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INVESTOR TERMS AND CONDITIONS
Terms & Conditions
Investor Terms – last updated 21 October 2015
These Investor Terms are entered into between Crowdcube Capital Limited ("Crowdcube") of The Innovation Centre, University of Exeter, Exeter EX4 4RN with the company number 09095835. which is authorised and regulated by the Financial Conduct Authority (the "FCA") (No. 650205), and any person (the "Investor") who wishes to subscribe for shares, debt securities or units in funds offered by an investee company or fund (the "Investee") in response to an investment proposition ("Pitch") made by the Investee via the website located at www.crowdcube.com (the "Website"). Crowdcube provides services relating to the arranging of the investment by the Investor in shares, debt securities or units in funds in or offered by the Investee (the "Investment").
1. INCORPORATION OF OTHER TERMS AND ACCESS TO INVESTMENT OPPORTUNITY
1.1. By agreeing to these Investor Terms, the Investor acknowledges that he has also read, understood and agreed to:
1.1.2. the registration form, accessible online at www.crowdcube.com/register;
1.1.4 the risk warnings and disclaimers on all pitch pages both before and after registration and login on www.crowdcube.com;
1.1.5 any legal agreement presented on a Pitch (which may be with the Investee rather than Crowdcube), specific to a particular Investment that an Investor applies to invest in, including without limitation, the applicable bond instrument on a mini-bond pitch page, any applicable prospectus that may be presented to Investors or any applicable Fund Investment Agreement that may be presented on a Fund Pitch page; and
1.1.6 any declaration of trust with a nominee company as may be attached to a particular Pitch or otherwise notified to an Investor by Crowdcube.
1.2. In order to use the Crowdcube platform, the Investor acknowledges that they must successfully complete Crowdcube's on-boarding process, including Investor Assessment Questionnaire where applicable, and the Investor agrees that Crowdcube will rely on responses and confirmations given as part of the on-boarding process, which form part of the terms on which Crowdcube provides services to the Investor.
1.3 Investments are not offers to or open to the public and investors agreement to these terms and conditions signifies they agree that they offer was not open to the public and that they are only able to invest in an investment product after becoming a member of Crowdcube. Registration and agreement to these terms and conditions allows membership, which Crowdcube may terminate alongside and in accordance with this agreement.
1.4 Notwithstanding anything to the contrary in these Investor Terms, where a Pitch (as defined below) states that investments and share subscriptions into an Investee will be made via a nominee, the subscription for shares shall not be for a subscription as legal owner of shares in the Investee and the Investor shall instead be subscribing for a beneficial interest in shares in the Investee to be held on trust for the Investor by a nominee company subject to the terms of the applicable trust agreement between the nominee company and the Investor and associated company constitutional documents. Any provisions and terms in these Investor Terms impacted by such a nominee structure, including without limitation, references to orders, subscription, shares, shareholding and shareholder shall be interpreted accordingly to give effect to the nominee structure. In these circumstances, the nominee company shall be the legal owner of shares in the Investee and registered on the share register of the company rather than the Investor.
2. REGISTRATION PROCESS
2.1. In registering on the Website (the "Registration Process") the Investor represents, warrants and undertakes that they are an individual who is at least 18 years old and a resident of the United Kingdom or a territory where it is lawful to access Investment offers and to make investments and that it is lawful for the Investor to receive the offers for investment on www.crowdcube.com and to make investments and there exist no local or national restrictions applicable to the Investor which would make viewing Pitches or investing unlawful. Investor acknowledges that Pitches are not offers to the public in the United States or other countries where such an offer may be unlawful or require the Investee or Crowdcube to be registered under such countries Securities laws or otherwise.
2.2. During the Registration Process, the Investor must provide, and undertakes to provide Crowdcube with:
2.2.1. his full name;
2.2.2. his current address;
2.2.3. his email address, which will be verified by means of a verification email as part of the Registration Process; and
2.2.4. any other information requested by Crowdcube
and undertakes to keep the same up to date and notify Crowdcube of any changes.
2.3. The act of complying with Clause 2.2 above, shall constitute express written confirmation from the Investor to Crowdcube that the email address he has provided to Crowdcube may be used for the purpose of receiving notices or communications from Crowdcube and any Investee in electronic form and to Crowdcube or any Investee making information available on a website, and requesting that Crowdcube provide a copy of this confirmation to the Investee.
