These terms and conditions and the policy documents referred to in them (the “Terms”) govern the access and use by any person (including a legal person) (“you”, “your”) of the website, mobile applications and services operated by Equity Spark Limited (“us”, “we”) at www.equityspark.com (the “Platform”).
We are a limited company registered in England and Wales with company number 08673809 and registered office 10 Jesus Lane, Cambridge, CB5 8BA. We are authorised and regulated by the Financial Conduct Authority with FCA registration number 665367. That authorisation covers arranging deals in "non-readily realizable securities" such as Debentures or Shares which can only be offered to certain classes of investor who meet the criteria for a requisite level of understanding.
To contact us please email [email protected]
The Terms set out the only terms and conditions upon which you may use the Platform. Please read the Terms carefully before using or accessing the Platform. By using the Platform, you confirm that you accept the Terms and agree to comply with them. If you do not accept the Terms and agree to comply with them, you must not use the Platform.
Information published on our site or otherwise as part of the Platform constitutes a financial promotion pursuant to section 21 of the Financial Services and Markets Act and we have issued and approved it as such. We shall not advise you on any transaction proposed on the site or otherwise as part of the Platform and no transaction proposed on the site or otherwise as part of the Platform shall be recommended by or deemed to be recommended by us. Your attention is drawn to the risk warnings in Paragraph 2 below.
By using the Platform you acknowledge and agree that you have read and understood the risk warnings in Paragraph 2 below and if you do not you should obtain advice from an Independent Financial Advisor, solicitor or similarly qualified professional before using the Platform.
The Terms also incorporate the following additional documents:
- Our complaints procedure, which explains the process for resolution of complaints.
- Our conflicts policy, which sets out the how we identify those circumstances that constitute or may give rise to conflicts of interest that pose a material risk of damage to users of the Platform and the organisational and administrative arrangements that we maintain and operate to manage those conflicts.
2 Risk and Liability Warnings
2.1 Your fundraising may not succeed. Although fundraising via crowdfunding platforms can be time and costs efficient from the date of launch, they are often no less effort than fundraising through traditional methods. You accept that the success of your Issue is entirely dependent on you. Although we will help you along the way, we are not responsible for promoting or marketing your Issue or securing Investors for you. We merely providing a facility whereby you can promote your own Issue to fellow Members who are Investors. We do not guarantee the success of any Issue.
2.2 You must not in the course of business communicate an invitation or inducement to engage in investment activity unless it is authorised or exempt (s21 of the Financial Services and Markets Act 200). Information published on our site or otherwise as part of the Platform which constitutes a financial promotion will be approved by us, but you may also in the course of the fundraising be in direct contact with friends, family and other prospective investors about the fundraise. It is your sole responsibility to ensure that all such communications are not a financial promotion or otherwise fall within a relevant exemption. Contravention of s21 of FSMA is an offence. An example template communication together with a copy of the relevant legislation is available on request. Such template/legislation if provided is to be viewed as a starting point only and does not constitute advice to you in respect of financial promotions or otherwise. You are strongly advised to take your own independent advice before promoting your Issue.
2.3 Fundraising via crowdfunding may or may not improve your future ability to fundraise. Engaging investors in an online process can simplify future funding rounds, given the existing online network of existing investors. However the number and sophistication of the investors attracted, the success of the company, changes in the market and numerous other factors can affect future raises on or off the Platform.
2.4 Although the Platform caters for Issues of Shares which are eligible for Enterprise Investment Scheme (EIS), Seed Enterprise Investment Scheme (SEIS) or similar reliefs, such reliefs are notoriously tricky to establish and maintain. You are responsible for obtaining any advance assurance in respect of your qualifying status and any advance assurance in respect of the qualifying status of the Shares. There are numerous ways these tax reliefs can be lost, even where advance assurance as to the relief has been received from HMRC. You are responsible for ensuring that relief is not lost as a consequence of the Issue (for example because a corporate investor obtains control of the company) or result of subsequent events (for example transfers of Shares or changes to the business). You are responsible for ensuring you are happy with the qualifying status of the Shares, the tax treatment of any investments and the availability of any reliefs on an ongoing basis. You are strongly advised to engage a tax advisor before offering any such reliefs as part of the Issue. We reserve the right to reject any Application in the event that you have not taken such advice.
