Terms and Conditions - CrowdfundUP

Terms and Conditions of use

Terms and Conditions of Use – CrowdfundUP
Property and Equity Crowdfunding

PART 1 - GENERAL TERMS AND CONDITIONS

September 2014

CrowdfundUP Pty Ltd (ACN 166 872 484) is an authorised representative of Cambridge Securities Pty Ltd (ABN 96 143 567 453) AFSL no. 364861. To the extent (if any) that CrowdfundUP’s activities in relation to the Website or Services involve the provision of Financial Services, CrowdfundUP provides those Financial Services as authorised representative of Cambridge Securities Pty Ltd, whilst so authorised.

If you would like to receive a copy of the authorisation under which we are authorised to provide Financial Services, you can request a copy by sending an email to info@crowdfundup.com and we will provide you with a copy within 10 business days.

The Agreement

1.1 These Terms and Conditions of Use constitute a bilateral agreement between you and CrowdfundUP Pty Ltd ACN 166 872 484 (CrowdfundUP or we or us) trading as CrowdfundUP (Agreement).
1.2 This Agreement governs your use of the Website and the Services, whether as an Investor, a Fundraiser or otherwise.
1.3 Please read this Agreement carefully. By using the Website or the Services, you agree to be bound by this Agreement and the Policies, including the Privacy Policy. Part 4 contains the definitions of certain terms used in this Agreement.
1.4 We may change or amend the Agreement from time to time. If we amend or change the Agreement, you will be notified the next time you visit the Website and asked to confirm that you agree to the amended terms. If you do not agree to our amendment(s), you must immediately stop using the Website and the Services.
1.5 In addition to Part 1 and Part 4, which apply to everyone:

(a) Part 2 applies to you if you are a Fundraiser; and
(b) Part 3 applies to you if you are an Investor.

How the Website and Services work

2.1 The Website and Services together constitute a Business Introduction Service.
2.2 The Website and Services allow you to:

(a) be introduced to Australian companies looking to raise capital (Fundraisers) for the purposes of funding new and pre-existing business ventures (Projects); and
(b) as a Fundraiser – be introduced to individuals and other persons interested in investing money in Projects (Investors).

How Transactions work

3.1 If you wish to raise funds for a Project as a Fundraiser, you agree that the Transaction procedure in section 13 will apply to you and you agree to comply with that procedure.
3.2 If you wish to contribute funds to a Project as an Investor, you agree that the Transaction procedure in section 20 will apply to you and you agree to comply with that procedure.
3.3 A Transaction involves the Investor subscribing for shares in a Fundraiser. The terms of each Transaction will be governed by the relevant Project Terms and the terms of the relevant Offer. A Transaction is a bilateral agreement between a Fundraiser and an Investor, and we are neither parties to, nor involved in discussions or negotiations concerning, that agreement.
3.4 The Transaction procedures in this Agreement are designed to comply with the requirements of the Class Order. CrowdfundUP’s role in the Offer and Transaction process is limited to that of the provider of a Business Introduction Service.
3.5 In addition to the obligations imposed on you by other sections of this Agreement in relation to Offers and Transactions, you agree that if you participate in a Transaction (whether as Fundraiser or Investor), you will comply strictly with any legal or other formalities which would render that Transaction ineffective, void or unlawful if not complied with, including executing all necessary documentation, agreements and share transfer forms.

Subscription (general)

4.1 To subscribe on the Website as a Fundraiser you must follow the steps in section 11.
4.2 To subscribe on the Website as an Investor you must follow the steps in section 19.
4.3 You must subscribe on the Website as either a Fundraiser or an Investor to:

(a) gain full access to Website content and pages, including Profile Pages;
(b) gain full access to, and fully use, the Services;
(c) in the case of a Fundraiser only, raise funds for a Project;
(d) invest in a Project; or
(e) participate in Transactions.

4.4 You agree that we may send you administrative and/or promotional emails regarding your subscription, the Website, the Services and Transactions if you have subscribed as an Investor or Fundraiser or have otherwise provided your email address to us.
4.5 Once you have subscribed on the Website as a Fundraiser or Investor, we will send a confirmation email to your nominated email address to confirm the details of your account. The confirmation email will also contain a link to our Financial Services Guide, which we are giving to you to the extent (if any) that we are providing you with Financial Services. Our Financial Services Guide is also available at [insert link].
4.6 If you do not wish to receive further emails from us, you can send a request to admin@crowdfundup.com.au or click the ‘unsubscribe from email list’ link at the bottom of our emails to you. Unsubscribing from our email list does not cancel your subscription as a Fundraiser or Investor.
4.7 CrowdfundUP is not liable for any loss suffered as a result of you not receiving our emails, including as a result of you not providing us with a complete, accurate or correct email address, or as a result of your firewall or filter settings.

Fees

5.1 CrowdfundUP will only charge Fees to Fundraisers and Investors on the conditions and in the manner set out in this section 5.
5.5 There are no fees for:

(a) subscribing as a Fundraiser or Investor;
(b) creating a Profile Page for a Project; or
(c) browsing the Website (including Profile Pages).