2.4. The Investor shall comply with such identification and other anti-money laundering requirements that Crowdcube may from time to time require. In particular, Crowdcube may require identification of Investors and information about the sources of funds being provided by the Investor in investments Crowdcube considers in its sole discretion to be substantial.
2.5. Crowdcube reserves the right to refuse in its absolute and sole discretion to permit an Investor to invest or subscribe for debt securities in an Investee.
2.6. In registering on the Website, the Investor confirms his consent to his username being publicised as an Investor in the Investee.
2.7. The Investor may only invest in an Investment for himself in his own name and shall ensure that all orders for shares or debt securities made through the Website are made exclusively on his own behalf.
3. CLIENT CATEGORISATION
3.1. Under the FCA's rules, investors must classify themselves as either (i) self-certified ‘high net worth investor’, (ii) certified ‘sophisticated investor’, (iii) self-certified as a ‘sophisticated investor’ or (iv) certified as a ‘restricted investor’, in each case in accordance with the FCA’s Conduct of Business Sourcebook Chapter 4.7. If you wish to change your classification you should notify Crowdcube to request a different classification. Investors agree to provide information on request to enable Crowdcube to comply with client categorisation rules.
3.2. The Investor acknowledges that Crowdcube will not supply confirmations of any orders, and or resulting transactions, and that the investment confirmation email (as outlined below) shall be sufficient and adequate reporting of the service of arranging the reception and transmission of orders and the arranging of resulting transactions, provided by Crowdcube in accordance with the FCA Handbook, Conduct of Business Rules, Rule 16.1.1, and hereby consents to the same.
4.1. Crowdcube does not charge the Investor any remuneration for the services provided to the Investor in accordance with these terms.
4.2. Crowdcube reserves the right to impose a fee or charge for its services upon the Investor in the future, and will do so by providing one months' advance written notice by email of the proposed charges or fees and any variation of the same, to the Investor whereupon the Investor may, by notice, terminate this agreement forthwith, if it so wishes, and any outstanding orders for shares in Investees will be cancelled.
4.3. The Investor acknowledges that ancillary charges or fees may be payable to third parties in connection with the Investment, and acknowledges that such charges or fees are not associated with these terms. The Investor warrants to Crowdcube that it shall pay such fees or charges and shall indemnify and hold Crowdcube from against any loss, liability, cost or expense resulting from the same.
5. INVESTMENT PROCESS
5.1. The Investor will be entitled to place a revocable order to subscribe for shares, debt securities or fund units in an Investee in any Pitch on the Website for a period (the "Offer Period") ending on the date specified by Investee on the Pitch which may be updated from time to time and Crowdcube reserves the right to end Pitches early or extend the Offer Period in its absolute discretion. The subscription agreement for the Investment is between the Investor and Investee such that the offer from the Investor is to the Investee and not to Crowdcube. The Investee may accept or reject any order up until expiry of the email as set out in clause 5.3 below. Crowdcube is not a party to the agreement to invest between the Investor and Investee and Crowdcube’s service is limited to arranging the investment.
5.2. The Investor shall put in place payment arrangements to ensure that the Subscription Price is paid in accordance with clause 5.5 below. This may require the Investor to agree to a payment service provider’s terms and conditions or otherwise provide satisfactory evidence of payment to Crowdcube. It is Investor’s responsibility to ensure that any such payment arrangements are established and maintained and that monies are transferred in accordance with clause 5.5 below.
5.3. If a Pitch is successful, the Investee will instruct Crowdcube to circulate a copy of the Investee's proposed Articles of Association, bond instrument or fund documentation to each Investor by email, and to request that each Investor inform Crowdcube by email within the time period specified in the email if they no longer wish to proceed with the Investment. If Crowdcube receives no response from the Investor within the specified time period, the Investor will be deemed to have confirmed his order and the Investee will accept his order and such order will become an irrevocable firm order upon expiry of the time period set out in the email, with completion of the investment conditional upon the Investee receiving payment from the Investor and provided the Investee receives at least 90% of its original Pitch target investment amount. If 90% of the Pitch target is not received by the Investee then clause 6.3 applies.
