What are the best practices for managing Terms of Service (ToS) for a SaaS company?

You should also keep up to date with E-sign and other laws or potential legislation related to online contract formation and retention of records.  TOS don't mean much if you can't legally prove they have accepted the terms (and which TOS they agreed to, which is why version control/retention is critical so you can tie which TOS applies to that consumer and show they accepted those terms).

The nature of SaaS and its recent evolution has changed what may be recommended for TOS, resulting in longer versions.  New issues pop up that may not have been thought about before, new lawsuits, new cases, new security breaches, data privacy leaks, new ways or platforms to use the service, new accounting rules on how to recognize revenue, etc. 

The use of the word "software" is somewhat misleading because they are treated as a subscription to a service, instead of a license to use software, which is how you use things like Word or MS Office.   They may need to include a limited license with the subscription to download and use any software code to access the service from things like tablet, mobile, or desktop apps. 

There have been some changes over the last few years, but maybe down the road there will be a push to make more uniform rules or case law will establish how the issues in TOS will be handled more definitely.  For now, lawyers spend their time thinking about all possible ways to cover your butt, resulting in long forms.  Eventually shrink-wrap licenses held up in many courts (although not always) as valid agreements even though many of them only state that by opening the box/shrink-wrap, you agree to the terms, which are often not all listed on the outside of the box, but incorporated into it.  With a few courts saying that is not enough to have a valid contract unless the person reads the whole thing before agreeing, it is best to retain an attorney to over your specific facts or use the full/comprehensive version.

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Is Funder’s Club in violation of current securities laws with their investment-based crowdfunding model?

Although I don't know all the specifics of how they structure everything, since I was asked to answer, I will put in my two cents based upon what I know about their company/structure (like most frustrating attorney answers, the jist of it is "it depends").

The use of only accredited investors has to do with which securities exemption they are claiming to rely upon in the offer and/or sale of securities to avoid registration and other requirements (usually under Reg D).  You lose certain exemptions if you use unaccredited, so you can have some unaccredited under some exemptions, it is usually safer to stick to all accredited, which is probably why they are using that requirement.  It is too complex to get into here, but the different exemptions relied upon address issues like number of certain types of investors, exemption/raise amount within a period of time, and disclosure requirements.  It appears they are selling securities in a fund setup to invest in specific companies (or group of companies in the same industry).  The offer and sale of the securities in the fund must fall under an exemption from registration or be registered with the SEC (and possibly receive state approval or clearance).  They discuss the funds being LLCs, so the units or interests in the individual fund's LLC are the security being sold.

Currently (Pre-JOBS Act full implementation), there are some limited ways to solicit and offer securities privately or provide certain general public information that may not be considered a solicitation or offer to sell.  They may or may not be going beyond what may be allowed for such private offering of unregistered securities, but post-JOBS they will have much more leeway to structure offerings as a web funding portal.  As David mentions, they are not soliciting or offering to sell a specific fund or security (at least on the initial pages), they are describing the process.  I assume once you get into the process further, the review and decision to invest in a specific fund would get into some specific offering materials or disclosures.  They may have gotten there without a pre-existing relationship, but then it is a matter of source or form over substance on whether there was general solicitation and offer versus pre-existing/private relationship for a private placement. 

If you put up a website that tells people about your new LLC startup, its business plans, and in order to execute on its business plan, it projects it will need $500,000 from some source that could include through investors, that may not be considered an offer to sell LLC units as a security through general advertisement or solicitation.  The problem is that there are grey areas that I think this company is in where any zealous SEC staff may decide they want to fight for more investor protections and claim what they are doing violates securities laws. 

As with many laws, you may not know or be sure that you are breaking it until after a prosecutor decides to go after you, you are convicted, and an appeals court interprets the law to say you broke the law.

The biggest problem I see is the broker-dealer issue.  Obviously they will get paid at some point and I can see a clear case of showing how the money trail leads back to the sale of the security/LLC fund investment.  Unless they are registered broker/dealers or register under post-JOBS implementation as a funding portal, I think there is a lot of potential liability as an unlicensed broker/dealer, basically a finder getting a commission or success fee, even if it is through a pass-through type entity and down the road.  Perhaps they have thought through all these issues and are willing to assume the potential risk, but I can't see how this does not bring a slight risk of being a public offer to sell or unlicensed broker/dealer activity.  If they use proper exemptions and the website process is not determined to be a general solicitation of securities in their fund LLCs, they may be compliant.

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What are the differences between incorporation documents prepared by top Silicon Valley law firms and law firms elsewhere in the United States?

The cover letter for the documents has a Palo Alto address on their ivory 25% cotton linen 20 lb. bond paper letterhead with custom firm watermark.

In all seriousness, the firms in SV (and NYC area as well) are generally going to be more experienced and connected to deal with the specific issues faced by start-ups, tech companies, and VC funded companies, just to name a few.  You don't have to be a lawyer to get the articles of incorporation from the secretary of state's website and pay the filing fee, but the experience in knowing what other advice to give or other documents that need to be prepared, or at least planned for, for your specific industry, stage of growth, and other fact specific situations is not something you can learn through Quora, the secretary of state, or a general law firm that provides formation/incorporation services.  Start-ups deal with all different legal issues such as federal and state intellectual property law, securities law, general corporate law, contracts, finance, asset protection, exit planning, officer/director protections, shareholder issues, and capitalization structuring for future growth/capital raises.

If you are just a mom and pop grocery store with 1 small store and no plans to raise money, grow, or be acquired, you may not need a specialized firm in SV to incorporate (although the firm you hire should still go over things like buy-sell agreements, succession planning, asset protection, and required corporate procedures or best practices).  However, if you are on Quora asking this question, you are probably in the category that could use a specialized start-up type firm.  The majority are located or at least have an office in SV and/or NYC (or surrounding communities/states), but there are certainly all kinds of qualified firms/lawyers that also have the experience that may be needed. 

Be an educated consumer and learn what you may need to be sure whoever you hire has experience in those specific areas.  If they don't ask detailed questions about your business and future plans with recommendations based upon your answers, they probably don't have the experience you may need.

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