5.3 Without limiting section 16, you agree that CrowdfundUP is entitled to the following fees:

(a) if you are a Fundraiser – a fee up to of 3% of any amount raised by you or your Related Bodies Corporate or Associates, at any time before the expiry of [12] months after the end of the Funding Period, from any person introduced to you through the use of the Website or Services; and
(b) if you are an Investor – a fee of 0% of any amount invested by you or your Related Bodies Corporate or Associates, at any time before the expiry of [12] months after the end of the Funding Period, in any Fundraiser, or in relation to any Project, introduced to or brought to your attention through the use of the Website or Services,
(Fees)

5.4 Where this section 5 imposes a liability on you to pay Fees in relation to a Project, you agree that:

(a) you will, and are under an obligation to, pay any Fees for which you are liable in relation to that Project; and
(b) if the Funding Goal in relation to that Project is met by the end of the Funding Period, the Fundraiser for that Project irrevocably directs CrowdfundUP to require the Escrow Agent to pay to CrowdfundUP an amount equal to those Fees for which you are liable from the total amount of Investment Sums which the Escrow Agent holds for Investors in respect of that Project in accordance with section 20.7 and your liability to pay Fees in respect of that Project will be satisfied out of such payment.

5.5 The Fees for a particular Project will be noted on the Profile Page for that Project.
5.6 Other than the charging of Fees, neither CrowdfundUP nor any associate of CrowdfundUP has any pecuniary interest in the outcome of any investment decision by Fundraisers or Investors.
5.7 In addition to the Fees, you agree that you will be charged bank processing or transaction fees in the following amounts (note: these are expected amounts only and are subject to change from time to time):

Suspension or termination

6.1 We may in our sole discretion at any time and without notice:

(a) suspend a Service or the Website;
(b) cancel, reject, or suspend a Project or the account of a Fundraiser or Investor;
(c) take down or block access to a Profile Page; and
(d) remove, edit, or modify any Content appearing on the Website,

in the following cases:

(e) you breach or do not comply with this Agreement;
(f) we suspect on reasonable grounds that you have breached or might or will breach any term of this Agreement;
(g) in cases where CrowdfundUP suspects fraud or error;
(h) in cases where CrowdfundUP suspects that there has been misuse of the Website or the Services or use of the Website or the Services to conduct any illegal activity;
(i) we are required to do so by law or by order of ASIC or any other regulatory body; or
(j) for any other reason (whether or not it relates to you or your conduct).

6.2 We may in our sole discretion permanently or temporarily prevent or terminate your use of the Website or Services, or terminate this Agreement with you, whether as an Investor, Fundraiser or otherwise.
6.3 You may terminate this Agreement at any time by emailing us at info@crowdfundup.com.au and requesting termination].
6.4 If this Agreement is terminated for any reason, the termination will not affect any rights or obligations which accrued to any party before the time of termination, including:

(a) the obligation to pay, and our right to be paid, the Fees;
(b) an Investor’s obligation to pay the Investment Sum in accordance with this Agreement if it has accepted a Fundraiser’s Offer; and
(c) a Fundraiser’s obligation to issue shares to any Investor which has accepted an Offer (in accordance with the terms of the Offer and otherwise in accordance with this Agreement).

6.5 CrowdfundUP’s rights as set out in this section 6 do not prejudice any other right or remedy CrowdfundUP may have in respect of any breach or any rights, obligations or liabilities which accrue prior to termination of this Agreement.

Intellectual property

7.1 All Intellectual Property Rights in

(a) the Website, including the CrowdfundUP logo, all Website design, text, graphics, software, photos, music, sounds, underlying source code and software; and
(b) the Services or any part of them,
are owned by CrowdfundUP or licensed to CrowdfundUP and you must not, and must not attempt to, obtain or register ownership or title to any such Intellectual Property Rights. Nothing in this Agreement or on the Website constitutes a transfer or licence of any such Intellectual Property Rights to you.

7.2 We do not have any ownership rights over Content that you submit to us for inclusion on the Website. By submitting any Content to us, you grant to CrowdfundUP a perpetual, royalty-free, non-exclusive, irrevocable, sub-licensable and transferable licence to:

use, edit, modify, prepare derivative works of, reproduce, publish, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully utilise such Content and your Intellectual Property Rights in that Content in connection with:

the Website;

the Services;

CrowdfundUP’s businesses; and

promoting, marketing, and redistributing part or all of the Website (and derivative works thereof) or the Services in any media formats and through any media channels (including, without limitation, third-party websites);

take whatever other action is required to perform and market the Services;

allow users of the Website to stream, transmit, playback, download, display, feature, distribute, collect, and otherwise use your submitted Content and Intellectual Property Rights in that Content in connection with the Services; and

use and publish, and permit others to use and publish, your submitted Content, Intellectual Property Rights in that Content, names, likenesses, and personal and biographical materials of you in connection with the provision or marketing of the Services,

(the Licence).
7.3 By submitting Content to us for inclusion on the Website, you represent and warrant to us that such Content does not infringe any third-party Intellectual Property Rights and that you are legally entitled to grant the Licence to us.
7.4 The Licence survives the termination of this Agreement.

