Client Services Agreement

Emprise Funding Limited –Client Agreement

This Agreement is between Emprise Funding Ltd (company number 7885297) and you, being a person who has agreed to use our services described at clause 1.2 below (Service) or who is otherwise using our Service. This Agreement takes effect once you have agreed to be bound by it by clicking the ‘I agree’ button or are otherwise using our Service.

1.         Definitions

1.1       In this Agreement ‘EFL’, ‘we’, ‘us’, or ‘our’ means Emprise Funding Ltd. References to ‘Investor’ or ‘you’ are to the person who has agreed to use our service. References to “Company” are to a company that makes or is planning to make an offer using our service. A reference to an “Agreement” is a reference to this Client Agreement.

1.2       The Service comprises:

  1. the provision of wholesale investor fundraising services, which means that we provide an on-line platform that helps to match companies seeking to raise share capital with investors; and
  2. in addition, checks on the Companies, support for the provision of information from the Companies to investors, receipt of money from investors and paying it to the Company if an offer is successful, less our fees, or otherwise returning it to the investors,

as further detailed and subject to the qualifications and clarifications in this Agreement.

1.3       Other important information about the Service is included in our Disclosure Statement, Warning Statement(in the Disclosure Statement), Privacy Policy,and Website Terms of Use . You should read those documents, and this Agreement, carefully. This Agreement together with those documents shall be read together and are the terms on which we provide the Services to you. If despite that there is a conflict or inconsistency between this Agreement and any of those documents, this Agreement shall prevail to the extent of the conflict or inconsistency.

2.         How you may use the Service

2.1       The Service is only available to wholesale investors who meet the definition of ‘wholesale investor under Schedule 1, Part 3 (2) to (3) of the Financial Markets Conduct Act 2013.

2.2       You will need register on our website and certify you consider that you meet the definition of ‘wholesale investor’ before you can use our Service.

2.3       Our website and Service, and any offers facilitated using our Service, do not constitute an offer or solicitation in any jurisdiction in which such an offer or solicitation is not authorised, or in which the person making such offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make such an offer or solicitation. You are responsible for ensuring that you comply with the law where you are located in relation to our website and Service and to any offers facilitated using our Service. We do not warrant that our website or Service, or any offers facilitated using our Service, comply with the law of the place you are located and we accept no responsibility of any kind whatsoever in that regard.

2.3 To register to use our website you need to:

  1. provide us your full name, email address, other contact details, and choose a unique password;
  2. verify your email address by following the instructions in the email we send you.

2.4 To register to use our Service, you will need to apply on our website by logging on and reading and considering each of the following documents (and confirming that you agree to be bound in the case of the Client Agreement):

  1. our Warning Statement;
  2. this Disclosure Statement; and
  3. this Agreement.

2.5 Before you make your first investment we will need to verify your identity and address and you may need to provide other information, so that we can comply with our legal obligations, including under anti-money laundering law. You must follow our online process to do this.

2.6 You must promptly tell us if any of the information that we hold about you changes. We are entitled to assume that the information you have given us is correct unless you tell us about a change.

2.7 By giving us your email address you confirm that we can use that email address for any communications with you and that we can send information on new and current offers to you. You also confirm that any Company that you invest in can use that email address for any communications with you. We and any such Company are entitled to assume that all emails we send to the email address you have given us are received by you.

2.8 You agree that we may provide you with transaction and other information relating to our Service and the offers though an electronic facility.

3.How Companies may use the Service

3.1 Companies that wish to use our Service to make an offer of shares must apply to us and must meet our eligibility criteria. We undertake limited due diligence on a Company and its personnel before the Company can use the Service. That due diligence is described in our Disclosure Statement. Once we have carried out these preliminary checks and based on those checks we will form a view as to whether or not the Company is genuine and has a business plan before it can make an offer through the Service. Before making this decision we may discuss our findings with the Company and give it an opportunity to provide us with further information. Companies that successfully complete this process will be given access to the Service.

3.2 We do not actively monitor a Company once that due diligence has been completed. However, if we are provided with unambiguous information about the Company that materially adversely differs from or contradicts the findings of our preliminary checks and assessments then we may, at our absolute discretion, suspend or cancel the provision of our Service to the Company. This will not affect any shares that the Company has already issued through the Service and, where relevant, a nominee will continue to hold those shares on the basis set out below.

3.3 If we decide to allow a Company to use our Service we will work with the Company to promote its offer. However:

  1. we do not verify the information the Company provides through the Service;
  2. we make no representation in relation to and do not warrant the accuracy or completeness of any information provided by the Company or its compliance with law; and
  3. we make no representation, view, or judgment as to the commercial viability, growth prospects, or potential future success of the Company.

Without limiting the forgoing, we may moderate questions & answers made through the platform’s Q&A facility , including to identify and remove offensive or abusive material. However, in doing so we do not verify the content, which is the responsibility of the Company and users.