5.4. If for any reason the confirmation email is not received by an Investor (whether this is known or notified to Crowdcube or not), otherwise than as a result of fraud or gross negligence by Crowdcube, Crowdcube shall not be liable to the Investor or the Investee for any losses, claims, damages, etc suffered by the Investor, and Crowdcube shall be entitled to proceed on the assumption that the Investor wishes to proceed with the Investment.
5.5. If a Pitch is successful, when the Investor places an order to subscribe for shares in an Investee, and subject to non-revocation at expiry of the confirmation email an agreement shall then subsist between the Investor and the Investee, or a third party on behalf of the Investee, to transfer the subscription price of the relevant shares or debt securities (the "Subscription Price") to the Investee. Shares or debt securities in the Investee will be issued to the Investor by the Investee and the Subscription Price will be transferred to the account of the Investee following the end of the Offer Period. If the Pitch is not successful, no such agreement between the Investor and the Investee shall arise.
5.6. If the Pitch is unsuccessful or the order not completed for any reason, the Investor's order will not be transferred to another Pitch or Investee, and no substitute service will be provided.
6.1. The Investor acknowledges that Crowdcube's affiliates, and/or the proprietors, officers or employees of Crowdcube and/or such affiliates may consider expressing interest or subscribing for shares in an Investee. If the Investor becomes aware of this, he agrees not to rely upon the same in making a decision whether to invest in an Investee, and confirms that any decision by him to invest in an Investee is not based upon any representation, information, action, omission or otherwise of Crowdcube, its subsidiaries or affiliates or the proprietors or employees of Crowdcube, its subsidiaries or its affiliates.
6.2. The Investor acknowledges that Crowdcube approves each Pitch as a financial promotion but does not provide advice or any form of recommendation regarding the suitability or quality of the Investment. The Investor acknowledges that the approval of the Pitch as a financial promotion by Crowdcube, or the investment in an Investee by any person referred to in clause 6.1 is not an indication of approval of the Pitch generally, and the Investor confirms that it shall take no inference from or make any reference to the same.
6.3. The Investor confirms that should an Investee not ultimately attain the stated desired target level of investment as set out in its Pitch, through withdrawals after the expiry of the Offer Period, or failure by other Investors to transfer the Subscription Price to the Investee, neither the Investee nor Crowdcube is required to inform the Investor of this failure, and the Investor may still be required to purchase the shares he ordered, provided that the level of investment received by the Investee is at least 90% of the desired target level of investment as set out in its Pitch. If the Investee ultimately attains less than 90% of the desired target level of investment as set out in its Pitch, the agreement for investment between the Investor and Investee will not complete and Crowdcube will use its reasonable endeavours to arrange for the Investee to cancel the Investment made by the Investor and return the Subscription Price to the Investor. The Investor consents to Crowdcube releasing such information as is reasonably necessary, to the Investee to allow such return of the Subscription Price, and the Investor undertakes to co-operate with Crowdcube and the Investee, including in relation to any transaction fees or charges, to facilitate the cancellation of the Investment and the return of the Subscription Price.
6.4. Investors are encouraged to ensure that arrangements are put in place for their next of kin to be informed of their order and the Crowdcube process, and that instructions are provided to enable the Investor's order to be withdrawn before it is converted to a irrevocable order on the occurrence of the Investor's death, insolvency or incapacity. Crowdcube accepts no responsibility or liability for orders not being withdrawn before being converted to a firm order through the failure of the Investor to put in place such an arrangement, or the failure of the next of kin to communicate a withdrawal.
6.5. Investors, or in accordance with clause 6.4, their next of kin, are entitled to withdraw their order at any time prior to it becoming a firm order upon the expiry of the confirmation email as set out in clause 5.2 above.
6.6 If a Pitch is cancelled for any reason or does not reach its target, Investors acknowledge that Crowdcube is no longer arranging or approving financial promotions for the Investee and that if the Investor engages in any further conversations or investments outside of Crowdcube that Crowdcube has no liability or involvement with such transaction and that no statement made on Crowdcube or elsewhere by the Investee or by Crowdcube may be relied upon.
7. INVESTEE ARTICLES, BOND INSTRUMENT OR FUND DOCUMENTATION
7.1. The Investor acknowledges that, as a consequence of him becoming a shareholder of an Investee, he shall be subject to the provisions of the Investee's Articles of Association (which constitute an agreement between all of the Investee's shareholders), bond instrument or fund investment agreement, which Articles of Association, bond instrument or fund investment agreement will include certain restrictions on the shares, bonds or fund units issued and certain rights and obligations will attach to such shares, bonds or fund units and fund investments.