Representations, guarantees and our liability

Website and Services

8.1 By using the Website or any of the Services, you represent and warrant that:

(a) you are 18 years of age or over and that you are legally capable of entering into this Agreement with CrowdfundUP;
(b) your use of the Website or any of the Services complies with all applicable local, state and federal laws, rules and regulations as well as any treaties which apply to your use of the Website or Services; and
(c) any information you provide to us is true, accurate and correct, and not misleading or deceptive in any way.

8.2 CrowdfundUP does not represent, and nothing on the Website is to be construed as CrowdfundUP representing to you, that the Website and/or Services are available to or suitable for use by any person outside Australia. If you access or use the Website and/or Services from a place outside Australia, you do so at your own risk and you are solely responsible for ensuring compliance with all applicable laws of that place and for all the consequences of such access or use.

Content

8.3 Any Content:

(a) on the Website pertaining to Fundraisers and their Projects, including the information contained in and featured on Profile Pages; or
(b) that is downloadable by you from Profile Pages, including any Content that forms part of or is contained in an IM,
is Content that is supplied to us by Fundraisers or other third parties and CrowdfundUP makes no representation, guarantee or warranty that such Content is accurate or correct. It is your responsibility to verify any such Content.

8.4 CrowdfundUP does not endorse or assume responsibility for the Content contained in or on a Fundraiser’s Profile Page, in a Fundraiser’s IM or in any Offer document given to an Investor by a Fundraiser. You acknowledge and agree that neither CrowdfundUP nor any other person who uses, or is associated with, the Website or Services has been endorsed or approved by ASIC.
8.5 We are not responsible for any errors or omissions in Content you submit to us.

Projects and Transactions

8.6 CrowdfundUP does not guarantee or make any representations or warranties concerning the use of any funds received by a Fundraiser. It is up to Investors to conduct the due diligence they regard as necessary before investing in a Project or participating in a Transaction. CrowdfundUP is under no obligation to become involved in any disputes or proceedings of any nature which may arise between a Fundraiser and Investor.
8.7 As an Investor or a Fundraiser, you agree that CrowdfundUP is not under any circumstances liable or responsible for:

(a) any Project not attaining its Funding Goal (by the end of the Funding Period or otherwise);
(b) the failure of a Fundraiser to comply with any applicable law (including the Class Order) in relation to a Project, Profile Page, Offer or Transaction; or
(c) the failure of a Fundraiser to carry out or complete a Project, or to carry out a Project as stated or within any time periods specified by the Fundraiser,
and your sole and exclusive remedy for any and all claims and causes of action of any kind relating to or arising out of a Project or Transaction is against the Fundraiser.

General

8.8 To the fullest extent permitted by law:

(a) CrowdfundUP does not warrant that the Website or Services will be uninterrupted, error-free, secure or free from interception or that the servers hosting the Website and facilitating the Services will be free from any virus or other harmful elements, and CrowdfundUP is not liable to you in relation to any interruptions or omissions in connectivity or internet services relating to the Website or Services;
(b) CrowdfundUP excludes all representations, warranties, terms and conditions, whether express or implied (including those implied by statute, custom, law or otherwise) except as expressly set out in this Agreement;
(c) CrowdfundUP excludes all liability for any damages or loss suffered by you (including loss of profits, loss of revenue, economic loss, loss of data, direct loss, indirect loss, or consequential or incidental loss) however caused (including damage or loss arising in contract, tort (including negligence), statute or otherwise) in connection with:

(i) your use of or reliance on the Website, the Services and/or its/their continued availability;
(ii) any exercise of CrowdfundUP’s rights under section 6;
(iii) the failure of a Fundraiser or Investor to meet its obligations under this Agreement or under the agreement which results from an Investor accepting a Fundraiser’s Offer; and
(iv) your participation in any Transaction or in any negotiations or discussions relating thereto.

(d) your use of the Website (including all Content on or obtained from the Website) and/or the Services is at your sole risk.

8.9 CrowdfundUP does not exclude or restrict any liability:

(a) to the extent that this is not permitted under the Competition and Consumer Act 2010 (Cth); or
(b) for breach of the consumer guarantees in the Australian Consumer Law (if those guarantees apply to any goods or services we provide to you).

Indemnity

You agree to indemnify CrowdfundUP, its related bodies corporate (as defined in the Corporations Act), and their officers, directors, employees, contractors and agents from and against any and all claims, causes of action, damages , obligations, losses (including loss of profits, loss of revenue, economic loss, loss of data, direct loss, indirect loss, or consequential or incidental loss, and including damage or loss arising in contract, tort (including negligence), statute or otherwise), liabilities, costs, debts and expenses (including legal fees and costs) arising from or as a result of or relating to your use of the Website or any of the Services (whether as an Investor, Fundraiser or otherwise), including a breach of this Agreement or any of the representations, warranties or promises you give in this Agreement, or any violation of applicable law or court order.

