These Investor Terms (“Investor Terms”) set out the terms of the agreement between First Sentinel Corporate Finance Limited (“FSCF”) of 72 Charlotte Street, London, W1T 4QQ, England, with company number 07832675, which is authorised and regulated by the Financial Conduct Authority (the “FCA”) (No. 760668) and any person (the “Investor”) who wishes to subscribe for shares or other securities offered by an investee company (the “Investee”) in response to a business campaign (“Campaign”) made by the Investee via this Website or other means of accessing the Campaign (the “Website”). FSCF provides services relating to the arranging of the investment by the Investor in shares or other securities offered by the Investee (the “Investment”).
These Investor Terms apply to all investments made on the Website by the Investor from time to time. These Investor Terms shall become binding as soon as you have completed the registration and the investment process. Your ability to invest through the Website will be conditional upon you successfully passing FSCF’s anti-money laundering checks.
In order to use the FSCF Website and complete an investment, the Investor acknowledges that he/she must successfully complete FSCF’s on-boarding process, including the Investor Assessment Questionnaire, and the Investor agrees that FSCF will rely on responses and confirmations given as part of the on-boarding process, which form part of the terms on FSCF provides services to the Investor.
- INCORPORATION OF OTHER TERMS AND ACCESS TO INVESTMENT OPPORTUNITY
1.1. By agreeing to these Investor Terms, the Investor acknowledges that he/she has also read, understood and agreed to:
1.1.2. the registration form;
1.1.4 the risk warnings and disclaimers on all Campaign pages both before and after registration and login;
1.1.5 any legal agreement or subscription agreement presented on a Campaign (which may be with the Investee rather than FSCF), specific to a particular Investment that an Investor applies to invest in, including without limitation any applicable prospectus or investment memorandum that may be presented to Investors.
1.2. In the event of a conflict between these Investor Terms and any prospectus or investment memorandum on a Campaign, the prospectus or investment memorandum shall take priority.
1.3. Investments are not an offer to or open to the public and investors’ agreement to these terms and conditions signifies they agree that the offer was not open to the public and that they are only able to invest in an investment product after becoming a client of FSCF. Registration and agreement to these terms and conditions allows clientship, which FSCF may terminate alongside and in accordance with this agreement.
- 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 country where you may legally receive financial promotions of the nature provided by FSCF, and are legally entitled to invest in the investments offered. The Investor acknowledges that any investment opportunity is only available in a country or jurisdiction where it is lawful to access investment offers and to make investments and in circumstances where it is lawful for the Investor to receive the offers for investment in the Website and to make investments and where no local or national restrictions exist applicable to the Investor which would make viewing offers or investing unlawful. The Investor acknowledges that offers 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 FSCF to be registered under such countries’ securities laws or otherwise.
2.2. During the Registration Process, the Investor must provide, and undertakes to provide FSCF with:
2.2.1. Investor’s name;
2.2.2. Investor’s and regularly checked email address; and
2.2.3. any other information requested by FSCF and undertakes to keep the same up to date and notify FSCF of any changes.
2.3. The act of complying with clause 2.2 above, shall constitute express written confirmation from the Investor to FSCF that the email address the investor has provided to FSCF may be used for the purpose of receiving notices or communications from FSCF and any Investee in electronic form and to FSCF or any Investee making information available on the Website, and requesting that FSCF 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 FSCF may from time to time require. In particular, FSCF may require identification of Investors and information about the sources of funds being provided by the Investor in investments FSCF considers in its sole discretion to be substantial.
2.5. FSCF reserves the right to refuse in its absolute and sole discretion to permit an Investor to invest in an Investee.
2.6. In registering on the Website, the Investor confirms his/her consent to his/her username being publicised as an Investor in the Investee.
2.7. The Investor may only invest in an investment for himself/herself in his/her own name and shall ensure that all orders for the investment made through the Website are made exclusively on his/her own behalf.
- CLIENT CATEGORISATION
3.1. Investors must classify themselves as either a (i) certified ‘high net worth investor’, (ii) certified ‘sophisticated investor’, (iii) self-certified as a ‘sophisticated investor’ or (iv) certified restricted investor, in each case in accordance with the FCA’s Conduct of Business Sourcebook Chapter 4.7.
3.2. We reserve the right to restrict Campaigns to designated investor types only.
3.3. FSCF has classified the Investor as a retail investor for the purposes of FCA Conduct of Business Rules. If you wish to change your classification, you must immediately notify FSCF to request a different classification.