2.5 Acting as a Platform, we will be engaging with and collating information from both investors and those seeking investment. In the course of our interaction with you and Investors, we may become aware of information about the Investor or otherwise which may be pertinent to you in deciding the terms of an Offering Document or accepting an Investor’s offer to invest or otherwise, which information may not be disclosable by us to you due to a conflict of interest between you and the Investor. Our conflicts policy sets out how we will handle such conflicts of interest in accordance with the FCA guidelines.
2.6 Potential Investors will have access to information about you and your prospective issue via the Platform. Not all potential Investors may be suitable Investors for your business due to issues of competition, reputation or otherwise. You are responsible for selecting what information you make available about your business to prospective Investors and for assessing the suitability of any prospective Investor in your business.
2.7 Legal and regulatory changes could occur that may adversely affect the operation of the Platform. These may include tax and other regulatory and/or political matters. Force majeure acts, terrorist events, viral, hacking or other computer related issues outside our reasonable control or other operating risks may affect performance of the Platform.
2.8 This Paragraph 2 contains some risks which may attach to your use of the Platform. There may be other risks in your use of the Platform and this Paragraph 2 is not intended to be exclusive. You are strongly advised to take your own independent advice in determining whether or not to fundraise via the Platform.
3 What we do
3.1 The Platform facilitates the introduction of Investors and Issuers. It allows Issuers to post information on the Platform in relation to proposed issues of Debentures and/or shares and allows Member Investors to access such information in order to make their own investment decisions in relation to the purchase of such Debentures and/or shares. It is important you appreciate that we do not and are not authorised to do any of the following:
3.1.1 provide investment advice;
3.1.2 provide tax advice;
3.1.3 provide accountancy or actuarial advice;
3.1.4 make personal recommendations;
3.1.5 advise on the merits of a particular transaction;
3.1.6 hold your money;
3.1.7 control your money (except to the extent that the necessary requirements are met); or
3.1.8 match particular Debentures or Shares offered by you with Investors.
We are also not obliged to provide you with technical advice (other than in relation to the proper use of the Platform). It is your decision whether or not to proceed with an Issue via the Platform and you should take advice from professional advisers if you have any questions or concerns over any aspect of the proposed transaction or its nature or terms or your use of the Platform.
3.2 The FCA Rules require us to assess the suitability of prospective Investors for investment products of the nature and kind offered via the Platform. We are not required and will not assess the suitability of Investors or prospective Investors in relation to your Issue.
3.3 The information provided through the Platform does not constitute advice, or a recommendation or an endorsement of any Issuer, Debenture, Share or Investor. If you want advice or do not understand any of the information provided through the Platform or in relation to your Issue you must seek independent advice from an appropriately authorised and qualified professional advisor specialising in the financial, legal or tax aspects of such investments as applicable.
3.4 Members of the Platform are not clients and customers unless they become Investors investing via the Platform or Issuers fundraising on the Platform. If you are a client will treat you as a ‘retail client’ for the purposes of the FCA Rules unless we expressly agree in writing otherwise. If we agree to treat you as a professional client you will lose certain protections available to retain clients under the FCA Rules. You agree that the Platform may contact you at any time in relation to its review of its client categorization process.
4 Becoming a Member
4.1 Whilst certain areas of the website can be viewed by anyone, you must be a Member to become an Issuer or an Investor. Only one Membership is allowed per legal person (ie including companies, organisations, etc). You may not use different login details to establish more than on Membership.
4.2 A Member who is a corporate entity, partnership, unincorporated association, public or quasi-public body or department or any other type of organization must designate an individual who will be your agent acting as:
4.2.1 the main contact between you and the Platform and the sole person from whom the Platform will take or give instructions; and
4.2.2 the main contact between you as a Member Issuer and any prospective Investors
(“Member Contact”). The Member Contact by entering into Membership on behalf of the Member agrees and confirms that s/he has full authority to enter into these terms on behalf of the Member and act as Member Contact in accordance with these Terms for the duration of the Membership. The Member shall provide the Platform with reasonable advance notice of any change in Member Contact. Unless otherwise agreed with the Platform, a Member shall not have more than one Member Contact from time to time. You undertake and confirm that any replacement Member Contact nominated or put forward by you from time to time has full authority to act as Member Contact in accordance with these Terms for the duration of the Membership.
4.3 Subject to any applicable laws or regulations, we may in our sole discretion refuse to accept your application to become a Member or to accept any individual as your Member Contact.