Privacy

Your privacy is important to us. We hold your personal information in accordance with our Privacy Policy (accessible at Privacy Policy), the terms of which form part of this Agreement. By using the Website and/or any of the Services, you agree to the use and collection of your personal information in accordance with the Privacy Policy.

PART 2 - TERMS AND CONDITIONS AS BETWEEN US AND YOU AS FUNDRAISER

Subscribing as a Fundraiser

11.1 To subscribe as a Fundraiser you must:

(a) be an Australian corporation with 250 employees or less (counting any part-time employee as an appropriate fraction of a full-time equivalent);
(b) submit a Project proposal (Proposal) in the form indicated during the subscription process. The Proposal will include:

(i) details of the amount of capital you wish to raise from Retail Investors (note: this is limited to $5 million from Retail Investors in any 12 month period – see section 15.3 below) (Funding Goal);
(ii) the time period during which Investors will be able to contribute funds towards the Project (note: this is limited to between 3 and 12 months) (Funding Period);
(iii) an information memorandum (IM) outlining details of the Fundraiser, Project and proposed terms of investment (e.g. issue of ordinary shares, preference shares, etc.) (Project Terms) – you must comply with all applicable legal requirements regarding the preparation and content of an IM, including the legal requirements in section 14;
(iv) the Fundraiser’s certificate of incorporation;and
(v) any relevant financial documents such as bank statements;

11.2 After reviewing your Proposal and the terms of the proposed Project, we will make a preliminary determination as to whether the Project is suitable to feature on the Website.
11.3 If we determine that a Project may be suitable, unless we otherwise so determine, we will advise you that you must engage at your own cost a professional accounting firm to conduct an in-depth analysis of the Project’s key assumptions and features as revealed in the Proposal. We will also advise you at the time of our current approved list of professional accounting firms. If you wish to nominate an alternative firm, we will determine whether to approve your use of that firm.
11.4 The accounting firm will review the Proposal documentation for the purposes of preparing:

(a) a summary of the Projections;
(b) a review of the procedures adopted in preparing the Projections;
(c) a commentary on the assumptions material to the Projections;
(d) a summary of the available bank facilities throughout the period of Projections, commenting on the available headroom between the projected net funds/debt and facilities;
(e) a description of any financial covenants in the Fundraiser’s finance agreements and comments on the Fundraiser’s ability to comply with the covenants on the basis of the Projections; and
(f) the sensitivity of the Projections to changes in key assumptions, together with any mitigating actions/factors.

11.5 Once the accounting firm has completed its independent review, it will produce a report (Accountant’s Report) on behalf of the Fundraiser which outlines the following:

(a) a summary of the Projections;
(b) any key issues and risks to achievement of the Projections identified;
(c) the monetary impact of sensitivities on the Projections;
(d) the key assumptions underpinning the Projections; and
(e) the Fundraiser’s / Project’s stated objectives.

11.6 The Accountant’s Report will also include an opinion as to whether the assumptions underlying the Projections are consistent with the Fundraiser’s / Project’s stated objectives.
11.7 The accounting firm will provide the Accountant’s Report to you. You must then provide a copy of the Accountant’s Report to us. The Accountant’s Report must provide, as a term of the Accountant’s Report, that CrowdfundUP is entitled to rely on the Accountant’s Report and its contents.
11.8 Once you have submitted the Accountant’s Report (as well as all information required to be submitted as part of the Proposal) to us, we will conduct a final review of the submitted materials and make a final determination as to whether the Project is suitable to be featured on the Website.
11.9 If we grant your Project final approval, you will become a subscriber on the Website as a Fundraiser and you will be able to create a profile page for your Project which will appear on the Website (Profile Page).
11.10 CrowdfundUP reserves the right to, at any time and in its absolute discretion:

(a) ask you for any further information, materials, or documentation in relation to you, your subscription as a Fundraiser, or your Project;
(b) refuse to grant you a subscription as a Fundraiser or grant approval to any proposed Project.

Profile Pages and Projects

12.1 We run (by providing the Website and Services) a Business Introduction Service. As such, we act only as a passive conduit for the publication of Fundraiser Content. CrowdfundUP is not responsible for any Content appearing on Profile Pages, including any Content contained in Fundraiser’s IMs.
12.2 Fundraisers are solely responsible for the Content appearing on the Profile Page for their Project and any Content downloadable from that Profile Page, including IMs. Each Fundraiser must ensure that such Content does not:

(a) infringe any Intellectual Property Rights or the privacy of any third party;
(b) breach any applicable law;
(c) defame or be likely to offend any person;
(d) contain obscene or offensive material;
(e) contain any statement or information that is false, inaccurate, misleading or deceptive, or which is likely to mislead or deceive, and does not omit any information the omission of which renders any other statement or information false, inaccurate, misleading or deceptive or likely to mislead or deceive;
(f) violate this Agreement or any of the Policies;
(g) contain any material that could or is likely to cause damage to the Website or disrupt any of the Services (including viruses, Trojan horses, worms and other computer programming routines or malicious code); or
(h) contain any link to any other website which contains content of the kind specified in paragraphs 12.2 to 12.2 above.

