These Terms and Conditions will apply to each person (the "Investor") who wishes to access and use the Shadow Foundr Platform (the "Platform") in order to view informative documents submitted by potential entrepreneur's (the "Investees") regarding their inventions, business ideas or commercial projects ("Business Summaries" and "Information Memorandum") which require investment. The Business Summaries and Information Memorandums are made available on the Platform by Shadow Foundr Ltd ("SF").
In order to access and use the Platform, all Investors must accept these Terms and Conditions by clicking the 'I accept' button and/or answer questions depending on the category of the investor. Upon such acceptance, each Investor will be given a unique user login ID that will need a password and for the purpose of security be monitored and tracked by Shadow Foundr.
Shadow Foundr may change these conditions at any time by posting new or amended conditions on the Platform. Investors' continued use of the Platform after any changes are posted means that the Investor has accepted that they are bound by the new or amended conditions. The Investor must therefore check the Platform's conditions regularly.
1. DESCRIPTION OF SERVICE
1.1 The Platform provides a database of profiles of Investee Business Summaries, that will be accessible by the Investor (the "Service").
1.2 If the Investor is interested in a Business Summary they may, through the Platform online, request a full Information Memorandum ("IM") from the Investee, detailing in full the opportunity, information on the Investee and full disclosure of the risks.
1.3 The Platform acts solely as a tool for the Investor to find opportunities that match their investment preferences and that SF shall not be liable for any transaction or arrangement consequently made between an Investor and an Investee.
2. REGISTRATION PROCESS FOR THE INVESTOR
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.shadowfoundr.com and to make investments and there exist no local or national restrictions applicable to the Investor which would make viewing Business Summaries or Information Memorandum or investing unlawful. Investor acknowledges that investment information on the Platform 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 SF to be registered under such countries Securities laws or otherwise.
2.1 In order to obtain login to the Platform and gain access to the Service the Investor agrees to provide accurate, complete personal information as requested. It is the responsibility of the Investor to provide updated personal information.
2.2 The Platform user login may only be used by the designated Investor, shared access is not permitted. Investors may not assign or transfer their login details.
2.3 Access to the Platform is provided subject to the condition that there is no breach of this agreement or fraudulent use of the Services by the Investor. It is not permitted to re-arrange, tamper with or make any connection to the Platform by any trick, scheme, false representation or other fraudulent means.
2.4 The Investor agrees to:
i) immediately notify SF of any unauthorised use of their login ID or any other breach of security, and
ii) ensure that they exit from the Services at the end of each session.
2.5 The Investor agrees to maintain and promptly update their personal information to keep it true, accurate, current and complete. If the Investor provides any information that is untrue, inaccurate, not current or incomplete, or SF has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the SF has the right to suspend or terminate the Service available to the Investors and refuse any and all current or future use of the Service (or any portion thereof).
2.6 The Investor will have full use of the Service free of charge and shall receive no monetary compensation from SF for subscribing.
2.7 By using the Platform the Investor may access third party material or third party Platforms. The Investor understands that all third party information, data, text, software, sound, photographs, graphics, video, messages or other materials (the " Third Party Content") on or accessible via the Platform, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Third Party Content originated.
2.8 The Investor understands that SF does not control the Third Party Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Third Party Content.
2.9 The Investor understands that by using the Service, they may be exposed to Third Party Content that is offensive, indecent or objectionable. Under no circumstances will SF be liable in any way for any Third Party Content, including, but not limited to, any errors or omissions in any Third Party Content, or for any loss or damage of any kind incurred as a result of the use of any Third Party Content posted, emailed, transmitted or otherwise made available via the Service.
2.10 The Investor agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, use of the Service, or access to the Service, including any of the Investee's or SF's intellectual property rights or any person firm or corporation having posted information for availability through the Service.
2.11 The Investor may not market, promote or sell any good or products, services or supplies to Investees.
2.12 The Investor understands that SF does not recommend one business opportunity over another.
3. CLIENT CATEGORISATION
3.1 In accordance with FCA Conduct of Business Sourcebook, Investors must classify themselves as one of the following investors:
i) self-certified "high net worth investor"
ii) certified "sophisticated investor"
iii) self-certified as a "sophisticated investor"
iv) self-certified as a "restricted investor"
3.2 The Investor acknowledges that SF will not supply confirmations of any orders, and or resulting transactions, and that the investment confirmation 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 SF in accordance with the FCA Handbook, Conduct of Business Rules.
3.3 Investment in new businesses carries high risks as well as the possibility of high rewards. Such investments are highly speculative and the Investor is strongly advised to take advice from a person authorised under the FSMA who specialises in advising on investments of this kind. SF cannot advise on the merits or risksof specific investments.
3.4 The Investor accepts full responsibility for compliance with applicable laws relating to (among other things) the FSMA when dealing with any Business Summary or Information Memorandum and where required Investors are advised to seek appropriate independent advice.
4. RESPONSIBILITIES OF THE PLATFORM OWNER
4.1 Upon receipt of personal information, including but not limited to verifiable name and address, from the Investor the Platform will enable each Investor to login to the Platform.
4.3 SF will manage the Platform and enable the Business Summaries and Information Memorandum to be made available for viewing by carefully selected Investors.
4.4 If an Investor chooses to invest into an Investee, SF will not have any responsibility for any legal arrangements, collaboration or other dealings between the Investor and an Investee.