3.4. The Investor acknowledges that FSCF may not supply confirmations of any orders, and/or resulting transactions, and that the investment confirmation email (as outlined below and referred to as the “Cooling Off Email”) 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 FSCF in accordance with the FCA Handbook, Conduct of Business Rules.
4.1. FSCF does not charge any remuneration or administration fees to the Investor for the services provided in this Website and in accordance with these Investor Terms.
4.2. FSCF reserves the right to implement a fee structure for its services upon the Investor in the future, and will do so by providing 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 or other securities in Investees will be cancelled. The Investor warrants to FSCF that it shall pay such fees or charges, if applicable, and shall indemnify FSCF against any loss, liability, cost or expense resulting from the same.
4.3. The Investor acknowledges that ancillary charges or fees may be payable to the Investee or third parties in connection with the Investment and acknowledges that such charges or fees are not associated with these Investor Terms.
- INVESTMENT PROCESS
5.1. The Investor will be entitled to place a revocable order to subscribe for shares or other securities in an Investee in any Campaign available on the Website for a period (the “Campaign Period”) ending on the date specified by the Investee on the Campaign which may be updated from time to time and FSCF reserves the right to end Campaigns early or extend the Campaign Period in its absolute discretion. The subscription agreement for the investment is between the Investor and Investee, such that the Campaign from the Investor is to the Investee and not to FSCF. The Investee may accept or reject any order up until expiry of the period set out in the email as set out in clause 5.3 below. FSCF is not a party to the agreement to invest between the Investor and Investee and FSCF’s service is limited to arranging the investment, on a non-advisory basis.
5.2. The Investor shall put in place payment arrangements to ensure that the Subscription Price is paid. This may require the Investor to agree to a payment service provider’s terms and conditions or otherwise provide satisfactory evidence of payment to FSCF. It is the Investor’s responsibility to ensure that any such payment arrangements are established and maintained and that monies are transferred accordingly.
5.3. FSCF will notify each Investor by email following their subscription pledge. By following the steps in the Website, the Investor will be deemed to have confirmed his/her order and the Investee will accept his/her order and such order will become a legally binding contract to invest between the Investee and the Investor 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 subject to the completion conditions set out in clause 5.5 below.
5.4. If for any reason the confirmation email is not received by an Investor or an Investor’s response to the confirmation email is not received by FSCF (whether this is known or notified to FSCF or not), otherwise than as a result of fraud or gross negligence by FSCF, FSCF shall not be liable to the Investor or the Investee for any losses, claims or damages suffered by the Investor, and FSCF shall be entitled to proceed on the assumption that the Investor has received the email and wishes to proceed with the Investment.
5.5. Subject to clause 5.6, the contract to invest between the Investor and Investee is subject to the following completion conditions:
5.5.1. the Warranties being true and there being no actual or contemplated material change to the Investee or the investment round, either before or after the expiry of the email set out in clause 5.3 above and prior to the issue of shares or other securities to Investors (whether change is material to be determined by FSCF in its sole discretion);
5.5.2. confirmation of satisfaction of any specific conditions set out by FSCF; and
5.5.3. payment of all fees and commissions due from Investee to FSCF.
5.6 FSCF (and not the Investee or Investor) has absolute discretion to determine whether the conditions set out in clause 5.5 above are satisfied at any time during the completions process prior to the issue of shares or other securities to Investor by Investee. If FSCF determines a condition is not satisfied, FSCF may in its absolute discretion:
5.6.1. recirculate the email to Investors as set out in clause 5.3 above, as required by FSCF; or
5.6.2. determine that the investment opportunity is cancelled, either before or after the expiry of the time period in the confirmation email. In these circumstances, if the time period set out in the confirmation email to investors has expired, the contract to invest between the Investee and Investor shall not complete and there shall be no legally binding contract between the Investee and Investor. Clause 5.8 below shall apply in these circumstances.
5.7. If a Campaign is successful, when the Investor places an order to subscribe for shares or other securities 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 for the relevant Investment (the “Subscription Price”) to the Investee, if payments are not made directly to the Investee. Shares or other 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 Campaign Period and the Investment Fee or Commission for services will be transferred to FSCF. If the Campaign is not successful or any completion condition set out in clause 5.3 or 5.5 is not satisfied, then no such agreement between the Investor and the Investee shall arise and the Investor will be notified accordingly.