12.3 A Fundraiser’s Profile Page is accessible to Investors that have subscribed on the Website in accordance with section 19 below.
12.4 A Fundraiser’s Profile Page must contain the following information:

(a) [your full name];
(b) [your ACN or ABN];
(c) [a link to your IM for the Project]; and

12.5 As required by the Class Order, for each IM published on the Website we will provide ASIC with a notice:

(a) stating our name and contact details; and
(b) providing details of the IM.

Participating in Transactions as a Fundraiser

13.1 We will contact you if an Investor has expressed interest in contributing funds to your Project and provide you with:

(a) the Investor’s contact details; and
(b) details about whether the Investor has claimed to be a Wholesale Investor or Retail Investor.

13.2 You are solely responsible for determining and verifying whether a particular Investor qualifies as a Wholesale Investor or Retail Investor. We make no representation in respect of any Investor that they are either a Wholesale Investor or Retail Investor and we are not liable for any consequences (legal, financial or otherwise) of you incorrectly determining the status of an Investor.
13.3 An Offer is made to an Investor by sending an Offer document(s) directly to that Investor.
13.4 You must ensure that any Offer you make and any Offer documents you prepare comply with the requirements of section 15.
13.5 You must notify us if an Investor accepts an Offer. Once so notified, we will ask the Investor to transfer the Investment Sum to the Escrow Agent to hold on trust until the end of the Funding Period (in accordance with section 20.9 and the Escrow Agreement).
13.6 If the Subscription Conditions are met by the end of the Funding Period, then on an agreed date:

(a)you must adopt a Model Constitution and provide us with satisfactory evidence of its adoption;
(b) the Escrow Agent will transfer the Investment Sums to your nominated account in accordance with the Escrow Agreement, less the Fees which CrowdfundUP has been directed to require the Escrow Agent to pay to CrowdfundUP in accordance with section 5.4; and
(c) you must complete the transactions the subject of each accepted Offer by issuing shares in the Fundraiser to the relevant Investor on the terms and conditions outlined in each Offer.

13.7 If the Subscription Conditions are not met by the end of the Funding Period:

(a) each Offer will lapse and you are not obliged to issue shares to any Investor, including an Investor that has accepted an Offer; and
(b) the Escrow Agent will return each Investor’s Investment Sum in full to the relevant Investor in accordance with the Escrow Agreement without deduction of any Fees, except for any bank processing or transaction costs deducted in accordance with section 5.7.

Fundraiser’s IM requirements

14.1 A Fundraiser’s IM must contain prominent statements to the following effect (as prescribed by paragraphs 3(b) and 3(d)(iii) of the First Exemption in the Class Order):

(a) investment in new business carries high risks. It is highly speculative and before investing in any project about which information is given, prospective investors are strongly advised to take appropriate professional advice;
(b) the information contained in the IM has been prepared by or on behalf of the person who is proposing to issue or sell the securities or scheme interests [ie Fundraiser] and neither the Operator nor the Publisher (if any) [ie CrowdfundUP] has undertaken an independent review of the information contained in the Publication;
(c) the information contained in the IM about the proposed business opportunity and the securities or scheme interests is not intended to be the only information on which the investment decision is made and is not a substitute for a disclosure document, Product Disclosure Statement or any other notice that may be required under the Act, as the Act may apply to the investment.
(d) detailed information may be needed to make an investment decision, for example: financial statements; a business plan; information about ownership of intellectual or industrial property; or expert opinions including valuations or auditors' reports;
(e) prospective investors should be aware that no established market exists for the trading of any securities or scheme interests that may be offered;
(f) the IM is subject to ASIC CLASS ORDER [CO 02/273].

14.2 A Fundraiser’s IM must:

(a) advise the Investor that the Fundraiser is not licensed to provide financial product advice in relation to the shares or class of shares on offer;
(b) notify the Investor that no cooling-off regime applies in respect of the acquisition of the shares in the Fundraiser pursuant to the Offer;
(c) not contain any application form for the shares offered. A Fundraiser may instead include an application form as part of the Offer documents sent to an Investor in accordance with section 13.2;
(d) not contain any statement to the effect that CrowdfundUP, the Fundraiser, or the IM has been endorsed or approved by ASIC; and
(e) otherwise comply in all respects with the requirements of paragraph 3 of the First Exemption of the Class Order.

Offer requirements

15.1 An Offer must:

(a) provide that the subscription for shares in the Fundraiser is conditional on:

(i) the Investor to whom the Offer is made providing the Investment Sum to the Escrow Agent in accordance with section 20.9 by the end of the Funding Period; and
(ii) sufficient Investors accepting Offers by the end of the Funding Period such that the Funding Goal is reached by the end of the Funding Period,

(Subscription Conditions);

(b) include, as a term of the Offer, a prohibition on the Investor selling the shares acquired pursuant to the Offer within 12 months of their being issued; and
(c) only be made within the Funding Period; and
(d) include the approved investment application form and a copy of, or access to, the Escrow Agent’s financial services guide.