7.2. The Articles of Association will be in the form notified to the Investor by Crowdcube in the confirmation email referred to in clause 5.2 above and/or as set out on the pitch and may be subject to other documentation or disclosures.
7.3. The Investor acknowledges that, as a consequence of him becoming a bondholder of an Investee, he shall be subject to the provisions of the Bond Instrument or other debt instrument and associated terms and conditions of the particular debt security (which constitute an agreement between each bondholder and the relevant Investee) which will include certain restrictions on the debt securities issued and certain rights and obligations will attach to such debt securities.
8. REGULATION AND LIABILITY
8.1. The Investor acknowledges and accepts that the Website includes a forum which is an integral part of an Investee's Pitch which is intended as a service to Investees to put them in contact with Investors, and thus that Crowdcube's investigation of the Investees and the content of their Pitches is limited, and accordingly Crowdcube makes no warranty or representation and assumes no liability in respect of the Investees or the content of their Pitches. The Investor must make his own assessment of the viability, accuracy and prospects of the Investees, their Pitches, and any relevant investment propositions and should consult his professional advisers should he require any assistance in making such an assessment or should the Investor require any services whatsoever in connection with Crowdcube. In particular, the attention of the Investors is drawn to the disclaimer, risk warning and regulatory notice on each Pitch.
8.2. The Investor warrants, represents and undertakes to Crowdcube that (i) the Investor has categorised himself or herself correctly under clause 3 above; (ii) shall comply with any terms and conditions associated with the use of the forums on the Website, and in particular undertakes not to post any illegal, defamatory or inappropriate material or advice to invest and acknowledges that Crowdcube will in its absolute discretion have the power to determine whether posts by Investors breach this clause 8.2 or are otherwise inappropriate and may be removed by Crowdcube.
8.3. The Investor acknowledges that Crowdcube does not provide the Investor with any advice or recommendations in relation to investments. Nevertheless it is typically considered prudent for Investors to consider spreading their risk over multiple investments and Crowdcube encourages this approach.
8.4. The Investor acknowledges that in approving the Pitch as a financial promotion, Crowdcube has concluded that the Pitch, taken as a whole in the context of the above, is fair, clear and not misleading. The Investor acknowledges that Crowdcube has reviewed any factual statements included within the Pitch and obtained evidence of their accuracy from the Investee. However, the Investor's attention is drawn to the fact that the evidence is obtained from the Investee itself and has not been audited by Crowdcube, which means that it may contain inaccuracies, be incomplete or be a forgery.
8.5. The Investor acknowledges that Crowdcube has checked that aspirational statements contained within the Pitch are phrased appropriately in light of their speculative nature. However, the Investor acknowledges that the Investee is likely to be a start-up company and as such may have high ambitions which may be unachievable and exaggerated. The Investor acknowledges that Crowdcube may approve statements that convey those ambitions even where it does not believe, or does not have a view on whether it is likely, that they will be fully realised and the Investor acknowledges that Crowdcube encourages Investors to consider the information provided in the context it is being provided.
8.6 The Investor acknowledges that Crowdcube makes no representation, warranty or undertaking relating to any claims made by Investees, including, without limitation, that the Investee and the Investment will qualify for or be subject to any tax benefits such as EIS and SEIS or that these tax benefit are pending approval of HMRC. Investor acknowledges and agrees that tax benefits may change or be disqualified and shall not hold Crowdcube liable for any loss arising as a result of a tax benefit (including , without limitation EIS or SEIS) not applying to an Investment, including without limitation in circumstances where tax has been ‘clawed back’ from an Investor by HMRC.
8.8 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their agents or employees nor for fraud by or on behalf of either party. Nothing in this Agreement shall limit any liability of to the extent that liability may not be excluded or limited by any applicable law or regulation.