4.4 As part of applying to become a Member you must:
4.4.1 provide truthful statements and confirmations required by the FCA Rules;
4.4.2 provide sufficient information and documentation about yourself, your Member Contact, your directors, and/or your beneficial owners to enable us and other relevant parties to ascertain and verify your identity in order to (amongst other things) prevent money laundering and terrorist financing. By applying to become a Member you consent to us using your personal information and you undertake to procure the consent of your Member Contact, directors and beneficial owners to carry out credit checks and other searches through third parties to establish the identity and creditworthiness of each such person (as appropriate); and
4.4.3 instruct us to open your Account and provide the log in details we request.
5 User identification security
5.1 If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.
5.2 We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of the Terms.
5.3 We reserve the right not to act on your instructions where we suspect that the person logged into the Platform is not you or we suspect illegal or fraudulent activity or unauthorised use.
5.4 If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us. You are responsible for the actions of any other person accessing the Platform through your internet connection and ensuring they comply with the Terms.
6 Cancelling your Membership
6.1 Having not used the Platform to make any Investments or offer any Issues, you may cancel your Membership at any time, subject to Paragraph 10.3.
7 Using the Platform as an Issuer
7.1 Once you are registered as a Member and logged in, having accepted the risk warnings, you may apply to the Platform to become an Issuer (“Application”) using the online application process. As part of the application process you must provide all information about your business, the Member Contact, your key directors and employees together with the terms of the proposed Issue requested by the us, together with any supporting evidence requested. As part of the application process (which will usually be at the outset of the process) you may be asked to agree and sign additional terms of engagement which set out any specific terms between you and the Platform in relation to your Issue not otherwise covered by these Terms, including any additional fees, rights and obligations agreed by you in respect of the specific Issue (“Transaction Terms”). Notwithstanding any information given or evidence provided and/or your acceptance of the Transaction Terms, we may in our sole discretion refuse to accept your application to become an Issuer in respect of any particular Issue.
7.2 During the Fundraising Period you shall not without our prior written consent solicit or engage or entertain any other offers to provide the same or similar services provided or to be provided by the Platform in relation to the proposed Issue from any other service provider and you shall not instigate or run any material fundraise of any type via any other crowdfunding platform or otherwise without our written consent.
7.3 Your Publications must be approved by the Platform. Any financial promotion (as defined in the FCA Rules) must be fair, clear and not misleading. You will provide any evidence requested by us in order to investigate or verify any element of the Publications or in respect of the prospective Issue we request in considering whether or not to approve any Publication. Approval of the Publications by the Platform does not constitute approval of or advice in respect of their terms or any recommendation in relation to them to any Member or any other person. We may in our sole discretion refuse to accept any Publication we deem unsuitable for the Platform for any reason. We may ask you to make any changes to the Publications or submit any evidence in support of the Publications as we see fit. Subject to the FCA Rules and any duty imposed by law, we approve Publications solely as a financial promotion or for our own purposes (as the case may be) and do not otherwise undertake any duty of care to you or to any prospective Investor in respect of their authenticity, correctness, legality, reasonableness or otherwise.
7.4 If accepted by us as an Issuer on the Platform and having accepted our Transaction Terms, you will be permitted to publish your Publications on the Platform for viewing by Investors. You may also interact with potential Investors via the Platform where they will be able to ask questions or request further information, and where you will be able to provide answers and information. This information will not be viewable by anyone other than you and the prospective Investors. We will not approve these communications or be responsible for these communications and any information you provide via this facility is entirely at your own risk. You are solely responsible for the timeliness, accuracy or reliability of the data and information provided through the Platform by you or any other third parties on your instruction. You indemnify us in respect of any false, misleading, erroneous, untimely and/or incomplete information you communicate through the Platform.
7.5 Investors’ details are confidential and you undertake not to (without the prior written consent of us and the relevant Investor or as otherwise required by law) disclose them to any third party or use them for any purpose other than considering the relevant proposed Investment.
7.6 Your publications of the Offering Document on the Platform will constitute an offer of the Issue capable of acceptance by Investors online via the Platform’s electronic facilities. The contract to buy a Debenture or Shares is direct between you and each accepting Investor. We only facilitate the transaction through the Platform. The Offering Document for each Debenture or Share offer is your document and we do not accept responsibility or liability for any information it contains except to the extent that we are responsible for approving the Offering Document as a financial promotion in accordance with the FCA Rules as set out at Paragraph 7.3 above. Details of our role in this respect will be included in the relevant Offering Document.