15.2 A Fundraiser must engage a professional services firm to draft Offer documents in relation to the Offer.
15.3 An Offer document, once sent to an Investor, will constitute a personal offer to an Investor by the Fundraiser for the purposes of paragraph 2(b) of the second Exemption in the Class Order.
15.4 A Fundraiser may only make Offers:

(a) to a maximum of 20 Investors in any 12 month period (excluding Offers made to Investors who the Fundraiser has verified as being Wholesale Investors); and
(b) which in aggregate will not involve raising funds in excess of $5 million (although in applying this $5 million limit, funds raised from Wholesale Investors are not counted).

Exclusivity of Services (Fundraisers)

16.1 As a Fundraiser, you agree that if you become aware of or introduced to an Investor through us or by using the Website or the Services:

(a) you will not make any arrangements with that Investor for the Investor to invest in or subscribe for shares in you, or contribute funds to you or your Project, except by following the Transaction procedure outlined in section 13 of this Agreement, including by the Investor providing the Investment Sum to the Escrow Agent to hold in accordance with section 20.7; and
(b) any attempt by you to raise funds from that Investor within [12] months after the expiry of the Funding Period by means other than the Transaction procedure outlined in section 13 will constitute a breach of this Agreement.

Fundraiser obligations and warranties

17.1 As a Fundraiser, you are solely responsible for complying with all the requirements of this Agreement (including this Part 2), the Class Order and any other applicable law in relation to:

(a) the making of Offers to Investors; and
(b) any Transaction in which you are involved, including the issuance of shares to Investors pursuant to an Offer.

17.2 As a Fundraiser, you represent and warrant that:

(a) any funds received from Investors in relation to a Project will be used to complete that Project;
(b) if the Funding Goal has been met in relation to your Project, you will use your best endeavours to achieve the goals and stated objectives of that Project within a reasonable time after the Funding Goal has been met; and
(c) the Project is not fraudulent or illegal and will comply with all applicable law.

17.3 As a Fundraiser, you acknowledge and agree that if in the course of using the Website or Services you fail to comply with the Corporations Act or any other applicable law (whether relating to the issue of shares or otherwise), then we may immediately:

(a) cease to provide any Services to you in relation to your Project or otherwise;
(b) deactivate and/or take down your Profile Page and Project, including links to your IM;
cease hosting any information about you or your Project on the Website or in any manner accessible to the public;
(c) not allow communication between you and any Investor or potential Investor; and
(d) notify users of the Website and Services via a publication on the Website that your Profile Page has been taken down and your Project cancelled.

Acknowledgement

As a Fundraiser you agree that CrowdfundUP does not represent or promise, and nothing on the Website or in the Services is to be construed as CrowdfundUP representing or promising, that your use of the Website or Services, or your making of an Offer or participating in a Transaction, complies with or will comply with the law.

PART 3 – TERMS AND CONDITIONS THAT APPLY BETWEEN US AND YOU AS INVESTOR

Subscribing as an Investor

19.1 To subscribe as an Investor, you must provide us with the following information during the subscription process:

(a) your full name (required);
(b) company name (if applicable);
(c) your address (required);
(d) your State (required);
(e) your email (required)
(f) whether you are a:

(i) private investor;
(ii) Sophisticated Investor;
(iii) Professional Investor; or
(iv) [media official]; and

(g) the amount you have available to invest.

19.2 You must be an Australian resident to subscribe as an Investor.
19.3 If you describe yourself as a Professional Investor or Sophisticated Investor during the subscription process, you agree that we may notify a Fundraiser in whose Project you express an interest that you are claiming Wholesale Investor status (see section 13.1). It is the Fundraiser’s responsibility to verify your Wholesale Investor status (see section 13.2) and we will nevertheless continue to treat you as a Retail Investor.
19.4 CrowdfundUP reserves the right, at any time and in its absolute discretion, to:

(a) ask you for any further information, materials, or documentation in relation to you or your subscription as Investor;
(b) refuse to grant you a subscription as an Investor.

19.5 Once we have approved your subscription as an Investor, you will be able to browse Fundraisers’ Profile Pages and access the information relating to Projects contained on those Profile Pages.