8.9 With the exception of clause 8.8 above and any breach of warranty by the Investor (which shall have unlimited liability), the liability of either party (which in the case of Crowdcube shall include Crowdcube’s affiliate or group companies, including Crowdcube Ltd; and directors, officers and employees of Crowdcube Ltd, Crowdcube Capital Ltd, Crowdcube Nominees Ltd and Crowdcube Ventures Ltd) in contract, tort, negligence, pre-contract or other representations or otherwise arising out of this agreement or the performance of its obligations under this agreement shall be limited in aggregate to the total amount invested by Investor on www.crowdcube.com up to the date of the event leading to the claim or £10,000 whichever is the lesser amount.
8.10 Neither party shall be liable in contract, tort (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise under this Agreement for: (a) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings); or (b) any special, indirect or consequential losses; whether or not such losses were known to the parties at the commencement of this Agreement.
8.11 Where an Investor invests via a nominee, the nominee company is responsible for the administration of the nominee and trust agreement in accordance with the relevant trust agreement and neither Crowdcube, nor any subsidiary or holding company of Crowdcube, or any other subsidiary of Crowdcube’s holding company (other than a nominee company where this forms part of Crowdcube’s group) is a party or trustee to the nominee agreement or otherwise responsible for the Investor’s beneficial shareholding via the nominee company or otherwise and is not liable for the actions or inactions of the nominee company or for loss or damage of any nature arising from Investors investment via a nominee.
9.1. Subject to clause 9.2, the Investor may terminate this agreement on 7 days' written notice to Crowdcube.
9.2. If an Investor has an outstanding or incomplete order for investment in any Investee which has not been resolved in accordance with Clause 5.1, the Investor may only terminate this Agreement if they have (i) served written notice by email on Crowdcube; and (ii), has withdrawn his order from the ongoing Pitch either via the Pitch, or by responding to the confirmation email confirming his withdrawal.
9.3. Once an order has been made firm with an Investee in accordance with this agreement, the Investor has entered into a contract with the Investee direct on such terms as are agreed with the Investee, and Crowdcube shall have no further obligations or involvement in the Investment unless otherwise notified to Investor.
9.4. Crowdcube may terminate this agreement at any time in the event that:
9.4.1. the Investor breaches these Investor Terms; or
9.4.2. Crowdcube suspects that the Investor has been involved in any criminal or otherwise improper activities,
and the Investor's use of the Crowdcube platform will be terminated.
9.5. If Crowdcube terminates this agreement in accordance with clause 9.4 whilst the Investor has placed an order that has not been completed by the issue of shares in the relevant Investee, Crowdcube reserves the right to inform the Investee of the termination and take such steps as are necessary to ensure that the Investor's order is not completed.
9.6 Clause 5, 6, 7 and 8 shall survive termination of this agreement and if an Investor has made an application to invest or has invested in an Investee through Crowdcube then any clause in this agreement that is required in order to
10. COMPLAINTS AND QUERIES
10.1. Should an Investor have any complaints or queries about the services provided by Crowdcube or this agreement, they should contact Crowdcube on 01392 241319 or by writing to Crowdcube at the Innovation Centre, University of Exeter, Rennes Drive, Exeter EX4 4RN.
10.2. Complaints may also be addressed directly to the UK Financial Ombudsman Service - contact details as follows:- 0300 123 9 123 or 0800 023 4567 FREE.
10.3. Investors are treated as customers of Crowdcube and therefore have the potential to be compensated out of the Financial Services Compensation Scheme established and operated by the Financial Conduct Authority in the event that Crowdcube should fail in the conduct of its FCA regulated activities. However, Investors will not be able to claim under the Financial Services Compensation Scheme merely because a Crowdcube investee company fails or does not perform to expectations.
10.4. Communications with, to or from Crowdcube shall be in the English language.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
13. ASSIGNMENT AND VARIATION
14.1. The provisions of this agreement shall not be assigned, transferred, mortgaged, charged or otherwise encumbered by the Investor without the written consent of Crowdcube. Crowdcube may assign this agreement without restriction subject to compliance with applicable law and regulation.
14.2. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). If any clause is deemed invalid or unenforceable, it shall not impact upon the remainder of this agreement which shall remain in force.
15.1. Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or (in any other case) its principal place of business or residential address, or sent by email to the email address notified to the other party in accordance with this agreement. The email address for the service of notices on Crowdcube is [email protected]
15.2. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by email, at 9.00 am on the next working day after transmission, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
16. GOVERNING LAW AND JURISDICTION
16.1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
16.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).