7.7 We are in no way liable for your debts. Subject to our obligations under the FCA Rules make no representations, warranties or guarantees whether express or implied as to:
7.7.1 your financial soundness or creditworthiness;
7.7.2 your ability to make capital repayments or interest payments or declare or pay dividends;
7.7.3 the credit risk associated with you or the Issue;
7.7.4 the viability or profitability of your business or any of your projects;
7.7.5 the timeliness, accuracy or reliability of the Publications or any other communications made by or information provided by you or any other third parties through the Platform, nor as to whether such information is up-to-date or free from errors or omissions.
7.8 Investors will choose to invest in a prospective Issue by clicking the appropriate button on the Platform, indicating how much they wish to invest. The platform and investment payment process is managed by ShareIn Limited. The investment process and timings can vary for each Debenture and/or Share offer but ordinarily the Investor will accept the offer in the Offering Document online via the Platform.
7.9 Investor’s account will be held by and administered by ShareIn as a client account which is maintained separately from ShareIn’s own money in accordance with the rules of the Financial Conduct Authority. ShareIn will make payments to and receive them from Issuers on your behalf. ShareIn maintains records of the individual entitlements of each investor and Issuer for these purposes.
7.10 Where the Issue is an issue of Shares, you undertake to
7.10.1 update your Register of Members and issue the share certificates therefore to the Investor on the same day as allotment and issue (and provide us with copies of those certificates in due course within a reasonable time period); and
7.10.2 where the Investor obtaining such Shares has indicated a preference to obtain any available tax relief on such Shares in accordance with the Offering Document, issue any forms SEIS3 or EIS3 or Compliance Statement or equivalent forms to the relevant Investor or HMRC (as the case may be) within the required time periods.
7.11 Once the Issue has become fully subscribed in accordance with the terms set out in the Offering Document and on the Platform (“Fully Subscribed”), or if the date for subscription has passed and the Issue is not Fully Subscribed, we shall confirm this to you by email. Our right to the fees set out at Paragraph 9.2 once the issue is Fully Subscribed is without prejudice to your right to reject any particular Investor in accordance with Paragraph 7.9. If the Issue is not Fully Subscribed, you are not obliged to issue any Debenture or Shares and any committed funds shall not be collected from Investors.
7.12 Your Publications will be removed immediately if we cease to trade for any reason.
7.13 We do not guarantee that there will be sufficient interest to fill a particular Issue or to allow the Issue to close.
7.14 You will pay any interest, dividends or other distributions on Debentures or Shares directly to your Investors in accordance with the relevant Offering Document.
8 Transferring Debentures or Shares
There is no secondary market for selling Debentures and Shares in which you have invested and it is highly unlikely you will be able to sell. In the unlikely event a sale is proposed through a private transaction you will need to contact us your Investors and shareholders direct.
9.1 There is currently no fee or charge for becoming a Member and it is free for members to use the Platform. We reserve the right to charge for Membership and/or use of the Platform in future.
9.2 The following Fees become payable by an Issuer when the Issue is Fully Subscribed:
9.2.1 the Legal Fee as published at the ‘Fees’ section at [insert link] on the Platform as at the date you apply to become an Issuer in respect of the Issue in question (to be paid to us on completion of the Issue or otherwise within 30 days);
9.2.2 the Transaction Fee as published at the ‘Fees’ section at [insert link] on the Platform as at the date you apply to become an Issuer in respect of the Issue in question (to be paid to us on completion of the Issue or otherwise within 30 days); and
9.2.3 a Cash Facility Fee as published at the ‘Fees’ section at [insert link] on the Platform as at the date you apply to become an Issuer in respect of the Issue in question.
9.3 The payment terms other fees agreed for extra work you require us to carry out will be set out in the relevant Transaction Terms.
10 Termination or Suspension
10.1 Providing you don’t have any
10.1.1 outstanding subscriptions for any Debentures or Shares (in the capacity of an Investor),
10.1.2 live Issue on the Platform; or
10.1.3 any Debentures or Shares subscribed for through the Platform where pursuant to the Offering Document the Platform has offered to provide a coupon/dividend payment management service, you can terminate your Membership at any time by email. Any termination of your Membership is subject to Paragraph 10.3.
10.2 We may suspend or terminate your Membership and/or use of the Platform at any time. We will confirm such suspension or termination to you by email.