3.4 When carrying out our preliminary checks we will do so to the standard of care specified in clause 9.1. However, the checks are basic and you should not rely on them as assuring the success of your investment. They will not provide guidance regarding the Company’s prospects.

3.5 We may decide at any time that we no longer wish to allow a Company to use our Service. We can do this for any reason, including if we form the view that the Company is no longer genuine and appropriate to make an offer through the Service. This will not affect any shares in that Company already issued through the Service and, where relevant, the nominee will continue to hold those shares on the basis set out in clause 4.9.

4.The EFL investment process

4.1 Our website provides information on current offers, including the Company’s offer materials, other information about the Company and the offer, and information provided through our Q&A facility.

4.2 EFL hosts its platform including administration, on-boarding of investors (and associated money-laundering compliance), custodian services with a third party, Syndex Ltd. 

4.2 If, following your own independent assessment of the information available, you wish to accept an offer to invest you can do so by clicking “Invest” on the offer page and providing the required information and paying the subscription price. Once you’ve done that your acceptance is binding and you cannot withdraw. An offer could close earlier if the Company reaches its target or if we or the Company withdraw or terminate the offer for any reason. The offer period could also be extended by the Company.

4.3 To make an investment you must first transfer cleared funds to the Custodian’s trust account where they will be held until the offer period closes. You may do this by bank transfer or by following any other process we agree to accept. If you do not transfer the required funds to us (or if for any reason the transfer is dishonoured) you cannot make the investment. You agree to pay any fees of third party payment providers to the Custodian’s trust account at the time they are charged and we may collect those fees for the payment providers. If for any reason the amount we receive is less than the amount you intend to invest (e.g. because of fees paid by you on transfer) you agree to invest that lower amount on a pro rata basis.

4.4 If an offer is successful (that is, it reaches 90% of the minimum funding target) the following steps apply:

  1. You must sign any shareholders’ agreement and other documents required to complete your investment (where those documents were made available to you during the offer period). If you don’t sign them within five business days of being asked to do so the Company may, at its absolute discretion, either decline your acceptance and we will return the funds to you or issue the shares to you (but in doing so the Company will not be waiving its rights in relation to a failure to sign).
  2. Subject to 4.4a the Company will complete the required transaction documents and issue the new shares to you, usually within 10 business days.
  3. At the time of issue of the shares the amount held in Custodian’s trust account for the issue of shares (less any fees or other amounts owing by the Company to us) will be released to the Company.

4.5 If an offer is successful and is oversubscribed the Company may issue more shares than contemplated by the offer materials, provided it disclosed its right to do so in its offer. Alternatively, one or more subscriptions may be scaled back on any basis that we and the Company agree is appropriate. If this occurs, any investment funds not accepted will be returned to you (without interest) within 10 business days of the decision to scale back your investment.

4.6 An offer is successful if it reaches 90% of the minimum funding target. We are not required to tell you if a transaction is completed under this clause.

4.7 If an offer is unsuccessful no transaction occurs and your investment amount will be returned to you (without interest) within 10 business days of the offer becoming unsuccessful. An offer will be unsuccessful if 90% of the minimum funding target was not met, if the offer was withdrawn or terminated, or, in some circumstances, where the steps at clauses 4.4a or 4.4b are not completed.

4.8 Shares issued where an offer is successful may be registered in your name personally, or may be registered in the name of a nominee on your behalf. The offer materials for a Company will tell you how each offer is structured.

4.9 If shares are issued to be issued to a nominee (which may be associated with us) to hold on your behalf you will be advised of this in the offer documents. Where shares are issued to a nominee to hold on your behalf:

  1. the nominee holds those shares as nominee and bare trustee for you;
  2. the nominee will account to you for all dividends which may be paid or payable to the nominee from time to time upon those shares and for all other moneys, proceeds, shares, or securities paid or issued in respect of those shares;
  3. the nominee will exercise any voting rights in respect of those shares in such manner as you may direct (and, in the absence of a direction by you, will not exercise its voting rights);
  4. the nominee will (where permitted by the terms on which the shares are issued) transfer or dispose of the shares as you may from time to time direct; and
  5. you agree to indemnify the nominee for all costs and expenses arising out of the nominee’s trusteeship for matters arising in connection with the shares.

4.10 You may only invest in a Company through the Service in your personal capacity, and exclusively for your own benefit.

4.11 Where shares are issued in your name personally, the ongoing relationship becomes a direct one between you and the Company and we will no longer have any dealings with you in respect of that Company.

5.The Custodian trust account

5.1 All funds you pay to us for investment in a Company will be held in our client trust account at a registered bank in New Zealand. Those amounts are held separately from their own funds. Investor funds can only be used for the purposes of:

  1. paying the issue price for shares in a Company (as well as our fees) if an offer is successful;
  2. paying any payment provider fees on your behalf;
  3. refunding funds to you if an offer is unsuccessful or to the extent that it is oversubscribed;
  4. paying our administration fees (from interest earned only).

