & Trust, Member FDIC ("Evolve"). During the application process and periodically thereafter, you will receive certain agreements, disclosures, notices, and other information ("Evolve Documents") governing your relationship with Evolve as it pertains to the account and the related services described in the Evolve Documents ("Evolve Services"). Evolve is the financial institution that provides the Evolve Services. Build Whale, Inc. facilitates the delivery of Evolve Services by obtaining, processing, and sharing your information and transaction instructions with Evolve, but Build Whale, Inc. does not hold or transfer your money. Build Whale, Inc. offers its own services, and the services of other third parties, that are separate from the Evolve Services described in the Evolve Documents ("Non-Evolve Services"). Evolve is not responsible for the Non-Evolve Services, even if the Non-Evolve Services are financial in nature and seem related to the Evolve Services. Please refer to the terms and conditions governing the Non-Evolve Services for more information. In the event of a conflict between the Evolve Documents and these Terns and Conditions or any other terms governing Non-Evolve Services, the Evolve Documents will control, but only as they relate to the Evolve Services.
The Platform is intended solely for individuals who are age 18 or older. Any access to or use of the Platform by anyone under 18 is unauthorized, unlicensed, and in violation of these Terms and Conditions. By accessing or using the Platform, you represent and warrant that you are 18 or older.
The Platform is only intended for use by persons located in the United States. Build Whale, Inc. makes no representation that the Platform is appropriate or available for use outside the United States. Similarly, Build Whale, Inc. makes no representations that accessing the Platform from locations outside the United States is legal or permissible under local law.
The publicly available portions of the Platform (i.e., the sections of the Platform that are available to individuals who are not party to a Client Agreement) are provided for educational purposes only and are not intended to provide legal, tax, or financial planning advice. In using the publicly available portions of the Platform, you agree that you are responsible for your own investment research and decisions, that you will not rely on the Platform as the primary basis for your investment decisions, and, except as otherwise provided herein, Build Whale, Inc. will not be liable for any actions you take based on information you receive via the publicly available portions of the Platform.
If you have a password for access to non-public areas of the Platform, you are solely responsible for maintaining the confidentiality and use of the password and other security data, methods and devices. Further, you are responsible for all activities that occur in connection with your password including all instructions electronically transmitted or use of any data, information or services obtained using your password and other security data. Build Whale, Inc.shall not be under any duty to inquire as to the authority or propriety of any instructions given to Build Whale, Inc.by you or via your password and shall be entitled to act upon any such instructions and Build Whale, Inc.will not be liable for any loss, cost, expense or other liability arising out of any such instructions
Accordingly, you should take steps to protect the confidentiality of your password. As an authorized user you accept full responsibility for the monitoring of your account including frequently checking your account information, reviewing your transaction history online and promptly reviewing any correspondence, account statements and confirmations received from Build Whale, Inc.. Please notify Build Whale, Inc. immediately if you become aware of any unauthorized activity, disclosure, loss, theft or unauthorized use of your password. You agree to cooperate with Build Whale, Inc. in any investigation and agree to take corrective measures to protect your account from further fraudulent activity.
While we have put resources into building and testing our computer systems, computer glitches, slowdowns, and crashes will occur. We will also need to restrict access to some parts of our Platform or our entire Platform to perform routine maintenance. We will try to schedule our maintenance during the middle of the night.
While it is our intention that our website will be available seven days a week except when maintenance is scheduled (usually for weekends), you understand that we do not guarantee that you will always be able to access the Platform. Computer problems can arise on your end, our end, or anywhere in between: your computer may break down; the connection between your computer and your Internet service provider may not work properly; your Internet service provider may go down; or our computers and the computers we link to may be unavailable due to unforeseen system outages.
You acknowledge that the Internet is not a secure network and that communications transmitted over the Internet may be accessed by unauthorized or unintended third parties. E-mail notifications sent by Build Whale, Inc.will not contain sensitive or confidential information. Due to security risks, you should not send any sensitive information, such as account numbers or passwords in an unencrypted e-mail. E-mails may fail to transmit properly. Regardless of whether you receive an e-mail notification, you agree to check the Platform to avoid missing time-sensitive information. You further agree that for your records, you can download and save or print the communications received via electronic delivery.
The publicly available portions of the Platform (i.e., the sections of the Platform that are available to individuals who are not party to a Client Agreement) are not an offer to sell or a solicitation of an offer to invest in any investments referenced in the Platform or with Build Whale, Inc.. The publicly available information included on the Platform is for informational purposes only and should not be considered as investment advice or a recommendation to invest in any particular security, strategy or investment product. References to specific securities and / or other investments are not intended and should not be interpreted as recommendations to purchase, sell or hold such securities or other investments. Further, Build Whale, Inc.'s products and strategies may or may not include the investments referenced and, if such investments are included, no representation is being made that such investments will continue to be included. Personnel of Build Whale, Inc. may or may not invest, directly or indirectly, in the specific investments and their issuers that are referenced in the Platform by such personnel. Build Whale, Inc. is not engaged in rendering any tax, legal or accounting advice. Please consult with a qualified professional for this type of advice.
Although Build Whale, Inc. has taken reasonable care to ensure that the information on this Platform is accurate, no representation or warranty (including liability towards third parties), expressed or implied, is made as to its accuracy, reliability or completeness by Build Whale, Inc.. Further, Build Whale, Inc.'s opinions, views, comments and analyses are rendered as of the date of the applicable information presented on the Platform, and can change without notice due to changes in market, economic or other conditions.