10.3 Termination of your Membership and/or use of the Platform for any reason shall not affect any rights, remedies, obligations or liabilities that have accrued to you or us prior to such termination and any disclaimer or exclusion in the Terms shall survive such termination.
10.4 You may terminate an Issue at any time during the Fundraising Period on 5 business days’ notice to us. In the event that you terminate an Issue after subscriptions have been made in respect of that Issue we reserve the right to charge a reasonable cancellation fee not exceeding the Legal Fee plus the Transaction Fee for such subscriptions.
10.5 We may terminate an Issue at any time during the Fundraising Period at our sole discretion if:
10.5.1 you are not able to provide any information or documentation requested by us pursuant to these Terms or such information is not provided in a reasonable timeframe or we have reason to believe such information or documentation is incorrect, incomplete or otherwise deficient;
10.5.2 your business or prospects suffer a material adverse change;
10.5.3 you make substantial changes to any of the Publications including the terms of the Offering Document after the same has been approved by us for publication;
10.5.4 the Issue fails to achieve any minimum target raise set out in the Offering Document within the timescale set out therein;
10.5.5 in our view you are unable to work with us in an efficient, sensible, cooperative and/or professional manner.
11 Intellectual Property Rights
11.1 We are the owner or the licensee of all intellectual property rights in our site, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
11.2 You may print off one copy, and may download extracts, of any page(s) from our site for your personal use and you may draw the attention of others within your organisation to content posted on our site.
11.3 You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
11.4 Our status (and that of any identified contributors) as the authors of content on our site must always be acknowledged.
11.5 You must not use any part of the content on our site for commercial purposes without obtaining a licence to do so from us or our licensors.
12 Acceptable use and content standards
12.1 You may use our site only for lawful purposes. You may not use our site in any way that breaches any applicable local, national or international law or regulation, or in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
12.2 Whenever you make use of a feature that allows you to upload content or material to our site or to send any communication via our site (“Communications”) you must comply with the following standards.
12.3 Communications must:
12.3.1 be true and accurate (where they state facts);
12.3.2 be genuinely held (where they state opinions); and
12.3.3 comply with applicable laws and regulations.
12.4 Communications must not:
12.4.1 contain any material which is defamatory of any person;
12.4.2 contain any material which is obscene, offensive, hateful or inflammatory;
12.4.3 promote sexually explicit material;
12.4.4 promote violence;
12.4.5 promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
12.4.6 infringe any copyright, database right, trade mark or other intellectual property right of any other person;
12.4.7 be likely to deceive any person;
12.4.8 be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
12.4.9 promote any illegal activity;
12.4.10 be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
12.4.11 be likely to harass, upset, embarrass, alarm or annoy any other person;
12.4.12 be used to impersonate any person, or to misrepresent your identity or affiliation with any person, organisation or body;
12.4.13 give the impression that they emanate from us, if this is not the case; or
12.4.14 advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
12.5 You retain all of your ownership rights in your Communications, but you grant us a non-exclusive, royalty-free, worldwide, perpetual licence to use, store and copy your Communications and, in the case of organisations, your name and logo, and to publish and/or otherwise make them available to third parties for and in connection with the operation and promotion of our site.
12.6 We have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our site constitutes a violation of their intellectual property rights, or of their right to privacy.
12.7 We will not be responsible or liable for the content or accuracy of any Communications made by you or any other user of our site. The views expressed by other users on our site do not represent our views or values.
12.8 We have the right to refuse to publish, or to edit or delete, any Communications if, in our opinion, they do not comply with the content standards set out above and/or any additional content standards that we may publish on our site, or otherwise notify to you, from time to time.
13.1 We do not guarantee that our site will be secure or free from bugs or viruses.
13.2 You are responsible for configuring your information technology, computer programmes and platform in order to access our site. You should use your own virus protection software. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any content on it, or on any website linked to it.
13.3 You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.
14 Linking to our site
14.1 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
14.2 You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
14.3 You must not establish a link to our site in any website that is not owned by you.
14.4 Our site must not be framed on any other site, nor may you create a link to any part of our site other than the home page.
14.5 We reserve the right to withdraw linking permission without notice.
14.6 If you wish to make any use of content on our site other than that set out above, please contact us.
15 Third party links and resources in our site
Where our site contains links to other sites and resources provided by third parties, these links and resources are provided for your information only. We have no control over the contents of those sites or resources. We will not be liable for any loss or damage that may arise from your use of them.