Participating in Transactions as an Investor

20.1 If you want to contribute funds to a particular Project, you must first express your interest in the Project by making a request from the Profile Page for that Project.
20.2 The Fundraiser responsible for the Project will be notified of your interest, contact details and whether you have indicated you are a Retail Investor or Wholesale Investor, in order to allow the Fundraiser to initiate discussions or negotiations with you in relation to the possibility of investing in the Project.
20.3 It is up to the Fundraiser to decide whether it wishes to contact you. If the Fundraiser does contact you, you are free to negotiate and discuss the terms of your possible investment between yourselves. CrowdfundUP is not involved in the discussions or negotiations between you and the Fundraiser.
20.4 If you are a Retail Investor and the Fundraiser would like you to invest, the Fundraiser will make you an Offer. (See section 15 for more detail on Offers). You are responsible for examining the terms of, and deciding whether you wish to accept, the Offer.
20.5 If you wish to accept the Offer, you may indicate your acceptance in the manner prescribed in the Offer.
20.6 You acknowledge and agree that if you accept the Offer, you will be taken to have agreed to pay the Investment Sum to the Escrow Agent to be held for you in accordance with the terms of the investment application form referred to in section 15.1(d) and the escrow agreement between CrowdfundUP and the Escrow Agent (Escrow Agreement).
20.7 Once the Fundraiser has notified us of your acceptance, we will require you to provide the Escrow Agent with the full amount which you agreed to contribute towards the Project pursuant to the terms of the Offer (Investment Sum) in accordance with the Escrow Agreement. The Escrow Agent will hold your Investment Sum on trust until the end of the Funding Period in accordance with the Escrow Agreement.
20.8 If, by the end of the Funding Period:

(a) you have accepted the Offer;
(b) you have provided the Investment Sum to the Escrow Agent in accordance with the Escrow Agreement; and
(c) the Funding Goal for the Project has been reached,

then:

(d) the Fundraiser will issue you with shares in the Fundraiser on the terms and conditions specified in the Offer; and
(e) you irrevocably authorise us to direct the Escrow Agent to transfer your Investment Sum in accordance with the Escrow Agreement to the Fundraiser’s nominated account, less the Fees (which the Escrow Agent will pay to CrowdfundUP in accordance with the direction given under section 5.4(b)).

20.9 If, by the end of the Funding Period:

(a) you have not received the Offer;
(b) you have not accepted the Offer;
(c) you have not provided the Investment Sum to the Escrow Agent in accordance with the Escrow Agreement; or
(d) the Funding Goal for the Project has not been reached,

then:

(e) you will not be issued with any shares in the Fundraiser and the Offer (if one has been made to you) will lapse; and
(f) if you have provided the Investment Sum to the Escrow Agent, we will direct the Escrow Agent to refund the Investment Sum to you in full in accordance with the Escrow Agreement, without the deduction of any Fees (except for any bank processing or transaction costs deducted in accordance with section 5.7).

Investor acknowledgements

21.1. When you click on a link on Fundraiser’s Profile Page to download the IM in relation to a Project from a Profile Page, you are acknowledging to us that you are aware of the limitations of the information provided in the IM that are set out in section 14.1.
21.2 As an Investor who contributes funds to a Fundraiser’s Project or participates in a Transaction, you agree and acknowledge that:

(a) you invest in a Project, accept an Offer or participate in a Transaction solely at your own risk;
(b) the Fundraiser is solely responsible for carrying out the Project; and
(c) the Fundraiser is solely responsible for complying with any obligations it has in relation to a Transaction.

Exclusivity of Services (Investors)

22.1 As an Investor, you agree that if you become aware of or introduced to a Fundraiser or a Project through us or by using the Website or the Services:

(a) you will not make any arrangements to invest in or subscribe for shares in that Fundraiser, or contribute funds to that Fundraiser or that Fundraiser’s Project, except by following the Transaction procedure outlined in section 20 of this Agreement, including by providing the Investment Sum to the Escrow Agent to hold on trust in accordance with section 20.9 and the Escrow Agreement; and
(b) any attempt by you to invest in a Fundraiser or Project by means other than the Transaction procedure outlined in section 20 will constitute a breach of this Agreement.

PART 4 – GENERAL MATTERS, INTERPRETATION AND DEFINITIONS

General matters

23.1 Relationship between us and you

This Agreement does not create a relationship of employment, trust, agency or partnership between CrowdfundUP and you.

23.2 Relationship with Escrow Agent

You agree that the escrow services provided by the Escrow Agent as contemplated in this Agreement and governed by the terms listed in the Escrow Terms and Investment Application form will be provided to you directly by the Escrow Agent acting in its own capacity, and that the Escrow Agent is not acting on our behalf or as our agent.

23.3 Entire agreement

This Agreement, together with the Policies (including the Privacy Policy), constitutes the entire agreement between you and us in connection with its subject matter and supersedes all previous agreements or understandings between you and us in connection with its subject matter.
23.4 Severability

If the whole or any part of a provision of this Agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction

23.5 Survival

Sections 7, 8, 9 and 10 and Part 4 of this Agreement, along with any provisions that are expressed to survive, or by their nature are intended to survive, termination or expiry of this Agreement, shall survive termination or expiry of this Agreement.

23.6 No waiver

CrowdfundUP does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by us of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by us.

23.7 Event beyond our control

CrowdfundUP is not liable for any breach of its obligations under this Agreement where it is hindered or prevented from carrying out its obligations by any cause outside its reasonable control, including lightning, fire, flood, severe weather, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, or failure of any telecommunications, satellite, computer or global positioning system.

23.8 No assignment

You may not assign or transfer or delegate or otherwise deal with any of your rights or obligations under this Agreement. CrowdfundUP has the right to assign, delegate or otherwise deal with all or any of its rights or obligations under this Agreement to any person.