5.8. If the Campaign is unsuccessful or the order not completed for any reason, the Investor’s order will not be transferred to another Campaign or Investee, and no substitute service will be provided. The Investor confirms that should an Investee not ultimately attain the stated desired target level of investment as set out in its Campaign, through withdrawals after the expiry of the Campaign Period, or failure by other Investors to transfer the Subscription Price to the Investee, neither the Investee nor FSCF is required to inform the Investor of this failure, and the Investor may still be required to purchase the shares or other securities he/she ordered, provided that the conditions in clause 5.3 and 5.5 are met. If the conditions in clause 5.3 or 5.5 are not satisfied for any reason, the agreement for investment between the Investor and Investee will not complete and FSCF will use its reasonable endeavours to arrange for the Investee to cancel the Investment made by the Investor and, if payment has already been made, require the Investee to return the Subscription Price to the Investor. The Investor consents to FSCF 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 FSCF 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.
5.9. The terms relating to the provision of any rewards for investment advertised on the Campaign shall constitute part of the agreement formed between the Investor and the Investee pursuant to clause 5.7. FSCF shall not be responsible for the provision of such rewards and shall not be liable for any delay or failure of the Investee in the provision of such rewards.
5.10. The Warranties are made by the Investee to the Investor. FSCF accepts no responsibility for enforcing any Warranties. Any Investor who seeks to enforce any of the Warranties shall bear all costs incurred in connection with such enforcement.
5.11. At any time prior to the expiry of the period specified out in the email sent by FSCF pursuant to clause 5.3 above, FSCF may cancel any order of Investment made by the Investor that FSCF deems, in its absolute discretion, to be malicious or otherwise detrimental to Investee or FSCF. This includes, without limitation, Investments placed for the purpose of disrupting or causing the closure of the Investee’s Campaign where the Investor has no intention of paying the Subscription Price. The Investor shall indemnify FSCF for any loss, liability, cost or expense incurred by FSCF in connection with the removal of an Investment pursuant to this clause.
- INVESTMENTS AND NEXT OF KIN
6.1. Investors are encouraged to ensure that arrangements are put in place for their next of kin to be informed of their order and the FSCF process, and that instructions are provided to enable the Investor’s order to be withdrawn before it is converted to an irrevocable order on the occurrence of the Investor’s death, insolvency or incapacity. FSCF 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.
6.2. Investors, or in accordance with clause 6.1, 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 5.3 above.
- INVESTEE ARTICLES OR INVESTMENT DOCUMENTATION
7.1. The Investor acknowledges that, as a consequence of him/her becoming a shareholder of an Investee, he/she shall be subject to the provisions of the Investee’s Articles of Association (which constitute an agreement between all of the Investee’s shareholders), Prospectus or Investment Memorandum, which Articles of Association, Prospectus or Investment Memorandum, will include certain restrictions on the shares or other securities and certain rights and obligations will attach to such shares or other securities.
- REGULATION AND LIABILITY
8.1. The Investor acknowledges that FSCF’s affiliates, and/or the proprietors, officers or employees of FSCF and/or such affiliates may consider expressing interest or subscribing for shares or other securities in an Investee. If the Investor becomes aware of this, he/she agrees not to rely upon the same in making a decision whether to invest in an Investee, and confirms that any decision by him/her to invest in an Investee is not based upon any representation, information, action, omission or otherwise of FSCF, its subsidiaries or affiliates or the proprietors or employees of FSCF, its subsidiaries or its affiliates.
8.2. The Investor acknowledges that FSCF approves each Campaign 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 Campaign as a financial promotion by FSCF, or the investment in an Investee by any person referred to in clause 6.1 is not an indication of approval of the Campaign generally, and the Investor confirms that it shall take no inference from or make any reference to the same.
8.3. The Investor warrants, represents and undertakes to FSCF that (i) the Investor has categorised himself or herself correctly under clause 3.1 above; (ii) shall comply with any terms and conditions associated with the use of the Website, and in particular undertakes not to post any illegal, defamatory or inappropriate material or advice to invest and acknowledges that FSCF will in its absolute discretion have the power to determine whether posts by Investors, in any media, breach this clause 8.3 or are otherwise inappropriate and may be removed.
8.4. The Investor acknowledges that FSCF 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 FSCF encourages this approach.