5.1 SF does not charge the Investor any fee for the services provided to the Investor in accordance with these terms. If this should change the Investor will be notified and has the right to terminate the agreement with the Platform.
5.2 SF 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.
5.3 The Investor acknowledges that ancillary charges or fees may be payable to third parties in connection with an investment in an Investee, and acknowledges that such charges or fees are not associated with these terms. The Investor warrants to SF that it shall pay such fees or charges and shall indemnify and hold SF harmless from and against any loss, liability, cost or expense resulting from the same.
6.1 The Investor acknowledges that SF approves each funding campaign as a financial promotion but does not provide advice or any form of recommendation regarding the suitability or quality of any investment in any Investee. The Investor acknowledges that the approval of the Campaign as a financial promotion by SF 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.
6.2 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 Offering Period, or failure by other Investors to transfer the Subscription Price to the Investee, neither the Investee nor SF 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 a pre-agreed percentage ("%") of the desired target level of investment as set out in its Campaign. If the Investee ultimately attains less than the pre-agreed % of the desired target level of investment as set out in its Campaign, SF will use its reasonable endeavours to arrange for the Investee to cancel the relevant investment made by the Investor and return the Subscription Price to the Investor. The Investor consents to SF 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 SF and the Investee, including in relation to any transaction fees or charges, to facilitate the cancellation of the relevant investment and the return of the Investors' funds, therein.
6.3 Investors are encouraged to ensure that arrangements are put in place for their next of kin to be informed of their order and the SF 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. SF 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.
6.4 Investors, or in accordance with any arrangements put in place for 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, above.
6.5 The Investor acknowledges that it is the sole responsibility of the Investee or entrepreneur to keep the Investor regularly updated and abreast of any relevant news relating to their Company and/or relevant shareholder information. Furthermore the Investor agrees that SF accepts no responsibility for failure by the Investee or the Company to provide such updates, as required by the Investor.
7. INVESTMENT PROCESS
7.1 The Investor will be entitled to place a revocable order to subscribe for shares or debt securities in an Investee in any fund raising campaign (the "Campaign") on the Platform for a period (the "Offering Period") ending on the date specified by Investee which may be updated from time to time and SF reserves the right to end Campaigns early in its absolute discretion.
7.2 If a Campaign is successful, the Investee will instruct SF to circulate a copy of the Investee's countersigned agreements and any other relevant securities documentation to each Investor by email, and to request that each Investor inform SF by email within the time period specified in the email if they no longer wish to proceed with the relevant investment. If SF receives no response from the Investor within the specified time period, the Investor will in accordance with this clause, be deemed to have confirmed his order and his order will become an irrevocable firm order.
7.3 If for any reason the confirmation email is not received by an Investor (whether this is known or notified to SF or not), otherwise than as a result of fraud or gross negligence by SF. SF shall not be liable to the Investor or the Investee for any losses, claims, damages, etc. suffered by the Investor, and SF shall be entitled to proceed on the assumption that the Investor wishes to proceed with the relevant investment.
7.4 SF does not hold Investors' funds directly but uses independent "client holding accounts" through Global Custody Services Ltd ("GCS"), a company that is authorised and regulated by the FCA, Firm Reference No: 595875. SF also uses Global Currency Exchange Network Limited, a company that is authorised and regulated by the FCA under the Payment Services Regulations 2009 with registration number 504346 ("GCEN"), in order to make payments to, and receive payments from, Investors and/or Investees. GCS and/or GCEN handle all payments from Investors interested in investing in a Campaign or an Investee and GCS and/or GCEN arrange the transfer of the Investors' funds to Investees, once all pre-agreed conditions are met. GCS and/or GCEN will also arrange any pre-agreed deductions, on behalf of SF, from the Investors' funds for success fees, and administration costs payable by the Investee. SF does not directly handle Investor funds, at any stage of the arrangement between the Investor and Investee.
7.5 If a Campaign 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's company 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 Offering Period. If the Campaign is not successful, no such agreement between the Investor and the Investee shall arise.
7.6 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.
7.7 The Investor hereby consents to GCS and/or GCEN holding monies, making payments, receiving payments and making deductions from monies due to or paid by Investor as contemplated in clause 7.4 above.
7.8 The Investor hereby agrees that GCS and/or GCEN can transfer, pay or otherwise deal with monies paid to it/them as it/they see fit (in its/their absolute discretion) and the Investor hereby irrevocably consents to GCS and/or GCEN so transferring, paying, holding or otherwise dealing with any such monies.
7.9 The Investor hereby acknowledges that neither GCS nor GCEN shall be under any obligation to make any re-imbursement to the Investor of any Subscription Price paid by the Investor.
7.10 The Investor hereby acknowledges that neither GCS nor GCEN has made any recommendation, or provided any advice, to the Investor in relation to any Campaign or any investment in any Investee.
7.11 The Investor hereby agrees that neither GCS nor GCEN nor any of their respective officers, directors or employees shall be liable to the Investor for any losses, liabilities, costs, damages, and expenses (including, without limitation, counsel's fees) ("GCS/GCEN Losses") which may be incurred or suffered by the Investor in connection with or arising from:
i) the performance, non-performance or delay in performance by SF or any Investee of any obligations pursuant to these Terms and Conditions or any agreement entered into between the Investor and any Investee or otherwise arising in connection with the Platform, the Services or any Campaign;
ii) the transactions contemplated by these Terms and Conditions;
iii) the provision of any facilities, the making of any payments or the holding of any monies by GCS and/or GCEN in connection with transactions contemplated by these Terms and Conditions, save where such GCS/GCEN Losses arise from the fraud, gross negligence or wilful default of GCS or GCEN.