16 Your liability to us
You are responsible for loss or damage we suffer that is either a foreseeable result of you breaching the Terms or a result of your fraudulent or grossly negligent use of the Platform. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time of agreement between us and you, both you and us knew it might happen.
17 Our liability to you
17.1 Nothing in the Terms excludes our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law or regulation including without limitation under the FCA Rules.
17.2 If we fail to comply with the Terms, we are responsible for loss or damage you suffer that is either a foreseeable result of our breaching the Terms or a foreseeable result of our failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time of agreement between us and you, both you and us knew it might happen. We are not responsible for any loss or damage that is not foreseeable.
17.3 If you use the Platform for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
17.4 You are responsible for all costs and expenses (including without limitation professional, legal and accountancy costs) you incur in accessing the Platform.
18 Complaints and Compensation
18.1 If you are not satisfied with the Platform you should complain following the complaints procedure set out on our website.
18.2 In the event that you do not feel that we have adequately resolved your complaint you may have a right to complain to the Financial Ombudsman. Details of the Financial Ombudsman's complaints process is available on their website at www.financial-ombudsman.org.uk.
18.3 Investors will be not be eligible for compensation under the Financial Services Compensation Scheme if an Issuer defaults on payments or otherwise fails.
19 Conflicts of Interest, Competition, Confidentiality and Duty of Care
19.1 We are not your representative or agent and at times your interests may conflict with ours or with the interests of another user of the Platform. As required by the FCA Rules we have in place a conflicts policy. The policy identifies those circumstances that constitute or may give rise to conflicts of interest that pose a material risk of damage to users of the Platform. The policy also addresses the effective organisational and administrative arrangements that we maintain and operate to manage those conflicts including the circumstances in which we will cease to carry out your instructions. An example of a potential conflicts would include us or one of our employees choosing to make an investment in an Issuer either through the Platform or otherwise. A copy of our conflicts of interest policy is available on the website and is also available in electronic form upon request by email.
19.2 You accept that we are not entering into an exclusive agreement with you. You agree and accept that other users of the Platform might be your competitors.
19.3 Any services provided by us in respect of the Issue are provided solely to you. Although you can share any information or advice we give you with your advisors, you may not share such information or advice with any other person without our consent, and no third party to whom you provide it can rely on it.
19.4 You undertake to us and to each of the Investors (or prospective Investors) that you will keep confidential the details of any such Investors or prospective Investors for a period of six years from the from the date of receipt of such details. This obligation shall survive any termination of any Issue and any termination of your Membership. This paragraph does not apply to any bona fide disclosure made to your professional legal or tax advisors or which you are required to make by law (including but not limited to pursuant to any statutory or regulatory duties or court order) or in the ordinary course of business.
20.1 We may act on instructions in any email which we reasonably believe was sent by you. You will be bound by any agreement entered into or expense incurred on your behalf in reliance upon such an email.
20.2 Except as otherwise expressly provided in the Terms, all communications between us shall be by email or via the Platform in English.
20.3 Any email between us shall be treated as having been received 1 day after sending save that if deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is deemed to take place at 9.00 am on the day when business next starts in the place of receipt.
20.4 You must inform us immediately of any change to your email address as any email from us to the last email address you notified to us will be treated as validly sent.
21 Revising the Terms
21.1 We may revise the Terms at any time by posting updated versions on the Platform.
21.2 You will be notified of any update by email specifying the amendments made.
21.3 Your continued use of the Platform having been so notified of the update will be deemed to constitute your acceptance of such changes.
22 Availability of website content and changes
22.1 We do not guarantee that our site, or any content on it, will always be available or be uninterrupted. Access to our site is permitted on a temporary basis. We may suspend, withdraw, discontinue or change all or any part of our site without notice. Subject to the FCA Rules we will not be liable to you if for any reason our site is unavailable at any time or for any period.
22.2 You are responsible for making all arrangements necessary for you to have access to our site.
22.3 We may update our site from time to time, and may change the content at any time. Although we make reasonable efforts to update the information on our site, subject to our obligations under FCA Rules, we make no representations, warranties or guarantees, whether express or implied, that the content on our site is accurate, complete, up-to-date or free from errors or omissions.
23 Force Majeure
We shall not be liable for any failure or delay in performing our obligations under the Terms to the extent that such failure or delay is caused by an event beyond our reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors, any change to the law, order or regulation of a governmental, supranational or regulatory body; currency restrictions, devaluations and fluctuations; market conditions affecting the execution or settlement of transactions or the value of assets; hacking; computer virus; failure or breakdown in communications not reasonably within the party's control; and the failure of any relevant exchange or clearing house.