Build Whale, Inc. reserves the right, in its sole discretion, to deny you access to the Platform, or any portion of the Platform, without notice and without reason. For the avoidance of doubt, your access to and use of the publicly available portions of the Platform shall be governed by these Terms and Conditions, and the provision of any investment advisory and brokerage services shall be governed by the Client Agreements with respect to such services. Notwithstanding the foregoing or anything else in these Terms and Conditions to the contrary, in the event of any conflict between the Terms and Conditions and a Client Agreement, the Client Agreement shall control.
You agree that you will comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements. You further agree that you will use the Platform solely for your personal, non-commercial use and will not attempt to interfere with the functioning of the Platform in any way.
You agree not to engage in any of the following:
Access to and use of password protected and/or secure areas of the Platform is restricted to authorized users only. Unauthorized persons attempting to access these areas of the website may be subject to legal action.
Authorized employees or agents of Build Whale, Inc. may monitor and record all or portions of your telephone calls, emails, text messages, chats and other communications with Build Whale, Inc. for quality control, customer service, employee training, security, legal, compliance, and other lawful purposes. You hereby consent to such recording. That consent is ongoing and need not be confirmed prior to, or during, such monitoring or recording, except to the extent applicable law expressly requires otherwise. Build Whale, Inc.may also archive your communications with Build Whale, Inc.for regulatory and other purposes.
NEITHER BUILD WHALE, INC. NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE LIABLE IN ANY WAY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE, OR LOST OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR THE USE OF THE PLATFORM OR A LINKED WEBSITE (INCLUDING BUT NOT LIMITED TO THE DELAY OR INABILITY TO USE THE PLATFORM OR A LINKED WEBSITE). THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARE FORESEEABLE OR WHETHER Build Whale, Inc.HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVENT SHALL BUILD WHALE, INC.'S CUMULATIVE LIABILITY TO YOU EXCEED U.S. $100.
All products, services, and content on the website are provided "as is" without warranty of any kind, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, security, or accuracy. Build Whale, Inc. specifically disclaims any duty to update the information on the Platform and it is your responsibility to evaluate the accuracy, reliability, timeliness, and completeness of any information available on the Platform. Build Whale, Inc. does not guarantee that the Platform will operate error-free or that the platform, its servers, or the content are free of computer viruses or similar contamination or destructive features. If you choose to use the Platform, or rely on the information presented on it, you do so solely at your own risk.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.
You agree to indemnify, defend, and hold Build Whale, Inc. harmless from any liability, loss, claim and expense, including attorney's fees, related to your violation of these Terms and Conditions or use of the Platform. Nothing in these terms of use shall affect any non-waivable statutory rights that apply to you. Build Whale, Inc. reserves the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Build Whale, Inc.'s defense of such matter.
All Website activity or use and these Terms and Conditions are governed by the laws of the United States of America and the applicable laws of the State of Delaware, without regard to conflict of law principles.
You and Build Whale, Inc. (for purposes of this section, "the parties") agree that any claim or controversy that may arise between you and Build Whale, Inc. relating in any way to your use of the publicly available portions of the Platform will be determined by binding arbitration conducted under the auspices of JAMS pursuant to its Arbitration Rules and Procedures. This arbitration agreement includes any controversy involving the performance, construction, or breach of these Terms and Conditions.
You and Build Whale, Inc. agree that the arbitration shall apply the substantive law of Delaware to all state law claims, that limited discovery shall be conducted in accordance with JAMS's Arbitration Rules and Procedures, and that the arbitrator may not award punitive or exemplary damages, unless (but only to the extent that) such damages are required by statute to be an available remedy for any of the specific claims asserted. In accordance with JAMS's Arbitration Rules and Procedures, the arbitrator's award shall consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The award shall not include or be accompanied by any findings of fact, conclusions of law, or other written explanations of the reasons for the award. You understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is severely limited under state and federal law. You acknowledge that you are waiving your right to a jury trial. Judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction and the parties hereto and their respective representatives hereby submit to the jurisdiction of any such court for the purpose of such arbitration and the entering of such judgment.
Federal and state statutes of limitation, repose, and/or other rules, laws, or regulations impose time limits for bringing claims in federal and state court actions and proceedings. The parties agree that all federal or state statutes of limitation, repose, and/or other rules, laws, or regulations imposing time limits that would apply in federal or state court, apply to any Controversy, and such time limits are hereby incorporated by reference. Therefore, to the extent that a Controversy would be barred by a statute of limitation, repose or other time limit, if brought in a federal or state court action or proceeding, the parties agree that such Controversy shall be barred in an arbitration proceeding.
Any award of the arbitrator or a majority of the arbitrators will be final and binding, and judgment on such award may be entered in any court having jurisdiction. This arbitration provision will be enforced and interpreted exclusively in accordance with applicable federal laws of the United States, including the Federal Arbitration Act. Any costs, attorneys' fees or taxes involved in confirming or enforcing the award will be fully assessed against and paid by the party resisting confirmation or enforcement of said award.
You agree to the following additional provisions regardless of your place of residence at the time a Controversy arises:
You agree that this agreement to arbitrate shall be binding on you, your heirs, administrators, representatives, executors, successors and assigns.
You agree that any arbitration or proceeding shall be limited to the dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. You agree that you may bring claims against us only in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
Any waiver of any provision contained in these Terms and Conditions shall not be deemed to be a waiver of any other right, term, or provision of these Terms and Conditions. If any provision in these Terms and Conditions is determined to be wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent it is legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
You may not assign these Terms and Conditions (by operation of law or otherwise) without the prior written consent of Build Whale, Inc., and any prohibited assignment will be null and void. Build Whale, Inc. may assign these Terms and Conditions or any rights hereunder without your consent.
We reserve the right to change these Terms and Conditions by posting a revised agreement. If you don't agree with these changes, you must stop using the Platform. The information on the Platform is subject to change without notice.