7.12 Neither GCS nor GCEN nor any of their respective officers, directors or employees shall under any circumstances be liable to the Investor for loss of profits or goodwill, anticipated savings, or any type of special indirect or consequential loss arising in connection with any transactions contemplated by these Terms and Conditions (included, but not limited to, any investment in any Investee).
7.13 Nothing in clause 7.11 or 7.12 shall limit GCS or GCEN's liability:
i) for death or personal injury resulting from the negligence of GCS or GCEN or their respective officers, directors or employees; or
ii)in any way prohibited by law.
7.14 GCS and GCEN and their respective officers, directors and employees may rely upon and enforce the terms of clause 7.4 and clause 7.7 to 7.15 (inclusive).
7.15 The provisions of clause 7.4 and clauses 7.7 to 7.15 (inclusive) shall survive the termination of these Terms and Conditions.
8. INVESTMENT RISK AND WARNINGS
By using the Platform in any capacity the Investor acknowledges and agrees that they have read and understood the following risks and warnings. If an Investor does not understand any of the risks or warnings set out below they should take advice from an Independent Financial Advisor, solicitor or similar qualified professional before using the Platform. The following list of risk factors is not intended to be exhaustive, nor a complete explanation of the risks involved. Any decision to make an investment through the platform is made entirely at the investor's own risk.
8.1 Potential for Loss. Investing in any early stage businesses is inherently risky and most fail. There is a significant chance that an investor will lose all of the capital that is invested in Campaigns that appear on the Platform. The Investor is strongly advised to invest no more in these opportunities than you can afford to lose.
8.2 Liquidity Risk. It is highly unlikely that, in the short to medium term, any secondary market for shares that an Investor acquires in early stage companies (the "Company") seeking investment on the Platform will develop, nor is it likely that any of them will be listed on any recognised stock market. As such you are unlikely to be able to sell your shares unless and until a buyer makes an offer for the whole of the Company's issued share capital or the Company is listed on a Stock Exchange
8.3 Dividends. Early stage companies very rarely pay dividends so Investors are unlikely to receive any return on your investment unless and until an offer is made by a buyer for the whole of the Company's issued share capital or the Company is listed on a Stock Exchange.
8.4 Dilution. Any investment an investor makes can be subject to dilution. It is likely that the Investee will need to raise additional capital in the future, which is likely to require one or more share issues to existing and/or new investors. Therefore, the proportion of the Company which an Investor's shares correspond to at the time of the original investment may subsequently be diluted by such subsequent share issue(s). The original investment may also be subject to dilution as a result of warrants or options to employees, service providers or certain other parties connect to the Company. Any new shares may also have preferential rights to dividends, sale proceeds and other preferential treatment.
8.5 Projections and forecasts. The Business Summary or Information Memorandum may contain certain statements, estimates, projections, forecasts and data provided by the Investee with respect to the anticipated future performance of the Company's business and/or its industry. Such statements, estimates, projections, forecasts and data reflect various assumptions by the Company's management concerning anticipated results, which assumptions may or may not prove to be correct. Actual results may vary from such statements, estimates, projections, forecasts and data, and such variations may be material.
8.6 Operating history. Many of the Investees that appear on our platform are recently formed early stage companies; they may lack any trading or other operating history or accounts. The success of the Company will depend upon the ability of the Investee to develop and deliver on a strategy to achieve that Company's objectives.
8.7 Diversification. Given the risks involved in investing in early stage companies, Investors are advised to adopt a diversified portfolio of investments and to ensure that at any point an Investor can afford to lose the amount of capital invested in the early stage companies. It is recommended that the maximum aggregate amount invested in the opportunities on the Platform is limited to an amount an Investor can afford to lose. A sensible threshold is not more than 10% of your net liquid assets. If a potential investor does not have disposal income of this nature to invest, it is recommended not to proceed to use this Platform.
8.8 Tax Treatment of Shares.
i) The UK government provides certain types of tax relief for investments in small businesses, among which are the Enterprise Investment Scheme (EIS) and the Seed Enterprise Investment Scheme (SEIS). Certain investments made through the platform may be eligible for EIS, SEIS or similar relief ("Reliefs"), as described below.
ii) In the event that a Company (a) has received advance assurance from HMRC that it is eligible for a Relief and (b) has agreed to allow Investors to claim Relief, SF will indicate this in the investment. Similarly, in the event that a Company has not yet received advance assurance from HMRC that it is eligible for a Relief but (a) appears to us to be eligible for a Relief and (b) has agreed to allow Investors to claim such Relief, SF will indicate this in the Posting, and will only complete an investment in the Company if and after it receives such advance assurance.
iii) Notwithstanding advance assurance having been granted as described above, the decision as to whether a Company or investment is eligible for a Relief is a matter to be determined by HMRC. SF cannot guarantee that a Relief will be granted even if the Company has received advance assurance, regardless of whether HMRC's refusal to grant Relief is due to a characteristic of the Company or a characteristic of the structure of your investment in the Company or otherwise.
iv) There are a number of restrictions as to which Investors are able to claim a Relief, and even if the Company is eligible for Relief, the investor may not be able to take advantage of it, or the investor may lose your ability to take advantage of it.