5.2 EFL has no fiduciary relationship with the custodian of investment funds.

6.Responsibility and liability

6.1 No provision in this Agreement, including this clause 6, is intended to have the effect of limiting or restricting your rights under the Consumer Guarantees Act 1993, except to the extent permitted by law. However, if you are in trade you agree to contract out of the Consumer Guarantees Act and that Consumer Guarantees Act shall not apply to you.

6.2 Investments through the Service are risky. You are entirely responsible for any decision you make to invest, or not to invest, in any Company.

6.3 Subject to clause 6.1, to the maximum extent permitted by law and except in the case of fraud, none of us, our shareholders, directors, employees, officers, agents, or service providers have liability to you of any kind whatsoever and howsoever arising under or in connection with our Services and any decision you make to invest, or not invest, in any Company.

6.4 To the maximum extent permitted by law, you indemnify us, and agree to keep us indemnified, against any liability, loss, cost or damage we suffer or incur in connection with:

  1. performing the Services under this Agreement;
  2. relying on information we believe on reasonable grounds had been provided by you or on your behalf,

provided that you shall have no liability to us under this clause 6.4 to the extent the liability, loss, cost or damage arose from our own negligence or breach of this Agreement.

6.5 Without limiting clause 6.3 and to the maximum extent permitted by law and subject to clause 6.1, any liability of a party under this Agreement to another shall, whether arising in contract, tort (including negligence), equity or otherwise, be limited to direct losses only, excluding any consequential loss or loss of profit, income or saving.

7.Termination or suspension of your membership of the Service

7.1 We can refuse membership, terminate, or suspend your membership of the website, the Service or this Agreement at any time, or prevent you from accepting an offer or revoke an acceptance (as agent for the offeror), without giving you advance notice. We can do this for any reason and with no liability to you whatsoever, but some examples where we may do this are the following:

  1. if you have not provided us with the information we need from you, or if any information you have given us is false or misleading;
  2. if you breach this Agreement, any other agreement with us or any laws; or
  3. if you use the Service in a way that we believe could compromise our licence, reputation, or service quality, or damage the reputation of any Company offering shares through our Service.

7.2 Subject to clause 7.3, you may terminate this Agreement at any time on seven days’ prior notice in writing to us.

7.3 Despite clause 7.2, you may not terminate this Agreement during the period between your agreement to invest in an offer and the time that either:

  1. the relevant shares are issued to you in accordance with the offer; or
  2. we return your investment funds to you (less fees).

7.4 If we exercise our power in clause 7.1, or you exercise your power under clause 7.2, this will not affect any shares already issued to you following an investment through the Service and, where relevant, the nominee will continue to hold those shares on the basis set out in clause 4.9.

8.Fees

8.1 Other than any fees associated with payments to the Custodian’s trust account (see clause 4.2) and our administration fee on amounts held in the Custodian’s trust account (see clause 5) we do not currently charge you any fees for the use of our Service. We could introduce fees in the future. We will tell you about any new fees before we begin to charge them and you will have the option of terminating this Agreement before we do so.

9.General

9.1 Interpretation: In this Agreement, unless the context requires otherwise:

  1. All monetary amounts are stated and are payable in New Zealand dollars;
  2. Singular words include the plural and vice versa;
  3. References to any “party” means a party to this Agreement and includes the successors, executors, administrators and permitted assigns (as the case may be) of that party; and
  4. References to “including” or similar words will include a reference to “without limitation”.

9.2 Our standard of care: In exercising any powers or performing any duties in relation to the Service, we will exercise the care, diligence, and skill that a qualified equity crowdfunding service provider would exercise in the same circumstances.

9.3 Investments by our associated persons:  and people associated with us (including our shareholders, directors, employees, or advisers) may invest in shares offered through the Service. EFL is not required to tell you if this occurs. An investment by EFL or a person associated with EFL is not an endorsement or recommendation of an offer.

9.4 Equity holdings by our associated persons: and people associated with us (including our shareholders, directors, employees, or advisers) may accept equity in lieu of cash compensation for services provided to Companies whose shares are offered through the Service. EFL is not required to tell you if this occurs.

9.5 Disclosure of information: We may provide the Financial Markets Authority and any Company that you invest in through the Service with any information you give us, or which we hold about you.

9.6 Assignment: You may not transfer or assign your liabilities or rights under this Agreement to any other person without our prior written consent.

9.7 Survival: Any provisions of this Agreement that by their nature are intended to survive expiry or termination shall continue, including clauses 4.9 and 6.

9.8 Changes to this Agreement: We may amend, supplement, vary, or replace the terms of this Agreement at any time, with effect from a date determined by us. We do not need your consent to make such a change. We will tell you about any changes to this Agreement by email and before those changes take effect (except where that’s not reasonably possible because of changes in the law, including changes in regulatory requirements). You may terminate this Agreement if the changes cause you material detriment except where, during the period specified in clause 7.3, the changes result from a change in the law, including changes in regulatory requirements.

9.9 Partial invalidity: If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.

9.10 Governing law and jurisdiction: This Agreement will be construed and take effect as a contract made in New Zealand and will be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.