24 Other Important provisions
24.1 Each Paragraph operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Paragraphs will remain in full force and effect.
24.2 A waiver of any right or remedy under the Terms or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24.3 The Terms form a contract between you and us. No other person shall have any right to enforce any of the Terms provided that the Investors shall have the right to enforce Paragraph 19.4.
24.4 We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner our rights and obligations under the Terms. Your Membership is personal to you and as a result you may only transfer your Membership and/or rights and obligations under these Terms to another person with our prior written consent.
24.5 The Terms constitute the entire basis on which you use the Platform and you acknowledge that in using the Platform you have not relied upon any representations or statements from us that are not expressly set out in these terms.
25 Applicable Law
25.1 Regardless of where you or your Member Contact is physically located from time to time, these Terms and all activities transacted by us for you on the Platform and otherwise take place in the United Kingdom and these Terms are solely governed by and are subject to English law. You agree that the services conducted pursuant to these Terms are therefore only subject to English law and you agree and undertake not to bring a claim or seek a remedy pursuant to the laws of any other country.
25.2 If you are a consumer, you and we both agree that the courts of England and Wales will have non-exclusive jurisdiction in respect of any disputes arising under or in connection with these terms and/or the operation of our site. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland.
25.3 If you are not a consumer, you and we both agree that the courts of England and Wales will have exclusive jurisdiction in respect of any disputes arising under or in connection with these terms and/or the operation of our site.
25.4 If at any time during any transaction contemplated by these Terms you are physically located in any country other than the United Kingdom, you will comply with any laws of that jurisdiction which relate to your use of the Platform in that jurisdiction.
26 Definitions and Interpretation
In addition to the terms defined elsewhere in the Terms, unless the context otherwise requires, the following words and phrases have the following meanings:
Account means the information account we open on your instructions after you become a Member.
Application means your application to become an Issuer as set out in Paragraph 7.1.
Debenture means a debenture issued to a Member Investor by a Member Issuer via the Platform, which has the characteristics described, and is subject to the terms specified, in the relevant Offering Document.
FCA means the Financial Conduct Authority.
FCA Rules means the rules and guidance of the FCA applicable to us and the Platform as amended from time to time.
Fully Subscribed has the meaning set out in Paragraph 7.12
Fundraising Period means the period from to the date a Member applies to become an Issuer in accordance with Paragraph 7.1 to the earliest of the date your application is rejected or the date the Issue either completes or terminates in accordance with Paragraph 7.8 or 7.11.
Investment means an investment in a Debenture or Shares.
Investor means a Member who invests in a Debenture and/or Shares.
Issue means an issue of a Debenture and/or Shares arranged by and between the Issuer and the Investor via the Platform.
Issuer means a Member issues a Debenture and/or Shares.
Member means a person who has registered as a member of the Platform in accordance with Paragraph 4.
Member Contact has the meaning set out at Paragraph 4.2.
Membership means being a Member.
Offering Document means the offering document (which may be called invitation document, offering memorandum, prospectus or some other description) produced by the Issuer containing information about the Debenture and/or shares issue and the instrument constituting the Debenture and/or shares.
Paragraph means a paragraph in these terms and conditions.
Publications means the terms of an Issuer’s proposed Issue as between the Issuer and its prospective Investors, together with all information published the Issuer on the Platform including but not limited to the Offering Document in respect of that Issue, registered company information, business plan, video, due diligence materials, company constitutional documents, supporting documents or otherwise.
Shares means shares in the capital of the Issuer company.
Transaction Terms has the meaning set out at Paragraph 7.1.
Cash Facility Fee – a fee of 0.5% for all investments in respect of the Issue transacted via the Platform
Legal Fee – a fee of £1,200 payable only if and when the fundraise becomes fully subscribed.
Transaction Fee – a fee payable only if and when the fundraise becomes fully subscribed, being 5% in relation to any monies:
- invested pursuant to the Issue via the Platform (other than any investors introduced to the Platform by you which we have agreed in advance in writing will not be subject to Transaction Fees); and
- any investment made by any prospective Investors introduced to you by us (whether or not via the Platform) investing in you at any time during a period of 3 years from the date of the introduction.
All above fees are exclusive of VAT which, if applicable, will be charged in addition to the fee stated above (in which case a VAT invoice will be provided).