8.5. The Investor acknowledges that in approving the Campaign as a financial promotion, FSCF has concluded that the Campaign, taken as a whole in the context of the above, is fair, clear and not misleading. The Investor acknowledges that FSCF has reviewed any factual statements included within the Campaign 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 FSCF, which means that it may contain inaccuracies, be incomplete or be a forgery.
8.6. The Investor acknowledges that FSCF have checked that aspirational statements contained within the Campaign 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 FSCF 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 FSCF encourages Investors to consider the information provided in the context it is being provided.
8.7. The Investor acknowledges that FSCF 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 FSCF 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. The Investor acknowledges that tax treatment depends on the individual circumstances of each Investor and may be subject to change in future.
8.9. 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 to the extent that liability may not be excluded or limited by any applicable law or regulation.
8.10. With the exception of clause 8.9 above, FSCF’s liability (which shall include FSCF’s affiliate or group companies; and directors, officers and employees of FSCF) 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 lesser of the total amount invested in the Campaign by Investor in the Website; up to the date of the event leading to the claim; or £1,000;
8.11. FSCF shall not 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.
8.12. Any money or assets held for the Investor shall be held in accordance with all applicable rules set out in the FCA Handbook. FSCF’s may appoint a receiving agent to provide regulatory payment processing services for investors. Accordingly, such appointed receiving agent will provide FSCF record services, transaction management services, payment management services (together the “core services”). The appointed receiving agent will hold all monies in a segregated bank account (the “Client Account”) and will not intermingle such monies with its own business funds. The client money bank account is a non-interest bearing bank account.
9.1. Subject to clause 9.2, the Investor may terminate this agreement on 7 days’ written notice to FSCF.
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 FSCF; and (ii), has withdrawn his/her order from the ongoing Campaign either via the Website, or by responding to the confirmation email confirming his/her 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 FSCF shall have no further obligations or involvement in the Investment unless otherwise notified to Investor.
9.4. FSCF may terminate this agreement at any time in the event that:
9.4.1. the Investor breaches these Investor Terms; or
9.4.2. FSCF suspects that the Investor has been involved in any criminal or otherwise improper activities, and the Investor’s use of the Website will be terminated.
9.5. If FSCF 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 or other securities in the relevant Investee, FSCF 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. Clauses 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 FSCF then any clause in this agreement that is required in order to.
- EARLY DRAWDOWN OF FUNDS
10.1. This clause applies where the Investor has entered into a binding Subscription Agreement with the Investee and transferred the applicable Subscription Price (“Pre-Committed Investment”) to the Investee prior to the email referred to in clause 5.3 being sent.
10.2. Where this clause applies, the Investor:
10.2.1 agrees that the Investee may draw down and spend the Pre-Committed Investment at any time after the receipt of such Pre-Committed Investment and that there is no guarantee that any further funds will be raised via the Campaign;
10.2.2. waives any right he or she may have to cancel the Pre-Committed Investment in accordance with clause 5 or otherwise;
10.2.3. agrees that completion of the Pre-Committed Investment shall not be subject to the conditions set out in clause 5.5 and that Investor may be subject to additional risks of investment which are outside of FSCF’s control;
10.2.4. agrees that, in the event that the Campaign is cancelled for any reason, the Investee shall be solely responsible for issuing the shares or other securities in respect of the Pre-Committed Investment; and
10.2.5. acknowledges that the delay between receipt of the Pre-Committed Investment and the issue of shares or other securities in respect of such Pre-Committed Investment may prejudice any tax relief to which the Investor may otherwise be entitled and agrees to take professional tax advice as required.
- COMPLAINTS AND QUERIES
11.1. Should an Investor have any complaints or queries about the services provided by FSCF on this agreement, they should contact FSCF at email@example.com;or by writing to FSCF at 72 Charlotte Street, London, England, W1T 4QQ, United Kingdom.
11.2. Complaints may subsequently be addressed directly to the UK Financial Ombudsman Service – contact details as follows: 0300 123 9 123 or 0800 023 4567 FREE or via email at https://www.financial-ombudsman.org.uk/contact-us/complain-online
11.3. Investors are treated as customers of FSCF and may therefore have the potential to be compensated out of the Financial Services Compensation Scheme in the event that FSCF 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 an investee company fails or does not perform to expectations.
11.4. Communications with, to or from FSCF 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.
- 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.
- 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 FSCF. FSCF 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 FSCF is firstname.lastname@example.org.
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.
- 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).