v) Eligibility for a Relief can be lost as a result of subsequent events (for example sale of the shares or changes to the business or ownership of the Company), and neither SF nor the Company provide any guarantee that an investee company or your investment will remain eligible.
vi) SF will not be liable to you for any losses, damages or costs arising in the event that an investor is not able to claim a Relief on a particular investment, or because any Relief the investor have claimed is lost, due to any of the circumstances described in these terms. Investors are strongly advised to speak with a tax adviser and/or a solicitor before making any investment on the basis that an investor will be able to receive any tax relief.
vii) It is the responsibility of the Investor or their tax/financial adviser to communicate directly with the Company in relation to Reliefs. SF accepts no responsibility for the failure of the Investee or Company to provide the relevant information in relation to Reliefs or otherwise.
9. COMPLAINTS AND SANCTIONS PROCEDURE
9.1 Any complaints by the Investor must be referred to SF, by E-mail to the E-mail contact address given on the Platform: www.shadowfoundr.com, and who shall have all the powers of an arbiter.
9.2 SF will deal with issues raised expeditiously and where necessary, call upon evidence.
9.3 Sanctions available to SF will include the following:
i) removing login access to the Platform from Investors;
ii) referring the matter to the appropriate law enforcement agency, where the issue is of a criminal or illegal nature;
iii) referring the matter to a court of competent jurisdiction if the issue necessitates the same (e.g. requires an injunction, seizure or similar judicial measure).
9.4 Complaints may also be addressed directly to the UK financial Ombudsman Service, depending on the investor's client category: www.financial-ombudsman.org.uk and may have the potential to be compensated out of the Financial Services Compensation Scheme established and operated by the FCA in the event that SF should fail in the carrying out of its FCA regulated activities.
10. INDEMNITY AND WAIVER
10.1 SF expressly prohibits the use of the Platform by the Investor for any purpose, which may be unlawful in the United Kingdom.
10.2 The Investor agrees to keep Shadow Foundr Ltd indemnified against any claim, loss, liability, damages or expenses on a full and unqualified indemnity basis arising out of any misuse by the Investor of any part of the Platform or any information embodied in it.
10.3 Failure by SF to take action in respect of any breach by the Investor of these Terms and Conditions shall not prevent SF from taking future action in respect of the same breach or any other breach by the Investor of these conditions, unless the SF agrees to the contrary in writing.
10.4 If any of these conditions are held to be unenforceable it will not affect the validity and enforceability of the remaining conditions.
11. EXCLUSION OR WARRANTIES AND LIABILITY
11.1 The Investor's use of the Service is at its sole risk. The Service is provided on an 'AS IS' and 'AS AVAILABLE' basis. Shadow Foundr Ltd, expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
11.2 SF makes no warranties that:
i) the Service will meet the Investor's requirements;
ii) the Service will be uninterrupted, timely, secure, or error-free; and
iii) the results or outcome that may be obtained from the use of the Service will be valuable, accurate or reliable.
11.3 Any material downloaded or otherwise obtained through the use of the Service is done at the Investor's sole discretion and risk and the Investor will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material.
11.4 The Third Party Content of the Platform is for information only and meant as general information not advice. If the Investor has any particular query in relation to a Business Summary or Business Plans then the Investor must seek advice from its own professional advisors.
11.5 SF gives no warranty in respect of any links or third party Platforms referred to in the Third Party Content of the Platform.
11.6 The Investor expressly understands and agrees that SF shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if SF has been advised of the possibility of such damages), resulting from:
i) the use or the inability to use the Service;
ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service;
iii) unauthorised access to or alteration of transmissions or data by the Investor;
iv) statements or conduct of any third party on the Service;
v) any agreement, understanding or relationship the Investor enters into with any of the Investees or any other person or entity with whom it has been put in contact with through the Platform; or
vi) any other matter relating to the Service.
11.7 The Investor agrees that these exclusions and limitations are reasonable in the circumstances.
11.8 In the event that any exclusion of liability is held by a court of competent jurisdiction to be unlawful, but that liability may be lawfully limited, SF aggregate total liability to any Investor for all such damages and losses shall be limited to £1,000.
12. INTELLECTUAL PROPERTY
12.1 All rights, including copyright and database rights, contained in the Platform belong to or are licensed to SF.
12.2 The Investor may not copy any part of the Platform, a Business Summary or Information Memorandum or carry out any other act, which is protected by copyright, or extract or re-utilise the whole or any substantive part of the Third Party Content of the Platform other than:
i) printing in hard copy form portions of the Platform for personal use;
ii) downloading any page from the Platform for personal use only;
iii) storing pages from the Platform in a cache or temporary retrieval system for the sole purpose of personal viewing off-line. These consents do not permit the Investor to modify any of the Platform's Third Party Content or to use it in any commercial context without SF's prior written consent.
12.3 The Investor acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Investor further acknowledges and agrees that Third Party Content contained in sponsor advertisements or information presented to it through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. The Investor agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service the Third Party Content or the software, in whole or in part.
12.4 SF grants the Investor a personal, non-transferable and non-exclusive right and license to use the Service; provided that the Investor does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Platform, the Business Summaries or Information Memorandums, the software or the Third Party Content. The Investor agrees not to modify the software in any manner or form, or to use modified versions of the Platform or the software including (without limitation) for the purpose of obtaining unauthorised access to the Service. The Investor agrees not to access the Service by any means other than through the interface that is provided by SF for use in accessing the Service.