23.9 Governing Law

This agreement will be governed by and construed in accordance with the law for the time being in force in Western Australia and the parties, by entering into this agreement, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.

Interpretation

In this Agreement, headings are for convenience only and do not affect interpretation, and unless otherwise stated:

(a) the singular includes the plural and vice versa and a gender includes other genders;
(b) other grammatical forms of a defined word or expression have a corresponding meaning;
(c) a reference to a section or Part is to a section or Part of this Agreement;
(d) a reference to this Agreement includes the Agreement as novated, altered, supplemented or replaced from time to time;
(e) a reference to A$, $A, dollar or $ is to Australian currency;
(f) a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(g) a reference to a person includes a natural person, partnership, firm, body corporate, trust, joint venture, association, governmental or local authority or agency or other entity;
(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(i) specifying anything in this Agreement after the words “includes”, “including”, “for example” or similar expressions does not limit what else is included in this Agreement.

Definitions

Capitalised terms not otherwise defined in this Agreement have the following meanings:

(a) Agreement has the meaning given in section 1.1.
(b) ASIC means the Australian Securities & Investments Commission.
(c) Associate has the meaning given in section 11 and 15 of the Corporations Act.
(d) Business Introduction Service means an Introduction Service as that term is defined in the Class Order.
(e) Class Order means ASIC [CO 02/273] “Business introduction or matching services”.
(f) Content means information, statements, representations, material, images, logos, photographs, graphical content, audio, file, data or any other content but does not include any Content that incorporates Intellectual Property Rights owned by CrowdfundUP.
(g) Corporations Act means the Corporations Act 2001 (Cth).
(h) CrowdfundUP or we or us means CrowdfundUP Pty Ltd ACN 166 872 484 trading as CrowdfundUP.
(i) Escrow Agent means Pacific Custodians Pty Limited ABN 66 009 682 866, AFSL No. 295142.
(j) Escrow Agreement has the meaning given in section 20.6.
(k) Fees has the meaning given in section 5.
(l)Financial Services means:
(i) providing general financial product advice in relation to securities; or
(ii) dealing in securities by applying for, acquiring, varying or disposing of securities on behalf of another, or arranging for a person to do any of those things.
(m) Funding Goal has the meaning given in section 11.1.
(n) Funding Period has the meaning given in section 11.1.
(o) Fundraiser has the meaning given in section 2.2.
(p) IM has the meaning given in section 11.1.
(q) Intellectual Property Rights means statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and confidential information, but does not include moral rights that are not transferable.
(r) Investment Sum has the meaning given in section 20.9.
(s) Investor has the meaning given in section 2.2.
(t) Licence has the meaning given in section 7.2.
(u) Model Constitution means a company constitution provided by CrowdfundUP to a Fundraiser for the purposes of the Fundraiser raising funds for a Project or participating in Transaction, or a company constitution in a form approved by CrowdfundUP.
(v) Offer means a formal offer by a Fundraiser to an Investor, pursuant to which the Fundraiser offers to issue shares in the Fundraiser to the Investor in return for the Fundraiser receiving the Investor’s Investment Sum, such offer being a personal offer for the purposes of paragraph 2(b) of the second Exemption in the Class Order.
(w) Policies means any CrowdfundUP policies that feature on the Website from time to time (and as amended from time to time), and includes the Privacy Policy.
(x) Privacy Policy means the CrowdfundUP Privacy Policy (accessible at Privacy Policy).
(y) Professional Investor has the meaning given to that term in section 9 of the Corporations Act.
(z) Profile Page has the meaning given in section 11.9.
(aa) Project has the meaning given in section 2.2.
(bb) Project Terms has the meaning given in section 11.1.
(cc) Projections has the meaning given in section 11.1.
(dd) Proposal has the meaning given in section 11.1.
(ee) Related Body Corporate has the meaning given in the Corporations Act.
(ff) Retail Investor means a person who is not a Wholesale Investor.
(gg) Services means any services and facilities provided on or through or by means of the Website or associated with the Website.
(hh) Sophisticated Investor means a person who is a sophisticated investor within the meaning of section 708(8) of the Corporations Act.
(ii) Subscription Conditions has the meaning given in section 1.1.
(jj) Transaction means:
(i) in the case of an Investor – the steps involved in, and the process of, contributing funds to a Fundraiser’s Project by accepting that Fundraiser’s Offer to subscribe for shares in the Fundraiser; and
(ii) in the case of a Fundraiser – the steps involved in, and the process of, making an Offer to an Investor to subscribe for shares in the Fundraiser and, if the Offer is accepted, issuing shares to that Investor in accordance with the terms of the Offer.
(kk) Website means the CrowdfundUP website located at www.crowdfundup.com.
(ll) Wholesale Investor means a Professional Investor or Sophisticated Investor.
(mm) you means you (whether you are an individual or an organisation) and, where the context permits or requires, includes a Fundraiser or Investor and anyone acting on behalf of the aforementioned persons with their express or implied authority.

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