13.1 Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is: (a) identified as confidential at the time of disclosure; or (b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
13.2 The Investor shall protect the Confidential Information of the Investee and SF against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.3 Confidential Information may be disclosed by the Investor to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
13.4 The obligations of confidentiality in this agreement, shall not be affected by the expiry or termination of the agreement.
14. MODIFICATIONS TO SERVICE
SF reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof). The Investor agrees that SF shall not be liable to the Investor or to any third party for any modification, suspension or discontinuance of the Service.
The Investor agrees to remain bound by these Terms and Conditions (as amended from time to time) for as long as he remains an Investor and wishes to use the Platform or the Service unless SF, suspends or otherwise limits his access to the Platform.
Notices to the Investor may be made via e-mail only. The Service may also provide notices of changes to the Terms and Conditions or other matters by displaying notices or links to notices to the Investor generally on the Service.
17.1 These Terms and Conditions represent the entire agreement between the Investor and SF relating to the subject matter hereof, and supersedes any prior understanding or agreements regarding the Platform.
17.2 All disclaimers, indemnities, exclusions and limitations set out in the Terms and Conditions shall survive termination.
17.3. Save as set out in clause 7.14, SF and the Investor do not intend that any term of these Terms and Conditions shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to them.
17.4. SF and the Investor may by agreement in writing rescind or vary any of the provisions of these Terms and Conditions without the consent of GCS and GCEN save that the consent of GCS and GCEN must be obtained before any rescission or variation of the provisions of these Terms and Conditions which would in any way extinguish or alter GCS and/or GCEN's rights pursuant to clause 7.4 and clauses 7.7 to 7.15 (inclusive).
17.5 Furthermore, the Investor agrees not to forward funds, of all currencies, by means of a Money Service Broker ("MSB") or Foreign Exchange Currency Broker (however from the Investors own personal bank account being permitted) without the express consent of GCS and GCEN and thereby inadvertently or otherwise contravening Anti Money Laundering regulations.
18. GOVERNING LAW
18.1 These Terms and Conditions shall be governed by, and construed in accordance with the laws of England and any dispute arising from this agreement shall be determined by the courts of England and Wales.18.2 If you do not understand any of the terms set out in this agreement or have any queries, please obtain independent legal and financial advice before proceeding with investing on this Platform.
19. COOLING OFF AND CANCELLATIONS
19.1 SF offers the investor a 14 days Cooling Off period whereby the investor can cancel the investment within 14 days of the investment or payment date.
19.2 SF will undertake to refund the investor within 30 days of the cancellation request, which is to be made by written request or E-mail to the addresses provided on the Platform.
19.3 The refund for a cancellation will be subject to a payment handling payment and administration fee of up to 2% of the funds invested and will be deducted by SF on reimbursement.
Investee Terms and Conditions
1. INVESTEE (ENTREPRENEUR) AGREEMENT
1.1 The investee agrees to:
Complete an application form to participate in Shadow Foundr Ltd ("SF") funding Campaigns (the "Campaign") in terms satisfactory to SF, the form to include the following information in all cases:
i) Investee company name;
ii) Investee company number;
iii) Registered office and trading addresses of Investee;
iv) A complete list of all Investee key personnel and professional service advisers (directors, secretary and accountant/auditor);
v) A complete share capital table on a fully diluted basis to include a list of all investee legal and beneficial shareholders; option holders; convertible debt and equity; warrants; and any other rights to share ownership;
vi) Details of the share classes and ownership of the Investee, including details of the fully diluted share capital of Investee, including all share options; warrants; convertible debt and any other right to acquire shares; confirmation that all existing shareholders are either not subject to pre-emption or have agreed to waive pre-emption in relation to the share issue following the Campaign;
vii) A complete list of all holding companies and subsidiary companies of the Investee;
viii) Details of any pre-existing shareholder agreement or ancillary documents;
ix) Such further information and/or documents as SF may require in order to undertake the Campaign regulatory including anti-money laundering identification and other checks; and
x) A target amount for the fundraising to be sought by the Investee through its Campaign with SF.
1.2 Prepare all the required information in such form as the Platform may require and such information should include:
i) A description of the Investee's business and investment proposition;
ii) Investee business plan, including financial forecasts and projections;
iii) Latest Investee accounts and/or other financial information if applicable;
iv) An outline of all existing or proposed arrangements relating to the Investee's share capital or rights therein that may impact the investment proposition and details of any obligations of the Investee, that would affect any potential investor;
v) Details of the equity offered, the types of shares available, the minimum and/or any specific investment requirements;
vi) Provisions in place or envisaged for the Company's Articles of Association or shareholders;
vii) A Shadow Foundr Ltd disclaimer and risk warning;
viii) Any other information that maybe required;
ix) In signing the Investee agreement the Investee agrees not to list or allow for the promotion of the investment proposal without the consent;
x) SF, may recommend to the Investee specific professional advisers in order to help meet the above requirements, but has no responsibility to ensure the Investee takes professional advice and does not accept any liability for any loss should advice not be taken, by the Investee.
2. OBLIGATIONS OF SHADOW FOUNDR
2.1 SF agrees to:
i) Make all reasonable endeavours to arrange for the Platform to be available to the Investee for the purposes of the Campaign and for the raising of funds to a pre-agreed funding target (or pre-agreed percentage of the funding target thereof);
ii) To arrange from its investors for subscriptions for shares in the Investee by means of the Campaign on the Platform by communicating the Pitch where at all possible;
iii) On completion of the fundraising campaign send a confirmation email to the Investors seeking confirmation of their orders after any pre-agreed "cooling off period", whereby the investor is allowed to cancel the subscription.
iv) Liaise with the Investee and the independent client holding account custodian with a view to ensuring the transfer of funds from Investors to the Investee on completion.
2.2 SF is under no obligation to list Investee's investment opportunity on the Platform, it is up to SF's absolute discretion and reserves the right to suspends a Campaign, should the need arise. Fees shall not be payable by the Investee under such circumstances, unless Investee is in breach of this Agreement.
2.3 Under the FCA's rules, SF is required to allocate and notify each Investee of its client classification procedures on the Platform (see Investor Terms and Conditions).
3.1 SF does not act as an agent or representative, but as an arranger on their Platform for the Investee and the Investor. The Investee acknowledges that it does not rely upon any advice, representations or requirements from SF who is solely responsible for the Campaign complying with all applicable laws and regulations.
3.2 The Investee must ensure that information contained within the Campaign that contains an indication of past performance satisfies the following conditions:
i) the information includes appropriate performance information which covers the lesser of the period from establishment or the preceding five years, if applicable;
ii) the period to which it refers and the source of information are clearly stated; and
iii) the information contains a prominent warning that the figures refer to the past and that past performance is not a reliable indicator of future results.
3.3 The Investee must ensure that information contained within the Campaign that contains an indication of future performance satisfies the following conditions:
i) it is not based on and does not refer to simulated past performance;
ii) it is based on reasonable assumptions supported by objective data; and
iii) it contains a prominent warning that such forecasts are not a reliable indicator of future performance.
3.4 The Investee undertakes, that all information relevant to the fund raising campaign on the Platform, including Business Summaries and Information Memorandum are:
i) are accurate, complete, not misleading and otherwise clear and fair and not invading third party rights to privacy and not infringing any third party intellectual property rights;
ii) in addition, the Investee shall ensure that the Campaign contains all information that would be relevant to a potential investor of the Investee, to the extent where practical, that the Campaign is regularly monitored and kept up to date;
iii) contains adequate risk warnings concerning the investment for the Investor, and should not include any emphasis of any benefits to the Investor without a fair and prominent indication of all the relevant risks.
iv) The Investee agrees that it alone shall bear all responsibility for the content of the Campaign and shall indemnify and not hold SF responsible from any loss, liability, cost or expense resulting directly or indirectly from the Campaign.
3.5 The Investee undertakes to provide regular Company updates that may be presented on the Platform, furthermore:
i) the Investee agreed that it is the sole responsibility of the Company to provide regular Company updates to the investor(s), at least bi-annual, however more often if there are any material changes effecting the short or long term performance of the Company.
ii) In addition, the Investee agrees to provide the Investor and/or their financial advisers with all the necessary shareholder information relating to the ownership of the Company's shares and any tax reliefs that may be associated with their beneficial ownership.
4. INVESTMENT PROCESS
4.1 Investors shall be entitled to place revocable orders to subscribe for shares in the Investee through the Pitch for a period (the "Offering Period") ending on the earlier of:
i) the Investee reaching their funding target as set out at the start of the Campaign;
ii) the end of a period of 60 days form the first day of introduction to the Platform, or
iii) the date upon which the Investee terminates its Campaign in accordance with pre-agreed Offering Period.
4.2 If the Campaign is successful, after the Investor has placed an order to subscribe for shares in an investment opportunity (subject to the "cooling off" period), the Investor shall enter into an agreement with the Investee, or a third party on behalf of the Investee, to transfer the subscription price of the relevant shares (the "Subscription Price") to the Investee. Shares in the Investee will be issued to the Investor by the Investee at the Subscription Price and monies will be transferred to the account of the Investee following the end of the Offering Period after deduction of any pre-agreed fees due to SF.
4.3 SF, does not hold investors' funds (in the form of the Subscription Price) directly but uses independent "client holding accounts" through Global Custody Services Ltd ("GCS"), a company that is authorised and regulated by the FCA, Firm Reference No: 595875. SF also uses Global Currency Exchange Network Limited, a company that is authorised and regulated by the FCA under the Payment Services Regulations 2009 with registration number 504346 ("GCEN"), in order to make payments to and receive payments from the Investee and/or Investors. GCS and/or GCEN handle all payments from the Investors interested in investing in a Campaign and GCS and/or GCEN will arrange the transfer of the Subscription Price to the Investee, once all pre-agreed conditions are met. GCS and/or GCEN will also arrange any pre-agreed deductions (including, but not limited to, those set out in clause 5 below), on behalf of SF, from the Investors' funds for success fees, and administration costs payable by the Investee. SF does not directly handle Investor funds at any stage of the arrangement between the Investor and Investee.
4.4 The Investee will instruct to circulate a copy of the Investee's company documentation to each Investor by email, and to request that each Investor inform SF by email within the pre-agreed "cooling off", if they no longer wish to proceed with the Investment. If SF receives no response from the Investor within this period, the Investor will be deemed to have confirmed their order and the order will become an irrevocable firm order.
4.5 If the Campaign is unsuccessful or the order not completed for any reason, no such agreement between the investor and the Investee shall arise and the Investor's order will not be transferred to another Campaign or Investee.
4.6 If an Investee does not ultimately attain the stated desired target level of investment as set out in its Campaign, through withdrawals after the expiry of the Offering Period, or failure by other Investors to transfer the Subscription Price to the Investee, neither the Investee nor SF 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 a pre-agreed percentage ("%") of the desired target level of investment as set out in its Campaign If the Investee ultimately attains less than the pre-agreed % of the desired target level of investment as set out in its Campaign, SF 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 SF 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 SF and the Investee, including in relation to any transaction fees or charges, to facilitate the cancellation of the Investment and the return of the Investors' funds, therein.
4.7 The Investee acknowledges that SF will not supply confirmations of any transactions or orders that it receives and transmits to the Investee, and that the confirmation email, only after the pre-agreed "cooling off" period, shall be sufficient and adequate reporting of the service of arranging transactions and the receipt and transmission of orders, in accordance with the FCA Handbook, Conduct of Business and hereby consents to the same.
4.8 The Investee hereby consents to GCS and/or GCEN holding monies, making payments, receiving payments and making deductions from monies due to or paid by Investors as contemplated in clause 4.3 above.
4.9 The Investee hereby agrees that GCS and/or GCEN can transfer, pay or otherwise deal with monies paid to it/them as it/they see fit (in its/their absolute discretion) and the Investee hereby irrevocably consents to GCS and/or GCEN so transferring, paying, holding or otherwise dealing with any such monies.
4.10 The Investee hereby agrees that neither GCS nor GCEN nor any of their respective officers, directors or employees shall be liable to the Investee for any losses, liabilities, costs, damages, and expenses (including, without limitation, counsel fees) ("GCS/GCEN Losses") which may be incurred or suffered by the Investee in connection with or arising from:
i) the performance, non-performance or delay in performance by SF or any Investor of any of obligations pursuant to these Terms and Conditions or any agreement entered into between the Investee and any Investor or otherwise arising in connection with the Platform, the Services or any Campaign;
ii) the transactions contemplated by these Terms and Conditions;
iii) the provision of any facilities, the making of any payments or the holding of any monies by GCS and/or GCEN in connection with transactions contemplated by these Terms and Conditions,
save where such GCS/GCEN Losses arise from the fraud, gross negligence or wilful default of GCS or GCEN.
4.11 Neither GCS nor GCEN nor any of their respective officers, directors or employees shall under any circumstances be liable to the Investee for loss of profits or goodwill, anticipated savings, or any type of special indirect or consequential loss arising in connection with the transactions contemplated by these Terms and Conditions.
4.12 Nothing in clause 4.10 or 4.11 shall limit GCS or GCEN's liability:
i) for death or personal injury resulting from the negligence of GCS or GCEN or their respective officers, directors or employees; or
ii) in any way prohibited by law.
4.13 GCS and GCEN and their respective officers, directors and employees may rely upon and enforce the terms of clause 4.3 and clauses 4.8 to 4.14 (inclusive).
4.14 The provisions of clause 4.3 and clauses 4.8 to 4.14 (inclusive) shall survive the termination of these Terms and Conditions.
5. ADMINISTRATIVE SERVICES AND FEES
5.1 SF provides optional administrative services for which a fee will be charged (The Fee Schedule will be provided to Investees on request and with or as part of the Investee Engagement Agreement should the Investee meet the criteria to be accepted for a fund raising Campaign). The administrative services provided include:
i) Administrative support provided by SF, including the completion of the issue of shares in an Investee following the successful fundraising campaign, EIS or SEIS filing and SH01 filing, if applicable.
ii) Corporate services (shareholder and company checks etc.), the fee depends on the time and the complexity involved, if they are deemed necessary for a successful Campaign on the Platform.
iii) The production of video presentations, which are seen as an essential part of a successful Campaign on the Platform; the fee will depend on the time and complexity of the video.
iv) The Investee acknowledges that ancillary charges or fees, including legal fees, may be payable to third parties in connection with the investment, and acknowledges that such charges or fees are disassociated with these terms. There may also be additional fees for work on the Business Summaries, Information Memorandums and financial projections & forecasts work, carried out by SF upon request from Investee, as part of the corporate services mentioned above.
5.2 The Investee agrees to the following Success Fees:
i) A contribution to the monies handling charge of 1% of funds raised, to help cover GCS and GCEN fees for the handling of client (Investor) payments.
ii) A commission (+ VAT) negotiated in advance, as a percentage (%) on all monies raised by an Investee through a successful Campaign on the Platform, deducted by GCS and/or GCEN from monies received from Investors.
iii) The Investee agrees that all Fees will be deducted by GCS and/or GCEN, on behalf of SF, prior to the transfer of Investor monies to the Investee and after a successful fund raising campaign, by pre-agreement.
6. EXCLUSION WARRANTIES AND LIABILITY
6.1 The Investee warrants, represents and undertakes, the following:
(i) all information disclosed to SF and the Platform users is accurate and does not infringe the rights of any third party, including intellectual property rights;
(ii) Investee has the right to enter into this Agreement and to offer the investment opportunity on the Platform;
(iii) Investee has disclosed its fully diluted share capital and that any valuation and equity offered reflects the fully diluted share capital of the company and that this will not change until completion of the funding and issue of shares;
(iv) Investee has obtained consent from any and all existing shareholders who have pre-emption rights for the Investee to carry out this fundraising and that such shareholders waive any rights of pre-emption in relation to any issue of new equity.
6.2 The Investee is responsible for its company documentation and any disclosure to investors of differences. SF has no liability for and does not guarantee successful investment in the Investee company as a result of a Campaign on the Platform. The Investee acknowledges that the purchase of shares is an agreement between Investee and Investors and that SF is not a party to this Agreement.
6.3 The Investee acknowledges that the approval of the Campaign as a financial promotion by Shadow Foundr Ltd, or the proposed investment in an Investee does not indicate that SF advises investment in the Campaign, and the Investee confirms that it shall make no reference to thereof.
6.4 SF makes no warranty to the Investee.
6.5 In no circumstances shall SF be liable in contract, including negligence, pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise under this Agreement for: (a) any economic losses; or (b) any special, indirect or consequential losses. SF liability is limited to the fees received under this Agreement.
6.6 The Investee warrants, represents and undertakes to SF that it shall comply with any terms and conditions associated with the use the Platform (including forums or blogs), and acknowledges that SF will in its absolute discretion as to whether any posts breach this clause.
7.1 The Investee shall terminate and cease to be effective upon the following:
i) the Investee serving 7 days written notice to SF, by E-mail;
ii) the Investee achieving the raising of funds from investors on the Platform to the pre-agreed target level or (percentage of target level)
iii) SF may terminate this agreement at any time in the event that:
a) the Investee breaches these terms and conditions;
b) SF suspects that the officers of the Investee have been involved in any fraud or criminal activities;
c) the Investee becomes insolvent, or
d) 7 working days' written notice from SF to the Investee.
7.2 If an Investee has an outstanding or incomplete Campaign for investment from Investors, the Investee may only terminate this Agreement if it has firstly served written notice by email to SF and has withdrawn its Campaign from the Platform. Also if a 7 days confirmation email has been issued, instructing SF to inform all potential Investors, of the cancellation.
7.3 Once an order has been made firm with an Investor following the expiry of 7 days confirmation email, a formal contract has been created between the Investee and the Investor for the issue of shares direct on such terms as are agreed with the relevant Investors and the Investee is bound to complete the share issue, and the Platform shall have no further obligations or involvement in the investment or the Investee.
8. COMPLAINTS AND QUERIES
8.1. Any complaints or queries about the services must be referred to SF, by E-mail.
8.2. Complaints may also be addressed directly to the UK Financial Ombudsman Service: www.financial-ombudsman.org.uk
8.3. Investees are treated as clients of SF and therefore have the potential to may be compensated out of the Financial Services Compensation Scheme established and operated by the FCA in the event that SF should fail in the carrying out of its FCA regulated activities.
9. CANCELLATION AND SUSPENSION
9.1. The Investee hereby acknowledges and consents to the performance of the services by SF in accordance with this agreement beginning as soon as this agreement is made between the Investee and SF and that other than as set out in this Agreement, the Investee has no right of cancellation.
9.2. SF may suspend the provision of services under this agreement, including either not listing, removing or suspending a Campaign on the Platform if SF deems that the Investee is not or may not be operating in compliance with any applicable laws or regulations; and/or if Investee's company documentation provided by Investee does not meet the due diligence criteria, as set out by SF, on application of the Investee's company.
10. IDEMNITY AND WAIVER
10.1 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.
10.2 The Investee agrees to keep Shadow Foundr Ltd indemnified against any claim, loss, liability, damages or expenses on a full and unqualified indemnity basis arising out of any misuse by the Investor of any part of the Platform or any information embodied in it.
11. ASSIGNMENT AND VARIATION
11.1 An Investee's registration to the Platform is non-transferable, and the provisions of this agreement shall not be assigned, transferred, mortgaged, charged or otherwise encumbered by the Investee without the written consent of SF
11.2 No variation of this agreement shall be effective unless it is in writing, by E-mail and signed by the parties (or their authorised representatives).
Notices to the Investor may be made via e-mail only. The Service may also provide notices of changes to the Terms and Conditions or other matters by displaying notices or links to notices to the Investor generally on the Service. E-mail address given on the Platform: www.shadowfoundr.com.
13.1 Save as set out in clause 4.13, SF and the Investee do not intend that any term of these Terms and Conditions shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to them.
13.2 SF and the Investor may by agreement in writing rescind or vary any of the provisions of these Terms and Conditions without the consent of GCS and GCEN save that the consent of GCS and GCEN must be obtained before any rescission or variation of the provisions of these Terms and Conditions which would in any way extinguish or alter GCS and/or GCEN's rights pursuant to clause 4.3 and clauses 4.8 to 4.14 (inclusive).
14. GOVERNING LAW AND JURISDICTION
14.1 These Terms and Conditions shall be governed by, and construed in accordance with the laws of England and any dispute arising from this agreement shall be determined by the courts of England and Wales.
14.2 If you do not understand any of the terms set out in this agreement or have any queries, please obtain independent legal and financial advice before proceeding with the business opportunity on this Platform.
15. COOLING OFF AND CANCELLATIONS
15.1 SF is obliged to give potential investors a 14 days Cooling Off period, whereby the investor will be entitled to cancel their investment and claim a refund.
15.2 Funds will only be forwarded to the investee from GCS or GCEN when the Investor Cooling Off period has been satisfied and in accordance with the Campaign fund raise terms.